Sued in Nevada - Confused about steps to take

[Nevada_Blues]

What is the name of your state? Nevada

I received a "summons" with a noticed that I've been sued.

After reading through previous posts, I am at a quandary about what I should do next.

I have not requested nor received a validation of debt. Since I am being sued, is it too late to request such material. Note, I had also received a form letter simular to: http://www.icle.org/partners/forms/html/blt0029.htm with this identical statement:

"Unless you notify this office within 30 days after receiving this notice that you dispute the validity of the debt or some portion of it, this office will assume that the debt is valid. If you notify this office in writing within 30 days of receiving this notice, this office will obtain verification of the debt or a copy of a judgment and mail a copy of it to you. If you request in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor if different from the current creditor."

I had not responded within their 30 day request, and the impression I'm getting is that it would be pointless to request validity after the 30 days have expired as the assumption now is that the debt is valid.

This letter, that was issued by a law office, lists the creditor as, "First Resolution Inv/First Resolution Inv Corp/AACA." I do not recognize them as the credit card company that I had accrued debt with, I'm guessing they are a collections agency but are now the formal creditors. The original credit card debt (at least I think so as I'm not completely sure) was with First Card, which I would assume to be the original creditor.

If validation of debt is a step to take, if I'm still allowed to, would I include the credit card number and credit card company's name, even if I'm not sure if it's that specific credit card in question? Or would I use the creditor listed on the letter that was issued to me, the letter I failed to respond to in the 30 days request of me.

Since I have received a summons, what am I to do? It says I have 20 days after the summons to file a formal written response to the complaint and server a copy to the attorney whose name and address is shown below. I take it I would still have to go to court and pay what ever fees regardless of what happens here on out? Can I use the validation of debt as my formal response? Is there a good form letter to use for validation of debt in this situation? I was looking at this one: http://www.creditinfocenter.com/forms/sampleletter9.shtml

 

[Ladynred]

The letters from creditinfocenter.com are good ones to use. You can still request validation, if they can't prove it before court, they'll have to do so IN court. You also must file your Answer to the Complaint. If you're unsure of just where this debt is coming from, then make sure that your Answer is a general denial of all their claims. You should get a court date and YES you should go.

Just because the 30-day notice (called the mini-miranda) to request validation has passed doesn't mean you can't ask for it - you can ALWAYS ask for validation. Their ASSUMPTION that the debt is valid is meaningless because it doesn't PROVE its your debt or that it IS valid.

How long ago did you last pay the original creditor ?? The statute of limitations for legal action to collect on a credit card is 4 years in NV. If its been more than 4 years since you last paid the original creditor, then the SOL is up and the debt is time barred. That gives you an affirmative defense to get the case thrown out of court entirely.

These sources can help you with your Answer:
http://www.legalhelp.org/answering_complaint.htm
http://www.legalhelp.org/affirmative_diffense.htm

 

[Nevada_Blues]

Thank you for your excellent answer and the links, it was very informative and exactly what I was looking for in regards to the questions I have.

I do not remember making a payment to the original creditor since before August 1999, so it sounds like the statute of limitation would time bar the debt.

Again, thank you for your soundness of mind and knowledge during a crazy time. I'll get things rolling on this during this week.

 

[Nevada_Blues]

Just because the 30-day notice (called the mini-miranda) to request validation has passed doesn't mean you can't ask for it - you can ALWAYS ask for validation. Their ASSUMPTION that the debt is valid is meaningless because it doesn't PROVE its your debt or that it IS valid.

Ahh, I see what the creditor has done. They are being cute with FDCPA § 809. They made contact with me by phone and letter (letter was not sent to me certified mail). They mailed the letter in an envelope with only a return address with no name to indicate who the sender was, and then stated their mini-miranda so that I could not use debt validation as stated in FDCPA as a means to tell them to bug off. Bad of me not to open the letter until after the 30 stipulated days. I'm guessing they were aware of FDCPA and were covering their bases to sue me. They certainly used creative ways to not to draw attention to the envelope; by not sending it certified mail, nor including the name of the sender on the envelope.

 

[Ladynred]

By law, they cannot put anything on the envelope that would indicate that its a collection agency or that the letter may have anything to do with debt collection. There is nothing that bars you from asking for validation after the initial 30 day period, although they are known to lie about the initial letters.

 

[Nevada_Blues]

By law, they cannot put anything on the envelope that would indicate that its a collection agency or that the letter may have anything to do with debt collection. There is nothing that bars you from asking for validation after the initial 30 day period, although they are known to lie about the initial letters.

Okay, that's understandable. The attorney representing the collections agency is definitely sensitive to FDCPA, so I do not detect obvious problems in this regard.

I have some other questions regarding my affirmative defense:

How do I quote my sources specifically from Nevada Revised Statutes? I believe NRS 11.190 Periods of limitation and NRS 11.200 Computation of time are the statutes my affirmative defense is based upon (I need to make sure these are what my rights are being based upon).

Do I need to include a printed version of these statutes with my affirmative defense? If a printed version is necessary or recommended, is it generally okay to cut & paste the specific articles, then print them on my printer? How are these printings included?

Is it okay to have my affirmative statement critiqued here (I may or may not do this)?

Is it necessary to establish that a credit card is an open account in my affirmative defense?

 

[Nevada_Blues]

Update and further question:

I filed an Answer with an Affirmative Defense based on SOL, and sent a copy to the Plaintiff's Attorney by certified mail and RRR. I received the certified mail stub back, but nothing for RRR. Now, the Plaintiff's Attorney has filed a motion for Default, stating it's been 20 days and no answer had been filed. Do I need to provide the court with the certified stub as proof the Attorney was sent a copy of the Answer, and did receive it? Note, I did include a Certificate of U.S. Mailing with my Answer as well, and included a copy of this with my certified mailing to the Attorney too. If I need to provide the certified stub, how do I do so? What's my next step here? Or, can I just wait, as I did file my Answer to the Complaint in time.

 

[Ladynred]

Did the attorney file the motion for summary judgment BEFORE the 20 days was up ?? If he did, he was jumping the gun, especially so if you have the green card back from the certified mail that shows when they received it. The motion for summary judgment is a standard filing in this process, whether you answer or not, they always ask for it. If the excuse isn't 'no answer received' then they'll say you haven't provided anything to prove your case.

I would NOT just sit and wait. Call the court, or check online if you can, and find out exactly when he filed that motion. You can file an objection to his motion and include a copy of the certified mail receipt as your proof that he jumped the gun and you did what you were supposed to do.

 

[Nevada_Blues]

Called the County Clerk's Office, no motion for summary judgement had been made. Confirmed my answer was approved by the judge and filed on Sept. 3.

Called the plaintiff's attorney's office to let them know I sent a copy of my answer to them and received back a certified mail green card. After 15 minutes, my answer was found. Apparently, since there is no counter-suit, my answer had become tucked away in this person's supervisor's office.

The lady looking for and found my answer stated something about going into arbitration, to expect early-arbitration, with the arbitration process taking up 9 months.

 

[Ladynred]

Wow, 9 months ?? Arbitration doesn't change the SOL issue - its still a time-barred debt. Unless its the lawyer talking, I don't think much of any answer coming from a law office employee or even a para-legal - they're not licensed to practice law !