Dear Customer, if you were served with a summons by a Sheriff, it is more likely than not that a complaint was filed with the local Court. While it is common for a plaintiff to include a copy of a complaint with their demand letter, that demand letter is not served by a Sheriff or process server. Furthermore, a duty to Answer a Complaint is not the same as a response to a settlement offer. While it may have been unintentional, from your description it is possible that an action has been filed and your answer (a formal pleading) is due with the Court.
To see whether or not your matter was actually filed with the Court, there should be a file stamp on the top of your documents (both the "Summons" and the "Complaint"). The Notice that says you must answer within 21 days of service is usually the summons. To properly respond to this you can do one of 2 things (1) you can draft a responsive pleading, this can be an answer (admit the form of the complaint but argue your affirmative defenses); draft a motion to strike (try to get rid of "improper" causes of action, etc.); or a demurrer (saying that even if the complaint is right, the Plaintiff can't win for some legal reason, usually the statute of limitations), Most debt collection defendants file an answer; or, (2) you may be able to negotiate an extension to respond with the opposing party - this may be possible given the facts as you put them in your post make sure you get the extension in writing.
I could be wrong about the above documents being filed, remember, I have not seen the documents and cannot give you direct legal advice or instruction, however, given the fact that a Sheriff served them on you, as opposed to receiving them as part of a "pre-litigation demand" I would be cautious and read the documents carefully (you can even call the Court Clerk's office to see if an action has been filed).
In the meantime - you can always negotiate a settlement, settlements are negotiated at all phases of litigation, even up to the point of trial (or post-trial). You may be able to get a pre-litigation mediator to assist you in resolving this matter quickly (often you can motivate a creditor to pay for this depending on the Court's pre-litigation stance) it appears from the portion of the letter you cited that the creditor is interested in resolution.
The clerk of court said it is not filed yet. It has been more than 21 days
We did not meet the 21 day requirement in written form.
The form says : Summons: Our File No.(NNN) NNN-NNNN/p>
Summons File No. Our file No.1661616
This sounds like it came from the Attorney's office (usually law firms will list the document as "our file No. xxx"). But I understand correctly that they had a Sheriff serve the documents?
Complaint File No. Our file No.(NNN) NNN-NNNN/p>
I called the Clerk of Court and she couldnt find anything
In North Dakota, you are permitted to serve documents from the law office (an attorney can issue a subpoena), but it appears they have delayed your date for a responsive pleading (which I described earlier). What you can do to protect yourself is to draft what is called a "confirming letter" to the lawyer that says something along the lines of "pursuant to our conversation on xx/xx/xxxx when we discussed this matter, you indicated that this matter will remain in settlement negotiations until further notice from your office, until that time my response to the summons served on me on yy/yy/yyyy is not due until at least 21 days, or so long thereafter as shall be agreed upon" This will protect your time to answer and protect you from default.
(Just a note, it may be of minor significance in these types of cases, but an answer admits the form of the complaint, not the contents, the contents can be addressed in the affirmative defenses, denials, a general denial, or other appropriate response within the answer. My apologies for any confusion, but I wanted to address that issue briefly).
So I guess my question is: Have we lost our right to go to court over this being we didn't respond in writing within 21 days ?
No, the matter apparently has not even been filed. The Plaintiff's attorney (from your description) has agreed to continue your time in which to respond (this is usually to allow you more time to negotiate a pre-litigation settlement, which is cheaper for everyone). Even if they were to try to take your default you would have the opportunity to move to set the default aside (this is commonly granted to pro-per litigants in these cases - I cannot make a representation for your local court, but it is common in many jurisdictions). The "confirmation letter" I described above is what attorneys refer to as a "comfort letter" it may not be necessary, but it gives you something to use as evidence in a future proceeding if it ever becomes necessary (even though it is not expected to be).
So if we don't come to an agreement will there be another summons from a sheriff that we can respond to in written form?
Not likely. In most cases, the other side will notify you (it sounds like the attorney intends to send you a letter - which is the most common, and best, practice) to tell you that you now need to respond to the summons and complaint since we (the parties) have been unable to reach a resolution. Usually it will give a firm date for the response so there is no misunderstanding or calculations necessary.
So we can have our day in court , if it comes to that?
Yes, you can. I would advise staying in touch with the other attorney (and getting your confirmation / "comfort" letter just to make sure you are both on the same page). If there is a misunderstanding, there are some other options to get you into court (you will be looking at what is called a "relief from default" hearing, but that doesn't sound like something you have to worry about at this point).
Ok, one more question, they're asking for $420.00 a month which we can't afford , do you think they are willing to go to half that?
Oh, sorry, one more question, they want us to fill out an economic profile , is that wise?
I am really sorry, unfortunately I cannot give you specific legal advice or instruction through this site (in addition I don't have any knowledge or relationship with your particular creditor). I can tell you that from a debtor's point of view, there are some "bargaining chips" you may be able to offer (I don't know if any of these apply, but these are the ones I have off hand) 1) a "lump sum" payment, even if not for the full amount; 2) some form of guaranteed payment; 3) sometimes a creditor will be happy to accept any payment if they have not previously been receiving anything
You can fill one out if you like. That is giving them additional intelligence about your financial background that otherwise they will not be entitled to until after a judgment is entered against you and they go through what is called a "debtor's exam". I do not know whether this will enhance your negotiations, or hurt them, but this is giving them additional information.
I am very satisfied with your help, thanks so much!!
You are very welcome, I do wish you the very best with this. Thank you for using our service, and thank you for your time.
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