CREDITWRENCH-TheTruth

bobblehr · #1 11.01.2007, 10:18

I received a summons last Friday from a CA while I was out of town (Left it with my brother). They didnt stamp/date anything. I want to file the "Intention to Defend" but cant afford an attorney to help with it. Should I just sign it and leave the reasons blank for the time being? Also, is this form mailed in or filed in person?

I pulled the attorneys records in my county, and am going to see if I can watch a case this week.

knk112 · #3 11.19.2007, 16:00

I been served last week also! I'm plan to defend myself. I have 10 days to file and answer. I'm going to the courty house to the law library to get research similar cases and affrimative denfenses that I can use.

Capitan · #4 11.21.2007, 11:36

Ideally, you need to talk to a lawyer. If you can't afford one, call your county bar association and see if they have either a referral program (you can have a 1/2 hour conference with a member attorney for free) or legal aid resources.

If that is not an option, try to locate the court's court rules online, usually at a state court website. Depending on the state and the court, "leaving a summons with your brother" may or may not be good service. You need to make sure the CA is following the court court procedure.

--Michigan bar member for 29+ years.

cap1sucks · #5 11.21.2007, 21:44

Intent to defend, affirmative defenses, answers to the summons, lawyers, all of them about as useful as putting a milk bucket under a bull if not worse.

The best way to deal with a summons and complaint in most cases is to file a motion for more definitive statements. Make the lawyer explain and prove each and every little thing he says in his complaint. If he says his plaintiff is duly authorized to do business in your state make him explain who authorized his plaintiff to do business in your state. By what authority do they do business in your state?

If he names First USA Bank N.A. as being the plaintiff (for instance) go to google and type in OCC and hit search button. That will take you to the office of the comptroller of the Currency which is a government agency of the United States Treasury. Look in the right hand column and you will see lists of all of the banks authorized by the United States Treasury to do business as Nationally Accredited banks hence the letters N.A. and you just might be surprised to learn that First USA Bank is not even listed there, much less being a N.A. bank.

So if that is the case for the plaintiff in your case then make the lawyer explain what N.A. means and prove that the plaintiff is not a nationally accredited bank as he has claimed.

If he says that the court has jurisdiction and venue make him explain what those terms mean and by what authority does the court have jurisdiction and venue. There are multiple forms of jurisdiction. Make him tell you whether he means geographical jurisdiction, subject matter jurisdiction, IN PERSONAM jurisdiction or exact which types of jurisdiction the court has and how it got jurisdictions. His simple statement that the court has jurisdiction don't cut no ice.

If he talks about Quantum Meriute then make him explain what that is and how it applies to you. If he talks about ACCOUNT STATED or UNJUST ENRICHMENT make him explain those terms to you because you are so stupid you don't understand a single thing he claims and you wouldn't admit it if you did.

You can't file a motion for a more definitive statement in some states but you can demand a Bill of Particulars in those states and so you simply call your motion for more definitive statements a Bill of Particulars instead of a motion for more definitive statements. Same thing, really, and either way it serves as your response to the summons and complaint even if the judge won't let you do it. Most judges will allow it.

And of course the lawyer will object to that in many instances, so if he files an objection you will have to answer his objection and state why you don't understand all his legal nonsense. As an unsophisticated consumer you have the legal right to demand those explanations in order to properly prepare your defense.

If he still don't answer all your questions then you file motion to deem admitted. You have that right because the court obviously ordered the plaintiff to answer so if they don't they are actually in contempt of court and can't use any of those terms or statements in their prosecution of the case. So if they can't use any of those words, terms or phrases what have they got left? Nothing at all.

Then send them a demand for production of documents and if they don't respond then you can file motion to compel or subpoena Duces Tecum, either one. Then when they do answer your demands you probably will either have grounds to dismiss or you might be able to use them to craft your interrogatories and demand for admissions. More ammo to use against them.

Then get ready for the real fun by taking them to federal court for violations of FDCPA and FCRA and that's when the rubber really meets the road. Once you get them there it is no longer a question of whether or not you owe them money bur rather only why they broke the law and if you are right and you have the proof of their wrong doing and you get to the Rule 26(f) meeting and you explain to them what they did wrong and show your proof they suddenly get religion and they don't want to go to a full blown trial at any price.

They will probably only want to know what it is going to take to make you go away. Of course, the price is going to start off with dismissal of their lower court suit, promise in writing to never reveal the terms of the settlement agreement to any third party for any reason whatever, never sell or assign the debt to any other party, pay your court costs and your attorney fees (federal courts have now ruled that even as a pro se they must pay you reasonable attorney fees and judges who refuse to award you attorney fees will be reversed on appeal) and remove any and all derogatory remarks from your credit reports.

They don't want to agree to those terms? Ok Pal, we will let the judge and jury decide what happens and believe me, they don't want to go there. Now that is the way to get your credit repair done once and for all.

Oracle · #9 11.22.2007, 09:01

Cap1sucks seems to be getting ahead of himself. Intent ot Defend is likely a jurisdictional term for answering the complaint. Without an answer, the plaintiff can go for a default judgement.

Cap1sucks is talking about discovery, a very separate part of the court process and dictated by the Court's rules of procedure.

Original Poster needs to answer the complaint and add any affirmative defenses that he might have. He can then move on to discovery.

As much as Cap1sucks would like to have the procedure meet his view, the Courts have the power to define how they work. And they have.

Original Poster, get an attorney, or read the Rules of Civil Procedures for your district and proceed accordingly.

apexcrsrv · #10 11.22.2007, 09:42

No, Cap1sucks is absolutely correct. A motion for a more definitive statement is filed before a responsive pleading. Think about it, how can you file an answer to a Complaint you don't comprehend. Now, my bet is that this jurisdiction follows the notice pleading rules of procedure but, moving for particulars (sorry, VA Procedure kicking in) is an excellent procedural move which, naturally, comes before an Answer.

If this is debt purchaser, they usually never respond. If an Original Creditor, they probably will object citing notice pleading yada yada yada. Just oppose the objection and the judge will defer to the self-represented litigant.

However, a Motion for a More Definitive Statement is not in the province of the discovery process. It is not interrogatories, admission, requests, inspections, etc. It is filed pre-Answer, Motion To Dismiss, JMOL or whatever you choose as a responsive pleading. In fact, if you file that answer, you cannot turn around and then file this or a 12b6 or really anything besides a dispositive motion on the facts or law. Procedure is gone.

No, because the OP has already stated that they can't afford an attorney file the Motion IF THEIR IS A CONTRACT ATTACHED TO THE BACK OF THE COMPLAINT. If there is no contract, simply file a Motion to Dismiss because the Plaintiff has requested relief which cannot be granted. In other words, they have no evidence without a contract. They may have an affadivit instead. If that is all, call the judge's chambers and set a trial date or wait for it if already set. They won't be able to get the affidavit in without the affiant being present. You will then move to dismiss/strike at their close insofar as they cannot prove the allegation that their is a debt which you owe to them.

Actually, in the above case, you would be able to counter under the FDCPA.

cap1sucks · #11 Yesterday, 22:21

Quote:

Originally Posted by apexcrsrv

No, Cap1sucks is absolutely correct. A motion for a more definitive statement is filed before a responsive pleading. Think about it, how can you file an answer to a Complaint you don't comprehend. .

Thank You, Apex. Now then, as to another statement you also made in that same post to which I currently reply, you said

Quote:

Actually, in the above case, you would be able to counter under the FDCPA.

I also concur with that statement with just one little exception. While one can do just as you have suggested it is not practical to do so in most lower courts for the simple reason that the only question before the court is whether or not the debtor owes the debt and that is the only thing the court is usually interested in hearing about. Anything else will be totally ignored or ruled against. What they might have done to the defendant has absolutely no bearing on whether or not the debtor owes the debt. As Bill Bauer teaches, the answer is to file in federal court for their violations of FDCPA and not try to use it against a plaintiff's demand for payment via judgment proceedings.

In federal court it makes absolutely no difference whether the plaintiff owes the defendant money or whether the defendant has a judgment against the plaintiff or any of that. The only question before the federal court is whether or not the defendant broke the law.

is currently heavily involved with beating arbitration cases and seems to be making some headway. One of his students in Missouri filed a motion for injunctive relief against arbitration and NAF had an attorney put in an appearance objecting to the motion for injunctive relief but that attorney cannot put in an appearance for NAF in the case for the simple reason that no arbitrator can be sued nor can they appear in any court case. They are totally immune from any court action against them. So their attorney has no right to appear in any court of law to object to the plaintiff's motion for injunctive relief in the Missouri court. So the next move seems to be to put in a motion in limine to exclude anything the NAF attorney might say. According to both federal and Missouri state law NAF can neither be sued nor can the make any appearance in any court of law on their own behalf.

The way I found out about all this was by listening in on his Friday night conference call last night. Bill didn't say much but just let everybody else do all the talking. The call started at 7:00 P.M. and lasted until after midnight as they usually do. They also talked a lot about IRS and 1099 forms but that was late in the evening and when that started it was about 11:00 and I got tired and went to bed.

Questioner:	Nicole
Category:	Collections Law
Private:	No
Subject:	Type of debt
Question:	I have received a call from a debt collector regarding a bill from 1998. I know the statutes for collection in my state, however it has four different kinds of dept listed-oral, written, open ended, and promissory note. However I do not know what kind of bill a phone bill is considered. I do not believe that this bill is mine, but it would be a lot easier to get cleared if it is too late to collect. Do you know what type of bill a phone bill is considered?
Answer:	Telephone bills, much like credit cards are an ongoing offer of credit. The company provides the service then bills you for it at the end of each month or billing period. So the same statute of limitations would apply. I fail to understand why you think it will be any easier to get cleared if it is too late to collect. Debt collectors often demand payment on debts that are more than 20 years old no matter what the statute of limitations might be. They rely on the fact that most people don't know about such things as statutes of limitations and will often pay the bill whether they owe it or not just to keep themselves out of trouble. If they know about the statute of limitations they often ignore the debt collector because they think that the debt collector can't collect it. They often learn the hard way that if the debt collector files a lawsuit and they don't defend by filing a proper response to the complaint the statute of limitations means nothing and they will get a judgment. They also rely on the fact that finding competent legal help at a reasonable price is not an easy thing to do. The lawyer costs more than just paying the debt in many cases. The debt collector gets paid on out of Stat debt so often that it is very profitable to buy those old debts for pennies and go for the entire amount. Folks need to learn how to deal with abusive debt collection practices like that and do it without having to resort to lawyers or credit repair organizations. It just isn't all that difficult. The first step is learning how to combat the phone calls. To learn about that all anyone has to do is to go to www.creditwrench.com/18questions.html and then visit my message board at consumers.creditwrench.com where they will get lots of tips and tricks and inside information about dealing with debt collectors. They will learn how to stop them in court without resorting to lawyers and sue them for their abusiveness in federal courts. They can also learn how to do it by calling 405-616-7901

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