CREDITWRENCH
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Saturday, October 27, 2007
lawsuit papers served today
Name: Rachel

Subject: served lawsuit papers

Question: I was served papers today, stating that I need to provide "Answer" the following Monday after 10 days. According to the paperwork the lawsuit was filed in 2005, but I just received them 10/2007. The credit card is an old charged off account. On my credit report it shows that that the last payment made was Feb 2003, that is when it first shows 30 days late and the last reporting on credit report shows Sept 2003 as 120 days late. I was laid off from work and was unable to pay so it did go into default. What are my options? I live in Texas. Thanks

Answer: This one seems fairly simple to beat. You can't use the statute of limitations defense if the lawsuit was filed in 2005 but laches ought to apply. I'll have to do a bit of study to be sure of that but quickly thinking it very well might apply. In any case you would not want to "answer" the complaint but rather respond to it.

While I can't advise you what to do I can say that if I were served with a summons I would respond with a motion for more definitive statements if allowed by the state's rules of civil procedure and if not then I would respond with a demand for a bill of particulars. So you will have to study your Texas Rules of Civil Procedure to see which one to use.

One state that will give you problems using that approach is Utah which has yet another approach but demand for more definitive statement is still workable as an answer there. Connor's Rules of Procedure for Texas is also a great resource for finding out about such things but that is a sort of expensive book so you would want to visit your local law library if you want to consult that book.

Next I would want to follow that up with demand for and production of documents. As soon as the Plaintiff provided answers to my demand for more definitive statements I would most likely want to use them to craft my interrogatories and admissions if they came back with meaningful answers and if not then I would most likely want to file motion to compel.

In the process I would be looking for some violations of federal law and see if I could hit them with a nice federal lawsuit just to give them some more to chew on. By the time they got to the Rule 26(f) meeting in federal court they ought to begin to see the light and start asking what it would take to make me go away. Of course, at that point I would demand that they dismiss their current case in lower court with prejudice, remove it from all my credit reports, pay my court costs and maybe some cash on top of that. If they turned down my demands they could then tell the story to a federal judge and jury.

By that time I might very well be able to amend my complaint to add more problems for them to chew on. Trying to win in lower courts is a tough, tough proposition but once you get them into federal court it is an entirely different matter. The only problem is that in order to get there and be successfully you just about need a mind that operates like a steel bear trap.

In other words, you have to quit thinking about whether you owe the debt or not and how you have a moral obligation to pay them what you owe and start thinking about what they have done to you to deprive you of your rights under the law and how to use the law to your own advantage instead of letting them take you to the cleaners simply because they know more law than you do.

You can't possibly know all of the tricks and traps I do unless you have also been studying the law for the last several years. That is why I invite you to visit my web site at http://www.creditwrench.com and my message board at where you can learn lots of the things you need to know to even have a crying chance to win the day.

You can also call me at 405-616-7901 most any time.
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