CREDITWRENCH
Creditwrench teaches the secrets of the debt collection industry and how to defeat their abusive practices without lawyers. We know how to win!
Monday, September 15, 2008
Answering a summons

Answering summons


QUESTION:

Hello Creditwrench, I have a few questions.

I live in New Jersey and I received a court summons. It was filed by the attorney of a debt collection agency. The summons says that in order to avoid a default judgment, I have to answer the complaint by sending an answer to the court and to the plaintiff's attorney "within 35 days (including weekends) from the date you were 'served' (sent the complaint)".

Including the day that the summons was served, I have three days left to send an answer. My plan is to answer the summons tomorrow (Monday, the 34 day) by certified mail to both the court and the plaintiff's attorney. Both parties should receive the answer on Tuesday (the 35 day). So my question is: Are default judgments carried out within the 35 day answer period; will a judgment be entered against me on Tuesday? Or, does the answer period have to expire before a judgment can be entered against me?

The last questions has to do with the fact that the complaint filed by the plaintiff's attorney clearly demands judgment for the amount I owe "plus accruing interest to the date of judgment plus costs."

I do owe the money, but is there a way for me to demand that the court dismiss the plaintiff's claim for interest and costs?

Also, the only assets that I have are a 9 year old computer and some books, is it possible that these items will be seized in order to satisfy the debt? What is the process that the plaintiff must follow in order to seize my assets? Will this be immediate at the time of judgment?

Also, I am unemployed. How do I request a motion to be heard in court, so that the judge might be better able to understand my situation?

Is it too late to demand from the plaintiff's attorney a copy of the contract that I had with the original creditor?

I know this is a blizzard of questions, but I've been researching online and this is the only place where it seems I can get specific information regarding my case.

I have to answer the complaint by sending an answer to the court and to the plaintiff's attorney "within 35 days (including weekends) from the date you were 'served' (sent the complaint)".

Including the day that the summons was served, I have three days left to send an answer. My plan is to answer the summons tomorrow (Monday, the 34 day) by certified mail to both the court and the plaintiff's attorney. Both parties should receive the answer on Tuesday (the 35 day).

So what is your answer going to be?
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So my question is: Are default judgments carried out within the 35 day answer period; will a judgment be entered against me on Tuesday? Or, does the answer period have to expire before a judgment can be entered?


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Also, the only assets that I have are a 9 year old computer and some books, is it possible that these items will be seized in order to satisfy the debt?

Not likely to say the least.
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What is the process that the plaintiff must follow in order to seize my assets?

In most states there has to be a garnishment hearing first. A judgment only states that you owe the debt but does not state that you must pay it.

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Will this be immediate at the time of judgment?

NO.
Judges do not care about your situation. The only question before the court is whether or not you owe the debt and that is the question that must be answered one way or another.

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Is it too late to demand from the plaintiff's attorney a copy of the contract that I had with the original creditor?

No. That is done through use of demand for production of documents.

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I know this is a blizzard of questions, but I've been researching online and this is the only place where it seems I can get specific information regarding my case.

I believe that I have answered your questions but they don't go to the heart of the matter which is how do you answer the complaint. Doing that is what is important while most of the questions you have asked are only of peripheral interest. Knowing the answers to the questions you have asked do not inform you about the proper ways to respond to the complaint, how to use your discovery tools and many other questions you must know in order to present a successful defense.

Of course, you may just be resigned to the fact that you will lose in court no matter what you do as are most folks who get a summons and complaint. But it does not have to be that way. There are other possible outcomes.

How to defeat debt collectors

---------- FOLLOW-UP ----------

QUESTION:

Thanks for your help, so far.

What is the best way to respond? I have an answer form, but it only seems to
provide choices for claiming that I do not owe money to the plaintiff. This is
the main reason why I am confused about the entire process. It as if the
system is saying that if I do agree that I owe the money, I should not answer
and just let the court enter a default judgment against me.

As you said, I feel resigned. How might I have a chance to turn things around
that excludes negotiating with the plaintiff. I have no means to pay the debt
at the moment, so that's not a reasonable track to take.

I really do appreciate your help.

Answer:



creditwrench
I'm not an attorney so I can't give you legal advice but I know what I would do if I were in a similiar situation.

The first thing I would probably do is prepare a graduated denial unless other circumstances mandated some other response, interrogatories, demand for admissions and production of documents and a certificate of mailing.

In the event that the debt was outside of statute of limitations I would file a motion to dismiss as my response, a notice of hearing, order of the court, the above discovery tools, certificate of mailing.

I would also see what violations of FDCPA and FCRA might have been committed and start preparing my federal case against the attorney and I would most likely include the plaintiff as a co-defendant in the federal case.

I would go into the local case expecting to lose no matter what I did or how well my defenses were presented so I would hope that I could raise issue(s) that might be grounds to demand that the judge recuse himself so I could begin the recusal process in conjunction with the motion to vacate the judgment and repeat that as many times as necessary to get the case into appellate court without having to put up a supersedias bond. I would also begin to think about how to develop an issue upon which to mount a well founded motion to vacate.

Between the appellate and federal courts the plaintiff in the lower court case is not likely to have a crying chance to win for the simple reason that just as I expect to lose in local court because I probably do owe the money the lawyer and his client will lose in higher courts because they violated the law and have no defense against that.

I know how to do all of that. I know how to win.
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