Topic: Asset Acceptance and summons for court

[wanger]

Hello.  I guess I will start out with a little summary of my case first.  (I am doing this for my wife, who recieved this under her maiden name)  I recieved a court summons on 5/7/07.  It was from a local attorney, not asset itself, but the attorney was representing them.  It stated that she was in default of a CitiBank card, for the amout of around $5401.  I then sent out a Validaion letter on 5/9/07 to the attorney listed on the summons.  I recieved the return reciept ticket on 5/12/07.  As of today (5/29) I have not recieved anything but the signed return reciept that it had been recieved.  When pulling up the credit report on TransUnion, CitiBank was not listed but Asset was listed with the origional creditor as CitiBank.  the balance there is listed is $5316.  The account type is listed as an open acount, with an updated date of 3/07.  Also as of today (5/29) the court has no set date of appearing.
   My questions are as follows:  What happens if  they do not send me the answer to the validation letter?.  If no court date is set, I dont think I need to follow up, but only to appear when told to.  If I need to appear in court what other documents should I take with.  I am taking the copy of my validation letter, copy of the summons, list of my states SOL, and a copy of my credit report.  My main question is that the card is under my wifes maiden name and we have been married for 7 years.  I know for a fact that she has used the card in that time, or even a little earlier.  How come the card has not been charged off and why would it be placed in collection in 10/06.  I know she tried to close the account before we were married, but the card told her she could not close an account with an outstanding balance. Then we just never had the money to pay off the account.
    I guess if it comes down to it, I have to pay, but shouldnt they have to prove that they have gotten all the info from CitiBank.  Do I need to contact CitiBank for a copy of my account, which being 7 years ago, I do not have any thing around the house.

  Thx for reading my long narrative.  Thx in advance for the help.  Much appreciated.  Eric

[wanger]

oops forgot one thing, we never got anything in the mail stating that AA purchased the debt. The first thing we heard of or from them was the summons to appear. aargh.  They may have called but we do not answer "unavailale" calls at our house.


 thx again

[wanger]

so if the card is under my wifes maiden name, now that we are married, can they then go after our joint income, or is it just her debt. not that I do not want to help her, but just wondering how far the collectors can go.   thx again

[Kitten]

Does the summons instruct you to respond to the court within a certain time period?
Have you allowed this time period to elapse?
Asset is probably just waiting for you to keep your head in the sand long enough for them to win in court by default.

[wanger]

the summons states that i am required to serve upon the lawyer, an answer to the complaint herewith served upon you within 30 days after the service of this summons upon you, exclusive of the day of service.  If you fail to do so, judgement by default will be taken against you for the relief demanded in the complaint. dated 5/4/07
   -quoted from the summons-
  thx  Eric

[Rottweiler]

You were served on the 7th of May?  That's the key date in all of this.

Better get cracking with the pleading:  The Answer is due June 8th (or the first day thereafter if the court is not open that day).  Yes, technically the litigation should be put on hold until they validate, but don't rely on this to save your hide; Asset plays dirty and just try to convince a local judge (likely in Small Claims court) that since they did not validate (yet), the case must be continued until they do!  That would likely be a short route to a default judgment. 

You should get validation in Discovery.

Another note:  Asset could very well file suit first without doing anything else to collect.  No violation there.

[Tunnel Light]

You can be held liable for her debt if you are in a community property state.  Otherwise, you are not party to the suit and cannot appear/argue on your wife's behalf.  A tough lesson I learned myself. 

What did they attach to the complaint?  An affadavit?  An account statement?  A note from mommy?  A drycleaner's receipt?

Do you know when the account defaulted and is this suit within SOL for your state?  You mention SOL laws, so I am guessing you may have a legitimate affirmative defense here?  If so, you may want to think about getting this case out of small claims and into a higher civil court by filing a motion to do so along with your Answer.  Whatever court you choose, file the Answer listing all viable affirmative defenses BEFORE the deadline.  Just waiting to hear something is not a good idea...remember, they're counting on you not to answer.  Take several copies of your Answer to the courthouse, get them all stamped, file one with the court clerk and send opposing counsel a stamped copy.  If you file a motion to move to a higher court, same process.

Contacting Citi probably won't get you anywhere; although you could try, especially if you're looking for that DOFD.  Ultimately, it is Asset's burden to provide the proper documentation for proof of the debt and a complete accounting of same,including the fees, penalties, interest and so on. 

Good Luck!

-Tunnel Light

[Rottweiler]

You can be held liable for her debt if you are in a community property state.  Otherwise, you are not party to the suit and cannot appear/argue on your wife's behalf.  A tough lesson I learned myself.

Good point. If she is unwilling to do the legwork, she should be looking for counsel, not having hubby waste time asking a discussion board what to do. 

Contacting Citi probably won't get you anywhere; although you could try, especially if you're looking for that DOFD.  Ultimately, it is Asset's burden to provide the proper documentation for proof of the debt and a complete accounting of same,including the fees, penalties, interest and so on.

It's likely Asset would have to go back to Citi to get this information (and a witness to support the evidence).  Maybe they can.  For Asset to do this at their level, without involving Citi, Asset would either have to convince the court that they are a true factoring company in this case (not a third-party collector of a defaulted debt) or have some sort of reaffirmation/novation between Asset and the other party/parties, namely, her.  If this has not happened, they would have to get the court to accept an accounts stated, which they would likely not be entitled to.

In any case, DW (as the real party in interest) would need to submit discovery to Asset and get the information that way; verification under the FDCPA is likely not forthcoming or may well be improperly presented (from their own files rather than obtained and forwarded from Citi).

As for the case?  If SOL likely has passed, I would, in her position, file an MTD along with the Answer asserting the SOL defense and let the court make the next move. 

[JunkBuyers WorstNightmare]

oops forgot one thing, we never got anything in the mail stating that AA purchased the debt. The first thing we heard of or from them was the summons to appear. aargh.  They may have called but we do not answer "unavailale" calls at our house.


 thx again

In my experience, Asset makes no attempt to mask their calls on caller ID. The likelihood is that the summons was their first communication with you.

[wanger]

the only thing they attached about the debt in the summons was how much was owed to them.

I guess i still do not understand about the court date. do I or the other lawyer need to make the date ?  what if a date is never set ?

 thx again

[JunkBuyers WorstNightmare]

the only thing they attached about the debt in the summons was how much was owed to them.

I guess i still do not understand about the court date. do I or the other lawyer need to make the date ?  what if a date is never set ?

 thx again

Of course you need to make the date. Otherwise, they'll simply get a default judgement against you. Don't think they won't. That's what they count on.

[wanger]

sorry to be such a noob at this...  So I just need to schedule a court date within the 30 days from the summons.  Then do I just send a letter to the lawyer with the time I set up?
  I really appreciate the help.. Eric

[Tunnel Light]

Schedule a court date?  Since when do defendants get to schedule court dates?

*Groan*  I foresee a default judgement coming at a rocket's pace here.

Wanger, go get an attorney before it's too late.

-Tunnel Light

[Rottweiler]

sorry to be such a noob at this...  So I just need to schedule a court date within the 30 days from the summons.  Then do I just send a letter to the lawyer with the time I set up?
  I really appreciate the help.. Eric

The best thing:  Get an attorney.

But if you can't...all you need to do is file an answer to the complaint; the court schedules the hearing date(s).  Try reading this for starters:  http://debtorboards.com/smf/index.php?topic=16.0

Then, look for a sample answer for your court; look at pleadings on-line and/or go and pull similar cases at your court.  If it's Small Claims, the Answer may well be a fill-in-the-blanks form that may be required to be used under Small Claims Rules (one reason to check your state's RCP).  Use every defense you can reasonably use, even if a particular defense seems to not exactly "fit"; let the court decide which ones are applicable.  (In your case, SOL may well be applicable, but there is not enough information to know whether you should assert this defense.)

[Joey]

You need an attorney.  Go to http://www.naca.net/find-consumer-protection-attorneys/ and search under your state.  Make sure you keep calling the attorney(s) until you get one that will help you, do not just leave a message and wait for one to call you back.