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cfortunato
cfortunato, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 8023
Experience:  Areas of practice: Landlord/Tenant, Bankruptcy, Consumer Debt
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I received a letter via certified mail today from Zwicker and

Resolved Question:

I received a letter via certified mail today from Zwicker and Associates, the letter comes with a "Plaintiff's Motion for default judgement, which reads:

1. This suit was filed on or about March 6, 2013. Defendant was served on ore about March 16,2013. The citation was returned to the clerk where it has remained on file for the time required by law. Defendant has not filed or served upon Plaintiff's counsel any answer to the petition.

These statements are totally untrue, this is the first time I receive any papers from Zwicker and Associates in regards XXXXX XXXXX credit card account with American Express.
I was not served papers on or about March 16, 2013.

What should I do? Can the court approve the judgement even though I was never served papers in or around March 16?

Please advise,

Claudia
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  cfortunato replied 1 year ago.

Customer: Hi - my name is XXXXX XXXXX I'm a Consumer Protection attorney here to assist you.
Customer: The court cannot issue a default judgment if you have not been served the court papers. However, since the plaintiff (Zwicker) claimed you were served, the court does not know that you were not served.
Customer: What you have to do is to go to the clerk at the court in question, and ask to file a response to the Motion for Default Judgment - based on the fact that you never received the court papers.
Customer: You can also ask that the case be dismissed for the same reason (that you were never served the court papers).
JACUSTOMER-jxwcum0t- : Thank you! I am working on the response to the Motion for Default Judgment.
Expert:  cfortunato replied 1 year ago.
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Expert:  cfortunato replied 1 year ago.
You're welcome!
cfortunato, Lawyer
Satisfied Customers: 8023
Experience: Areas of practice: Landlord/Tenant, Bankruptcy, Consumer Debt
cfortunato and 13 other Consumer Protection Law Specialists are ready to help you
Customer: replied 1 year ago.
Thanks Chris.
I have typed the letter and this is what I have, please notice I am not including the case no., court no, plaintiff and defendant names for obvious reasons.
Here it goes:

Defendant’s Answer to Motion for Default Judgment.

TO THE HONORABLE JUDGE OF SAID COURT:

My name is XXXXX XXXXX am the Defendant in this Case.

1. Defendant denies allegations contained in Paragraph 1 of Plaintiff’s Motion for Default Judgment. Defendant denies knowledge of the alleged suit filed on or about March 6, 2013. Defendant denies being served on or about March 16, 2013.

2. I deny receiving any written communication or validation of the alleged debt from Zwicker & Associates, Attorneys at Law filing this suit for the plaintiff. The defendant lacks information sufficient to admit or deny the allegations contained in Paragraph 2 of Plaintiff’s Motion for Default Judgment, therefore they are denied.

3. I am a military member of the U.S. Armed Forces. My husband is a member of the U.S. Army currently on duty.

4. I admit my current address is _________________

Defendant, ________________, respectfully XXXXX XXXXX Court to DISMISS the Motion for Default Judgment against Defendant submitted by Plaintiff, AMERICAN EXPRESS CENTURION BANK based on the fact that Defendant has not received copy of the alleged suit.

Respectfully submitted,



By: ______________________
Defendant's Name
Address
City, ST, Zipcode
Phone #

Certificate of Service
I certify that on the 22 day of May, 2013, I served a true copy of this Answer to all parties in this case. I sent the Answer by certified mail return receipt requested. If a party is represented by an attorney I sent the Answer to the parties’ attorney.



_____________________________
Defendant's name


Does it sound good? Please advise. thanks!
I am nervous.



Expert:  cfortunato replied 1 year ago.
Everything looks good except:
At the top where you wrote "Defendant’s Answer to Motion for Default Judgment", it should instead read "Defendant's Answer to Motion for Default Judgment and Defendant's Motion to Dismiss". ("Defendant's Motion to Dismiss" should be added.)Also, at the bottom, the reason for requesting that the lawsuit be dismissed is not because you did not receive a copy of the lawsuit - it is because you were not served the court papers. (Not receiving the court papers is not enough for dismissal - it is necessary that you did not receive notice of the lawsuit because you were not served.) Try not to be nervous! These papers do not have to be perfect, and they rarely are.
Customer: replied 1 year ago.
Thank you so much for your answer.
I made the changes that you suggested and I am gonna file it today.

One more question:
I have been able to negotiate and settle 6 other debt accounts and I feel really happy about it, however I have a Discover Credit card balance of $3,500 that I haven't been able to settle. It is with Zwicker & Assoc as well. They would no accept anything but 80% of the debt paid immediately by phone without providing a written agreement. They want me to give them my bank account information without providing any written agreement with terms and conditions. I am tired of them, they are rude, bully and are causing me so much stress, so I finally told them not to call me again and to communicate with me in writing only via certified mail.

I read online last night that I can send a collection agency a letter saying that I want to work out a plan directly with the original creditor. This a sample of the wording for the letter:

"This letter is to request that your collection agency not contact me in order to collect payments on the above mentioned account. I am interested in working out a plan with the original creditor regarding my payments.
I hereby request that your collection agency stop collection efforts immediately. Your non-compliance with this request will put you in violation of the Fair Debt Collection Practices Act and my state's consumer protection laws."

My question to you is:
Is this true? Can I request to work out a settlement plan directly with Discover. Please advise.


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