Creditwrench teaches the secrets of the debt collection industry and how to defeat their abusive practices without lawyers. We know how to win!
Wednesday, February 20, 2008
How to respond to a summons.
QUESTION: Do you know if state of washington has the capability to seize investment property and force a sell for credit card debts? No, but I assume that they can.

The complaint is for Monies Due as follows:

"1. Plaintiff is Chase Bank USA, NA, a notional banking association chartered under the laws of the United State of America, in the state of Delaware. Chase Bank USA NA is duly authorized to bringthis action inthe state of Washington.

This is quite true enough so we have no issue with IN PEROSNAM JURISDICTION HERE

2. The above-named defendants are husband and wife, constituting a marital community under the laws of the State of Washington. The indebtedness sued on herein was incurred on behalf and for the benefit of their marital community.

This is a bit strange. It is not often seen in such lawsuits but since according to
this web page Washington is a community property state,, that declaration binds both parties to the lawsuit under Washington law regardless of whether both were joint account holders or not. Both are responsible. So that is the reason for their making that statement. Both can be garnished and the assets of both can be seized.

3. Defendants became indebted to the plaintiff on a consumer account. Under the terms and conditions of the agreement, the defendants are hereby indebted to the plaintiff in the principal sum of $22,959.32 plus interest from October 26, 2007 at the rate of 12% per annum and late charges. Defendants also agreed to pay a reasonable attorney fee.

And there is your ticket into federal court. Because they have demanded a lump sum of money without providing a full and complete accounting the alleged debt they are providing you with false and misleading information. That decision was handed down by Judge Kenneth Minh in the case of Fields V. Wilburlawfirm.

4. Although demand has repeatedly been made upon the defendants, payments have not been made on the account as agreed, and defendants are now in default under the terms and the conditions of the agreement. WHEREFORE, plaintiff prays for a judgment against the above-named defendant and their marital community as follows:

Here is where we run into more very real problems. What agreement? Where is this purported agreement? Has it been introduced into the record of the court as evidence? If not then the above wording runs afoul of the best evidence rule. What is the best evidence rule?
(A.) The statement of the attorney that an agreement exists or
(B.)A true and verified copy of the agreement entered into the record of the court?
The answer is obvious. So we can object on the grounds statement violates the best evidence rule. We also use our discovery tools to force them to produce the written contract or agreement.

1. For the principal sum of< $22,959.32 plus interest from October 26, 2007 at the rate of 12% per annum and late charges. 2c. Attorney's fees of $500.00, if provided by contract, in the event this action is uncontested or such other amounts as the courts find reasonable. And now we run into other problems with their complaint. The first is whether or not the sum of $500 is provided for in the contract. That is highly doubtful in a credit card agreement. Might happen in a real estate contract but not in a credit card agreement.

3. Its costs and disbursements incurred in this action

4. Such other further and equitable relief as the court may deem just and proper."

Can you please let me know what is the best way to respond?

No, I cannot let you know what is the best way to respond. As you know, I'm not an attorney but be that as it may, not even attorneys will always agree on what is the best way to respond. They will always have an opinion about what they believe is the best way to respond but in the end it is up to the client to decide whether the opinion of the attorney is the way s/he wants to proceed. In the final analysis, it may or may not have been the best way to go and might very well turn out to have been the worst possible outcome. The poor client will never know until it is all over and done with and then still may wish he had done differently. In this case, there are still a few questions I would need answers to before I could even hazard a guess as to what might be the best way to proceed. I would have to get a look at all of the paperwork in the file. I would have to know whether or not there is an affidavit in the record. If not then we might want to raise the question of subject matter jurisdiction. If there is no evidence of the debt and no affiant before the court with first hand knowledge of the debt and all it's elements then the court might not have subject matter jurisdiction. A motion to dismiss on that grounds might be raised.

And if there is an affidavit does it state that the affiant has first hand knowledge of the debt or not. Then who is the notary? Is the notary actually a real notary or is the notary simply some person having possession of a notary stamp illegally claiming to be a public official? That does happen and I have proof of that. And does the notary actually know the person and if not then did that person actually appear before the notary and identify himself/herself or not?

Those things can usually be determined by personal investigation into the matter based on the statements made in the affidavit? We have found cases where the notary was in one state and the affiant in another. We have examples on record where the affiant made conflicting statements on different affidavits sworn to before the same and/or different notaries.

We also have examples on record where multiple people in differing states claim to hold the exact same position of authority. There are examples of just about every type of chicanery imaginable have been foisted upon the courts. Judges are not aware that such things are going on in their courtrooms and defendants don't realize it either because there is no proof available.

Defendants and judges alike take the phony and trumped up affidavits as gospel truth not to be argued with. There are however, many court cases which define what can and cannot be stated in an affidavit.

Now do you understand why I cannot tell you what might be the best way to proceed? I simply do not have the information I would need to even begin to start telling you that. I would have to look at all the documents in the case to start with.

On the other hand, my students know all this stuff because they have learned it from me and from their own research. They learn the rules of civil procedure and the rules of evidence. The learn all the little tricks and tips that produce winning defenses and winning offenses and how to deal with such problems without resorting to lawyers. I DO hope that now you can understand why it is impossible to tell you what is the best way to respond. Every case is different and usually in multiple ways.

You need to become a creditwrench student and learn this stuff for yourself. It isn't rocket science. Just plain old everyday knowledge and the ability to analyze the stated facts and the law to determine what is right and what is wrong.

You can become a creditwrench student by calling me at 405-684-9297 or 405-227-9423.

you will also want to visit my message board
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