How exactly to answer a complaint (summons)

[Glob]

What is the name of your state? OHIO

I have just today received a Summons from the local municipal court by certified mail. Unifund has filed a complaint against me.


Unifund has stated that I have had a credit card account (with the last four ending digits of the account number) with Bank One, opened March, 1993.

To the best of my recollection, I have never owned a Bank One credit card, much less in 1993.

I guess I would like them to provide some proof that is is indeed my debt, but I am unsure how to go about writing an Answer to the Summons.

Would this be sent certified mail to the Court and to the Plaintiff's counsel? I really hate having to spend money answering a bogus suit against me, can I hope to recoup some of the cost of defending myself?

Also, at the bottom of my Summons is a dotted line section labeled "Bailiff's Return". Is this something I have to do anything with? Or is it used when you are served in person, and not certified mail.

Any advise you can provide would be helpful in trying to figure this thing out.

Thanks!

 

[TiredOfAbuse]

Now that you have been served the paperwork, your best chance of seeing what the debt is about is going to be filing a Discovery during the course of the lawsuit.

First and formost though, you really need to answer the summons. The best I can do for you is send you to a good link for reading. Try:

http://www.ohiolegalservices.org/OSLSA/PublicWeb

When you file your written answer, you will be stating just that in the paperwork - you have never had a CC with them and you deny the debt.

I really hate having to spend money answering a bogus suit against me, can I hope to recoup some of the cost of defending myself?

It's a harsh reality, but this kind of thing does happen. You really do have to defend yourself though because it will affect your credit rating and your personal income IF they get a judgement against you and garnish your wages/go after your personal belongings and property.

Do as much reading as you can, and perhaps speak with an attorney if you are still in dark after you'd read a lot!

Good luck!

TiredOfAbuse

 

[OHIGAN]

Hi. I'm not a lawyer and I don't play one on TV, but I had a similar experience in which I was sued over a debt that I knew I didn't owe. I represented myself (pro se) and the first thing I did was file for an extension of time to respond, which was and additional 28 days. Please note that if I had NOT responded to this initial complaint, by the deadline, they would have gotten a default judgment against me. The extension is not an admission or denial but strictly to get more time to respond to the initial complaint. At this point they are hoping you don't respond so they get a default judgment.

Unfortunately, it was an uphill battle for me but I knew how to fight so I ended up getting it dismissed. You should get a lawyer because you will be facing the Discovery process of admissions and interrogatories which can be tricky. Also, it takes a lot of research and knowing what to ask. Basically, you have to MAKE them prove you owe the debt. In my case, they couldn't provide me with the information that was critical in proving anything. They couldn't even give me the entire account number.

The bad news is you can't get any compensation for time and money spent defending yourself. My advice is for you to get representation as soon as possible because you are facing a deadline to respond that you can't miss. A lawyer could be expensive, but most likely not as costly as this lawsuit if you lose.

Good luck!

 

[Chien]

Without reviewing your state’s Civil Procedure rules and knowing the amount in contention, I don’t know if you can file a General Denial. That would be the simplest response, but I’m going to err on the side of safety and assume that you can’t. Therefore, you respond to each allegation, line by line. Here’s a sample:
http://www.lectlaw.com/forms/f016.htm

It’s from another state but, formatted in the same manner as the Complaint which was served, should suffice in any state. With the exception of the First Affirmative Defense (probably inapplicable), the form should be adaptable.

Understand three things at this point:
1) It’s incumbent on you to file an Answer. You’ve already been told that a failure to do so will result in a default. While it would be nice if the filing were perfect, what’s important is that it’s timely filed. The Complaint and Answer are just the “bow and curtsy” that gets the dance going. Both can be amended, if necessary. What is also important is that you include every defense that you might wish to assert later. Failure to do so will necessitate amendment. You can’t rely on a defense that you haven’t raised. In other words, get an Answer filed in a timely manner. You can fix any problems later, and there may be no need.
2) You can’t initiate discovery (getting documents and written answers to your questions) until you file an Answer. Once you file, you should start discovery immediately (or they could get the jump on you).
3) It follows from 1 and 2, that you would be very well-served by going to a law library, reviewing a “form book” for forms of Answers and discovery in your state to help you through this, if you’re going it alone. It isn’t as difficult or daunting as it may sound, and law librarians are generally very helpful to pro ses.

 

[lwpat]

When you answer be sure to include the affirmative defense of the Statute of Limitations. Since you don't know the date of last activity this may apply. Some courts have a standard form you can use for your answer. Call the clerk of court and ask. Have you been previously contacted about the debt?

 

[Ladynred]

The OP is in Ohio - with the LONGEST SOL in the country - 15 years - so it will not be of any help whatsoever at this point.

 

[Chien]

The OP is in Ohio - with the LONGEST SOL in the country - 15 years - so it will not be of any help whatsoever at this point.

Amen. Yep, that's why I didn't mention it for this OP. For future readers, in similar circumstances, the state SOL is always a possible consideration and should be reviewed. (Perhaps I should have expanded on "You can’t rely on a defense that you haven’t raised", but, for this OP, it was likely to just be more typing.)
In the commercial context, I see everything-but-the-kitchen-sink Answers. Some courts don't like plowing through the nonsense to get to the heart of the matter. It's not likely to be relevant to this OP. In the unlikely event that discovery shows something different, the court would allow him to amend for good cause. Until then, I can direct him to 10-20 other meanless defenses, if he wants to take the time. My message was: get it done and try to come close to what's important.

 

[Glob]

I had posted on another thread, but I wanted to get the info and answers on this thread. The other thread I had posted in was:
https://forum.freeadvice.com/showthread.php?p=1809970&posted=1#post1809970


Debt Guy asked me these questions:

1. What state are you in?
2. When was your last payment on the account.
3. Is the account legitimate? In other words, is it your account? Did you use the card?
4. What are you trying to accomplish? What is your goal? What is the ideal outcome?

1) I'm in Ohio
2) I have no clue, since this is NOT my debt, I have no clue where they got this information.
3) I didn't use the account, I have no knowledge of this account.
4) I wish this to be dismissed, thrown out, whatever, I just don't think it's fair for me to have to incur any costs whatsoever. I already have with the running down to the courthouse, paying for copies, and gas for my car.

Also, I wanted to point out that yes, I indeed cut my own hair Also the hair of my two boys, but my wife won't let me touch her.

 

[TigerD]

Also, I wanted to point out that yes, I indeed cut my own hair Also the hair of my two boys, but my wife won't let me touch her.

Smart wife

 

[Glob]

Update:

My court date (pre trial) is set for Monday, Feb 4. On Saturday, Feb 2 I got a letter directly from the Plantiff attorney. This is called "Notice of Service of Plaintiff's First Set of Interrogatories, Requests for Production and Requests for Admission Directed to Defendant"

This did not come from the court. This is not time stamped from the court.

I have no idea what to do with this, does this need to be addressed before I go to to court, or while in court? If so, I have no business days to prepare this, or an answer for this (if that is even required).

I'm not sure what to do. It does say that this must be answered, in writing and under oath within 30 days.

To me, this looks like they are asking ME to prove that I owe the debt, when I responded that I can not confirm nor deny the debt until proof is given. It looks like they basically ignorned my answer and sent this to me.

 

[dcatz]

It’s “discovery”. It requires written responses (with the possible addition of requiring you to provide copies of documents in response to the production requests). They’re asking you to help them prove that you owe the debt.

You say that 2/4/08 is your pre-trial conference date. If so, it’s likely that the “ground rules” for the trial will be explained to both sides, along with any additional procedural matters that the court wants to cover, and you’ll be sent on your way with a trial date, if you don’t already have one.

Just an educated guess about the discovery that has been served. Either (1) it has been served too late (meaning too close to trial for you to respond in 30 days or after any discovery “cut-off”, which has been set in advance of trial) and, if either of those are true, you have a valid basis to object to all of it and that’s the written response that you make or (2) it has been served “just in time” to get to you before cut-off and trial. That would mean that you’re required to respond fully but you have too little time left to do [further] discovery yourself. It’s called “tactics”.

At Post #4, you were encouraged to promptly begin discovery back at the end of December. Did you? If you didn’t, my bet would be on option 2 and, for your sake, I hope it’s option 1. You’re going to have to review your paperwork to answer questions about the dates imposed on you.

 

[Glob]

Thank you for the reply.

The only mention of discovery was the advise here. I didn't know what discovery entailed, and I thought that when I wrote my answer, it would serve the purpose of what I would have written in the discovery. That is, I denied this debt without strict proof, and so far have seen no strict proof.

After tomorrow's pretrial, if it isn't too late, and if it's required, I will have to get a lawyer. It just burns me up that the common man needs to spend money to defend himself against something that isn't valid

 

[Glob]

2) You can’t initiate discovery (getting documents and written answers to your questions) until you file an Answer. Once you file, you should start discovery immediately (or they could get the jump on you).

Now that they have initiated Discovery on me, can I also send them a Discovery? I don't know what cut off dates are. I don't know when it is too late for me to write up a Discovery to them. I know I was advised to do that right after I filed my Answer, but I didn't

I just got back from my pretrial. The Plaintiff said they were going to ask for a Motion of Default Judgement. The judge set a trial date, and gave them up to 2 weeks before hand for them to prepare.

The judge told me that they will now try to find the paperwork that links me to this debt. They can't possibly have any of that, but what I am worried about is they could just type up a document, put my name on it and date it to any date they want. What I want is for them to produce my signature on a credit card agreement.

The "Interrogatories, Request for Production and Requests for Admission" worries me because they have wording in there that says any incomplete answer or evasive answer shall be deemed as a failure to answer.

 

[TigerD]

You are out of your depth. You need to be talking to an attorney.

DC

 

[Chien]

DC is absolutely right. This is going to sound harsh; it’s intended to. It appears that, with knowledge of a lawsuit looking you in the face, you’ve done nothing to stop them from rolling over you and nothing to be proactive and put them on the defensive. If you have, I apologize. It’s just not in any post and what is posted suggests the contrary.

If they don’t prevail on the default motion (and I don’t understand that one, if you’ve answered and have a trial date), you’re being set-up with the discovery. You don’t respond and they file a motion to have the Requests for Admissions Deemed Admitted. Your failure to Answer becomes an Admission and that is evidence. I’ll bet they asked everything needed to prove their case. If they did and everything is deemed admitted, they have enough for Summary Judgment and you’ve given it to them.

You said you never had a card. It’s ironically possible that, what they couldn’t prove themselves, you’re giving them. With diligence, it might have been possible for you to get through this on your own, if you started in December. Now, you don’t have enough time. You might want to think about discussing a settlement. An attorney may cost more than the amount at issue and you’ve left very little room for him/her to operate. Given the amount in contention, there is not much point in paying to retain counsel to lose, but you may want to pay for a consultation. Maybe somebody who hears more will see some options that are not obvious now.