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Ely
Ely, Counselor at Law
Category: Consumer Protection Law
Satisfied Customers: 88644
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Hi, I have received a summons from a debt buyer. I need

Resolved Question:

Hi,

I have received a summons from a debt buyer. I need to submit an answer in the next week and wanted to know what my defense options are. Could SOL work seeing as the contract was breached on 08-31-2009 which would be expiring next week?

Also no evidence was sent with the summons, and I don't think they will be able to provide an original agreement.

There are a few allegations I am confused about and not sure how to answer.

4. Each named and DOE defendant was acting as the agent or employee of the other defendants.

6. Before filing the lawsuit the Plaintiff all rights title and interest in the obligation upon which this suit is brought and is the sole owner of this account.

Can I ask for evidence of this purchase? Could that help my defense?

I also have voicemails from the lawyers asking to call them back without mentioning they attempting to collect a debt. Are lawyers of the debt buyers subject to FDCPA?

I can post the allegations if you need.
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation. What court is this filed in, please, and how much are they asking for?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.

This was filed in the Superior Court of CA, Orange County.


 


$858.70 original amount + interest + lawyers fees.


 


On the phone someone from the lawyers office said something like $1700 I believe.

Expert:  Ely replied 1 year ago.
Thank you.

It sounds like you are in the small claims court division.

Could SOL work seeing as the contract was breached on 08-31-2009 which would be expiring next week?

I am afraid not. As long as they filed before the deadline, then they are on time. So even if it expires while the suit is ongoing, as long as they filed prior to the SOL, it is allowed.

Also no evidence was sent with the summons, and I don't think they will be able to provide an original agreement.

See below about proof by preponderance of the evidence.

There are a few allegations I am confused about and not sure how to answer.

4. Each named and DOE defendant was acting as the agent or employee of the other defendants.

6. Before filing the lawsuit the Plaintiff all rights title and interest in the obligation upon which this suit is brought and is the sole owner of this account.


Can I ask for evidence of this purchase? Could that help my defense?

One may ask for such evidence, yes. Rather, one may challenge for the evidence at the time of hearing. Small claims court has limited pre-trial discovery.

Remember, the onus is on them to prove that the debt was owed by a preponderance of the evidence, which means 51% or over. If they cannot, then they lose the case.

I also have voicemails from the lawyers asking to call them back without mentioning they attempting to collect a debt. Are lawyers of the debt buyers subject to FDCPA?

Not once they have filed suit. It is no longer a collection issue, but litigation. Moreover, if they have filed suit on you, then you are past the FDCPA issue. In other word, FDCPA protects you from improper debt collection. However, it is not an affirmative defense to the debt itself. So if they have filed suit against you, it is past attempting to bring FDCPA into this.

Someone in your situation may wish to file a GENERAL DENIAL and try one's luck in court, if they do not wish to settle. You can find the answer form here, or, write one yourself. Let me know if you need a sample answer.

I hope this helps and clarifies. Good luck.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

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Customer: replied 1 year ago.

Thank you,


 


I'm assuming I can admit to all of the allegations before the causes of action.


 


I'm trying to decide if I should answer the "entered into an agreement for the issuance of a credit card which defendant..." with either


 


a. Admit in part that I had an account, but deny that the account referenced is mine


 


or


 


b. Responding Party objects to this request on the ground that it is vague, ambiguous and unintelligible in that Responding Party has to speculate as to the meaning of "the credit card" and "the account."


 


I would assume that once I have that I can deny all following allegations generally based on that answer.


 


Thanks again

Expert:  Ely replied 1 year ago.
I'm assuming I can admit to all of the allegations before the causes of action.

NO. If one does, then they can get a summary judgment. As such, most Defendants then DENY the allegations in order to force the matter to suit, in a way to possibly pressure the Plaintiff into a settlement to avoid litigation.

Ergo, many simply DENY EVERYTHING and let the Plaintiff prove it in Court. A famous attorney once said, "Do not give them anything. Let them walk through hot coals if they have to."

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.

Sorry last question.


 


If I'm going to deny everything, is the general denial the way to go or should I deny everything in the answer.


 


Also if I do the answer then I would deny even that


 


1. Plaintiff is a LLC


2. Each named defendant is a natural person


etc?


 


Thanks again

Expert:  Ely replied 1 year ago.
No need to apologize; this is what I am here for.

If I'm going to deny everything, is the general denial the way to go or should I deny everything in the answer.

Typically, the Defendant states:

1) Defendant denies Paragraph 1
2) Defendant denies Paragraph 2

Etc.

1. Plaintiff is a LLC

2. Each named defendant is a natural person

etc?


Yes, even that.

Everyone knows that some of this is true, but the point is to make it as difficult as possible for Plaintiff by making them work extra hard.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Satisfied Customers: 88644
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 3 other Consumer Protection Law Specialists are ready to help you

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