Help! Summons for Credit Card Debt

[laurelcreekmom]

What is the name of your state (only U.S. law)? West Virginia.
I received a summons from lawyers for the plaintiff: FIA Card Services, a subsidiary of Bank of America. I have 20 days to answer. Howeve, upon taking a closer look at their affidavit and card statement that they sent with the summons. The card number in the affidavit and the card number on the statement are all completely different. I mean not even close! I did have a Bank of America card that matches the statement account numbers but not the affidavit acccount numbers. Shouldn't all the account numbers be the same? This card was never lost, stolen, re-issued, and it was always with Bank of America. They also did not sent a copy of the origional signed contract between me and Bank of America. Don't they have to do that to prove the debt? Here is my answer:

FIA CARD SERVICES, N.A. a Subsidiary of
Bank of America, A National Bank
Plaintiff
vs
case no.
me Defendant
ANSWER
I, me, as defendant in the above case answer the allegation in the plaintiff’s complaint by denying the matter set forth and raise defense as explained below:

1.The plaintiff failed to provide a signed copy of the original contract between the defendant and Bank of America from the opening of the account.

2. The account numbers on the plaintiff’s affidavit are incomplete and do not match the account numbers on the statements that were included in the complaint submitted by the plaintiff. Therefore, the defendant is unable to recognize these account numbers.

Wherefore, the defendant respectfully requests that the plaintiff provide the defendant with proper and accurate documentation and a copy of the original contract signed by the defendant to confirm the alleged debt. This documentation should be mailed to the defendant, whose address is: , in 20 days or a dismissal with prejudice be granted for failure to do so.


Could I please have opinions on this? Is this the right way to go about this? I do owe Bank Of America, but I don't want to admit that because of the account numbers on the affidavid not being correct or anything I have any knowledge of. I have also tried numerous times to get a payment plan with Bank of America but they would not give me a payment I could afford. My husband became ill in 2008 and it took all savings and every other penny we had. We live paycheck to paycheck. We are a family of 5 living on less than a gross income of 23,000 annually. I do not work, I am a homemaker, I do not drive. We own a double wide trailer in both our names as is the checking account. Should they be solely in my husbands name? Our vehicles are all over 15 years old and worthless. We own nothing else. No real estate, land, stocks, ira, saving....nothing. I have 3 children at home, 2 are learning disabled through the WV Board of Education and one of them is in technical school to continue learning, paid for by the WV dept. of rehabilitation. Husband was not on the credit card. It is only my debt. I am able to provide a financial statement to prove income, assets and debts. At the end of the month we have an expendable cash amount on average of 58.00! We get State help: Medicaid for the children and Food Stamps for the Family as well as annual clothing vouchers and help with the heating bill in the winter. I would be willing to pay 40.00 a month if they would negotiate the total down for me. But shouldn't I wait until this first step is taken care of before I start that conversation with them? Thanks to anyone in advance that can help me with this.What is the name of your state (only U.S. law)?

 

[justalayman]

The card number in the affidavit and the card number on the statement are all completely different. I mean not even close!

was the card number on the complaint one you had at one time? If not, be sure to file, in your answer, that you have never held an account #XXXXXXXXXXX and as such, are not a proper defendant. I suspect they will amend their complaint and refile though with the correct account number.

They also did not sent a copy of the origional signed contract between me and Bank of America. Don't they have to do that to prove the debt?

no

to prove the debt, they have to prove you borrowed money from them. The contract sets the terms controlling you borrowing the money. If you want them to produce the original contract, you will have to demand it during your discovery period.

and you surely will not be granted a dismissal with prejudice in this situation. The error of the account number would not justify the request and I already explained the contract issue.

I have also tried numerous times to get a payment plan with Bank of America but they would not give me a payment I could afford.

well, then you should not have borrowed as much money as you had. You did have a contract with them which stated the terms of repayment. When you reached a point where you could not afford the payments, it was time to stop borrowing money. If you mean subsequent to defaulting on the contract; they had no obligation to accept your terms. You owed them 100% of the debt due and payable at that time and they were not required to accept any terms that would be different.

My husband became ill in 2008 and it took all savings and every other penny we had. We live paycheck to paycheck. We are a family of 5 living on less than a gross income of 23,000 annually. I do not work, I am a homemaker, I do not drive. We own a double wide trailer in both our names as is the checking account. Should they be solely in my husbands name?

too late to worry about it now. If they are available for seizure, changing title now would simply delay the inevitable as they would argue you did it to an attempt to hide the assets (fraudulent conveyance) and ask the court to ignore the transfer of title.

It does sound as you would likely be judgment proof (a statement referring to the fact you have no assets a judgement creditor could actually take from you) so winning a judgment may be a moot point for the creditor. That doesn't mean they won't follow through and sue you though. It's hard to say if a persons financial position will or won't change during the life of the judgement to where the creditor can collect on the judgment.

 

[laurelcreekmom]

The card number on the affidavit that accompanied the summons is not one that I have ever had or have any knowledge of. The card number on the old statement they included is correct and was on the card from Bank of America.

I initiated with Bank of America when our financial hardship started and I tried to work with them. I am not saying that I won't pay, I just need an affordable payment that I can pay.

Is my ANSWER wrong? What should I be saying? Should I include a financial statement at this point when I submit my answer?

 

[justalayman]

The card number on the affidavit that accompanied the summons is not one that I have ever had or have any knowledge of. The card number on the old statement they included is correct and was on the card from Bank of America.

I initiated with Bank of America when our financial hardship started and I tried to work with them. I am not saying that I won't pay, I just need an affordable payment that I can pay.

Is my ANSWER wrong? What should I be saying? Should I include a financial statement at this point when I submit my answer?

no, do not include a financial statement. It is irrelevant at this point. Your answer isn't wrong but the defense that they did not include a copy of the contract simply means nothing to the case at the moment. It will be disregarded or answered with a statement that is not required to make the claim they have. As to the incorrect account number: it should be adequate to have the case dismissed but again, they will likely amend their complaint and resubmit it. If they don't amend the complaint, it should be dismissed. Of course they can refile if they wish with the correct account number.

 

[laurelcreekmom]

So if I send my answer as it is, they will not get a judgement against me? but will probably refile with the correct account number. Then at that point will I have to answer to them again or will I get a court date? Is it possible to settle without going to court and should I call their attorney to try to settle?

 

[justalayman]

So if I send my answer as it is, they will not get a judgement against me? but will probably refile with the correct account number. Then at that point will I have to answer to them again or will I get a court date? Is it possible to settle without going to court and should I call their attorney to try to settle?

They will not get a judgement until a court enters a judgement. Since you have at least one valid defense to their claim, there would have to be a trial to determine the validity of their claim. The judge decides who wins based on the evidence and testimony presented.

Due to the error of the account number, it should be dismissed or, if your state allows it, the complaint amended. If they allow it to be amended, you would have an opportunity to respond to the complaint with the correct account number. Then, depending if and how you responded, they may be able to ask for a summary judgment. If granted, they win. If not, you would then have a trial.

How long ago did you default on this contract? Not that I am in support of people not paying back what they borrow, in certain circumstances, it is justifiable. I do not believe you would have a statute of limitations defense based on your timeline but if it has been more than 5 years since this account became delinquent, it may be available to you.

Other than that, you might consider bankruptcy since it does not appear your situation will be changing anytime soon.

 

[laurelcreekmom]

Are there specific forms for West Virginia available on line for a financial statement that is not related to family law? Does anyone know where to find them online? Is there a form that needs to be completed to prove me, as you said, judgement proof or exempt from judgement? Is there a form to fill out to prove that I cannot afford the court fees?

 

[laurelcreekmom]

It has only been three years and I stopped paying less than one year ago when husbands illness was very bad and I just couldn't afford it. I asked again at that time to be allowed to pay a smaller amount and was denied. I don't want to file bankrupty. My husband is back at work full time and things are leveling out right now for us. All our monthly bills are paid, this is the only debt I am having a difficulty with. Like I said, I am willing to make monthly payments, but no sense in agreeing to an amount I really don't have! More sense to have an affordable amount that I can keep paying on a monthly basis.

 

[justalayman]

it's not that you would be exempt from judgment but that a judgment would essentially not be able to be collected upon due to your financial status. That is actually irrelevant to being sued though. The creditor does have the right to seek a judgement against you even if you cannot pay the judgment or are "judgment proof". As I said, you never know when your financial situation might change and they could collect on the judgment. People win various lotteries, often times for millions of dollars, every week. Who knows, it could be you. Then they could collect on the judgment.

. My husband is back at work full time and things are leveling out right now for us.

and that is exactly the type of situation I was speaking of. Once you are on your feet and have some money that is available for them to seize, they can start collecting on the judgment.

Once they have a judgement, they can agree to monthly installments in lieu of seeking to seize accounts or other property. As long as you abide by the agreed payments, they are bound by the agreement as well. That might be the best you can hope for here.

 

[LdiJ]

I do agree with the advice that you have received so far. However, I would recommend that your husband open an account of his own and have his paycheck deposited there. Any account with your name on it would be subject to seizure.