Need to deal with / answer summons

[ryan]

.....Look around this site and read carefully. You will find many folks giving advice about dealing with lawsuits, etc. But if you pay very close attention, you will see that these folks opted for BK and have no real personal experience to share; At least experience related to what might happen if you walk away and don't file for BK......

IMO, this is a very keen observation. Its much better on this forum than others I've visited. But, until you've been sued, you can't appreciate what it's like. ...and probably don't know the hurdles you'll have to confront to fight it. Its only logical, really. I'm fighting THREE lawsuits right now. About to get one dismissed (yeh)...but its a big hassle, I can tell you.
The time investment, the added costs, the uncertainty all add up. But, I will say I have learned a TON.

By comparison, I usually don't comment on stuff directly about BK procedure, because I've never been there (yet).

Another point: STATE SPECIFIC LAWS really are where it's at. A lot of times we see comments that while I'm sure valuable, do not apply to the state the poster is in. For instance: In my state, a creditor cannot seek a MONETARY Judgment for breach of contract (like CC ) unless defendant was served in person - I can find no exceptions in my state civil code.
I'll let you ponder the implications of that....but in many other states, if they can't find you that way, they need only mail it or notify by publication. The pre-judgment, judgment, and post-judgment actions allowed, vary state by state.
So, advice to one, about "Process Service", will be incorrect advice for many others.

Tobee43: I agree with you 99.98% of the time, assuming I've had a few beers. lol!!

[airahcaz]

IMO, this is a very keen observation. Its much better on this forum than others I've visited. But, until you've been sued, you can't appreciate what it's like. ...and probably don't know the hurdles you'll have to confront to fight it. Its only logical, really. I'm fighting THREE lawsuits right now. About to get one dismissed (yeh)...but its a big hassle, I can tell you.
The time investment, the added costs, the uncertainty all add up. But, I will say I have learned a TON.

By comparison, I usually don't comment on stuff directly about BK procedure, because I've never been there (yet).

Another point: STATE SPECIFIC LAWS really are where it's at. A lot of times we see comments that while I'm sure valuable, do not apply to the state the poster is in. For instance: In my state, a creditor cannot seek a MONETARY Judgment for breach of contract (like CC ) unless defendant was served in person - I can find no exceptions in my state civil code.
I'll let you ponder the implications of that....but in many other states, if they can't find you that way, they need only mail it or notify by publication. The pre-judgment, judgment, and post-judgment actions allowed, vary state by state.
So, advice to one, about "Process Service", will be incorrect advice for many others.

Tobee43: I agree with you 99.98% of the time, assuming I've had a few beers. lol!!

What state are you in?
How are you getting one dismissed?
What have you learned? you're holding out on us.

[catleg]

If you want to fight it, this is in true civil court, with long discovery cycles. You'll probably need an attorney to navigate you past the answer and summary judgment answer. I've come to the conclusion that pro se is too difficult in NJ courts, unless you really get involved in a lot of cases. I also think debt cases are pre-judged against the defendant.
Also if the OC is the plaintiff you face nearly insurmountable barriers (it's much easier to attack JDB debt assignments).

[airahcaz]

So supposedly attemtpting to settle directly with creditor is the best choice now?

[SunshineGal]

[B]
Another point: STATE SPECIFIC LAWS really are where it's at. A lot of times we see comments that while I'm sure valuable, do not apply to the state the poster is in. For instance: In my state, a creditor cannot seek a MONETARY Judgment for breach of contract (like CC ) unless defendant was served in person - I can find no exceptions in my state civil code.

I couldn't agree more! Further, I've found the initial summons tends to be a bit lazy as most defendants don't bother to file an answer. Check the state civil laws for Breach of Contract and Statement of Claim, then force the creditor to prove their case. Be careful in your answer! Did the creator comply with the laws when they attached the required documents to the summons? You know you owe FIA money, but are you sure your card holder agreement supports the amount they claim? How did they arrive at that figure? In your state, do you forfeit your affirmative defenses if you do not claim them in your initial response? Finally, stating you know you owe the full amount but you can't pay them will not be enough to avoid a summary judgment. However, if your answer denies material facts than you will get a trial, at which time you should be able to negotiate a settlement.

Good luck and keep us posted!

PS - I am not a lawyer and this is not legal advice.

[airahcaz]

I couldn't agree more! Further, I've found the initial summons tends to be a bit lazy as most defendants don't bother to file an answer. Check the state civil laws for Breach of Contract and Statement of Claim, then force the creditor to prove their case. Be careful in your answer! Did the creator comply with the laws when they attached the required documents to the summons? You know you owe FIA money, but are you sure your card holder agreement supports the amount they claim? How did they arrive at that figure? In your state, do you forfeit your affirmative defenses if you do not claim them in your initial response? Finally, stating you know you owe the full amount but you can't pay them will not be enough to avoid a summary judgment. However, if your answer denies material facts than you will get a trial, at which time you should be able to negotiate a settlement.

Good luck and keep us posted!

PS - I am not a lawyer and this is not legal advice.

they'll have to produce my signature on the original agreement, correct?

[SunshineGal]

they'll have to produce my signature on the original agreement, correct?

This will depend on NJ civil statutes and what they are suing for. Is it statement of claim or breach of contract? What did they attach to the summons?

If you are not planning to file BK, than you may want to contact an attorney who defends creditor lawsuits. At the very least, they should be able to help you negotiate a settlement.

[airahcaz]

This will depend on NJ civil statutes and what they are suing for. Is it statement of claim or breach of contract? What did they attach to the summons?

If you are not planning to file BK, than you may want to contact an attorney who defends creditor lawsuits. At the very least, they should be able to help you negotiate a settlement.

1. Breach of Contract
2. Unjust Enrichment

I could also try to settle it myself directly with the creditor?

[SunshineGal]

I believe (again, not a lawyer) the "unjust enrichment" means that the creditor is out money, or "harmed" by your "breach of Contract". I would imagine, they would need to attach a copy of the credit card agreement, either way, they must prove that you owe the money they are asking for.

If you chose to settle yourself, be very careful what you discuss with the attorney, remember, they are not your friend, no matter how nice they seem. Anything you admit to can and will be used against you. They will then file a stipulation of settlement with the court where they basically get a default judgment on the full amount if you fail to comply with the terms. Also, be very careful when you sign the agreement that you are not agreeing to the debt being dischargable in BK, or anything else that can come back to bite you later.

[airahcaz]

I believe (again, not a lawyer) the "unjust enrichment" means that the creditor is out money, or "harmed" by your "breach of Contract". I would imagine, they would need to attach a copy of the credit card agreement, either way, they must prove that you owe the money they are asking for.

If you chose to settle yourself, be very careful what you discuss with the attorney, remember, they are not your friend, no matter how nice they seem. Anything you admit to can and will be used against you. They will then file a stipulation of settlement with the court where they basically get a default judgment on the full amount if you fail to comply with the terms. Also, be very careful when you sign the agreement that you are not agreeing to the debt being dischargable in BK, or anything else that can come back to bite you later.

Thanks, I meant trying to settle with FIA directly... ?

[SunshineGal]

Worth a shot, but same advice still applies.

[treehugger1]

Comments here still support that you must know your own state laws. There is no-one-size -fits-all states approach.

Here is what I have found in my state. After reviewing a few lawsuits related to the debtor answering the summons, it appears that most debtors lose, or they decide to settle. This is particularly true in small claims here. In Oregon small claims, no attorneys ar eallowed. As a result, the creditors come well-equipped with all teh documentation you signed. It is a tough game, since small claims in Oregon is up to amounts of $10k. I see big banks, small banks, credit unions, etc have employees trained in small claims approaches. Even American General, CitiFinancial, etc go to small claims here. It is really, really simple for both creditor and debtor.

When it comes to lawsuits by junk debt buyers, the court seems to be wide open.

In my opinion, in Oregon, creditors' attorneys come to the table with most of their ducks in a row. Judges and the court system here do appear to be wanting to answer the question, "Does the debtor owe the money?" Small technical details won't count for much if the court believes you owe the money and you are just "playing games." I think this is one reason why it is quite expensive for both the debtor and creditor to play games in the courthouse.

The other issue that is well known in Oregon is how hard it is to argue against a summary judgment, if you (defendant) cannot prove or show cause against such a motion for SJ. It turns out that the defendant in a civil action has much work to fight off a motion for SJ. The plaintiff generally needs prove nothing. The burden is the debtor's.

I just don't see too much "fishy" stuff attempted by plaintiff attorneys in my area.

[doni49]

Since this is a FIA suit, I would be interested in knowing if FIA is the true plaintiff. You might want to call FIA Card Services and see if they still own your account.

I also have/had a cc with BofA. However, every statement I ever received from them (including the first statement) indicated that payment should be made to FIA Card Services. So I believe FIA = BofA.

[backtoschool]

Comments here still support that you must know your own state laws. There is no-one-size -fits-all states approach.

Here is what I have found in my state. After reviewing a few lawsuits related to the debtor answering the summons, it appears that most debtors lose, or they decide to settle. This is particularly true in small claims here. In Oregon small claims, no attorneys ar eallowed. As a result, the creditors come well-equipped with all teh documentation you signed. It is a tough game, since small claims in Oregon is up to amounts of $10k. I see big banks, small banks, credit unions, etc have employees trained in small claims approaches. Even American General, CitiFinancial, etc go to small claims here. It is really, really simple for both creditor and debtor.

When it comes to lawsuits by junk debt buyers, the court seems to be wide open.

In my opinion, in Oregon, creditors' attorneys come to the table with most of their ducks in a row. Judges and the court system here do appear to be wanting to answer the question, "Does the debtor owe the money?" Small technical details won't count for much if the court believes you owe the money and you are just "playing games." I think this is one reason why it is quite expensive for both the debtor and creditor to play games in the courthouse.

The other issue that is well known in Oregon is how hard it is to argue against a summary judgment, if you (defendant) cannot prove or show cause against such a motion for SJ. It turns out that the defendant in a civil action has much work to fight off a motion for SJ. The plaintiff generally needs prove nothing. The burden is the debtor's.

I just don't see too much "fishy" stuff attempted by plaintiff attorneys in my area.

Excellent post treehugger1. I got sued in two states pre-bk: nyc, and Michigan. In nyc there was a lot of "fishy" stuff, mostly to do with improper service. I had one lawsuit and summary judgment thrown out and vacated by an action the NY attorney general took against several sewer service lawfirms and JDBs. Once at court however, the judges overwhelmingly decide for creditors in NY. In Michigan, there was "fishy" stuff around fake affadavits and Asset Acceptance. I never bothered to finish contesting the summary judgment though because my six months to achieve residency and get my severance off of my look back period were up and I filed for bk instead.

In my opinion and the experience, the easiest way to fight a summons is the improper service route. Ymmv with affadavits, and most judges are sympathetic to improper service, especially if you were never served in person.

[ryan]

In my opinion and the experience, the easiest way to fight a summons is the improper service route. Ymmv with affadavits, and most judges are sympathetic to improper service, especially if you were never served in person.

EXCELLENT THREAD!...both you have emphasized some great points. The CC courts I'm finding are pretty tough on defendants. There seems to be little of the 'sympathy' I see in FC court. The judges in FC court seem much more sensitive to what they may be allowing to happen: the defendant losing their house.
But in CC court, they seem colder, and more interested in getting it done, and fast. Just the way it is. I've overheard atty's saying.. "this judge figures if you're here, you're guilty."

I just won for EXACTLY the reason BacktoSchool mentioned. I got a judgment vacated and the case dismissed for improper service. Takes work, and one mistake in your written motion will backfire and cost you the whole ball game. Judges are particularly sensitive if it was by a paid process server, rather than the Sheriffs Dept.

Also, note that on affidavits, they will not carry the same weight as a witness and often will not be considered at all.