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LawHelpNow
LawHelpNow, Attorney/Lawyer
Category: Legal
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I received a Summons and Complaint from a junk debt buyer,

Customer Question

I received a Summons and Complaint from a junk debt buyer, which was not filed in the court system. I sent an Answer as well as Interrogatories and Request for Discover on 9/28/11 which indicated they had 30 days to respond. They responded on 10/28/11 and didn't really answer any of my questions, just alot of objections and they attached a very fishy looking accounting of the account, and several bills of sale with fishy dates. Their cover letter asks that I contact them to discuss settlement of the account to reduce the cost of litigation. The attorneys are Messerli & Kramer. I have no money to hire an attorney and cannot afford to file bankruptcy either. I am a single mother, waitressing. I'd like to know what is my next step. Do I file (even though none of this stuff has actually gone to the courthouse yet) with the court a "Motion to Dismiss with Prejudice" stating that they have not provided pertinant proof of this debt? Or is there something else I should be doing? Please help.
Submitted: 2 years ago.
Category: Legal
Expert:  LawHelpNow replied 2 years ago.
Thanks so much for choosing this forum to pose your important legal question. I will do my best to give you some honest and accurate guidance as I answer your question.

 

  1. I am a licensed attorney with consumer protection law civil litigation experience. I will be glad to try and answer your questions. I hope that the following information will be helpful to you, but please just write back if you have any follow-up questions or need clarification after reviewing the following information.
  2. "Do I file (even though none of this stuff has actually gone to the courthouse yet) with the court a "Motion to Dismiss with Prejudice" stating that they have not provided pertinant proof of this debt? Or is there something else I should be doing?" Please allow me to say that I am genuinely sorry for your circumstances and sincerely XXXXX XXXXX soon look brighter for you. Also, I must say that you are quite astute in your understanding of the proceedings. If you can possibly fit anything else in to your packed schedule of mothering and working, consider exploring the legal profession...seriously! Now, here is how this works. I am not by any means pointing any fingers against the firm you mentioned and/or the junk debt buyer. Having said that, however, as a general matter there has been no shortage of "fishing expeditions" looking to intimidate (scare) folks into coughing up some bucks. If you know darn well that you are not on the hook for this alleged liability, say so. Just send the firm a certified letter--return receipt requested that you have no clue what they are talking about, you are a poor waitress and single mother without one penny amenable to collection, they have provided you with nothing showing your liability for any alleged debt, but go ahead and do what you need to do. If this is bogus, it will likely be the last you hear of it. However, if there is at least some possibility that you are somehow on the hook with this junk debt buyer, then you still have options. Yes, filing a "Motion to Dismiss with Prejudice" (following the timely filing of an "Answer"), would be just the way to go. However, this would all come after suit was actually filed and service of process had been effected. Until then, the legal system will not even have a case file and would have no clue what to do with your filing. It would either be returned to you (if mailed in), rejected at the counter (if filed in person), or worse yet simply thrown away. Even assuming the worst, that these folks did eventually obtain a judgment against you, that would take time and further litigation to actually try and collect thereon. Plus, somewhere around 85 percent or so of judgments remain unfulfilled due to folks being "judgment proof", especially in this lousy economy. So, in terms of "official" submission and filing (before an actual Court), there is simply nothing you can do at this point. If suit is actually filed, each move you have described seems right on point. Unless and until the creditor actually filed the litigation, however, they are actually under no obligation to formally answer discovery. Likewise, you are under no legal duty or obligation toward them, either. I know that all sounds a bit "wishy washy", but truthfully that is the way the system operates in such cases.
  3. I hope that makes sense, but please do not hesitate to write back if needed. I shall be signing off soon to attend to some other professional obligations. Please rest assured, however, that I will be sure to check for any updated posts from you when I return to this online forum.

 

I hope that this information has been helpful to you. If we can be of any further assistance please free to use our service again. Best wishes for a successful outcome.

 

If my answer has been helpful to you, please click "ACCEPT" so that I may be paid. This is the only way that I will receive compensation for the work performed. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done. Clicking "FEEDBACK" to leave your positive comments is always greatly appreciated.

 

The information provided is general in nature only and should not be construed as legal advice. By using this forum, you acknowledge that no attorney-client relationship has been created between you and Benjamin M. Burt, Jr., Esq. You should always consult with a lawyer in your state.

LawHelpNow, Attorney/Lawyer
Category: Legal
Satisfied Customers: 7593
Experience: Relax. Let's work together. Practical solutions.
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Customer: replied 2 years ago.

I was under the impression that after receiving a Summons and Complaint I had to answer within 20 days (even though they hadn't filed anything with the courts) in order to protect myself from default judgement. Is this correct?

 

As they didn't file it with the court as of the date of the original Summons and Complaint are they under any legal obligation to inform me if they do actually file it with the court? Or do I need to either wait to hear from the court or check in with the court from time to time to see if it's on the docket?

 

Should I ingore this discovery and production of documents until or unless it is actually filed with the court? I want to above all else avoid default judgement and possible garnishments. So I need to know if I need to be doing anything further at this time.

 

By the way, I did work for an attorney in high school as a receptionist, so I do understand some of the lingo, and have done a ton of research here on the internet so as to be able to defend myself from this lawsuit without being able to financially hire an attorney.

 

Thanks for your help.

Customer: replied 2 years ago.

As you had to log off, and I do now as well, I am going to hit the button for Accept Answer before I log off, I want to make sure you get credit. However I still would appreciate an answer to my second reply when you log back on.

 

Thanks so much.

Expert:  LawHelpNow replied 2 years ago.

Hi again,

 

You are quite welcome -- it was my pleasure to be of service.

 

Many thanks for your payment, generous bonus and kind words -- greatly appreciated!

 

I will gladly continue our dialog (without additional charge). So that I make sure I am accurately understanding the situation, let me ask you a question, please. When you say the other party has not filed anything with the Court, do you literally mean nothing -- no papers at all, no case number assigned, etc.? In other words, they have not actually filed the Complaint and Summons, let alone a return Proof of Service? Did their correspondence to you run along the lines of..."Enclosed is the Complaint and Summons we have drafted and will file if need be, but we hope to settle the matter out of Court without the necessity of litigation..." (something like that -- my language is just a rough illustration).

 

Take care and thanks again for choosing JustAnswer®!

Customer: replied 2 years ago.

The original papers I received (the Summons and Complaint) have no Court File No. on them, that space is blank. There was no cover letter attached. It was served on me by someone appearing to be a sheriff (may have been a process server) at my home. After my research and speaking with the local courthouse I was left with the impression that whether or not they have actually filed the Summons and Complaint, I still had the burden of Answering it with in the 20 days to avoid default judgement.

 

I sent them my Answer wherein I denied each allegation except my name. In my Interrogatories and Request for Discover I requested proof of the debt in the form of a copy of the original contract with the original creditor and proof of the assigment to them. (among many other things). I sent this by certified mail and filled out an Affidavit of Service by Mail and signed and had it notarized on 9/28/11. Today I got in a large manilla envelop post-marked 10/28/11 a letter from the lawfirm Messerli & Kramer (Plymouth, MN) saying that enclosed and served upon me was the Plaintiff's Answers to Defendant's Discovery ...."In an effort to reduce the cost of litigation, please contact our office to discuss settlement of this matter" Also of note is that on the very bottom of the page there is an IMPORTANT NOTICE..This communication is from a debt collector and is an attempt to collect a debt....

 

This letter was attached to "Plaintiff's Answers to Defendant's first set of Requests for Admissions, Interrogatories and Production of Documents to of Plaintiff." This also does not have a Court File No. on it. For each interrogatory I posed to them there was either an objection or some vague response saying that they don't have the information and don't have to give it to me, or that it's irrelevant. Attached to this is several Bills of Sale and Certificate of Conformity (one signed by an attorney from Texas, and one signed by an attorney from Utah) I don't recognize any of these companies on the bills of sale.

 

So where I am now is confused as to how to proceed without puting myself in a positition to have a default judgement against me. Are these papers a total farce and just a scare tactic to get me to send them money? Should I simply ingore them? And maybe contact the Attorney General's office and see if they'll do something to get them to stop harrassing me? Should I go to the courthouse with that Answer I sent them last month and pay the filing fee to get it on the docket and then submit their paperwork to me and then file a Motion to Dismiss with Prejudice because they didn't send what they were supposed to? I am really confused what the next step should be and I really appreciate your help in this matter.

 

I am also really glad I found this website and wonder if there is a way that I can recommend you if any of my family or friends need questions answered?

 

 

Expert:  LawHelpNow replied 2 years ago.

Hello again,

 

Thanks for that awesome explanation!

 

Yes indeed, with a process server knocking on the door, you absolutely did the right thing by filing a timely answer. I am relieved to hear that you did so. The absence of a case number is not out of the ordinary...sometimes that is not assigned or stamped on the documents until later. In any event, the most crucial thing is that you are absolutely right...you did need to answer and failing to do so would have risked the entry of a default judgment against you.

 

Everything else you mention makes sense as well and raises no eyebrows so to speak...i.e. the way discovery is going, the standard "We are a debt collector" disclaimer language, etc.

 

Now, the heart of your follow-up is the second to last paragraph (above) where you ask five separate but related questions. Actually, this takes us right back to your very first comments. In other words, there is nothing you must do at this juncture. You were served, you timely answered, both sides have exchanged discovery back and forth. So, there are a couple of ways to go here. You can obtain the case number from the clerk (either in person, telephone call, or in many cases nowadays online)...that should be a simple matter. That would be the first step. Thereafter, you could focus on discovery in seeking to compel better answers from them...along the lines of a motion to compel based on their lack of responsiveness. However, I would go right to your very first mention and file a "Motion to Dismiss with Prejudice". That would be dispositive...it could summarily dispose of the whole case and make it go away. I have been on both sides of such cases, and frankly I would go ahead and just do so without delay. Call their bluff...if they have some better proof, this will make them cough it up or risk the dismissal of their litigation.

 

And, to address your final paragraph, you are most kind. I deeply appreciate your confidence and would be honored to assist anyone you might refer. To reach me directly, all one would need to do is type a question in the "Ask Your Question" text box on my Profile Page.

 

 

I hope that all makes sense...you have a great understanding of the process. I would not recommend it to just anyone, but I have no doubt you will do just fine with this on your own, at least for the time being. Should things unexpectedly somehow turn complicated, you could always seek additional help at that point. For now, however, I would say just go forward with your motion as discussed and see what happens.

 

Take care and thanks again for choosing JustAnswer®!

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