Consumer Protection Law
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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.
In fact, the preferred practice in Kentucky is to attach such documentation to the answer or explain why it is not available.
The only other way to prove without documentation is to get your admission.
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.
What do you mean get my admission?
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)
or 2) refuse to allow you to use evidence that should have been disclosed during discovery.
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.
I understand. The only thing that I did see they have is a "bill of sale, assignment and assumption agreement" signed by a
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.
That bill of sale.. is legally insufficient to prove the underlying debt.
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.
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.
You need to respond to the motion for summary judgment with your own affidavit that states that you do not owe the debt.
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.
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.
Do you do any type of guidance on typing up the response. I am willing to pay for help with it.
I would simply follow the form of the motion filed by the Plaintiff.
Both the motion and the affidavit. You will have to have your affidavit notarized.
The affidavit is the important part. Keep it short and simple.
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
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
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.
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.
If they had any evidence like that, they would have attached it to their motion for summary judgment.
How do I contact you with more questions when I write this. Can I subscribe and ask for you personally?
They stated that I made a payment with an agreement but the copy of the so called agreement was never signed by me.
Without your signature, it's not binding against you.
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So if they had a copy of the check, it would
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