Got served today....

[momof2boys]

Well as i wrote on the other post, we were informed on Monday my hubby was going to be served with court papers sometime this week for a loan here in town. My hubby is at work so she handed the papers to me making sure i was really his wife. It basically says " You are required to serve and file an answer to the complaint or a responsive motion within 20 days after the summons has been served on you"(would that be today or when they filed, they filed Oct. 22nd) It also says " You must file the answer or responsive motion with the clerk of magistrate court and you must serve a copy of the answer or responsive motion on the opposing party." It says we must a mail an answer or a copy of the answer to the plaintiff, which is the loan company here...so what im wodnering is what to do next?

They want $1,704..claiming late fees and court costs...we only borrowed 1,100 from them..is there a way to dispute this amount?

They sent us a copy of the agreement my husband signed and it does say he agrees to pay late fees and if he defaults on the loan, he agrees to pay court costs and any other fees associated with collections. So im not sure disputing this would be any good... and how do we dispute? So confused as you can tell....we arent going to file until January/February with income tax...we are retaining a lawyer in a couple weeks but i know that doesnt matter.

Also one of the sheets attached is Answer to Civil Complaint

There are only a few options and none seem to apply to us so what would we check? Here are the options...


1. The plaintiff is not entitled to the amount claimed because:

Or

The personal Propert claimed by plaintiff should nto be turned over to plaintiff because:

2. (if Applicable) Defendent asserts the following counterclaim or set off against plaintiff:

3. Trial by jury is (not) demanded. Then it goes on to explain we can demand a trial by jury...

Do we have to fill out all of this and take it to the courts and what exactly do we check...im just so confused by this. We would like to delay this as much as possible...not even sure if it IS possible, since we arent going to have money to file till January/February, any advice would be appreciated.

[SinkingFast]

I wouldn't doubt $600 in charges on an $1100 loan. We rang up $8K in lates, penalties, interest, fees, and Foreclosure costs on our mortgage. It adds up quick, especially when an attny gets involved and a law suit is filed.

You've got 20 days from yesterday, so there's no need to panic or rush. As long as you get the Response filed before your 20 days is up, that will delay the process. So wait until a few days before your time limit to file your Response.

One common response is to validate the debt. Make them account for all the money. If your Hubby made any payments, the principal balance should be lower than the original $1100. You want to know where they got the rest of the charges from as well.

Since that's not an option on the Form they provided you in the Complaint. You might wanna check at the Court House and see if the Form you got is the Standard Court Form or something they made up with the options they wanted to offer you. If there is no Standard Form, find out what Format the Court wants your response written in.

Maybe others will have some more suggestions for you.

Simply filing a response, especially around the Holidays, might push this whole thing back into January for you. I know our Court here is not in Session at all between Christmas and New Year's. Which, with the calendar the way the Holidays fall this year, would be 2 full weeks of no Court.

[momof2boys]

Thanks so much for the reply, see we want to push it back as much as possible but im due on December 30th. Could go into labor basically anytime during December..so im just hoping he wont be in court on that day. So what will happen after we file a responce? Are they going to schedule another court date...i wonder what is likely to happen then? I read on the internet about garnishing wages from active duty military and it seems rather complicated. Ofcourse it can be done but since its federal they will have to serve DFAS with the garnishement papers, DFAS is who pays all the military, they are based in Ohio. So since its a local company im not sure if they would have to hire someone to serve them in Ohio or if they are allowed to send it, im not sure. But im assuming they will go for are bank account. Is it likely they will freeze it? I just hate not knowing things

[momof2boys]

oh and they dont have any bank account info from us. How do they go about gettign access to it if they dont have any info on where we bank or anything?

[Keebler]

oh and they dont have any bank account info from us. How do they go about gettign access to it if they dont have any info on where we bank or anything?

Have you ever written them a check? If yes, they've got everything they need about your bank and the account and everything.

[SinkingFast]

My Brother's bank acct was garnished for the deficiency balance on a repossessed car. His attny told him Lenders don't need to know what Bank you do business with. They'll serve the Garnishment based on SSN. So if they have that, they've got enough info.

There's several Services that monitor your banking history. Much like Chex Systems and such. The Lender can get your banking info from them.

How long you buy, time wise, by filing a Response really depends on your Court. Often, you'll get up to 30 days. Could be as little as 10 days. You'd really need to chat with a Court Clerk where you live to find out for sure. Or possibly look up your Court online. You might find the info there.

[jp2861]

They can only go after your husbands second job income.

His military pay is protected under 5 CFR 582.102 (2). Hope this helps.

[SinkingFast]

They can only go after your husbands second job income.

His military pay is protected under 5 CFR 582.102 (2). Hope this helps.

It sounds good that legally speaking certain $$$'s in your bank acct are protected. But it don't always work that way.

Brother was on SSDI and pension. Both are funds that are expressly exempt from Garnishment in their State. When the Creditor got their Banking Institution Garnishment, they wiped him out. Brother's attny was able to get back the money taken from his bank acct, plus all bank fees for overdrafts and NSF charges, and legal fees. But it took months.

Just because the funds are supposed to be exempt does not mean the bank won't just hand them over anyway. So beware.

If you think there's a possible banking institution garnishment coming, keep your bank acct balance low as a CYA.

[jp2861]

It sounds good that legally speaking certain $$$'s in your bank acct are protected. But it don't always work that way.

Brother was on SSDI and pension. Both are funds that are expressly exempt from Garnishment in their State. When the Creditor got their Banking Institution Garnishment, they wiped him out. Brother's attny was able to get back the money taken from his bank acct, plus all bank fees for overdrafts and NSF charges, and legal fees. But it took months.

Just because the funds are supposed to be exempt does not mean the bank won't just hand them over anyway. So beware.

If you think there's a possible banking institution garnishment coming, keep your bank acct balance low as a CYA.

I didn't say the money in the bank is legally protected. There is a difference between an employer being served to withhold a certain garnished amount and what a bank will do. In this situation, the Gov't (as an employer) will not honor the garnishment. Actually, the court shouldn't even let it get that far, if the debtor made it clear that it is exempt. However, once the funds have made it to the bank, via direct deposit, the creditors will try everything in their power to get their hands on it, simply because there's no way to earmark it as exempt. The only way to try to protect it from the bank is to make it very clear to the judge and creditor that certain deposited funds are exempt, before the creditor has a chance to go after it. Anyone in this situation needs to just have the check mailed to them and avoid the bank deposit. At that point the creditor can't get a dime. It's really a shame that the banks aren't held to some standard when the the deposited funds are clearly traceable to an exempt source.

[SinkingFast]

Brother was never served with a Summons or Complaint that he was aware of. Just one day his money was in the bank, the next day, it was gone. He didn't know at all.

He tried using his Debit Card for a purchase at the grocery store and that was denied. That's when he checked with the Bank to see what was going on.

The Bank manager gave him a copy of the Judgement/Garnishment they'd received for the Creditor to obtain the funds. The Order even had a note on it that "Funds due to age or disability" were expressly exempt. Since Brother's deposits came from SSDI (disability) and Pension (age) it was kind of obvious that the funds met the exempt criteria. But the Bank handed over the money anyway.

Creditors pull a slick trick. They get a copy of a Court Summons. Fill it out and mail it to you. Regular mail. No process servers. No Certified Mail. No Docket Number. Just looks like junk mail. Many people don't even open them. If they do read the "Summons", they don't respond.

When the Creditor does not hear back from you,............ They get a Docket Number and a hearing assigned. They go to Court. You don't show. And they get a Default Judgement against you.

Brother's attny said that's probably what happened to him. At the time they would have mailed the notice, Brother was visiting his wife in the hospital daily. Probably just passed it off as junk mail when he got home at the end of the day.

[Rover]

Let me give you some information and advice based on my real life experience with credit card lawsuits over the last 23 months. Your loan suit is the same thing.

When a lawsuit is filed, the collection attorney is betting that you will not respond so that he can quickly get a default judgment. The last thing the attorney wants is a response because he does not want to put in the effort to respond to your response and he certainly does not want to go to court.

When you are served with a complaint, you can file an "answer" or you can file pre-answer motions within some period of time -- usually, 20 days. If you file an answer, your case then heads to trial.

However, if you file pretrial motions, you stop the clock and you do not have to file an answer until after your pretrial motions are heard and ruled on. That approach can buy you a tremendous amount of time if you need it for some reason. In my case, filing pretrial motions stopped the clock for almost 20 months.

I have also learned that the complaints that collection lawyers draft are very shoddy, full of holes and can easily be fought in pretrial motions. Remember, the lawyers are betting that you do not respond and that they can then quickly get a default judgment. So, they have the youngest, most inexperienced lawyers in their firm draft the complaint and then follow through on the lawsuit.

After not paying a credit card bill for almost a year, I was served with a complaint in late December, 2005. The first thing I did was buy several books on how to represent myself in court. On the 19th day of the 20 day period that I had to file an answer, I filed a motion to dismiss with the Clerk of Court and sent a copy of the motion to the plaintiff's attorney. That was in mid-January, 2006. Then, shortly thereafter, I filed several other pretrial motions. In March, 2006, the plaintiff's attorney submitted an amended complaint that addressed several of the defects in the complaint that I had pointed out in my motions. In response to the amended complaint, I dusted off my pretrial motions and filed them again in response to the amended complaint.

After filing a pretrial motion, it's up to the plaintiff or defendant to request a hearing on the motion. As the defendant, you don't want to be requestiong a hearing. In my case, a hearing on one of my motions wasn't held until October, 2006 -- 10 months after the complaint was served on me. And the motion that was the subject of the hearing was not even my most important motion. And at the hearing, the judge ruled in my favor that the complaint needed to be amended again.

After several more hearings, I finally had to file an answer in September, 2007

Here it is almost November (over 22 months since being served), and we probably won't even set a trial date until 2008.

All I've done is recognize that the complaints filed against me were very poorly drafted, filed a few motions and recognized that collection attorneys do not want to work for their money. (Ain't our legal system great!)

In my state and in most states (I suspect), a complaint that involves a contract must have a copy of the contract attached. A credit card involves a contract, but the collection attorneys don't bother filing a copy of a contract with their complaint because they are betting that the debtor will not respond and that they will never have to argue the complaint in court.

I am not an attorney. I had never tried to handle a lawsuit pro se before. But I've discovered that it doesn't take much to drag things out in court and to discourage the collection attornies from aggressively working a lawsuit.

One other thing has occurred to me. I don't think I could have gotten the same result if I had hired a real attorney to represent me. An attorney would have wanted a considerable sum to file the motions that I've filed and to attend the court hearings. But what I think is most important is the I don't believe that an attorney would be as creative or aggressive in constructing defenses as I have been. I think attorneys are more concerned about how they look before the judge and other attorneys than they are concerned about doing everything they can to drag out or win your case.

What I have done hasn't taken that much time. I found examples of motions to use to draft my motions -- that helped a lot.

Finally, the bottom line is that if a collections attorney sues you, respond within the time period allowed. File a Motion to Dismiss. I don't believe it really matters whether the motion is even drafted well. If you just respond, you can buy yourself many months. If you can go to hearings and defend your motions, you can buy, perhaps, years.

In December it will be two years since I was served, and it will be many months more before the case is resolved.

Good luck.

[jp2861]

Your story would make a good sticky, with step by step what happened, and samples of your motions.