Served with Summons today

[Hrach]

Plus the summons doesn't break down the details of the amount they're requesting, that's why she requests to see the details naturally...

They are not required to break it down in the summons. To get the info, you must conduct discovery.

Now doens't the SOL give 30 days for them to provide the requested info?

No.

They can't just take their sweet old time and take action whenever they please.

I think you are being facetious. The creditor has an unlimited amount of time to respond to the DV request. But, you keep ignoring what I am telling you. All they are required to give you back is the name and address of the original creditor. How is that going to help you?

Now there is a court date set when the summons was files that's towards end of the year.

OK. What is the question?


As for the rest of your post -- I don't know where you got all that. My guess is that you have copied it off some website purporting to tell you what the creditor must provide.

Am I correct? If so, what you have copied is wrong and bad advice. I've seen this nonsense before.

You have the right to demand all that information. But, you cannot obtain it through the validation process. You must conduct discovery.

Do you know what that means?

No, How do you conduct discovery?
Is there a special form to be filled out that states its for discovery?
Is it different than filing an "answer"?
Now if she does not hear anything back, she's just required to attend the hearing correct?
If she doesn't show up, will they try to garnish her wages? I have gone though the posts here and have not seen anyone's wages being garnished.
Thanks for taking the time to respond by the way ....

 

[TN_Defender]

To the California case:
You can't really request a dismissal without supporting evidence as to why. That's basic civil procedure.

If she does dispute the validity of the debt, then it's within her right to file an ANSWER to the summons and a REQUEST FOR PRODUCTION OF DOCUMENTS.

In the answer, she'll need to deny the plaintiff's claims. In the request for production of documents, she'll need to request copies of the original signed contract and a full and complete accounting of the debt.

I am not a California attorney and do not have access to any California forms. She'll need to contact the court clerk's office to obtain blank forms, if they have some available. Keep in mind that the court clerk cannot give her legal advice.

 

[tranquility]

A bunch of monthly credit card statements are heresay.

Depends on what is trying to be proven. It seems like a business record exception might apply.

 

[TN_Defender]

Depends on what is trying to be proven. It seems like a business record exception might apply.

You're right - it could apply when it comes to determining the actual accounting of the amount owed, but it is heresay when it comes to determining a contractual obligation - if the Plaintiff is relying on those statements to say that Joe Blow actually owes XYZ Credit Card Corp. At least, that is how I have seen General Sessions judges across Tennessee rule...

 

[Hrach]

To the California case:
You can't really request a dismissal without supporting evidence as to why. That's basic civil procedure.

If she does dispute the validity of the debt, then it's within her right to file an ANSWER to the summons and a REQUEST FOR PRODUCTION OF DOCUMENTS.

In the answer, she'll need to deny the plaintiff's claims. In the request for production of documents, she'll need to request copies of the original signed contract and a full and complete accounting of the debt.

I am not a California attorney and do not have access to any California forms. She'll need to contact the court clerk's office to obtain blank forms, if they have some available. Keep in mind that the court clerk cannot give her legal advice.

Defender.... that's EXACTLY what she's done. this is the copy of the answer..That's wha'ts confusing guys... So what now?? That's my question. The way I look at it, I can go and summon you for $40,000 today that you owe me, and when you request for validation I can either respond or not, whenever I please. That doesn't make sense to me. And yes, this is just a form I have found on a site with someone with a similar situation.

I, ***** and behalf of ***** Group deny the allegations brought against me intent to defend against this suit, Case number ****, filed at Superior Court of California, County of *******.

I demand proof of the debt, a copy of the original signed contract and a validation of the original debt with verification of my responsibility towards the debt and your right to collect it.

In addition, I demand the following questions fully answered.

DEBT COLLECTOR DISCLOSURE STATEMENT
This statement and the answers contained herein may be used by Respondent, if necessary, in any court of competent jurisdiction.
Notice: This Debt Collector Disclosure Statement is not a substitute for, nor the equivalent of, the hereinabove-requested verification of the record, i.e. “Confirmation of correctness, truth, or authenticity, by affidavit, oath, or deposition” (Black’s Law Dictionary, Sixth Edition, 1990), re the alleged debt, and must be completed in accordance with the Fair Debt Collection Practices Act, 15 USC §1692g, applicable portions of Truth in Lending (Regulation Z), 12 CFR 226, and demands as cited above Disputed Debt. Debt Collector must make all required disclosures clearly and conspicuously in writing re the following:

1. Name of Debt Collector: ……

2. Address of Debt Collector: ………

3. Name of alleged Debtor: ……

4. Address of alleged Debtor: …

5. Alleged Account Number: ...
6. Alle

ged debt owed: $

7. Date alleged debt became payable: .....

8. Re this alleged account, what is the name and address of the alleged Original Creditor, if different from Debt Collector?....

9. Re this alleged account, if Debt Collector is different from alleged Original Creditor, does Debt Collector have a bona fide affidavit of assignment to enter into alleged original contract between alleged Original Creditor and alleged Debtor?
YES NO

10. Did Debt Collector purchase this alleged account from the alleged Original Creditor? YES NO N/A (Not Applicable)

11. If applicable, date of purchase of this alleged account from alleged Original Creditor, and purchase amount:
Date: ………………… Amount: $…………

12. Did Debt Collector purchase this alleged account from a previous debt collector? YES NO N/A

13. If applicable, date of purchase of this alleged account from previous debt collector, and purchase amount:
Date: …………………………………………………… Amount: $…………………

14. Regarding this alleged account, Debt Collector is currently the:
Owner; (b) Assignee; (c) Other – explain: ………………………
………
15. What are the terms of the transfer of rights re this alleged account? ...

16. If applicable, transfer of rights re this alleged account was executed by the following method:
(a) Assignment; (b) Negotiation; (c) Novation; (d) Other – explain......

17. If the transfer of rights re this alleged account was by assignment, was there consideration? YES NO N/A

18. What is the nature and cause of the consideration cited in # 17 above? ....

19. If the transfer of rights re this alleged account was by negotiation, was the alleged account taken for value?
YES NO N/A

20. What is the nature and cause of any value cited in #19 above? .....

21. If the transfer of rights re this alleged account was by novation, was consent given by alleged Debtor? YES NO N/A

22. What is the nature and cause of any consent cited in #21 above? ......
.
23. Has Debt Collector provided alleged Debtor with the requisite verification of the alleged debt as required by the Fair Debt Collection Practices Act? YES NO

24. Date said verification cited above in # 23 was provided alleged Debtor: .....

25. Was said verification cited above in # 23 in the form of a sworn or affirmed oath, affidavit, or deposition? YES NO

26. Verification cited above in # 23 was provided alleged Debtor in the form of: OATH AFFIDAVIT DEPOSTION

27. Does Debt Collector have knowledge of any claim(s)/defense(s) re this alleged account? YES NO

28. What is the nature and cause of any claim(s)/defense(s) re this alleged account? ....
.

29. Was alleged Debtor sold any products/services by Debt Collector? YES NO

30. What is the nature and cause of any products/services cited above in # 29? ....


31. Does there exist a verifiable, bona fide, original commercial instrument between Debt Collector and alleged Debtor containing alleged Debtor’s bona fide signature? YES NO

32. What is the nature and cause of any verifiable commercial instrument cited above in # 31? .……………………………….


33. Does there exist verifiable evidence of an exchange of a benefit or detriment between Debt Collector and alleged Debtor? YES NO

34. What is the nature and cause of this evidence of an exchange of a benefit or detriment as cited above in # 33? ....………………

35. Does any evidence exist of verifiable external act(s) giving the objective semblance of agreement between Debt Collector and alleged Debtor? YES NO

36. What is the nature and cause of any external act(s) giving the objective semblance of agreement from #35 above?

37. Have any charge-offs been made by any creditor or debt collector regarding this alleged account? YES NO

38. Have any insurance claims been made by any creditor or debt collector regarding this alleged account? YES NO

39. Have any tax write-offs been made by any creditor or debt collector regarding this alleged account? YES NO

40. Have any tax deductions been made by any creditor or debt collector regarding this alleged account? YES NO

41. Have any judgments been obtained by any creditor or debt collector regarding this alleged account? YES NO

42. At the time the alleged original contract was executed, were all parties apprised of the meaning of the terms and conditions of said alleged original contract? YES NO

43. At the time the alleged original contract was executed, were all parties advised of the importance of consulting a licensed legal professional before executing the alleged contract? YES NO

44. At the time the alleged original contract was executed, were all parties apprised that said alleged contract was a private credit instrument? YES NO

Debt Collector’s failure, both intentional and otherwise, to complete/answer points “1” through “44” above and return this Debt Collector Disclosure Statement, as well as provide Respondent with the requisite verification validating the hereinabove - referenced alleged debt, constitutes Debt Collector’s tacit agreement that Debt Collector has no verifiable, lawful, bona fide claim re the hereinabove-referenced alleged account, and that Debt Collector tacitly agrees that Debt Collector waives all claims against Respondent and indemnifies and holds Respondent harmless against any and all costs and fees heretofore and hereafter incurred and related re any and all collection attempts involving the hereinabove-referenced alleged account.
Declaration: The Undersigned hereby declares under penalty of perjury of the laws of this State that the statements made in this Debt Collector Disclosure Statement are true and correct in accordance with the Undersigned’s best firsthand knowledge and belief.

____________________________________ ____________________________________
Date Printed name of Signatory

____________________________________ ____________________________________
Official Title of Signatory Authorized Signature for Debt Collector

Debt Collector must timely complete and return this Debt Collector Disclosure Statement, along with all required documents referenced in said Debt Collector Disclosure Statement. Debt Collector’s claim will not be considered if any portion of this Debt Collector Disclosure Statement is not completed and timely returned with all required documents, which specifically includes the requisite verification, made in accordance with law and codified in the Fair Debt Collection Practices Act at 15 USC §1692 et seq., and which states in relevant part: “A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt,” which includes “the false representation of the character, or legal status of any debt,” and “the threat to take any action that cannot legally be taken,” all of which are violations of law. If Debt Collector does not respond as required by law, Debt Collector’s claim will not be considered and Debt Collector may be liable for damages for any continued collection efforts, as well as any other injury sustained by Respondent. Please allow thirty (30) days for processing after Respondent’s receipt of Debt Collector’s response.

 

[TN_Defender]

Defender.... that's EXACTLY what she's done. this is the copy of the answer..That's wha'ts confusing guys... So what now?? That's my question. The way I look at it, I can go and summon you for $40,000 today that you owe me, and when you request for validation I can either respond or not, whenever I please. That doesn't make sense to me. And yes, this is just a form I have found on a site with someone with a similar situation.

Well, if your mother has properly filed an answer and it has been properly served upon the Plaintiff, then the Plaintiff will normally be given time to repond to the answer.

I do not know California's time limits for filing answers and reponses to pleadings. You'll need to refer to your court's local rules for that. It may be longer than 30 days, even though you listed a 30 day timeframe in the answer.

If/when the Plaintiff does make a response to the pleading, then you may be able to submit a motion for trial, a motion to dismiss or motion for summary judgment, depending on what the Plaintiff has answered.

It all depends on the court's rules. If you don't have a copy of the court's local rules, it would greatly benefit you to find a copy and read through them thoroughly.

 

[Hrach]

That's the plan to find the rules, but its just so confusing.. We'll see what happens.. thanks

 

[tranquility]

Once an answer is had, discovery begins. There is not a response to the answer. Of course, there are deadlines and the like for procedural issues, but that's the basic framework of a lawsuit.

P: D owes me money.
D: Do not.
Game on!

 

[Hrach]

Basically,, its safe to say no one here really knows the forms to be filed, or the correct process in dealing with this situation. And its the same everywhere I've really searched. What I am wondering is how long it will take, if it comes to that, for the lender to garnish wages. That's something else I have not seen anyone write about.

 

[tranquility]

As I and others have said, you file an "answer". Then the normal process begins. No one can tell you what happens after that as it depends on the facts. If you don't answer the plaintiff will file for a default judgment at some point after the deadline for you to answer. The clerk will then send you a notice of judgment which you will need to ask for a rehearing (if you have some excuse why you didn't default) within 30 days. During and after that the creditor will begin the process of finding the assets and getting them.

 

[Debt Guy]

its safe to say no one here really knows the forms to be filed, or the correct process in dealing with this situation.

Yes. No. Maybe.

None of us are from CA. Rules are different in every state. The general principles are the same.

None of us can tell you inch by inch exactly what to do in your situation. To get that you need to hire an attorney in CA. You can teach yourself. That is normally what persons do who want to represent themselves in court.

Talk to the court clerk. Ask for a copy of the local Rules of Civil Procedure. Read it and then read it again. It will help. Ask the clerk if the court has fill-in-the-blank forms that can be used -- some courts do and some do not. If not, ask the clerk to see a sample of whatever it is that you want to file and use that as a go-by.

For example, "discovery" is a term used when you want the other side to show you what they got. You must ask for it and you must ask specifically for what you want. Usually, discovery is accomplished by filing a "Request for Admissions, Interrogatories and Production of Documents".

Admissions are a series of statements that you want the opponent to answer "yes" or "no". For example: Admit that Plaintiff is a corporation.

Interrogatories are questions to be answered by the opponent. For example: List the names and titles of all persons the Plaintiff will produce at trial to testify as to the accuracy of any documents produced.

Production of Documents are what you want to see on paper. For example: Provide the original signed credit application.

Drafting your discovery documents are not rocket science. But, some experience and familiarity is required. What you posted as "Debt Collector Disclosure Statement" is almost an effort to put together a discovery request. You would need to sort out the 50% of the language that is nonsense and focus on what is on-point to your mother's case.

I do not know how many different ways to say this -- you keep ignoring me. Right now you are not doing your mom any favors with your effort to do something for which you have zero knowledge and experience.

Let me offer some practical advice. Apparently you acknowledge this is legitimately your mom's debt. You also say the debt is still within the statute of limitation. You indicate that the only beef your mom has is she wants a breakdown of the amount that is owed.

Assuming all that is true, have you asked for what it is that mom wants? Perhaps you can just avoid all this answer and discovery business by asking for what you want.

Alternatively, if your real goal is to somehow get mom off the hook for this debt -- I would not hold out much hope for you. Citibank is famous for having very good documentation and for being very aggressive in litigation. Unless mom has a seriously good defense (a defense is a legitimate reason why she does not owe the amount claimed) then mom is not likely to win. What you are doing right now by drawing out the process is driving up the legal expenses for Citibank. Those costs get added to the judgment that will be assessed to mom.

Once the judgment is granted, mom's wages are subject to garnishment. The creditor can take up to 25% of mom's after-tax pay. I do not know her situation but that could be a serious hardship.

I do not encourage litigation unless mom has a serious good defense. Right now it does sound as if she does. She needs to think about what happens after she loses the battle. Bankruptcy is an alternative but should not be undertaken lightly. Talk to a bankruptcy attorney to see if mom qualifies and what the impact is.

Otherwise, it would make more sense for mom to try to settle this account as quickly as possible. If she cannot raise the cash to settle, then it just cannot be done and she will have to live with the consequences.

One last observation. I know you are trying to help mom. You will not be allowed to speak for mom in court as you are not an attorney. Mom will have to do her own talking.

Good luck to mom. I am happy to answer questions if I can. But, I am not mom's attorney and no one here is going to do this for you.

 

[Hrach]

Thanks a bunch!

 

[tngoose2]

Thanks guys for all your help on my lawsuit. If I can jump back in here for a second, I have a family member, who is uninsurable due to strokes, that is now being sued for a hospital bill in 2005 that he thought he paid. At that time he had no insurance either. Suit is filed Davidson County, TN General Sessions Court, scheduled for 8/20. OC is Baptist Hosp. and is the one suing him. Buffaloe and Associates is the Plaintiff's attorney. Being as this is a medical/hospital debt, are the rules and procedures for a defense the same as they are for credit card debt? Thanks!

 

[tngoose2]

Thanks guys for all your help on my lawsuit. If I can jump back in here for a second, I have a family member, who is uninsurable due to strokes, that is now being sued for a hospital bill in 2005 that he thought he paid. At that time he had no insurance either. Suit is filed Davidson County, TN General Sessions Court, scheduled for 8/20. OC is Baptist Hosp. and is the one suing him. Buffaloe and Associates is the Plaintiff's attorney. Being as this is a medical/hospital debt, are the rules and procedures for a defense the same as they are for credit card debt? Thanks!

Really need some advice. TN_Defender are you out there???

 

[TN_Defender]

Davidson Co Medical suit

Thanks guys for all your help on my lawsuit. If I can jump back in here for a second, I have a family member, who is uninsurable due to strokes, that is now being sued for a hospital bill in 2005 that he thought he paid. At that time he had no insurance either. Suit is filed Davidson County, TN General Sessions Court, scheduled for 8/20. OC is Baptist Hosp. and is the one suing him. Buffaloe and Associates is the Plaintiff's attorney. Being as this is a medical/hospital debt, are the rules and procedures for a defense the same as they are for credit card debt? Thanks!

Sorry for delay in my response - crazy court schedule at the end of the month.

Rules and procedures for defense in medical case are the same. Be warned, however, that Davidson Co. is very pro-creditor. Also, knowing Buffaloe, they'll probably have a copy of the signed medical authorization handy. Medical cases are tough to fight because the documentation is so readily available. Much easier to obtain than credit card cases.

If the family member is on disability, he's basically judgment-proof. Sure, Baptist Hospital can get their judgment, but if your family member has no job and no other income besides Social Security or SSI/Disability, then Baptist can't execute on the judgment. At most, they can get a lein on the house.

I know the Buffaloe firm and know that the collectors are pretty tough. I'd advise your family member to do what he can to set up a payment plan that he can realistically afford. If Buffaloe's firm won't accept it, then he can go to the clerk's office after the court hearing and file a slow pay motion (motion for installment payments) to get a payment plan that he CAN live with.

In sum: don't try to fight the judgment on this one - he probably won't succeed. Do, however, go to the court date. Don't just blow it off. Go to the clerk's office afterward to file a slow pay motion. The fee is approximatelyl $25 to file it.