Being Sued for $2553.55

[GypsyButterfly]

What is the name of your state? CA

This will be a lengthy post, but, I wanted to give as much information as possible. Thank you in advance for taking the time to read this. Thank you, especially, for any advice you're able to give. The plaintiff's collecter & attorney are one in the same. How convenient for them. Does it usually work that way?

On Sat, the 18th of this month, my husband received a summons. It was in regards to an outstanding credit card debt we incurred while I was going through cancer and other health issues. I wasn't able to work for a long time and he took temp jobs, because, he was my caretaker.

One of the things, which is stated in the summons, is a notice had been sent that this action would be taken, if, we didn't handle it. If something was indeed mailed, we never received it. If we had, we definitely would have dealt with it before it had gotten to this point. We would have appreciated it being something we would have needed to sign for. The last letter we have from them is almost four years old. Shortly after that, his credit report reflected a chargeoff. Imagine our surprise & dismay to receive this summons.

We've always intended to take care of this, but, have never been in a position to do so. We're still not. I recently had two crowns put on & a root canal done. I need more dental work, but, have to wait until we can get the other paid off or at least down. The only reason we were able to get that done is, because, the dental office I went to contracts with a program called, CareCredit. The dentist submits how much the work is to cost and CC approves all or part of it. Then, the customer, for example, us, pays CC back in monthly installments.

We want to be able to make an arrangement with them to pay in monthly installments. Unfortunately, handling this, when we're in a better position, doesn't seem to be an option. We will pay what we can each month until the debt is gone. They'd probably like the whole amount, but, we're praying they'll be willing to work with us on this reasonably & amicably.

I went to the self-help section of the court info site for CA. The first thing it recommended was contacting the plaintiff to try to resolve the matter between us. I emailed the attorney(was that wrong?), because, they'd be involved in the decision anyway. I sent a message last Fri, the 24th & again this past Wed, the 29th. We haven't received a response yet. Today, we sent a certified letter. If they sign for it, we know they got it at least, even if, we don't hear back from them. I guess that's their right to ignore us, but, besides being rude, it seems unprofessional. They might be able to afford all these costs. Still, why go through it if we're not trying to fight them?

I also checked my husband's credit. The credit card company is no longer listed there. I also saw they(the collector/attorney)looked at his report twice last year. It was with Transunion which has the least accurate information(we'll need to correct that). Is it possible they removed it so they could take this action against us? Or, it reached the time limit it was supposed to be on there & it dropped off & they were just waiting for that to be able to take this action?

Though, we don't want to involve the court any further, we do want to have something on record from us. We couldn't find a simple form which stated, in effect, that we received the summons & are trying to work it out with the plaintiff. Is there such a thing? If not, it would be useful. What kind of form should we use? We can't afford the fee, so, we'll ask to have that waived. We just want them to know we're trying to be responsible about this. Speaking of the court, the meeting we're to have with the judge is for six months out. I think that's partly due to him wanting this to go away. I'm sure he'd prefer we get this settled before that time.What is the name of your state?

 

[moburkes]

They are not required to settle this out of court. The charge off is simply an accounting thing. It doesn't mean that the debt is not owed. When you lose in court (since you apparently do owe the money), there will be a judgment against you. You will be able to make payments.

Sorry that you are in bad health.

 

[ajs09876]

hello

How long has it been since you made a payment on this account? You said something about it being 4 years since you received a letter... has it been longer since you stopped paying on the credit card? Check the statute of limitations for CA. I think it might be four years. Somebody will correct me if I'm wrong I hope. If it is. (use google) and it's been more than four years since the date of last activity. Go to court and use the statute of limitations as your defense.

Otherwise, try to call the office of the collector/attourney. Try to work it out before court. This way you can avoid paying the legal fees.

 

[GypsyButterfly]

Hello, I know they don't have to deal with it before court, but, we're willing to pay on this, so, it doesn't have to go any further. We have already contacted them. Twice by email & today we sent a certified letter. I realize my previous post was long, but, I did state those things in there. As for when we last paid, the account on the card has been closed for, at least, six years. We haven't made any payments since that time. Part of the amount owed is for the late & over the limit charges they kept attaching.

Are either of you attorneys or have any legal expertise? That's why I posted here, so, I can find out exactly what we need to do. Again, what forms do we need to submit to the court? The summons said we had 30 days from the time my husband was served to file something with them. I couldn't find a simple form which lets them know we received the summons & are trying to work this out with the plaintiff. If there isn't such a thing, what would be fitting in our situation? We just have 2 1/2 more weeks filing time, otherwise, we might be found in default & have wages, money and/or property seized. We can't have that happen, since, we're trying to be responsible about this.

 

[seniorjudge]

Q: Again, what forms do we need to submit to the court?

A: You need to answer the summons. Go down each paragraph and in your answer, state whether you agree, disagree, agree in part, whatever.

For example, the first paragraph says your name is Jane Doe.

In your answer, you say, "I agree with plaintiff's paragraph one."

The first paragraph says, "She lives at 123 Main Street, Anywhere, USA."

In your answer you say, "I agree that I live in Anywhere, USA, but my street address is 456 Pine Avenue."

Etc.

Do not fail to file this answer. Send a copy to the lawyer and everybody else concerned. Tell the court you sent it to all these folks.

There are thousands of credit forums on the internet with samples.

 

[GypsyButterfly]

Hello, SeniorJudge. Lets see if I understand this correctly. We're to go through the summons my husband received & mark yes/no, make adjustments(if need be), etc & submit that back to the court, plaintiff's attorney, et al? We thought this was our copy. There's not a form we can start over fresh with?

Also, there are some pages that don't have anything checked off or any other kind of information(other than what is already part of the form). Since they didn't note anything on those, do we just skip over those parts? Because, I'm not sure what we would be responding to with that. Thanks for your help.

 

[dcatz]

It seems best to just dive into the middle of this thread and then try to go in all directions. Take a look at this site, if you haven’t already:
http://www.courtinfo.ca.gov/forms

Take a look at this form, if you haven’t already. It can be downloaded or completed online:
http://www.courtinfo.ca.gov/forms/fillable/pld050.pdf

On the site that I directed you to, it’s called a General Denial, if you search forms by name.

If your situation reaches the point that it’s needed, this is the Application for Waiver of Court Fees:
http://www.courtinfo.ca.gov/forms/fillable/fw001.pdf

We couldn't find a simple form which stated, in effect, that we received the summons & are trying to work it out with the plaintiff.

Unfortunately, there is no such form, and it wouldn’t represent an adequate response, if there was one.

SJ is correct about the form of an Answer that addresses each allegation, but it would appear from your post that the one referenced above will be adequate and simpler, if the Complaint is not verified. Most collection Complaints aren’t. Look to the end of the pleading for a single page captioned “Verification” and signed by the plaintiff. If there is none, you can use the General Denial. If it’s there, follow SJ’s suggestion. From your description of the attorney’s Complaint, it sounds as if he took the “check-the-box” route too, and a Verification will surprise me.

If you post back, look in the bottom left-hand corner of the Complaint. If there’s an identifier consisting of letters and numbers (4 to 6), post it and we can see what he used. If you’re able to use the General Denial, you address everything he checked and left unchecked. If you can’t use it because of a Verification, you need not respond to anything unchecked.

In the form to which I directed you, Affirmative Defenses are left blank. They can stay that way, but your post suggests that the SOL may be relevant. Without knowing yet, two Defenses that you could insert are:
“Complaint fails to state a cause of action” (don’t worry, it covers everything and nothing, but it’s popular).
“Any and all causes of action of the Complaint are time-barred” (that’s your SOL defense).

With all of that out of the way, if they are not responding to you, there is nothing to force them to do it. However, if you apply for the fee waiver and file an Answer and serve it on them, as SJ advised, I expect that there’s a better chance of a response. Right now, it appears that they’re hoping that you wait too long and they get a chance to take a default judgment. Being served with an Answer tells them that’s not going to happen and they have more work to do. If you go in that direction, include a copy of one of your letters proposing settlement discussions. They may be more receptive at that point. Be prepared for a reply and know what you’re going to say.

At the same time, investigate the SOL defense further. If you have one, there’s no need for settlement. The DOLA that they’re relying on should be stated in the Complaint. If they are beyond the SOL, I’m sure they didn’t attach an Exhibit that would show that, but look at what they did attach, if anything.

Post back with questions. You have time.

 

[GypsyButterfly]

Hello, Dcatz. I looked over every page several times and didn't see anything which said verification. When you say, identifier, do you mean the type of form he used? If that's the case, then, it's: PLD-C-001.

I did look over the General Denial form earlier today. I guess I'm misunderstanding what that means. I take it as, we're disagreeing with this action, we don't owe them anything, we're not responsible for this debt & so forth. It seems, if that was the purpose of the form, it would make things more complicated. Obviously, it's something different.

As for, SOL. Is that based on the state the cardholder lives in or the state the card was issued from? I want to be clear on that before I research it. They claim we became indebted to them in the past four years. However, as previously, mentioned, it's been, at least, six years since we've paid on this(when the account was still open). We got another card, almost, five years ago. Which, we've paid on time & more than the minimum every month. I believe it's what has helped improve my husband's credit. We don't need this to mess things up. We're struggling enough as it is.

It's almost 11p here, so, we're not going to do anything with the forms now. Plus, I wanted to wait to hear back from you to see if we should proceed with it. It shows on the GE form we can mail it to them. Of course, we will send it certified, because, we don't want this getting lost. Thanks for your help.

 

[dcatz]

That’s the form I expected, and the lack of a Verification is no surprise.

The General Denial can be used, but you’re uncomfortable with it, because you’re willing and want to pay.

OP – the only difference between that form and the form of response that SJ suggested and remains a valid alternative is that neither SJ nor the rest of us have seen your Complaint and know what allegations you would “disagree” with. SJ couldn’t carry his example that far but, at the risk of speaking for him, there was an implied assumption that you would deny or disagree with the allegations of liability. If not, there is really no point in responding – fee waiver or not.

If you fail to respond or your response is “Admit all allegations. We’d just like to discuss a payment plan”, they’ll take judgment and then perhaps talk to you and perhaps not. Whatever they do, the judgment will be for a good deal more than the principal, because costs, interest and fees will be added.

If you don’t deny liability (regardless of what you feel in your heart), the SOL is irrelevant, you’ll never have a right to investigate it by way of discovery and you’ll have a judgment on your credit record. Even after it’s paid, the judgment will stay as “paid”. I’m not forcing a choice on you; the choice is yours. I’m simply explaining how this will develop.

There is debate about the SOL as you’ve posed the question (state of suit vs. state of issuance). CA is consumer-friendly, and I would expect would apply its own. The plaintiff has alleged a date within CA’s SOL. With apologies for being presumptuous, you’re actually questioning the DOLA (date of last activity) triggering the applicable SOL, and you won’t have a right to explore that by way of discovery without denying liability or getting a payment agreement pre-response.

I’ll conclude with SJ’s reminder: if you decide to respond, do it before the deadline, absent a written agreement for an extension or a written settlement agreement and a copy of a filed Notice of Settlement.

 

[GulfBreeze]

I skipped thru and was searching for when you paid last and saw that its at least 6 years old...is that right?

First...some of these JDBs will send a letter ahead of a summons, trying to get you to settle on it before it gets that far. It is NOT a summons. Its not a summons unless it is from the court. You are just getting a letter like this to let you know that they are looking into it, possibly. I get the feeling that they use this as a feeler to see if they get a response and what you plan on doing about it. I would not admit to anything with this type of letter as it can be used (will say in the letter that any info will be recorded and used in any determination). If this is past the SOL, then ignore it or send them a verification/validation request letter. If you are in financial difficulties, agreeing to pay on this debt when its not enforceable will only add to your burden. I would check your records and their response before you settle on anything. You will always have the option for mediation if you indeed owe on it and its not past the SOL. Otherwise, if its past the SOL and they have no enforceable issue on this debt, you can simply let them do what they want and use the affirmative defense of expired SOL and relieve yourself of it. Do not restart the SOL and agree/make payment on it until you know for sure. You will get lots of advice here, some good, some bad and some that will counter-dict some. The problem is, which one better suits your needs. If it were me and the debt was past SOL, I would not want to pay it back so I could get my life back in order. The debt collectors would see it differently. They would want you to pay back any debt..whether or not it was enforceable or not. Hopefully you have not done anything on it yet and will take the time to look further into it before any further contact with them.

 

[GulfBreeze]

There is debate about the SOL as you’ve posed the question (state of suit vs. state of issuance). CA is consumer-friendly, and I would expect would apply its own. The plaintiff has alleged a date within CA’s SOL. With apologies for being presumptuous, you’re actually questioning the DOLA (date of last activity) triggering the applicable SOL, and you won’t have a right to explore that by way of discovery without denying liability or getting a payment agreement pre-response.

I would expect that they would have to submit a valid copy of the statement on this account. How could they prove on this account without any records of it. I have used their furnished records of statements submitted to the court as my proof on expired SOL in past cases. Does CA actually not allow the defendant the right to request a discovery? This is a fact finding tool. Lets say it is not allowed. What would the planitiff submit to the court as proof the debt is owed? They would need some sort of exhibits to back their claim. I can not believe that CA allows people to file claims against people without any proof. The proof would be in records such as signed agreement, statements, signed slips, etc.... They have to show how they came to the amount in question as well. I would deny it being mine until they proved it was mine. Its their burden to show that its mine.

 

[dcatz]

Thank you for the observation. My reading to this point is that the threshold problem is that the OP appears reluctant to deny the obligation. That may be morally admirable and perhaps factually true but is tactically fatal.

CA permits the allegation of liability to be made and documentation evincing the same to be submitted directly to the court in support of a default judgment request. Only a copy of the request need be served on the defendant.

Of course CA permits discovery but, as this thread is progressing, that right will never come to fruition until the defendant denies liability. Documents submitted to the court may reflect that there was a defense that the defendant could have asserted but did not. By then, it will be too late. Plaintiff’s filing will be reviewed in a light most favorable to the defendant but, if there is no opposition from the defendant, it will be accepted. The court is not going to “read into them” defenses the defendant might have had but waived. That is not the function or right of any court.

I was surprised by the defendants’ concluding remarks:

I take it as, we're disagreeing with this action, we don't owe them anything, we're not responsible for this debt & so forth. It seems, if that was the purpose of the form, it would make things more complicated. Obviously, it's something different.

and suggest that you direct your observations to the OP.

 

[GulfBreeze]

"Your honor, I don't recall owing on this debt, but whether it's mine or not, it has an affirmative defense of expired SOL"

 

[dcatz]

Yes. If you read through the thread, you’ll see that the same Affirmative Defense was suggested previously, and you can read the OP’s response.

It seems to be less a question of how to phrase it and more an issue of whether the OP chooses to deny liability in the interest of obtaining a right to discovery, because you will also note that the OP states that the plaintiff has alleged a default date within the CA SOL.

This is not going anywhere but down, unless liability is denied. My interpretation of the concluding remark is that that remains an open question for the OP to decide. Until then, there is nothing more to do.

 

[GypsyButterfly]

Thanks for your responses. The summons was issued from our superior court. We're not disputing the amount. As of our last payment, that's what it was. I checked & for both CA & the issuing state, FL, the SOL is four years. When does the time frame for that begin & end? It seems if they're taking this action & saying the debt was incurred during the last four years, they would need to file before that period is up. Does the date of our last payment figure into this? I suppose, they could set arbitrary dates which would fit their purposes & not the actual situation. This, of course, would be dishonest & unethical & I would like to think we're dealing with attorneys who are more above board. Should we use the General Denial form & just say we believe the time has past, but, if it hasn't, we're willing to take responsibility(including the letter we've submitted to the plaintiff's attorney showing that's what we're trying to do)?

My husband's credit has improved & we don't want this to screw it up again. We'll pay, if that's how it's to be, but, we don't want it showing on the report that they had to go to court to get that result. It seems it would wipe out the good foundation we've built with one cc company we've been with for five years. Plus, we have a couple more companies(not cc)we're establishing a good record with.