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Alexia Esq.
Alexia Esq., Managing Attorney
Category: Legal
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Experience:  19 Years of Legal Practice Experience in this precise field.
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how to answer a motion for default judgement on a debt collection

Resolved Question:

how to answer a motion for default judgement on a debt collection lawsuit. I want to enforce my cease and desist letter to the collection agency per provisions of Public Law 95-109 and 99-361, also known as the Fair Debt Collection Practices Act. How do i get the court to either vacate or quash since they are not a party to the transaction?
Submitted: 4 years ago.
Category: Legal
Expert:  Alexia Esq. replied 4 years ago.

Welcome!

 

I am an attorney with 17+ years of legal experience and will work diligently on your answer. While I am permitted to provide you with legal information, I am prohibited by JustAnswer.com and various state bar associations from giving legal advice, representing you or entering into an attorney-client relationship through this open forum. Do you understand and agree to these provisions as well as Justanswer.com's disclaimer?

Please respond with a Yes or No to continue.

 

Customer: replied 4 years ago.

yes

 

Customer: replied 4 years ago.
i need to file a response today. they filed the motion for a default on 8-10. so today is my 30 day deadline.
Expert:  Alexia Esq. replied 4 years ago.

Hi again, and thank you.

 

You must file and serve what you will entitle "Oppostion to Plaintiff's Motion for Default Judgment" and include an affidavit to explain why you failed to Answer. Ideally, it is because you were never properly served. Explain also the MERITS of your defense and how plaintiff would not win on the claim, whether it is because you do not owe the money, do not believe you ever had that account, did not wrack up those charges, etc.

 

As for the plaintiff being a collections agency, if you had answered and demanded discovery, you could have demanded evidence of the fact that the collection agency was assigned the rights to sue on this by the original creditor (which would give the agency standing), or that the collection agency bought the debt (same thing). If they couldn't produce, or admitted that they didn't, you could then file a Motion for Summary Judgment on the issue of plaintiff's standing, and seek dismissal. However, you can only do that after you have discovery. As it stands now, you will likely then have to wait until the plaintiff presents its case, you cross examine the plaintiff during its case to demand the documentation showing that plaintiff has been assigned the debt and right to sue (that he is the "assignee"), when he can't produce, ask the Judge to dismiss the complaint due to plaintiff's lack of standing.

 

As of now, you really don't know one way or another if the plaintiff has standing, if you didn't perform your due diligent discovery. So you main need right now is to get that Motion in to prevent Default. The cover page will look similar in structure to the plaintiff's motion papers, except you tailor it with your side's information where appropriate, and you use YOUR facts in your affidavit (notarized), showing those merits as to why you don't owe the debt.

 

Good luck!

 

 

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Alexia Esq., Legal Expert

 

 

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Alexia Esq., Managing Attorney
Category: Legal
Satisfied Customers: 11743
Experience: 19 Years of Legal Practice Experience in this precise field.
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