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Ely
Ely, Counselor at Law
Category: Consumer Protection Law
Satisfied Customers: 101933
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Please advise how to word my answer after being served by a

Customer Question

Please advise how to word my answer after being served by a debt collector. I'd like to avoid court appearance and have them submit an offer of repayment or negotiate one. Would it be best to call their attorney?
It was filed before the statute of limitations expired, but it was served after.
I'd like to explain the debt as I do not understand their figure.
The principal they are claiming is $7,200 plus $2,500 interest and court fees. The last activity was a payment dated Jan 15, 2015. At that time the balance was $6,400 with a 0% interest. The statement attached to the summons is for June with a balance of $7,400 and a interest rate of 28.99. According to the bill of sales, the debt was sold in June 2014 then to this creditor in February 2015. Why is the June's account balance the valid amount and not the amount on the last day of activity? How does that work?Also, will being "judgment proof" favor me in negotiating? I have no property in my name nor do I have wages to garnish.Thank you! :)
Submitted: 7 months ago.
Category: Consumer Protection Law
Expert:  Ely replied 7 months ago.

Hello again! Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

1) Assuming the debt is true, then there is really no defense per se. What most parties then do is file a general denial, meaning simply "prove it." This allows the Defendant to avoid a default judgment, and sets the case for a trial (months down the line), giving the parties time to negotiate.

2) I am attaching an example of a general denial answer to this reply.

3) Negotiation is expected and recommended. It does not hurt to talk to their attorney to see what they can offer.

4) It is not uncommon for Plaintiff to make a mistake on the calculation of the debt. So this may explain the situation in regards ***** ***** principal they claim, which can be pointed out to the attorney during negotiations.

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Expert:  Ely replied 7 months ago.

"Also, will being "judgment proof" favor me in negotiating? I have no property in my name nor do I have wages to garnish. "

YES - this is a big help, as if the attorney/client knows that they are not likely to collect, they are more likely to negotiate a favorable agreement.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Customer: replied 7 months ago.
I don't understand the attached letter.There are 3 paragraphs to the summons
1) states I reside in Fulton County
2) The amount I'm indebted on an account and contract
3) Plaintiff demands judgement in the amounts as alleged in paragraph 2Below is the attached letter and my comments in CAPS.The defendant answers the petition as follows:1. Defendant admits the allegations stated in the petition in paragraphs___________ SO I ADMIT RESIDENCY?2. Defendant denies the allegations stated in the petition in paragraphs _____________ DENY THE AMOUNT?3. Defendant is without knowledge or information sufficient to form a belief
as to the truth of the allegations stated in the petition in paragraphs __________ and therefore denies those allegations. I HAVE A COPY OF THE LAST ACTIVITY STATEMENT IN JANUARY 2010, STATING THE AMOUNT OF $6,400
4. All other allegations not expressly admitted are denied.NO IDEA WHAT TO DO BELOW:
[AFFIRMATIVE DEFENSES] – may not be any
¬
5. Further, defendant alleges plaintiff’s claim for relief should be denied by
reason of the following affirmative defense(s): (accord and satisfaction) (arbitration
and award) (assumption of risk) (contributory negligence) (discharge in bankruptcy)
(duress) (estoppel) (failure of consideration) (fraud) (illegality) (injury by fellow
servant) (laches) (license) (payment) (release) (res judicata) (statute of frauds)
(statute of limitations) (waiver) (and any other matter constituting an avoidance or
affirmative defense).]WHEREFORE, defendant prays that plaintiff be denied relief and that
defendant have judgment for costs and other relief as the Court deems just and
proper.
Expert:  Ely replied 7 months ago.
1. Defendant admits the allegations stated in the petition in paragraphs___________ SO I ADMIT RESIDENCY?
I cannot tell you how to fill out a legal document, but this shouldn't hurt by admitting, yes.
2. Defendant denies the allegations stated in the petition in paragraphs _____________ DENY THE AMOUNT?
I cannot tell you how to fill out a legal document, but this is where most who lack any other defense deny. Yes. The onus is then on the PLAINTIFF to prove the debt.
3. Defendant is without knowledge or information sufficient to form a belief
as to the truth of the allegations stated in the petition in paragraphs __________ and therefore denies those allegations. I HAVE A COPY OF THE LAST ACTIVITY STATEMENT IN JANUARY 2010, STATING THE AMOUNT OF $6,400

You do not have to use all three (admit, deny, without knowledge). It is whatever applies. So perhaps it will be mostly admit, but deny on the debt.
Unless the debt is out of statute of limitations, it is unlikely from what you have told me that any affirmative defenses apply. If not, then there is no need to add that paragraph. But see here for more on the explanation for this:
www.courts.ca.gov/partners/documents/2011SRL5eADContract.pdf
Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.
Customer: replied 7 months ago.
Thank you for that. I don't think I really have a defense. Just grasping for straws. Hoping I have something to help negotiate a lower amount. Is the correct amount due from the date of last activity? Or whenever the creditor decides the acccount has been abandoned? What's a good negotiating figure? 1/2 paid immediately?
Expert:  Ely replied 7 months ago.
Again, if there is no real defense, then most people simply DENY. The whole point is not to default, and then the case will be set for trial months down the line so you can negotiate meanwhile.
I cannot say what the "Date" is without seeing the paperwork. However, even if the Court calculates the debt differently, the point is, the bulk of the debt IS true so they are likely to win. Thus, negotiation is preferable, likely.
Good negotiating place to begin with is about half, correct. Do expect to meet somewhere around the 75% range. Some may go higher, some may go lower. They may also agree to payments over time.
Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.