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Sworn Denial
My question involves judgment recovery in the State of: Utah
I had some NSF charges from a bank that went to collections. I disputed the charges but the bank eventually stated I did not respond quick enough to their requests for additional information. Suit has been filed by the collection company. I filed an answer and court date is now set for 10/30/08, 2 weeks.
I've not had much time to work on this and am just now sending in my discovery and interrogatory request. I'm sure the plaintiff attorney will object due to the timing but I'm hoping I will be able to speak to the judge and explain that I'm not an attorney and ask for some consideration.
My question is this... the only thing the collection company sent in with the Complaint was a copy of the Deposit Agreement and an assigment of collections from the bank. I would think they should need to produce a document from the bank confirming in some way that the debt is valid. Otherwise I could just ask for a Summary Judgement as they have not been able to show that I even have a debt with the bank. I'm guessing that they will produce this when we go to court? Can they submit this information if it's not been disclosed prior to court? This is District Court, not Small Claims Court.
One reason I'm asking is that I want to send in a Sworn Denial (I'm not sure I can still do this as it's been months since the Complaint was filed <-???) but I wonder if I should as then the attorney would have a chance to put together all the documentation. I'm wondering if it might be better to hope/pray that she does not have that info with her. But she has a lot of experience, I think she knows exactly how to win these cases so I doubt she would forget something like that.
The other issue I have is how I can question the Bank itself as they've assigned the debt to 3rd party so the bank does not need to show up. That is why I wanted to file a Sworn Denial, so they would have to be there. I realize I could probably subpoena them but I don't have a clue how to do that and there is probably not enough time.
These collection agencies certainly have the upper hand. They can afford to hire attorneys as the attorney only charge is the defendant has to pay. While the defendants probably can't afford to pay an attorney and we have no idea how District Court works. The chips are certainly stacked against us.
Just a note: it was 3 NSF charges that amounted to about $216. I disputed those charges and offered to pay the $50 as the deposit agreement required on disputed charges but they would not take it. We went to mediation and I offered $200. They came back with $417. I offered $250 and then $300 but they would not take less then $417. It's the $250 in attorneys fees that the attorney would not come off of that killed the mediation. I'd rather risk a judgment and $117 more then offer $417 on a $216 debt. Had I known then what I know now, I would have paid the $216 and collected the $65 from the company that charged my account in error.
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Re: Sworn Denial
Well, no responses so I sent out the Sworn Denial. I came to the conclusion that it could not hurt. I figure the collection agency is going to produce additional documents at the time of the trail to confirm the debt. My whole thing is that I needed to show the judge that no one could confirm I authorized the charges against my account and that I had filed a dispute. Without the bank being present, how could I question this. I will certainly be asking the collection agency and they won't be able to answer which I guess is good but if they could simply produce an affidavit, the judge might accept that as fact. So that is why I the Sworn Denial made sense to me as I can't "question" a piece of paper.
What also kills me is that the plaintiff attorney tells me that she can ask for more then the statutory allowance of legal fees. While I don't see why the simplest of cases (debt collections) should allow a higher payment then statue allows, I don't know what will happen there. The part that kills me is the more work I have the attorney do (discovery, interrogatories, etc) the higher the bill is going to be. If she can have me pay this, it seems like a lose/lose situation for me. The more I take advantage of my legal rights, the more I have to pay. That would seem to limit my rights in court. As I mentioned, I've offered to pay $200 but if the judgement is for an amount like $100, the judge could still stick me with an $800 plaintiff attorney bill. That does not seem right.
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Re: Sworn Denial
It's only two weeks until the court date. I'm betting that the Plaintiff attorney asks to have my requests shot down because of the timing. I'd ask the judge for some wiggle room as I'm not an attorney, I don't see that a continuance would hurt either party, and in the interest of justice perhaps he could grant it. Anyone want to guess if he would in this situation?
I know the plaintiff attorney is going to ask that it not be granted as she would rather not allow me discovery, interrrogatories and the Sworn Denial. Each time the court sets a date for the next time, she always wants it to be in a few weeks at the most.
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Re: Sworn Denial
Well I went to trial today. Let me tell you... I _never_ want to do that again. I thought I'd comment on a few things. First and foremost, the Sworn Denial worked perfectly! Granted, they did have someone from the bank there as a result but I was glad to see that it required something more for the Plaintiff. It also meant that I could actually question the place where the debt originated. That is, I got to have the bank explain why my dispute to the charge was ignored. I also got to follow up with the collection person and ask him what they did to confirm that the debt was valid (nothing). So this placed it all back on the bank.
The judge was very good. He asked some questions. The main questions he asked in my favor was to verify with Plaintiff counsel that the bank makes the customer prove that the debt is not valid. At one point I asked the bank if, once I disputed the charge, did they follow up in any way with the debitor to see if their charge was valid. He said yes, they asked me for additional info. I corrected him and explained that I asked if they followed up with the _debitor_ at all. The judge made a point that it seemed like the bank took a back seat to the dispute. He also mentioned my main point... if I was disputing the charge, at what point could the bank no longer allow the dispute. I made several points along these lines. Lastly, the judge states that he would review the deposit agreement. I felt pretty good about that as I felt the wording was in my favor and it's the banks agreement (contract of adhesion).
Plaintiff counsel had always been polite but she obvious would rather have people roll over and pay her fees no questions asked. At the end I thanked her for putting up with me... I'm not sure that one says after a trials. She kiddingly said I was an ass. I laughed back and said some of my friends might agree. She was then a little less jovial and said, no... you were an ass. She was not impolite but I have a feeling she meant it. Hey, I did not file the suit and reject my $300 offer... she did. I was only defending myself. So I laughed about it and figured she may have said it as she felt I might have swayed the judge. I can only hope.
She asked for $1300 in attorneys fees at $220/hour but there is no way she will get that. If it goes against me, I'm hoping she only gets the statutory max of $250.
Oh, I was not going to testify and declined but then the judge said, "are you sure". I really thought he was encouraging me to testify so I accepted. I figured he might be saying if I did not testify that he could then not consider my point of view... even though I shot many holes in the plaintiff's case. I got to make a few comments and do well against cross examination. At one one plaintiff counsel asked me a few questions and when I disagreed with her clients statements, she said, "so xxx was lying when he testified". I did not fall for it and simply stated that I was answering truthfully and could not comment on what xxx was thinking. That is, I was not lying but that did not mean I had to call someone else a liar.
Judge is going to rule later on and inform us. Could go either way.
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Re: Sworn Denial
hello,I recently received a notice of a law suit on a credit debt. I was making patments through a debt mannegment company. turns out the company was defrauding myself and others. Even can out in the news!!!
since the sueing attorney's have already filed a law suite against me. I was wondering if you could furnish me with a SWORN DENIAL example.As I need to file this as well as furnish the info on the fraudulant debt manement company. Could you be so kind as to do this?
Thank You
Mew1157:D
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Re: Sworn Denial
Use the same format as the Complaint and in the section below just use a header of "SWORN DENIAL" and then copy the information from the following URL.
http://www.askmehelpdesk.com/other-l...al-211063.html
I'm guessing you have filed an Answer? You may only have 20 days to do this.
You will also want to file motions for discovery at this time (at least 30 days prior to trial). You can file for production of documents as well as Interrogatories.
I'm not sure about this part but at least at the Pre-Trial, you want the judge to order a Scheduling Order. This means both parties need to talk about the time frame for motions such as Discovery, etc.
If the collection company was defrauding people... who filed the suit?
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Re: Sworn Denial
I have not yet Filed an answer. I plan to go in to the clerks office on Monday and do so.(Is this the correct procedure?) I will also be sending a letter of validation as well(cert mail) the law suite was filed by an attorney office in Arkansas(were the credit company is located).
The fraudulant company I am speaking of was a third party company that was to get me a lower payment plan(about $100 monthly).They have since "disappered" although there is news articals state that they were crooks.
the original account was opened in 02, last activity was in August 05(payment) the SOL in my state is 4 years. does that help?
Is there more you would like to know?
could really use help on this since I cant afford a lawyer
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Re: Sworn Denial
also how do I file for production of documents and interrogatorries?:)
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Re: Sworn Denial
I'm guessing the suit was filed in District Court? If so, I don't think going to the clerk is going to help. An Answer is a technical legal document that requires you to answer the numbered allegations in the Complaint. You answer these in the same numbered format. You probably want to search for Answers on the Internet and see about copying them. It's not a quick and easy process (which is why attorneys like to file in District Court... they are counting on a Default Judgement).
I will upload my documents to a server and post the link here for my Discovery Motions. They were written by me, a non-attorney, and I did my best to copy ones that I had access to.
IMHO - your best bet is to file an Answer, file the Sworn Denial, and also file the motions. I'd then strongly recommend negotiating with the Collection Company instead of going to court. In District Court, you are guilty until you can _prove_ otherwise and you are also someone who people won't care to listen to if your not an attorney.
Here is a link to an Answer you could copy:
http://www.scribd.com/doc/2199258/Fr...r-to-Complaint