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Summons - help!!

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Anonymous
Not applicable

Summons - help!!

My husband has receieved a letter with a court date for this Thursday in regards to a charge-off from his Discover Card. The original limit was $500, then lates fees and over limit charges pushed it up to $1500. They then raised the limit to $1500, kept tacking on fees and now the total amount showing on the credit report is $4686. Everything over $500 is fees, interest, etc.

 

The card was opened in 2003. The last payment made was Feb. 2009, so we are still within the SOL. On his credit report, the three agencies report the account as "charge off", "Bad debt & placed for collection & skip" and "Charged off as bad debt".

 

The "summons" is actually a letter from a collection agency that makes it look like they are lawyers representing Discover. It's not from the courts. He was served with papers last February and tried to set up a payment plan at the time. No plan was set up and this is the first contact we've had with them since last year.

 

Should we have also received a letter from the courts? Is it too late to negotiate? What would the best course of action be? We're a little lost on what to do next.

 

Thank you for your help!

Message 1 of 16
15 REPLIES 15
llecs
Moderator Emeritus

Re: Summons - help!!

If he was served with papers a year ago, was there a court date set for that time or thereabouts? You may want to do some research with your local courthouse. If you didn't show up at court at that time last year, then there could be a default judgment floating around out there. IME, not all courts will report a judgment. In my dark credit days, I had 5 or 6 judgments against me and only one ever reported.

 

If the same CA sent over this info, could it be the summons they gave you was last year's copy?

 

If the debt is outstanding, I would pay it off to avert a garnishment at the least. If the judge didn't issue a default judgment (assuming you weren't there) last year due to maybe the plaintiff not being there, for example, then it's always possible they are trying again now. You can always offer a settlement.

 

Double check your SOL. YMMV based on your state, but a payment won't always reset SOL.

 

 

Message 2 of 16
Anonymous
Not applicable

Re: Summons - help!!

No, this is the first court date set. It is on the docket on the court web site. Nothing else is there under his name.

Thank you for you reply.

 

Message 3 of 16
Andrew22
Regular Contributor

Re: Summons - help!!

First thing, go to court. Don't be afraid.

 

Next, this is your chance to get information, too. Do NOT sign anything, say anything, negotiate with the laywer, or stipulate anything until you know who you are talking to. Talk to the pro se attorney, and go over the plaintiff's case against you. The plaintiff suing you may not be legally entitled to collect. Have you made an agreement with the CA or are they a new CA? If you don't know them, they may have simply bought the account and are rolling the dice on getting a quick settlement or a default judgment. If you've not dealt with the, you can challenge their standing, and make them prove they are legally entitled to collect, make them prove you are not outside SOL, and make them account for every nickel they are suing you for. 

 

It sounds like you know you owe something to someone here, but you do not necessarily owe the people suing you, and you do not necessarily owe almost 5K on a $500 default. And, you may not owe the debt at all in terms of the law. So before you do anything, get information. You have rights. Also, do not answer any "interrogatories" from the plaintiff that are not court-ordered. They may send you a list of demands for information that may look like they are offical court documents, asking for your bank account, or to admit to owning the account. But unless they are ordered by the court, you are under no obligation to answer.

 

But, first things, first, go to court. Do not ignore. Get the case file against you, and know what you are up against. Worst case scenario, you are likley to get a better settlement if you show you are going to make them work in court. Best case, you are facing a high volume collector without proper documentation to show standing, and you knock the case out.

Message 4 of 16
IOBA
Senior Contributor

Re: Summons - help!!

If you do go to court, take COPIES of the last statements, etc --- things proving the debt was $500, not the 5k they are claiming now.  They are entitled to late fees and interest, but there is a good chance the judge will knock that down to a reasonable about of money.   Also, know how much you can pay to the CA BEFORE You go and have a money order or something with you.   Tell the judge you owe $500 and have a money order for $550 to cover any other fees/etc, if it is accepted, it would be considered paid in full.   

Message 5 of 16
Anonymous
Not applicable

Re: Summons - help!!

Thank you! New question.

 

I have statements going back to 2006, but not before (account goes back to 2003). All show the limit as $1500 and the "purchases" are all late and/or overlimit charges.

 

Would it hurt if I created an online account with Discover to find old statements? Or would they not even go back that far with the history online?

Message 6 of 16
Andrew22
Regular Contributor

Re: Summons - help!!

I have a slightly different opinion, respectfully. You only need to counter the case against you, not what you think the case against you may be. I would not bring any documents to court, or a money order. The burden of proof is 100% on the plaintiff at this point. And they may have nothing. So why would you give them anything they might use? Again, you know you defaulted $500 to discover in 2003. But it doesn't mean you owe a third party 5k in 2011. And discover is not suing you, right, a CA is?

 

A lot of these high-volume collection "law firms" buy charged-off accounts in bulk, and roll the dice on getting a default judgment, which happens in 80% or more of cases in some counties, or they hope for a quick settlement from people who know they owe something, but aren't prepared to ascertain whether the the people suing them are legally entitled to sue. Often, these kinds of cases are based upon nothing more than a shady affidavit from an office worker who swears to have "knowledge of the account." Think about it: lawyers cost hundreds an hour. As a high volume debt collector, who bought the account for pennies, how many hours of legal billing would you spend chasing a small CC charge-off? There is NO real lawyer poring over your file and building a case against you. You are a number. And as I said, most people never show up, others settle, so the odds of getting paid without ever needing evidence are pretty great. Consider also, in 95% of consumer credit cases, the defendants come without counsel.

 

But , while owning an account number is enough to undetake a collection, it is not enough to win in court. You have rights in court. The plaintiff must prove standing. This usually requires an original contract, this requires the contract showing they were directly sold the debt by Discover, and if not, they often must show a clear, properly executed and unbroken chain of transfer from firm to firm. They must also prove every nickel they are claiming, which can mean having statements dating back to your first default. They must prove this is within the SOL, that they are suing in the right venue, and a number of other things. They may not have any of this documentation. You won't know until you see the complaint. Go to the court before your hearing and pull your file.

 

As for a money order, I wouldn't. You're in court, so whatever agreement you make has to be stipulated and approved, and it is better to mail a check once the papers are all done and properly filed than hand anyone a money order in a court hallway without realizing what you've just agreed to. Also, in most cases, the lawyer is not authorized to accept payment directly.

 

So, I recommend getting your file before you do anything. Don't do anything with Discover if they have charged off. Your only foe here is the plaintiff, teh CA. And don't give them anything. This is your turn to get information. They may send you letters, but only the court can order you to answer. No court order, it is a plaintiff fishing expedition.

 

You may have a problem in that you have sent a payment to the CA. But, you may get around that, and could even get that payment refunded if you can show you were misled to believe the plaintiff had standing to collect the debt.

 

I'll just tell you this: in 2009 I spent two weeks in courts in two states observing consumer credit cases for a newspaper. I was shocked. One freelance attorney for  each collection firm  would each oversee a thick file of suits, one after the other. Most of the cases went as i described: defaults, delays, or quick settlements. But of the dozen or so cases where a defendant showed up and challenged the plaintiffs, they won every case, or the plaintiff's asked for a continuance. Think about it. Why fight a thin case, when you can get 80 percent to them to settle or win a default? Why spend the extra money, or time building a case, when you can just ram defaults through or make settlements? An actual trial is wasted time and money. 

 

Of course, you can always settle. But for a $500 card from 2003, do you really think some big bad lawyer is betting his bonus collecting documents to beat you? I highly doubt it. This is a collection agency. And since they've dragged you into court, avail yourself of the rights available to you.

 

 

Message 7 of 16
Anonymous
Not applicable

Re: Summons - help!!


@Andrew22 wrote:

I have a slightly different opinion, respectfully. You only need to counter the case against you, not what you think the case against you may be. I would not bring any documents to court, or a money order. The burden of proof is 100% on the plaintiff at this point. And they may have nothing. So why would you give them anything they might use? Again, you know you defaulted $500 to discover in 2003. But it doesn't mean you owe a third party 5k in 2011. And discover is not suing you, right, a CA is?

 

A lot of these high-volume collection "law firms" buy charged-off accounts in bulk, and roll the dice on getting a default judgment, which happens in 80% or more of cases in some counties, or they hope for a quick settlement from people who know they owe something, but aren't prepared to ascertain whether the the people suing them are legally entitled to sue. Often, these kinds of cases are based upon nothing more than a shady affidavit from an office worker who swears to have "knowledge of the account." Think about it: lawyers cost hundreds an hour. As a high volume debt collector, who bought the account for pennies, how many hours of legal billing would you spend chasing a small CC charge-off? There is NO real lawyer poring over your file and building a case against you. You are a number. And as I said, most people never show up, others settle, so the odds of getting paid without ever needing evidence are pretty great. Consider also, in 95% of consumer credit cases, the defendants come without counsel.

 

But , while owning an account number is enough to undetake a collection, it is not enough to win in court. You have rights in court. The plaintiff must prove standing. This usually requires an original contract, this requires the contract showing they were directly sold the debt by Discover, and if not, they often must show a clear, properly executed and unbroken chain of transfer from firm to firm. They must also prove every nickel they are claiming, which can mean having statements dating back to your first default. They must prove this is within the SOL, that they are suing in the right venue, and a number of other things. They may not have any of this documentation. You won't know until you see the complaint. Go to the court before your hearing and pull your file.

 

As for a money order, I wouldn't. You're in court, so whatever agreement you make has to be stipulated and approved, and it is better to mail a check once the papers are all done and properly filed than hand anyone a money order in a court hallway without realizing what you've just agreed to. Also, in most cases, the lawyer is not authorized to accept payment directly.

 

So, I recommend getting your file before you do anything. Don't do anything with Discover if they have charged off. Your only foe here is the plaintiff, teh CA. And don't give them anything. This is your turn to get information. They may send you letters, but only the court can order you to answer. No court order, it is a plaintiff fishing expedition.

 

You may have a problem in that you have sent a payment to the CA. But, you may get around that, and could even get that payment refunded if you can show you were misled to believe the plaintiff had standing to collect the debt.

 

I'll just tell you this: in 2009 I spent two weeks in courts in two states observing consumer credit cases for a newspaper. I was shocked. One freelance attorney for  each collection firm  would each oversee a thick file of suits, one after the other. Most of the cases went as i described: defaults, delays, or quick settlements. But of the dozen or so cases where a defendant showed up and challenged the plaintiffs, they won every case, or the plaintiff's asked for a continuance. Think about it. Why fight a thin case, when you can get 80 percent to them to settle or win a default? Why spend the extra money, or time building a case, when you can just ram defaults through or make settlements? An actual trial is wasted time and money. 

 

Of course, you can always settle. But for a $500 card from 2003, do you really think some big bad lawyer is betting his bonus collecting documents to beat you? I highly doubt it. This is a collection agency. And since they've dragged you into court, avail yourself of the rights available to you.

 

 


 

 

Sometimes poor legal advice is worse than no legal advice. 

 

While a lot of the statements here are nothing more than unfounded and inaccurate, the fact is that appearing in court virtually always does provide better odds than simply ignoring the summons & complaint.  Unless you know the creditor has all their t's crossed and i's dotted, making them prove their case in court is a good idea.  If, however, you find out in court that things are not looking good, you should request a continuance in order to seek real legal advice or else to at least have a chance to calm down and rethink your strategy.

 

One suggestion offered here is not only irresponsible, but also dangerousIf you receive what are often referred to as interrogatories from the plaintiff's attorney, simply ignoring them may result in your arrest.  It's an old wives tale that the courts in the vast majority of jurisdictions have to specifically approve interrogatories.  The plaintiff's attorney is, by default, an officer of the court just as is the defendant's.  Either may have interrogatories served upon the opposing party according to the local rules of court and that, more often than not, does not require any specific court approval.  If you get interrogatories that bear the caption of the matter and legal language advising you that failure to answer may subject you to contempt, refusing to answer may be one of the most foolish things you could do.  If in doubt, ask the clerk of the court if the document served upon you mandates a response. 

 

Message 8 of 16
Andrew22
Regular Contributor

Re: Summons - help!!

And there it is! Arrested! haha...

 

"Unless you know the creditor has all their t's crossed and i's dotted, making them prove their case in court is a good idea.  If, however, you find out in court that things are not looking good, you should request a continuance in order to seek real legal advice or else to at least have a chance to calm down and rethink your strategy."

 

no disagreement there...except, I would add, you should talk to the court's pro se attorney before you get started.

 

One suggestion offered here is not only irresponsible, but also dangerousIf you receive what are often referred to as interrogatories from the plaintiff's attorney, simply ignoring them may result in your arrest. 

 

So, yes, I was overly broad. If you go to court and later receive proper rogs, by all means, don't ignore them. Ho you answer them is a different story. And, that the rogs must be "ordered" or approved by the court is not what I meant to say, just that the discovery process must be started by the court. What I wanted to point out is that it is an extremely common tactic for collection "law firms" to send letters that claim to be rogs, often via regular mail, ahead of a court appearance, as they know 95% of you will not have attorneys and will just start stipulating information that the plaintiff does not possess and can't prove. Once you answer, they can try to enter the rog reponse as evidence. But you are not under oath and cannot be held in comtempt of court if you haven't yet been before a judge, and you are under no obligation to answer private correspondence from a debt collection "law firm" requesting personal information, just because they make them look like and call them interrogatories and say you must answer them.

 

Either may have interrogatories served upon the opposing party according to the local rules of court and that, more often than not, does not require any specific court approval. 

 

I didn't mean to imply "specific" approval of the rogs, just that discovery begins once ordered by the court, not when the plaintiff starts sending letters.

 

If in doubt, ask the clerk of the court if the document served upon you mandates a response.

 

No real disagreement there. But come on, no one is getting arrested. You may face a motion to compel a response. Worst comes to worse, you'll default the case. But no consumer credit judge in the country is going to have you arrested. I appreciate your comments, but come on. And Court Clerks are not your lawyers, either. The risk of being arrested is non-existent. But the risk of listening to bad advice from a court clerk and then giving the plaintiff information they'll hang their case on is greater. If you don't answer and go before the judge and tell him you didn't think you needed to, he or she  will say, you need to, or you don't. You're not a lawyer, you're a citizen. If you need to, and refuse, you may have some trouble. But no poor confused citizen is going to be arrested here, stop scaring these poor people. 

 

Alright, I'm done. I'm not hijacking this thread,and not going at it with collection lawyers. Final thought for the poster: don't panic, go to court and get your file and know exactly what you are up against. Then, have a strategy. Don't let the lawsuit coerce you into a bad settlement. You have rights, and you may well have a solid defense.

 

Message 9 of 16
MBOhio2
Established Contributor

Re: Summons - help!!

Overall, I completely agree with Andrew. Everything he's explained is pretty accurate. The most important points are 1) go to the hearing; 2) don't be intimidated - don't be afraid to ask questions, the court will be willing to help you by explaining procedures, documents, etc; and 3) make the plaintiffs prove the case (i.e. make them prove that you owe this debt by producing documents, etc).

 

As a sidenote, I am a lawyer, but I practice in an field totally unrelated to credit/debt. A few years ago, my husband had a debt collection law firm file suit against him for a Circuit City credit card that he defaulted on about 15 years ago. Unfortunately, Ohio has an abnormally long statute of limitations on written contracts (15 years), so I actually had to go to court and defend him. I was totally out of my element, but after a pre-trial hearing and some interrogatories, the collection agency plaintiff dismissed the case so we won Smiley Happy They quickly realized that we weren't going to roll over and pay and they couldn't prove the debt, so they gave up.

 

 

 

 

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Message 10 of 16
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