Results 1 to 9 of 9
  1. #1
    Join Date
    Sep 2011
    Posts
    2

    Default Summons Answer

    My question involves collection proceedings in the State of: Arkansas

    Good Afternoon. I received a summons and suit for a credit card debt. I have read through this forum, and many other pages on how to respond, but still am not sure what to do.

    I by no means am going to sit back and ignore this. I will provide a response in the time required.

    How to you properly respond to a debt summons that you really do owe the debt on? What type of affirmative action response could I provide? How do I effectively deny the points of the suit without digging myself into a hole?

    I had a verbal payment agreement with the debtor, and received the summons before the first payment was due.

    The debtor has threatened to attempt to foreclose on my house if I do not make a payment on the credit card... Is this something I could use as an affirmative defense?

    I know this is my first post, but please help guide me in the right direction.

    Thank you!

    X

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Summons Answer

    You need to read and follow the rules of procedure for your state. Rule 8 contains the general rules of pleading, including how to answer a complaint.
    Quote Quoting Rule 8. General rules of pleading.
    (a) Claims for Relief. A pleading which sets forth a claim for relief, whether a complaint, counterclaim, crossclaim, or third party claim, shall contain (1) a statement in ordinary and concise language of facts showing that the court has jurisdiction of the claim and is the proper venue and that the pleader is entitled to relief, and (2) a demand for the relief to which the pleader considers himself entitled. In claims for unliquidated damage, a demand containing no specified amount of money shall limit recovery to an amount less than required for federal court jurisdiction in diversity of citizenship cases, unless language of the demand indicates that the recovery sought is in excess of such amount. Relief in the alternative may be demanded.

    (b) Defenses: Form of Denials. A party shall state in ordinary and concise language his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the claim, he may make his denials as specific denials of designated averments or paragraphs, or he may generally deny all the averments, except such designated averments or paragraphs as he expressly admits, provided that he may admit any part thereof and deny the remainder. When the pleader intends in good faith to controvert all averments, including averments of the grounds upon which the court's jurisdiction depends, he may do so by general denial subject to the obligations set forth in Rule 11.

    (c) Affirmative Defenses. In responding to a complaint, counterclaim, cross-claim or third party claim, a party shall set forth affirmatively accord and satisfaction, arbitration and award, comparative fault, discharge in bankruptcy, duress, estoppel, exclusiveness of remedy under workmen's compensation law, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, set-off, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.

    (d) Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied, either generally or specifically, in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

    (e) Pleading to Be Concise and Direct: Consistency.

    (1) Each averment of a pleading shall be direct and stated in ordinary and concise language. No technical forms of pleadings or motions are required.

    (2) When permitted by Rule 18, a party may set forth two or more separate claims, provided that each claim shall be set forth in separate, numbered counts. A party shall set forth in an answer or reply as many defenses, whether legal or equitable, as he may have. All statements shall be made subject to the obligations set forth in Rule 11.
    (f) Construction of Pleadings. All pleadings shall be liberally construed so as to do substantial justice.

  3. #3
    Join Date
    Sep 2011
    Posts
    2

    Default Re: Summons Answer

    Thank you for responding!

    I have read the rules on responding. My concern comes in the fact that if I admit to everything then will they automatically get the judgement they are requesting? How could I deny without lying?

    When is it safe to ask, and what is the beat means to ask the opposing attorney for a settlement offer?

    X

  4. #4

    Default Re: Summons Answer

    Never admit to anything. In your response to each of the items - put the burden of proof on the Plaintiff. Simply write as your response, that the Defendant(s) is without knowledge of this statement every time it is applicable. Because you believe the debt is clearly yours - your best hope is to request validation from the owner of the debt proving that they have ownership, that the agreement was between you and them, that the charges made were made by you, that the amounts due are correct, that the debt provider did not violate the card member agreement etc.

    Is there a clause in the card member agreement about arbitration? Did you at any point request arbitration? Can you point out any other violations of the card member agreement that could have been breached by the debt owner? Find out what cardmember agreement you fall under - review and look for inconsistencies with regard to the APR, the late fee's anything that you can claim is being violated and then use as your Affirmative defense that the Plaintiff breeched the contract and is therefore barred from the action.

    I would research and use as many Affirmative defenses as you can to require the Plaintiff to have to respond and prove it's case. If you simply deny everything without that, in my opinion, you'll show up a court and the Plaintiff will show just a few documents, the judge will ask if you made the charges and the decision will be rendered. If you put the burden back on the Plaintiff by requesting proof of card member agreements, requests for arbitration etc., it may give you a little room to negotiate a settlement that you can afford.

    I know that things are changing, but at one time 90% of the suits filed in cases like this were simply won because the Defendant(s) didnt' respond. I think many times the Plaintiff(s) are counting on this.

  5. #5
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Summons Answer

    While if you admit to everything in the complaint you're essentially conceding the case, it's absurd to say "Never admit to anything". You don't want to lie in your answer just to make work for the other side, and you don't make the court happy by pretending not to know such things as where you live or that you had a credit card account with the plaintiff.

  6. #6

    Default Re: Summons Answer

    True, I should have said - agree to the obvious. But clearly, you don't want to admit to owing monies as well or to the amount owed etc. Let the Plaintiff(s) prove their case against you - unless you are walking in with a check .

  7. #7
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Summons Answer

    In collection cases the claimed balance usually has so little identifiable relationship to the last bill, due to interest, penalties and other charges, that "neither admitted nor denied..." makes sense as an answer. (But if they make a rare mistake and claim less than I know to be due, I would consider admitting the balance.)

  8. #8

    Default Re: Summons Answer

    I would question why you would admit to owing an amount that is even less...since they've filed the original complaint requesting the lesser amount wouldn't you wait to see if all the other elements that they must prove fall into line? I'm guessing your point is that because they state you owe less than what you owe you'd be better off - but wouldn't the courts agree to the amount originally filed even if the Defendant denies the amount and loses the case?

    Once you agree to any amount - You either need to plan to pay or hope that you have some other justifications as to why you shouldn't pay.

  9. #9
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Summons Answer

    Let's say I owe you $1mm. Your law firm claims I owe you $100,000. I don't have any good defenses. Yes, I can deny the debt, force you to prove the $1mm debt, and probably end up paying the $1mm. But I would have to consider whether, by admitting your claim that the debt was $100,000, my concession to your claim of its value might end up in your eagerly seeking a judgment for that amount without recognizing your error.

    1. Sponsored Links
       

Similar Threads

  1. Pleadings: Summons Answer
    By LadySGMgrunt in forum Civil Procedure
    Replies: 5
    Last Post: 08-04-2010, 07:50 PM
  2. Divorce: How to File a Answer to Summons
    By jlarbey in forum Divorce, Annulment and Separation
    Replies: 1
    Last Post: 08-02-2010, 06:24 PM
  3. Pleadings: What Happens if You Don't Answer a Summons
    By janices in forum Civil Procedure
    Replies: 6
    Last Post: 05-13-2010, 07:29 PM
  4. Debt Collectors: How to Answer A Summons For Debt
    By CATCH_33 in forum Debts and Collections
    Replies: 1
    Last Post: 09-26-2007, 02:43 PM
  5. Debt Collectors: What To Do If You Don't Answer A Summons On Time
    By lil_luke11 in forum Debts and Collections
    Replies: 8
    Last Post: 04-28-2007, 07:58 AM
 
 
Sponsored Links

Legal Help, Information and Resources