cont. from yesterday...Filing a response.
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Posted by Orangedog (150.159.224.8) on August 01, 2002 at 09:10:28:
Below is the question I asked yesterday (since the board was reset last night) about what needs to be done to file a response when being sued. BIG thanks to Linda and WhyChat for their help so far. I think I know what to file and where, now it's just a matter of trying to figure out what to put in the response. Original question:
I'm being sued for an old credit card that is past the 4 year statute of limitations in Ohio. I'm pretty sure that I can make my case that this isn't collectable based on that alone since this account bacame a charge off in 1990. I need to know what to do about two issues regarding this case: First, The summons I was served with says that I have to file a response upon the plantiff's lawyer within 30 days. How do I do that? Do I have to file it at the clerk of courts and send him a copy? Is there any type of format that it has to be in or is it just like writing a letter? The summons didn't have a court date on it, just the date that I have to give the "response." Second, The only evidence that the lawyer filed was an affidavit from the collection agency (asset acceptance) that says I owe them money from a credit card account and that the original agreement is believed to have been lost or destroyed by the original creditor (the bank). Since the judge can pretty much interpret the law as he sees fit, I want to have a fall back plan in case he had a bad night and ignores the statute of limitations. Sure, I could appeal that, but then I would have to get a lawyer and pay more in his fees than the amount that I'm being sued for (I've seen judges in domestic court ignore the law more than a few times, so I want something to fall back on). Can this sued be thrown out if asset acceptance or the bank cannot produce the original agreement? Would a photo copy be admissable, or only the original? Sorry to sound so paranoid, but Murphy's Law is just as bad as anything that is on the books. Any help would be greatly appriciated since I have one week left to file. Reply from Linda:
http://www.nwjustice.org/docs/205.html This site (supplied by Why Chat) offers advice on how to answer a summons with your SOL defense. Be aware that lower court judges tend to get hung up on whether the debt is yours, you have to focus their attention on the SOL defense. My reply to Linda:
Thanks for the link. Very helpful info there. Since the only information that is contained in the court finings by the asset acceptances lawyer is the name of the bank and the amount owed plus interest, should I deny having any knowledge of the account since they admitted in their affidavit that the original account agreement has been lost or destroyed? Basically say something like "you say I owe you money, now prove it" (in a more polite form in the response, of course). It sounds like all they have is someone from asset acceptance saying in an affidavit "He owe's us money....really, trust me, he does". Can I file for a demand for discovery or something like that? What do they have to have to prove that the account is even mine in the first place? I also forgot to add.....there were also no dates listed as to when the account went into default (for SOL purposes), account number, or anything else. From what I hear about asset acceptance, they don't have a problem with making up the law as they go. Since the lower court like to get hung up on whether the debt is mine, shouldn't I push for the plaintiff to prove his side of the case before I even mention the SOL since no dates were listed to establish when the clock started on the statute? Reply from WhyChat:
Do you have a court docket #?
Is this in small claims court?
Were there instructions from the court about fling an answer?
Check with the court, see what was filed with the complaint. My reply:
I have a docket #. The total is just over $4000 and the small claims limit listed on the Ohio AG's website is $3000, so I guess this isn't small claims. No instructions were included with the summons, only the requirement to respond and the date it must be made on or before. I have gone to the clerk of courts office and copied the entire case file. There was nothing there that was not included in the complaint or summons.
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