Got a Summons/Complaint, Talked to a BK Laywer, Got Some Interesting Advice

[tim273]

So I got this summons for one of my CC accounts and I saw a lawyer today. She suggested two things, one is to file an emergency bk request which costs more money, or to buy more time she suggested answering the complaint and denying a couple paragraphs. For example, I didn't spend $XXXX on "goods, wares and services." A lot of that was late fees and interest fees. She made the comment that you have to read it carefully and answer accordingly, but since most of the time when a place serves a complaint the person does nothing and they get a judgement, serving an answer back might even discourage them from pursuing the matter any further (might being the key word). It was one of those "I probably shouldn't have told you that" kind of things.

Anyway, she thought by doing the answer, it would buy me time since I don't have the money to file right now. I was wondering if anyone has done this and if it would work.

Thanks,
Tim

[junker]

yes..i had legal aid help me with a suit in florida, she filed a response denying some things and the cc lawyer was at a loss to explain the responses...the judge gave him 30 days to respond or it would be dismissed...they didnt and it was dismissed...so absolutely deny the debt as it is stated.. it will buy more time...the judges or clerks can be tricky....NEVER admit you owe the debt...make them PROVE you owe the debt. it will buy time...

[albacore44]

Which bank was the CC with and when did you last pay ??

[rockyroad]

Answering definitely buys time, depending on what state you are in. For me, I was served in April and a court date is set for 02/10.

[junker]

in florida...it is a VERY simple proceedure...on court date with about 100 other people being sued...the clerk calls you before the judge and asks you ....do you ADMIT or DENY this debt....thats all...if you deny the debt..he will set another court date at least 30 days later....if you ADMIT the debt you are asked to go to lobby and try and work agreement out with cc lawyer..but judge tells you right there that if you dont work out agreement he will award judgement to cc lawyer..so you are through right there....and it doesnt cost ANYTHING to appear and deny...btw....less than 10 out of 100 denied owing anything....one thing also....many of these jdbs or ca.s use a rent a lawyer...and they usually are not prepared with your complete file...so denying...means they have to research your case much more...which they dont like...and takes them time..and money...so if as you stated you are just trying to buy some time.....show up and deny claim......

[killinstinct]

Sounds like you're filing. You just need a little more time. I would listen to the lawyer!!! Respond refuting everything you can (without lying of course), then get your ducks in a row for a timely BK.

[tim273]

Thanks everyone for all the responses. To answer a couple questions, I live in Minnesota, and the CC is Discover. I'd also like to note that this lawyer is a BK Lawyer and I do plan to file, I just need time get the fees. It is signed by one of the "attorneys for plaintiff".

According to the lawyer I saw, if don't answer, the would not be a court date, they would automatically get a judgment against me. Apparently that's how it works in Minnesota.

So based on all this, I don't know if this is an OC or a JDB (what do those mean?)

Thanks for the answers,
Tim

[tim273]

Oh and one more thing, this lawyer did mention that I needed to be careful and she mentioned the summary judgment.

[AngelinaCatHub]

YES! by all means answer the complaint. I am very much against Judgments, and they can be a real pain. Even in bk, they can cause you more trouble than you need. I have in the past told you horror stories about what a judgment can do. In this case, I was the Plaintiff and levied. Got three times the value of the loss, and the defendant only satisfied $8 of the Judgment and I could go back and levy, levy, levy, but I felt that the "pound of flesh" was enough. I am not that mean.

You just do not want one. When you say DENY at the hearing, you do not have to say why. If asked, state the paper is not totally accurate, and they must prove to you that the whole debt every dot and tittle of it is accurate or none of it is valid. That is not lying as in your opinion, you probably have not even seen an accounting of their charges. This little deal causes them a lot of troubles as they would have to itemize every item they think you owed. It works. And the proof is upon the Plaintiff not you, the defendant. 'Hub

[floridian]

a lot of it depends on the judge... some judges get pizzed if you waste their time... its throwing the dice...

[treehugger1]

"The proof is on the plaintiff, and not you..." I am very tired of hearing this. I do not mean to be derogatory, but this is NOT always how it works, especially under a request for summary judgment prior to trial. In my state, and Oregon is not the only state, it is UP TO THE DEFENDANT to show different numbers than the total value presented by the plaintiff. It is up to the defendant to suggest laws and statutes refuting an allegation of the plaintiff or to fight off a motion served by the plaintiff on the defendant! Just denying shit, and failure to do so without reason, often does result in a judgment for the plaintiff. EVERY STATE is different, and before I would make any general statements, I would research and look up recent civil contract litigation suits in your county/district and see how things played out. In particular, you must know your state and local rules of civil procedure. While it may not seem right, many times the "proof of defense" resides with the defendant in a civil case.

And, even more disheartening, is that fact that in some states, simply answering a summons automatically puts you into mandatory arbitration (different than the national arbitration laws) and the case is now in the hands of an independent arbitrator that has the power of the court/judge behind him/her. In most cases, you will need to put up a hefty deposit to go down the arbitration path. Failure to arbitrate can then lead to a default judgment.

I think that the reason many cases that are answered by the defendant are dropped is because the law firm just doesn't want the hassle of traveling to some other circuit court and going through ANY additional process that does not result in default judgment. I don't think the decision has anything to do with whether or not certain documents, etc exist. These types of defenses do exist, but I would argue they come from consumer defense attornies with lots of experience and involve plaintiff attornies who are known to be shady.

Just my opinions. I'm not saying one cannot fight off a lawsuit. I am saying that one needs to be crystal clear what is expected of them when they answer a summons, or show up in a court hearing.

[junker]

listen to your lawyer,and angelcat and others,,file a dispute..bigboy and treethumper can be confusing and wrong..if you do nothing..you WILL get a default judgement and quickly..if you deny or dispute the claim it will buy you time as you mentioned you needed...NEVER in any of my cases was i not allowed to dispute or deny a claim...thats RIDICULOUS thumper...you can dispute for a number of reasons..even if you know you owe it..i looked over my last case and here is briefly some of the reasons my lawyer said the case should be dismissed...defendant moves to dismiss count one because if fails to state a cause of action..plaintiff failed to attach signed credit card application....second...plaintiff fails to state facts essential to cause of action for credit card or contractual debt..including date of alleged contract.dates and amounts of alleged charges...etc..third...plaintiff alleges he is owner and holder of debt pursuant to assignment agreement.however no evidence of assignment it provided..thus statement of claim should be dismissed..fourth...unjust enrichment claim is founded upon legal fiction that a contract is implied....fifth....plaintiff is a nonresident of state and failed to file a bond with surety with this court...etc..SO you can see there are many ways to dispute a claim..even if you know you owe the money....the main thing is show up and file ANYTHING do dispute and absolutely do not admit you owe the debt..or its judgement time for you....btw my lawyer didnt even mention this case was past the sol...so she knew the case would be dismissed ....

[treehugger1]

I never stated you "could not dispute a claim." My point is that in many states, an answer does not prevent a plaintiff from filing for a summary judgment prior to trial. This doesn't mean a defendant can't answer. It can , in some instances, make the defendant's job much harder if they are attempting to answer the complaint. In addition, in many states filing an answer can cost the defendant a great deal of money. As an example, in Oregon an answer costs $128 - $188 dollars. If you respond to any motion, it can cost $50 - $88 for each and every response. If you don;t respond you will go down in flames. Once you do supply an answer here, you are now subject to MANDATORY ARBITRATION. This now starts to cost one $250 - $500. There is no doubt this can get you a great deal of time, but the cost is not for everyone. Please don't get me wrong. Many folks do file answers and some walk away. But make sure you understand your state laws and court rules of procedure before heading down the path on your own.

Again, all my discussion is opinions, and in many cases experience.

Here is the terrible news about Oregon. One needs to be extremely careful of whatever motion is filed. Debtors here are now beginning to feel the full brunt of Oregon rules. It is sad, but true. My understanding is that Oregon is not the only state with laws stating where the burden of proof resides.

http://www.bullivant.com/Oregons-Summary-Judgment-Standard-No-Evidence-Required

[junker]

You want to be more specific if your going to make blanket allegations? I don't appreciate some BS claim with nothing specific. It is nothing tmore than my saying your full of crap... and well IMHO you are.

boy..the op asked if anyone had tried this as a stall technique..also said they needed to buy time....the load of crap you gave was totally irrelevant to the question....really sometimes you just ramble on and on...and say nothing intelligent...telling the op to let it go to judgement was just a really stupid statement...you know that in itself could cost the op more in bk fees to remove...if you really dont appreciate bs..then stop slinging it so much in your posts....know what your talking about....

[junker]

i guess you have a little trouble comprehending also...the op was advised by their LAWYER to dispute something to buy time.... what part of that cant you understand......i realize you are trying to be a wanna be lawyer..but why dont you try reading a little more and rambling a little less.....have you ever talked to a lawyer?????most of the other posts suggest dispute or deny or whatever....then we get a couple of wanna beess telling something else and confusing the op....they said they needed to buy some time....are you REALLY that slow in grasping the issue???? i mean if its a mental problem you are having..just let me know...and i will understand your rambling and wont question it anymore....