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  1. #11
    Join Date
    Apr 2018
    Location
    Ohio
    Posts
    8

    Default Re: What to Do After You're Served with a Summons and Complaint

    To respond to your questions,
    1. I am waiting to hear back from them regarding any interest.
    2. No statement of ALL charges, just a one-page statement from Capital One with the balance due
    3. No terms and conditions
    4. I'm not sure

    Meanwhile, I have yet to file the Answer. I know how important this is to do before the deadline, which is May 18, so I would like to put that in the mail in the next day or two. Before doing so, since I anticipate that the lawyer and I will reach an agreement for the monthly payment plan and have the case dismissed, should I wait a few days before I file the answer? Does it affect the negotiation process at all? Also, I am really not sure what to put on the "Answer". Is there a particular form or template used in the State of Ohio?

  2. #12
    Join Date
    Nov 2009
    Posts
    738

    Default Re: What to Do After You're Served with a Summons and Complaint

    You can probably adapt a template and follow instructions from a county website such as this one.

    However based on your statements and what I’ve read, I might be inclined to file a Motion for Definite Statement based on the following rule:

    Quote Quoting Ohio Rules of Civil Procedure 12(E)
    Motion for definite statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within fourteen days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.
    The attachment you described is probably insufficient. According to what I’ve been reading, attachments should contain:

    "(1) a beginning balance of zero, or a sum that can qualify as an account stated, or some other provable sum; (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) a summarization by means of a running or developing balance, or an arrangement of beginning balance and items that permits the calculation of the amount claimed to be due." Great Seneca Fin. v. Felty, 170 Ohio App.3d 737, 2006-Ohio-6618, 869 N.E.2d 30, ¶6.

    Also the debt collector has to show a copy of all contracts of assignment and/or other instruments (with corporate seal or letterhead) transferring ownership of the account at issue from the original owner to the Plaintiff. Worldwide Asset Purchasing, L.L.C. v. Sandoval, 8th Dist. No. 2007-CA-00159, 2008-Ohio-6343, ¶26

    To summarize, they should attach:

    1. A copy of the account which includes (a) a starting zero balance (b) each and every transaction since the zero balance showing the date, amount, and identification of each transaction; and (c) a running balance or other arrangement which permits calculation of the amount due.
    2. A copy of the credit card agreement/terms and conditions, including the original application and agreement, and any and every subsequent amendment.
    3. A copy of all contracts of assignment and/or other instruments (with corporate seal or letterhead) transferring ownership of the account at issue from the original owner to the Plaintiff.

    Without those attachments it’s possible the case could be dismissed based on a motion for definite statement, since there’s a good likelihood that the debt collector can’t access all the specific items required to be attached. Essentially they are asking you to commit to a new contract based on a bluff that they can win their case. By opposing the action you probably gain leverage that at very least could get you a better deal.

    However I do realize that you might desire a simpler and easier approach, so it’s really your call. Another factor would also be your current income and ability to keep up payments.

  3. #13
    Join Date
    Apr 2018
    Location
    Ohio
    Posts
    8

    Default Re: What to Do After You're Served with a Summons and Complaint

    Thanks for all of your help. I am looking for a simple approach that does not involve going to court. With that being said, I think I am going to proceed with signing the Agreed Judgement Entry. The debt collection attorney stated: "With this contract, you would be agreeing to a possible judgment against you, but we would be agreeing not to attempt to execute on that judgment in the form of a possible wage garnishment or bank garnishment, as long as you make the payments on time and to the amount agree to."

    Keeping in mind that the agreed judgement entry will be signed in the near future, how should I complete the Answer to the summons?

    Based on several templates I have found for Ohio, it states the following:

    Defendant admits the following:
    Defendant denies the following:
    Defendant further states the following:

  4. #14
    Join Date
    Nov 2009
    Posts
    738

    Default Re: What to Do After You're Served with a Summons and Complaint

    I’m guessing they don’t have a case, but yet you are willing to settle for the full amount they are demanding? Probably the collection company bought the debt from the bank for pennies on the dollar and will get a windfall by bullying you into an early settlement.

    I can understand that you don’t want to go to court, but really it should never get that far. I seriously doubt the collection attorney wants to present anything in court. They are just hoping to get a judgment by default or to pressure you into signing a settlement.

    A written motion for definite statement is similar to an answer and is done prior to the answer. Both are preliminary and do not involve appearing in court. For more information, search on the words: motion for definite statement Ohio. Probably a judge would act on your motion by giving the plaintiff 14 days to provide required attachments. If they don’t then their case could get thrown out.

    Can you truthfully state that you know how they arrived at the exact amount they are demanding? If you are not sure, then your answer should reflect that by saying “The statements made in this paragraph are denied for want of knowledge.”

    Anyway I’m just saying what I personally would do and I’m far from being an expert on any of this.

  5. #15
    Join Date
    Apr 2018
    Location
    Ohio
    Posts
    8

    Default Re: What to Do After You're Served with a Summons and Complaint

    In my formal answer, if I admit that everything is true, how does that affect the judgment? Will I still be able to sign the agreed judgement entry and proceed with monthly payments?

  6. #16
    Join Date
    Nov 2009
    Posts
    738

    Default Re: What to Do After You're Served with a Summons and Complaint

    It sounds to me like you are misunderstanding a lot of things. The devil is in the details. They did not attach any details to their claim so as I see it your “answer” should be a written Motion for Definite Statement. When you file that the court should extend your deadline to file an answer.

    An answer is not possible when they don’t spell out the details and without them I would deny everything except maybe my name. You would technically be lying if you admit everything is true without knowing details, and probably also you would lose any bargaining chips you might still have. If you force them to validate the details then it’s quite possible they will offer a better deal, but it’s also possible their entire case will eventually get thrown out by the court.

    However if you are afraid or unwilling to engage in a process of negotiation then your option is basically to fold and just agree to the payment plan. Personally I would not do that.

  7. #17
    Join Date
    Apr 2018
    Location
    Ohio
    Posts
    8

    Default Re: What to Do After You're Served with a Summons and Complaint

    Here's what the attorney said when I asked him if he would please provide a statment of ALL charges on the account including interest and penalties:
    I do not currently have all of the statements that you are requesting. I went ahead and included what we do have as a PDF to this email and I have also put in the request to our client for more statements, but there is no guarantee that they will provide those or that they even still have all of those. I do not know the particulars of the rules in regards to what they are required to retain, but they do not always have all the statements for all of the charges and I do not believe we are required to provide all of those to file a complaint or even to request judgment (if applicable).
    In the PDF document he attached, the balance started with $4,597.27.

    How do I go about filing a Motion for Definite Statement?

    Like I said, I want to definetely avoid going to court, even if that means it would best for me to sign the agreed judgement entry. I know that sounds stupid, but I am a little afraid and I want to settle this as easily and quickly as possible.

  8. #18
    Join Date
    Nov 2009
    Posts
    738

    Default Re: What to Do After You're Served with a Summons and Complaint

    I think it was a good move to request more information because you are attempting to negotiate. There’s always a chance the attorney will get back to you with a better offer. The attorney’s statement that “I do not believe we are required to provide all of those to file a complaint or even to request judgment (if applicable)” strikes me as a bit misleading. The matter in dispute is whether they can prevail on the complaint—not whether they can file one (which they obviously did already).

    According to Rule 12(E)The motion shall point out the defects complained of and the details desired.” So you would need to explain what is missing and request the items listed earlier in this thread. You can see examples by searching on the words: motion for definite statement Ohio. The best example would probably involve a motion with a successful outcome done by someone representing them self in Ohio.

    If it were me I would try the motion but I know it’s difficult. The Legal Aid Society of Columbus has general information online about how to serve and file a motion (click the tab “Lawsuit Information”). Although it does not specifically address a Motion for Definite Statement, the same general instructions still apply.

  9. #19
    Join Date
    Apr 2018
    Location
    Ohio
    Posts
    8

    Default Re: What to Do After You're Served with a Summons and Complaint

    Here's what the complaint says:
    1. Pursuant to the statement attached hereto Defendant(s) owes Plaintiff the sum of $4,923.49 as a result of Defendant's non-payment of Defendant's obligation to Plaintiff under account number (xxxx).
    2. Defendant(s) is in default of the obligation to pay said balance and the same is now due and owing. Wherefore, Plaintiff prays for judgemnet against Defendant(s) in the maount of hte principal sum of $4,923.49, plus costs of this action. Plaintiff does not seek recovery of attorney's fees in this action.

    Keeping that in mind, if I proceed with filing a Motion for Definite Statement and if it is denied, will that screw up the chance that I currently have of signing an Agreed Judgement entry and making monthly payments?

  10. #20
    Join Date
    Nov 2009
    Posts
    738

    Default Re: What to Do After You're Served with a Summons and Complaint

    I don’t know, but a single statement is probably insufficient and it seems plausible that a judge would ask them to provide more complete documentation. Utilizing the court as an intermediary in that way might get you a better deal or small chance of dismissal.

    If you need more time another possibility might be to ask the court for an extension of time to answer so that you can consult with an attorney, as there could be some cheap or free legal assistance available in your area. If you have not already, it’s a good idea to check with the court in person and/or go on their web site to inquire about local rules and forms that are available. You didn’t mention which county.

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