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Ely
Ely, Counselor at Law
Category: Consumer Protection Law
Satisfied Customers: 87776
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I just received a summons to Small Claims Court from Howard

Resolved Question:

I just received a summons to Small Claims Court from Howard Schiff, I have previously sent two debt validation letters, the only thing they sent me was an old statement which did not have an itemized listing, didn't have my signature, don't know what or when I supposedly bought these things from Target, I know I have to respond, I just want to properly do this, mind you this debit is from 2006, please help.
Submitted: 11 months ago.
Category: Consumer Protection Law
Expert:  Ely replied 11 months 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. I would be glad to help, but I am not sure what you are asking here. For example:

1) Can they file suit even if I sent an FDCPA validation request?
2) How do I file an answer?
3) Does statute of limitations apply?
4) Something else?

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 11 months ago.


How do I file an answer

Expert:  Ely replied 11 months ago.
Friend,

Thank you for your clarification. I am going to assume that one wishes to deny all debts here. I am providing a sample answer below:

[caption] - TITLE AND PARTIES (just copy of their filing)

DEFENDANT'S ANSWER (centered)

NOW COMES Defendant, YOUR NAME, named Defendant in the above-entitled and numbered cause, and files this Answer, and shows the Court:

GENERAL DENIAL
Defendant denies allegations in paragraph 1 of Plaintiff’s pleading.

Defendant denies allegations in paragraph 2 of Plaintiff’s pleading.

Defendant denies allegations in paragraph 3 of Plaintiff’s pleading.

Defendant denies allegations in paragraph 4 of Plaintiff’s pleading.

(etc)

Defendant denies each and every allegation of Plaintiff's Complaint, and demands strict proof thereof as required by rules of evidence and procedure for the State of Rhode Island.

PRAYER
Defendant prays the Court, after notice and hearing or trial, enters judgment in favor of Defendant, awards Defendant the costs of court, attorney's fees, and such other and further relief as Defendant may be entitled to in law or in equity.

Respectfully submitted,
Your Signature
Your name


(NEW PAGE)

CERTIFICATE OF SERVICE (centered)

I certify that on (date filed) a true and correct copy of Defendant's Answer was served to the opposing party.

Your Signature
Your name


A copy is sent to the Court, and a copy is sent to the other party's attorney via certified mail, return receipt requested.

This is how an Answer is filed with the Court.

I hope this helps and clarifies. Good luck.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 11 months ago.


Will this be sufficent and will I still have to go to court??

Expert:  Ely replied 11 months ago.
Friend,

One would still have to go to Court, I am afraid. To avoid default, one has to both (1) file an answer and (2) show up at trial date if they force a trial.

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.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 11 months ago.


Should I make mention of the debt validation letters I sent, is this statement they sent sufficent for the court. What do I say at court, I know these junk dealers like to try to make a deal before court, should I wait for the judge

Expert:  Ely replied 11 months ago.
Friend,

Thank you for your follow up. Great questions.

Should I make mention of the debt validation letters I sent, is this statement they sent sufficent for the court.

Not really. Rather, this may be a waste of time. A debt validation request refers to a consumer's right to challenge a debt and/or receive written verification of a debt from a debt collector. 15 U.S.C. § 1692. The debt collector then has to reply within a certain amount of time, or, break off collection.

What a lot of individuals do not realize is that not replying to a debt validation may enjoin the debt collector from COLLECTING, but it does not stop them from SUING for the debt. Once the suit is filed, FDCPA no longer applies. So this is no longer an issue here.

What do I say at court, I know these junk dealers like to try to make a deal before court, should I wait for the judge

Someone in your situation may wish to have an AFFIRMATIVE DEFENSE added to the Answer which may include (sample listing):

1) The debt is not yours;
2) The debt is too old per statute of limitations even if it is;
3) The amount is wrong;

Etc.

Of course, one should not lie to the Court.

The onus is on the creditor to prove their claim by a preponderance of the evidence (51% or over). One can use this against them.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 11 months ago.


In your opinion what are my chances of the court throwing this out, I believe the Statute of Limitations in RI is 10 years.

Expert:  Ely replied 11 months ago.
Friend,

RI is indeed 10 years from date of last payment made and/or whenever it became outstanding or due - whichever is last.

Since the debt is from 2006, they have a good chance at winning I am afraid IF they can prove the debt. So the Court may not necessarily simply throw it out, but if they cannot produce the original contract for example (or a copy of it) and/or show a history of payments by you, then the Court may be inclined to believe that there WAS no contract.

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Customer: replied 11 months ago.


They only gave me an old statement with my name on it, no contract no signature no itemization, if I do have to pay can I make arrangements with the court

Expert:  Ely replied 11 months ago.
Friend,

Someone in your situation may wish to argue that you never made a contract with them, and/or this is case of mistaken identity, and/or someone stole your identity, etc.

Of course, this is up to you. Again, the creditor has to prove 51% or over that there WAS A CONTRACT between them and yourself. Them not having evidence of this, or having very limited evidence, bodes in one's favor.

If one wishes to make an arrangement to pay, this is done VIA THE CREDITOR and not through the Court. The creditor may want to agree, but, have this put down in an agreed-judgment to be signed off by the Court.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 11 months ago.


I'll be honest with you I do believe this is my bill, but it's been so long I don't recall signing anything as I did it online, in fact I have a new Tiger Credit Card. We refinanced back in 2006 and I believe although I can't prove it that this bill was part of that, otherwise it would have shown up in the credit report. I've been told not to speak with these creditors as that starts the clock and they are scum, so basically if I understand you correctly the burden of proof is on the creditor.


 

Expert:  Ely replied 11 months ago.
Hello,

so basically if I understand you correctly the burden of proof is on the creditor.

Correct. The burden is on the creditor to prove the case by a preponderance of the evidence, which is 51% or over.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 11 months ago.

So what advice do you have for me for court, if they indeed even show up

Expert:  Ely replied 11 months ago.
Friend,

It may be best for someone in your situation to file a general denial and argue that no contract was ever made, and the onus would be on them to prove OTHERWISE. One measly statement with one's name on it does not a contract make... arguably. They would have to prove otherwise.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 11 months ago.


Would saying something like I have no knowledge suffice I don't want to bold face lie


 

Expert:  Ely replied 11 months ago.
Friend,

I cannot tell you what to say. I am only able to provide general information and not legal advice so I cannot tell you what to state. I can merely suggest doctrines. But individuals in your situation generally have a FULL DENIAL and state "my position is that there was no contract" and deny it. The onus is on the creditor to prove otherwise. This happens all the time.

Whether or not you wish to use this doctrine, or admit the contract (making the case for Plaintiff MUCH easier) is up to you. There is really no other option besides either admitting all/part of it, or, denying all/part of it.

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: 87776
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 4 other Consumer Protection Law Specialists are ready to help you
Customer: replied 11 months ago.

OK, Thank you very much for your advice you have been very helpful, wish me luck. I do have one last question, what is the probability that I will win.

Expert:  Ely replied 11 months ago.
Friend,

I do wish you luck!

I do have one last question, what is the probability that I will win.

I wish I could say. Considering that it is very much the Judge's decision and the Judge can be subjective, I cannot predict or give percentages. I am sorry...

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