How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask J.Hazelbaker Your Own Question

J.Hazelbaker
J.Hazelbaker, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 4385
Experience:  Extensive experience with contract, debtor/creditor, and consumer law.
15393114
Type Your Consumer Protection Law Question Here...
J.Hazelbaker is online now
A new question is answered every 9 seconds

I had a civil summons filed against me on 8/12/08 over a credit

Customer Question

I had a civil summons filed against me on 8/12/08 over a credit card debt. The plantiff is a third party debt collector and has a law firm do their work. I received a notice that my lawyer left the firm and would no longer represent me. This notice was received in 9/2011. I now find out that my lawyer did not file responses or discovery papers, just an answer document. I now have a motion for a summary judgement issued against me. April 5th at or after 9:00am. Defendent has no type of proof that I owe this debt, just a little agreement from citibank to midland. No statements, contracts and the original statement from Midland has the account numbers hidden. I am going to file a response to the summary judgement motion. I have a corporate attorney (friend) that is trying to help me out. What I need to know is ...doesn't the plantiff and attorney have to have some type of burden of proof of this debt.
Submitted: 2 years ago.
Category: Consumer Protection Law
Expert:  J.Hazelbaker replied 2 years ago.

J.Hazelbaker :

Hello. Thank you for using JustAnswer.

J.Hazelbaker :

The Plaintiff has the burden of going forward and proving the debt. In order to do this, they must provide documentation of the debt that evidences your intent to be bound.

J.Hazelbaker :

In fact, the preferred practice in Kentucky is to attach such documentation to the answer or explain why it is not available.

J.Hazelbaker :

The only other way to prove without documentation is to get your admission.

J.Hazelbaker :

That can be done a variety ways, but the method you have to be most concerned about is through the discovery requests, which can be deemed admitted if not responded to in a timely manner.

Customer:

What do you mean get my admission?

J.Hazelbaker :

If you don't respond to discovery requests, the plaintiff can ask the court to 1) deem certain questions admitted to (e.g. in a "request for admissions" they can ask you to admit or deny you entered into the contract. If you don't respond in time, the court will deem that you are admitting)

J.Hazelbaker :

or 2) refuse to allow you to use evidence that should have been disclosed during discovery.

J.Hazelbaker :

With regard to determining whether they have enough proof, you simply need to look to what they are relying on in the motion for summary judgment.

Customer:

I understand. The only thing that I did see they have is a "bill of sale, assignment and assumption agreement" signed by a

J.Hazelbaker :

My guess is that they are using an affidavit signed by someone stating you opened the account, incurred debt, and that the amount due is $x.

J.Hazelbaker :

That bill of sale.. is legally insufficient to prove the underlying debt.

Customer:

Please stay with me on this. They have nothing with my name that shows I even had a citibank account. Just a midland bill from 2007. Say they bought the debt. My lawyer did tell me about a year and a half ago that one attorney he talked to at the firm did tell him that they just bought a block of names and my name was one of them.

J.Hazelbaker :

I understand and I see this all the time. Unless they can produce a contract with your name on it (or you admit the debt), they can't prove the case.

J.Hazelbaker :

You need to respond to the motion for summary judgment with your own affidavit that states that you do not owe the debt.

J.Hazelbaker :

If you do that, the judge will deny the motion (as there is a dispute of fact) and the creditor is likely to go away.

J.Hazelbaker :

These scavenger debt collectors pick the low hanging fruit. They don't want to invest a lot of time and money in cases that they no they will lose if the defendant puts up a fight.

Customer:

Do you do any type of guidance on typing up the response. I am willing to pay for help with it.

J.Hazelbaker :

I would simply follow the form of the motion filed by the Plaintiff.

J.Hazelbaker :

Both the motion and the affidavit. You will have to have your affidavit notarized.

J.Hazelbaker :

The affidavit is the important part. Keep it short and simple.

J.Hazelbaker :

My name is

J.Hazelbaker :

I am the defendant

J.Hazelbaker :

I have read the complaint filed against me and the plaintiff's motion for summary judgment

J.Hazelbaker :

I did not incur the debt asserted by plaintiff

J.Hazelbaker :

or

J.Hazelbaker :

I deny that I owe the debt that is being asserted by plaintiff

J.Hazelbaker :

I have requested documentation that I owe the debt and have not been provided with anything

Customer:

I did have a citibank account I had been paying on that got passed on to several debt collectors. The account that midland listed is another account. However, in January of 2008 for 250.00 but I thought it was going to the account I was paying on, which I paid off to another collector in june of 2008. Does this show I admitted the debt. I don't know if they have a cancelled check and I can't find a copy of the check.

J.Hazelbaker :

Then, in your motion, you refer to the affidavit and point out the the motion for summary judgment must be denied because there is a dispute of the material facts. Your motion only needs to be a few sentences long.

J.Hazelbaker :

If they had any evidence like that, they would have attached it to their motion for summary judgment.

Customer:

How do I contact you with more questions when I write this. Can I subscribe and ask for you personally?

Customer:

They stated that I made a payment with an agreement but the copy of the so called agreement was never signed by me.

J.Hazelbaker :

Without your signature, it's not binding against you.

J.Hazelbaker :

Once you Accept the question, you can access it again in your "my questions" tab.

Customer:

So if they had a copy of the check, it would

J.Hazelbaker :

You can then reactivate this conversation thread by posting another question. I will be contacted and will respond to you as soon as I can.

J.Hazelbaker, Lawyer
Satisfied Customers: 4385
Experience: Extensive experience with contract, debtor/creditor, and consumer law.
J.Hazelbaker and 3 other Consumer Protection Law Specialists are ready to help you
Customer: replied 2 years ago.
confused how to word the affidavit.
Expert:  J.Hazelbaker replied 2 years ago.

First, look at the plaintiff's affidavit attached to their motion for summary judgment.

Second, here's an example of a suitable affidavit form. Obviously, you will need to change to your state and your case caption (the caption is the top part of the first page that includes the name of the court, plainiff, defendant and case number).

Third, use the statements I included above in the body of your affidavit:

My name is

I am the defendant

I have read the complaint filed against me and the plaintiff's motion for summary judgment

I did not incur the debt asserted by plaintiff

or

I deny that I owe the debt that is being asserted by plaintiff

I have requested documentation that I owe the debt and have not been provided with anything

 

J.Hazelbaker, Lawyer
Satisfied Customers: 4385
Experience: Extensive experience with contract, debtor/creditor, and consumer law.
J.Hazelbaker and 3 other Consumer Protection Law Specialists are ready to help you
Customer: replied 2 years ago.
The discovery papers what do they ask for....looking through all my paperwork.
Expert:  J.Hazelbaker replied 2 years ago.


The affidavit should be attached at the end of the motion for summary judgment.

You can copy it, but put in your information.
Customer: replied 2 years ago.
Discovery requests...I have three sets of papers. (1) Request for production of documents. (2) Set of Interrogatories. (3) Admissions. Do I have to complete all 3 sets or what do I need for discovery. Who do I send this to or do I attach them to my motion.
Expert:  J.Hazelbaker replied 2 years ago.

These are separate from your motion for summary judgment. You can respond to them before or after your summary judgment motion.

Since you indicated tha the Plainiff has filed for summary judgment, you should respond to that first.

But, you should also send your responses to the discovery requests soon. The request for admission is he most important. Do that one first.

Customer: replied 2 years ago.
In summary judgement (kentucky) plantiff is stating that they are not obligated to produce a written contract according to 371.010 Statue of frauds - contracts to be written.

How would that apply?
Expert:  J.Hazelbaker replied 2 years ago.

That section simply states that a contract for credit need not be in writing. Kentucky law still requires that the agreement for credit be proven. And, it must be proven in a manner that establishes that you accepted the obligation.

Moreover, it does not excuse the plaintiff from having to produce the written agreement where it should exist. They can't rely on a statute that says that credit agreements in Kentucky need not be in writing to excuse their inability to produce the written agreement that existed in your case. Of course, you have to walk a fine line. If they have asserted that you entered into a contract, then you can make them produce it or go away. But, if there is no allegation that no written contract existed, then you don't want to assert that one did or you 'd be admitting that you entered into it.

Customer: replied 2 years ago.
They show on a letter that they want interest from January 9, 2002 until the date of judgement. The state of limitations in Kentucky on this type of account is 5 years. Can I argue that the debt they are trying to collect that they bought on 10-2-07 is past the statue of limitations but also if they bought the debt on that date, then the debt would have been charged off before that. No one has the date of charge off. What's your opinion?
Customer: replied 2 years ago.
In the packet I got with the summary judgement they had another set of admissions and some interIrogatories. Should I fill these out as my attorney never did. I have alot of the other paperwork done. However, on the interrogatories, there is a question if I was ever involved in another lawsuit and is so they want all the info. It was lawsuit over a house I owned with a then boyfriend and I wanted to sell but he wanted to clean my clock so he drug me through the court system and they finally ordered to auction the home. My Loss. However, there were alot of issues with the old boyfriend and it led almost to him being charged with stalking. This was back in 2000. Problem is they want all the info regarding this case...his number...address...his attorney...and so on. Here's another problem..the house I used to live in....was broken into and whoever tore the entire place apart ...well the detectives feel it was someone that had a personal issue with me. I have not seen him for 10 years and the detectives think it could have been him. Do I have to list this information. Heck I don't even know the case number and some of the other stuff. Paperwork I had concerning all that had to be burned due to the blood all over it found after the break in. What do I do? Sorry so long.
Expert:  J.Hazelbaker replied 2 years ago.

With regard to the statute of limitations, can you narrow down a month/year when you last made a payment. In other words, when did you default?

With regard to the interrogatories/discovery requests about old lawsuits, etc., I would simply reply:

"Object. Request seeks information that is neither relevant nor likely to lead to the discovery of relevant information."

Customer: replied 2 years ago.
I don't even remember this account. I paid another XXX account off that I opened in 1994 and it was turned over to collection but I don't know exactly when. Probably about the same year 2001 or so. I did finally pay that off in June of 2008. I have found the XXX card and some old statements on the card I paid off. However, I can't find anything on the one they are saying I owe. They say it is from the company XXX. They are not aware I paid the one mentioned off. I found a statement in the file the attorney's office gave me and found an account number on it. Weird because the same statement is in the packet for the summary judgement but the account number has been whited out. Thought they had to submit true documents. Isn't that altering a document. Statement doesn't have my name or address on either copy. Weird. I did call the number on the card that I found that is paid and they used my social to pull up an account number that I saw on the statement. Lady was very nice but said she no information as the account was sold to ML. Told her I did not remember ever have 2 cards from the same company. Said there was nothing else regarding the account. The one I paid off she is sending me a letter showing the account is paid. Can't figure this one out.
Customer: replied 2 years ago.
I have the admissions completed except for the last statement...not clear how to answer. Statement is - There are no facts involved in this matter that support any of the affirmative defenses that you have asserted in this case. Thanks for the answer about the interrogatories. I work at night so that is why my answers are so early in the morning. I saw you replied at 12:48 yesterday which was great as I leave for work around 3:00pm. I know you are busy but you have given me a world of knowledge and I will continue to give you bonuses. I went ahead and filed my Pro Se Notice of Appearance and sent them out. Clerk was great..she made all the copies for me and stapled them. Said it look great.
Expert:  J.Hazelbaker replied 2 years ago.

I'm glad the information is helpful and that you are able to use it effectively.

An "affirmative defense" is a defense that a defendant (you) must prove. Essentially, it is a defense that says "even if the the plaintiff's allegations are true, I still win because XXX".

A defendant has the burden of proving an affirmative defense. There are standard affirmative defenses that a lawyer typically adds to the end of the Answer to the complaint, such as running of the statute of limitations and accord and satisfaction.

If there were affirmative defenses asserted in your Answer, then you should answer "deny" to this particular admission.

You have two issues in your case:

1) the plaintiff has the burden of proving that you owe this debt by introducing original documents that demonstrated you entered into the agreement willingly and have not paid it off. So far, they have not provided any information.

2) you have information that the only debt you know of has been paid off. You need to gather that documentation and submit it. I would proceed as if the paid off account was the account they were trying to collect on until they prove otherwise.

And, there could be a third issue, which is the statute of limitations. This asserted debt is close to the statute of limitations, if it is not the account you paid off. Since you can't recall the account or making a payment on it, there's a good chance that the statute of limitations has run, which would mean they no longer have a right to sue you to enforce it. Again, this is an "affirmative defense", which you would have to prove, but only after they prove that you were once obligated on this particular account.

Customer: replied 2 years ago.
Are you talking about the answer my attorney filed back in 2009? In that one he just put that all allegations were denied. Still confused.

I haven't received the letter from the company about the paid off debt. Just have copies I made of credit card and a copy of the statement. Might be another week before I get the letter. What should I do.
Customer: replied 2 years ago.
In the set of interrogatories, they ask me to identify and describe all non-priviledged statements, whether written, oral, or recorded concerning the facts and circumstances involved in this case. 1.) Should I state the conversation between my former lawyer and myself that he was informed by XXX at law firm representing XXX collector that they just bought a block of names and did not have a contract with my name? 2.) Do I have to reveal the statements I have from XXXX bank and the letter I received showed the account paid for. What other type of items should I describe in this statement they are asking? Thanks
Expert:  J.Hazelbaker replied 2 years ago.
Yes. That would be the 2009 Answer. Typically, an attorney includes affirmative defenses at the end of the Answer to preserve them (if they are not raised in the answer, then they can be deemed waived). If you attorney didn't raise any affirmative defenses, it would be unusual.

However, it's also true that when a debt collector sends out a Request for Admissions, they usually copy and paste from an old file. They simply don't want to invest too much time and money in these cases (which is why, if you defend at this stage, they may simply drop the case). So, whether or not there are affirmative defenses in your answer, i would simply "Deny" that particular request.

If you don't yet have the information they are requesting, simply state: "Request is premature. Discovery continues. Defendant will supplement these discovery responses if/when additional information responsive to the requests becomes available".

As for the interrogatory, that's a pretty broad and open-ended question. To respond to it, I would simply draft a list of all the facts that you know of that help your case, then state the source of each fact.
Customer: replied 2 years ago.
Ok...did the admissions and the interrogaries but not the production of documents, told them I did not have an account number to reference and would provide them when I had more info, sent them to the attorney. I filed an answer and affirmative defenses along with my Pro Se document. these I filed through the clerk's office. The packet I got from them that I had been referring to did not state it was a summons, the summons was issued in 2008 and my lawyer did in fact file an answer. So here is what I discovered after filing the papers. As I searched their papers, they did not even file anything from the packet in the court system...nothing. Certificate of service that the clerk would have signed is blank. Certificate of sevice was never completed and signed and I did not receive anything from the clerk's office. More small details involved. I think that they thought since I did not have an attorney that I would bend. Nope not me. So now I am filing my motion to oppose on Monday. Their copy was never stamped by the clerk's office like mine was were when I took them to the clerk's office. The front page of their packet had a document that had a date for a motion date. but nothing anywhere that is stamped. Attorney did not have his affidavit notarized, but I was told they didn't have to. Sorry this is so long. I think they were looking for me to slip up but I answered my admissions very carefully, never admitting to nothing. Did alot of research on how to answer. What is your take on this? When I do my motion to oppose, can I file with it a cross-motion for something? Appreciate your help.
Expert:  J.Hazelbaker replied 2 years ago.

In my experience debt collector litigation is sloppy. In many, many cases the win by default (the defendant never responds). When the defendant does defend the case, they usually slip up because they don't expect it and/or they have so many cases they can't keep track of it.

Thus, often they will open the door for you to attack their filings, as you have indicated. And, when the going gets tough, they will usually either drop the case by outright filing a motion to dismiss or simply failing to "prosecute".

Now that you have made your discovery response. I might wait a few weeks and see what their response is, if any (as long as you are not faced with a deadline in making your own discovery requests).

Customer: replied 2 years ago.
So should I file my motion to oppose their summary judgement? On the affirmative defenses, the last statement I made was...Defendant reserves the right to plead other affirmative defenses that may come applicable and/or available at a later time. Not sure about deadline. How would I know what it might be. Found a statement attorney made on affidavit that I can prove him wrong. He stated that I had not responsed to a letter but I have the email and phone records where I did. The thing is, the new mailing address I have was only listed in that email. The so-called unanswered letter was forwarded to my new mailing address by post office. However, the packet he sent me contains a certificate of service that shows the new mailing address. He couldn't have known the new address if he hadn't read the email I sent the other guy. Still haven't dropped the bomb that I have the original creditor's letter and copy of statement and the original credit card.
Customer: replied 2 years ago.
One more question. Should the copy of the letter showing acct paid off be sent as a production of document, is so do I attach it as part of my motion to oppose or file an additional affirmative defense.
Expert:  J.Hazelbaker replied 2 years ago.

Yes. I would file the motion to oppose their summary judgment simply stating that there is a dispute of material facts and point to your attached affidavit. Your affidavit should then go through the history as you know it point by point as discussed above.

A lot of attorneys state at the end of the answer that they reserve the right to assert affirmative defenses. However, there is no such right. You can alwa try though. Based on your description of events, though you indicate your night quite sure, it sounds like the two best affirmative defenses you might have is statute of limitations and accord and satisfaction.

I would send the document along with the product response. You don't want to give them an argument that you can't use it. I would then attach it to your response to their motion for summary judgment and your affirmative defense notice.

Please let me know what follow-up questions you have. If my above responses have been helpful, please click Accept so that I get credit for the time/effort. You may always restart the thread and ask follow-up questions at any time by clicking the “Reply” button at the bottom of the question/answer thread. You can access this thread later in your profile under the “My Questions” tab.

Customer: replied 2 years ago.
How do I give you another bonus? The product response is the xxx letter and statement and credit card copy? Do I send it to both the atty and attach it with my motion to oppose? Do I have to make it another filing of adding to my affirmative defenses already submitted. What about what I have read about sworn denial...any input? You have been a great help in this matter.
Expert:  J.Hazelbaker replied 2 years ago.

You can submit as a "Defendant's Discovery Response Supplement". Under rules of civil procedure, you have a duty to supplement earlier discovery responses if new information or documentation becomes available. So, this is routine.

I think, in order to provide a bonus, you need to Accept one of the subsequent responses. I certainly appreciate an Accept
Customer: replied 2 years ago.
Is this sent to the atty or do I file it through the courts?

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • Infolawyer

    Lawyer

    Satisfied Customers:

    5518
    Licensed attorney helping individuals and businesses.
< Last | Next >
  • http://ww2.justanswer.com/uploads/NY/nyclawyer/2012-6-7_22011_photo66139201112041.64x64.jpg Infolawyer's Avatar

    Infolawyer

    Lawyer

    Satisfied Customers:

    5518
    Licensed attorney helping individuals and businesses.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    2620
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/LA/lawpro/2012-6-25_171315_PT206740s.64x64.jpg Law Pro's Avatar

    Law Pro

    Lawyer

    Satisfied Customers:

    1711
    20 years experience in consumer advocacy, debt collection violations, contracts, construction
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    1415
    16 years legal experience including consumer protection law.
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Lawyer

    Satisfied Customers:

    1160
    25 years of private practice
  • http://ww2.justanswer.com/uploads/mnphillips2/2009-03-13_203105_10984459-249293407.jpeg Phillips Esq.'s Avatar

    Phillips Esq.

    Attorney-at-Law

    Satisfied Customers:

    1065
    B.A.; M.B.A.; J.D.
  • http://ww2.justanswer.com/uploads/BA/barristerinky/2012-6-10_22423_office.64x64.jpg Barrister's Avatar

    Barrister

    Lawyer

    Satisfied Customers:

    1023
    Attorney with 14 years experience in various consumer protection areas