[IC Anonymous]

1. Who is suing you? Hudson & Keyse, LLC Plaintiff

2. For how much? little over $10,000.00

3. Who is the original creditor? Discover Card

4. How do you know you are being sued? Received a letter from American Mediation & Alternative Resolutions on 7/27/2007 offering a limited power of attorney appointment to mediate or arbitrate a resolution. I did not respond to this offer.

5. How were you served? Two hours later on 7/27/2007 after receiving the above letter in the mail someone knocked on my door at home. When I opened the door I didn't see anyone. Immediately across the street there was a lady with a clip board in her hand talking to one of my neighbors. When she saw me she came back across the street and handed me the paper that was on her clip board. She said "follow the instructions" and then walked to her car which was a black Kia. The lady who gave me the summons was from a private server of process. I did not sign anything nor was asked to. My neighbor was able to read the front page of the summons as she was talking to him asking if I lived there and when I would be back. I'm not sure if this was legal but I do know I didn't appreciate her sharing my business with the neighborhood.

6. What was your correspondence (if any) with the people suing you before you think you were being sued? None, I had no clue who Hudson & Keyse, LLC was.

7. Where do you live? Texas

8. When is the last time you paid on this account? Last full minimum payment was 12/3/2002. I made 4 partial payments of $100 each on 1/3/2003, 2/4/2003, 3/4/2003, 4/2/2003. I also made 4 partial payments of $10 each on 5/2/2003, 6/3/2003 and 9/5/2003. Since then no payments partial or otherwise have been paid.

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or b) looking it up online (many states have this information posted daily). I have 20 days to respond from the date of service of this citation. The citation was delivered on 7/27/2007.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. No

12. Does your summons require a response? (Look hard!) Yes
If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Yes, see the attachment.

PARTIES: Plaintiff is Hudson & Keyse, LLC assignee of Discover Bank

1. Discovery is intended to be conducted under Level 1 of Rule 190 of the Texas Rules of Civil Procedure.
2. Plaintiff HUDSON & KEYSE, LLC (hereinafter referred to as HUDSON & KEYSE, LLC) is a corporation. It's principal place of business is in Painesville, Ohio.
3. Defendant xxxx is an individual residing in xxx County, Texas, and may be served with process at xxxx etc.
Facts:
4. Upon the application and request of the Defendant, DISCOVER BANK issued a credit card to xxxx and extended credit, pursuant to an Account and Security Agreement (credit card agreement).
5. Pursuant to the Agreement, DISCOVER BANK agreed to loan the defendant money to finance all purchases or cash advances made by means of the issued credit account up to a predetermined monetary limit. Regular monthly statements were mailed to Defendant and were received by Defendant. These dated monthly statements contain a description of all credits, payments, extensions of credit for purchases, cash advances, finance charges, late charges, and the amount of the total balance then owed. Each monthly statement was retained by Defendant without written objection after the period of time provided for in the Agreement to allow an opportunity to object to the credits, payments, purchases, cash advances, finance charges, late charges, or the amount of the total balance then due. Under the terms of the Agreement, Defendant has acquiesced as to the balance due and has agreed to pay the total balance due contained in the last monthly statement on said account (hereinafter the "Principle").
6. Defendant defaulted on the Agreement by failing to timely pay the minimum monthly payment due as reflected in the monthly statements mailed to the Defendant. Defendant further defaulted on the Agreement by failing to timely pay the Principal due on the credit card account, for which Plaintiff now sues.
Breach of Written Contract:
7. The above-reference facts show that the Defendant breached the Contract by failing to timely pay the minimum monthly payment due as reflected in the monthly statements mailed to the Defendant by DISCOVER BANK. Defendant further breached the Contract by failing to timely pay the Principal due under the Contract, for which the Plaintiff now sues.
8. Any and all conditions precedent to the Contract have been performed or have occurred.
Damages:
9. Though Defendant became bound and obligated to pay Plaintiff the Principal due and owing on the aforementioned written contract, and although often requested to do so, the Defendant has failed and refused and continues to fail and refuse to pay said Principal, for which amount Plaintiff now sues.
10. Plaintiff is entitled to pre-judgment interest from the date of any charge against the aforementioned account to the date of judgment, for which amount Plaintiff now also sues.

This is too much to type I posted links with the entire file with my name and any account numbers removed.
Page 1
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Page 6
Page 7
Page 8
Page 9

13. What evidence did they send with the summons? An affidavit? A statement from the OC? Anything else they attached as exhibits?

Just an affidavit. See page 9 above.

14. What is the SOL on the debt?
Texas is 4 years, Since I didn't make full payments as listed above would this apply or not?

I am unemployed with a bad back. I do not have the money to pay for an actual attorney. Any help in providing a response would be very much appreciated. I am lost and do not know what I should do. Thanks in advance for your time.

[IC Anonymous]

In order to offer you more protection, I attached your pictures to the post.


Thanks,


Qtip

[Pale Rider]

Originally Posted by IC Anonymous

8. When is the last time you paid on this account? Last full minimum payment was 12/3/2002. I made 4 partial payments of $100 each on 1/3/2003, 2/4/2003, 3/4/2003, 4/2/2003. I also made 4 partial payments of $10 each on 5/2/2003, 6/3/2003 and 9/5/2003. Since then no payments partial or otherwise have been paid.


14. What is the SOL on the debt?
Texas is 4 years, Since I didn't make full payments as listed above would this apply or not?

Partial payments do not always restart SOL. Usually there has to be an "acknowledgment of the debt in writing". If you paid by check along with a signed letter, or a note at the bottom that indicated you owed the debt, they may be able to defeat SOL. I think SOL should be a big part of your case. I'll post some info later for you.

You stated you cannot afford an attorney. You might try contacting the local bar association in your county, and see if they can refer you to legal aid or attorneys that offer discounted services. Couldn't hurt to ask.

[Pale Rider]

A "sworn account" cannot be used for credit card debts.

SOL is 4 years from the date the cause of action accrued.

Did you make any "promise to pay" the debt in writing after default or during the time you made partial payments?

[Pale Rider]

Did they attach a copy of the contract and/or terms and conditions?

What is the date on that document?

Do they claim to have all billing records from the original creditor?

[Pale Rider]

Another observation.

In one part they claim that they are due pre-judgment interest of 18%, but in the affidavit they claim they are due 12.99% by the contract.

In #21 of the request for admissions, the ask if you used the card in the last year. What was the last date you used the card?

[IC Anonymous]

Originally Posted by IC Anonymous

In order to offer you more protection, I attached your pictures to the post.


Thanks,

Qtip

Thank you very much for your consideration.

[IC Anonymous]

Originally Posted by Pale Rider

Did they attach a copy of the contract and/or terms and conditions?

What is the date on that document?

Do they claim to have all billing records from the original creditor?

They did not attach a copy of the contract or terms and conditions.

I would like to note that the account was originally opened in 1994.

[IC Anonymous]

Originally Posted by Pale Rider

Do they claim to have all billing records from the original creditor?

I didn't receive anything that mentioned the billing records.

[IC Anonymous]

Originally Posted by Pale Rider

A "sworn account" cannot be used for credit card debts.

SOL is 4 years from the date the cause of action accrued.

Did you make any "promise to pay" the debt in writing after default or during the time you made partial payments?

I did not make any promise to pay in writing after I went into default. I spoke with them (Discover) on the phone during that period and told them I would send them what I could when I can but wasn't going to make any promises. My job situation did not allow me to make any further payments after the last $10 one in Sept. I was already making less than minimum payments when I was paying $100 per month.

[IC Anonymous]

Originally Posted by Pale Rider

Another observation.

In one part they claim that they are due pre-judgment interest of 18%, but in the affidavit they claim they are due 12.99% by the contract.

In #21 of the request for admissions, the ask if you used the card in the last year. What was the last date you used the card?

I too noticed the discrepancy in the interest rates.

The last time the card was actually used to charge something was back in 2002 prior to Christmas.

[Pale Rider]

OK, I have to get ice cream, and I will be back later for some ideas on this. Sorry for the delay.

[Pale Rider]

Originally Posted by IC Anonymous

They did not attach a copy of the contract or terms and conditions.

I would like to note that the account was originally opened in 1994.

If they have a terms of agreement or contract after that date, then that is what you attack them on.

Originally Posted by IC Anonymous

I didn't receive anything that mentioned the billing records.

I would also attack them on the affidavit. If they do not have the complete billing records, how could this person have knowledge of what is owed or not. It looks like an affidavit for a "sworn account". They cannot use that for a credit card in Texas. Another member is looking for some caselaw, and I will post if it is relevant to this.

Originally Posted by IC Anonymous

I did not make any promise to pay in writing after I went into default. I spoke with them (Discover) on the phone during that period and told them I would send them what I could when I can but wasn't going to make any promises. My job situation did not allow me to make any further payments after the last $10 one in Sept. I was already making less than minimum payments when I was paying $100 per month.

Promise to pay and acknowledgment of debt has to be signed in writing to defeat SOL. This will probably be your best and most important defense.

Originally Posted by IC Anonymous

I too noticed the discrepancy in the interest rates.

The last time the card was actually used to charge something was back in 2002 prior to Christmas.

I am not sure what the legal pre-judgment rate is at this time, but may be able to find out. I'll post a link if I can locate it.

Now, the last date you used the card is well past SOL. Curiously they say in the affidavit that you owed $$$ on March 2006. I bet that is the date they got the account. Discover probably knew you couldn't pay, and they assigned/sold the debt just before SOL. Even if you later made partial payments, the cause of action had already accrued, and the 4 year clock was ticking.

[IC Anonymous]

Originally Posted by Pale Rider

If they have a terms of agreement or contract after that date, then that is what you attack them on.

When or how should I request this information from them?

Originally Posted by Pale Rider

I would also attack them on the affidavit. If they do not have the complete billing records, how could this person have knowledge of what is owed or not. It looks like an affidavit for a "sworn account". They cannot use that for a credit card in Texas. Another member is looking for some caselaw, and I will post if it is relevant to this.

Thanks

Originally Posted by Pale Rider

Promise to pay and acknowledgment of debt has to be signed in writing to defeat SOL. This will probably be your best and most important defense.

Thank you, I'm feeling a little better after hearing this.

Originally Posted by Pale Rider

I am not sure what the legal pre-judgment rate is at this time, but may be able to find out. I'll post a link if I can locate it.

Thank you

Originally Posted by Pale Rider

Now, the last date you used the card is well past SOL. Curiously they say in the affidavit that you owed $$$ on March 2006. I bet that is the date they got the account. Discover probably knew you couldn't pay, and they assigned/sold the debt just before SOL. Even if you later made partial payments, the cause of action had already accrued, and the 4 year clock was ticking.

That must be the case. It had been almost two years since I received any communication from Discover to the best of my knowledge.

It's my understanding that I shouldn't dv after being served. After I answer the summons I will be in discovery. Right? I think until 21 days before trial, but I may be wrong. Am I correct that I have the right to request anything they may have on the account. Statements etc... From what I've read, I should admit nothing. Doesn't matter what. It's their job to prove that I owe them.
Do you think I should go down to the court house and see if I ca get a copy of everything in the file?

If anything I've said is not correct, please let me know.

Monday I plan on making some phone calls trying to find some cheap legal service. Otherwise, I will try my best and do it myself.

Thanks for everything.

[Pale Rider]

My opinion would be to concentrate on the case at this point and not worry about DV. You can dispute any balances or fees in your defense. Make sure you meet all deadlines for the court and filing answers. And yes, go down and get a copy of the complete file from the court if possible. There may be more attachments or evidence such as the terms of service or billing statements.

I can't tell you much on procedure once you start, but maybe some others can chime in and offer some help. I'll keep looking for info on your defenses and caselaw that will help you. I have an idea on another defense, but I need to look it up to see if it applies.