Answer Complaint or Vacate Judgement?

[ba919]

What is the name of your state? Ohio
I was just served a complaint from an atty representing Capitol One Bank. I had a credit card from them approx. 3-4 years ago. Regretfully, the account went into default. I was contacted last Feb. by Cap One who asked if I would be interested in a settlement. I asked if this would clear my account in full and was told it would. I made the payment and have the check as proof. I am now being sued for $ 700.00 for what I assume is the remaining amount I sent a request for validation to the attorney this morning.

My question is as I was preparing my answer to the complaint, a friend who will be attending Law school suggested I allow the Plaintiff to win by default and shortly afterwards file a motion to vacate the judgement due to Lack of jurisdiction / venue. (You see the complaint was filed in a county of my state which I have not lived for over 10 years! The original contract nor any of the statements I had received for three years used that address.)

I have 28 days in which to file the answer.
Thank you

 

[badapple40]

Your friend probably sat through his first year civil procedure class, realized that no jurisdiction means no valid judgment, and figures that defaulting is the way to go. It is not. I say thats a real, real, real, real bad idea. Tell him to stop practicing law and giving legal advice until he gets a license, gains the insight that all three years of school give him, and some on the job experience, because not only is he going to get himself into trouble with the state bar -- unauthorized practice of law--, if he keeps giving bad advice, he's going to get his friends in a heap of trouble.

Where was the suit filed? I note you said you are from Ohio. I will assume Ohio rules apply (I realize they probably do not, but I'm going with the best information you've given me and I'm intimately familiar with ohio state court practice since I'm licensed there).

Not defaulting is especially important here where you have a valid defense (accord and satisfaction, in that they settled the debt for less than the whole). You can challenge the jurisdiction and venue in a specific 12(b)(2) and 12(b)(3) motion, and then, if the court denies those, file an answer, raising the defense.

Letting someone get a default is like playing russian roulette. You are betting everything that there is bad jurisdiction. So:

File a motion to dismiss for lack of personal jurisdiction and venue. Wait for the court to rule. answer if those motions are denied. If the state in question doesn't allow these motions to be filed separate from an answer, follow the state court rules for raising these issues (they probably have to be raised in your answer) as well as the defense of accord and satisfaction.

 

[ba919]

Badapple,
Thak You for your interest and your advice To tell you the truth, I wasnt comfortable with the advice he gave anyway. Im not trying to screw anyone. I legitimately thought I had cleared the debt.

The complaint was issued in Portage County Municipal Court. I had resided there almost ten years ago. This is what was so strange. I never used that address in any of my inquiries with Cap. One. In fact, all of my monthly statements came to my home of 4+ years in Stark County.

So If I may reiterate, I should look into the Ohio Court rules regarding filing motions to see if I need to file it seperately or can include on my answer?

If it does have to filed seperately, how long before I will hear if it has been denied? I just dont want my answer to be late.
Thanks again for your help,

 

[badapple40]

Now it is all much clearer. Ohio courts have personal jurisdiction over you. The issue is one of venue. Look at Ohio Civ.R.3, which indicates that venue is proper in a number of places, including where all or part of the claim for relief arose. If you had the credit card while living in Portage County, I'd say there is good venue. Otherwise, you can move for a change in venue pursuant to Civ. R. 12(b)(3). I would back it up with an affidavit that outlines when you got the credit card, and how you never lived in Portage County with the card. You basically make factual statements/testify via the affidavit. It then gets sworn before a notary. Things to include is when you lived in Portage, when you moved from there, when you entered into the credit card agreement, payments made, when you defaulted on the account, paid off the account, where you made payments from on the account, and that kind of information.

Have an answer ready to file in the event that the court rules against you on the venue/jurisdiction motions. You MUST raise the defense of accord and satisfaction in your answer with any other affirmative defenses (Ohio Civ. R. 8(C)).

I hope this was helpful.

 

[stevek3]

Now it is all much clearer. Ohio courts have personal jurisdiction over you. The issue is one of venue. Look at Ohio Civ.R.3, which indicates that venue is proper in a number of places, including where all or part of the claim for relief arose. If you had the credit card while living in Portage County, I'd say there is good venue. Otherwise, you can move for a change in venue pursuant to Civ. R. 12(b)(3). I would back it up with an affidavit that outlines when you got the credit card, and how you never lived in Portage County with the card. You basically make factual statements/testify via the affidavit. It then gets sworn before a notary. Things to include is when you lived in Portage, when you moved from there, when you entered into the credit card agreement, payments made, when you defaulted on the account, paid off the account, where you made payments from on the account, and that kind of information.

Have an answer ready to file in the event that the court rules against you on the venue/jurisdiction motions. You MUST raise the defense of accord and satisfaction in your answer with any other affirmative defenses (Ohio Civ. R. 8(C)).

I hope this was helpful.

Let's be serious here...I doubt she has the foggiest clue what you just said. Notwithstanding the fact that knucklehead law student had absolutely no idea what he was talking about, sometimes even a blind squirrel will find a nut.

In light of the fact this debtor has no idea how to litigate, not to mention the considerable time and work it would otherwise take to litigate even if she did know how to litigate (over a very small debt of $700, mind you), here's what I'd suggest for an unsophisticated pro se litigant: Some very tricky razzle-dazzle. Telephone the debtor's attorney and be sure to record the conversation. All legal. Talk about whatever. The weather, for example, is always a very pleasant subject. How 'bout this daylight-savings time thing? That's real interesting, too. That telephone call will constitute an appearance in the case. Do NOT file anything in court. Nothing. Now, as you know, 99.99% of debt collection attorneys play incredibly fast and loose with CivR 55(A) when suing pro se defendants. Thus, the creditor's attorney undoubtedly will file a motion for default judgment without ever giving the debtor the seven-day notice. Nor, for that matter, any notice at all. This despite the fact he indeed spoke on the telephone with the debtor. Yes, he'll get his default judgment. But, at this point, the debtor actually has WON. A very sweet letter should then be mailed to the creditor's lawyer saying something to the effect of: "Listen here, Buddy Boy. You either vacate the judgment, dismiss the case with prejudice and permanently extinguish the alleged debt within seven days from receipt of this letter, or I'll be filing an appeal and/or a 60(B) motion as the result of your flagrant disregard for the civil rules. Furthermore, be advised that you, your firm and your client will all be sued for damages in federal court for violating the FDCPA. I also look forward to your eventual payment of all of my attorney fees in the FDCPA matter. I certainly won't be pro se this time around...Ya know, you ain't anywhere near as smart as you think you are."

Voila. Problem solved.