[Debtor]

Hi all,

New member, I was invited to post my case as I am in need of assistance.
Due to a business venture gone sideways, I find myslef unable to pay personal debts.

I been hearing the thunder for some time and knew that it was only a matter of time before I got sued.

Today I got the first summon's, they where filed in state court. Naturally I have never been trough this and want to know what to expect.

First and foremost, this is a personal loan. Complaint reads as follows;

Count one

1- this is action for damages that esceeds 5000 but does not exceeds 15000 exclusive of interest cost and attorney fees.

2- On december defendant executed a delivered promissory note/ security agreement, copy attached as exhibit a.

3- plaintiff owes and holds the promisorry note/security agreenment

4. Defendant failed to pay the installment payment due and plaintiff elected to accelerate payment on balance.

5- defendant owes plaintiff 8000 that is due with interest on the promissory note.

6. under terms of the promissory note defendant id obligated to pay plaintiff reasonable attorney fees.

7. plaintiff herewith attaches notice to defendant under the fair debt collectio practices act as exibit b

wherefore plaintif demands judgement for damages inthe amount of 8000 toghether with interest costs and attorney's fees against defendant.


Count II

8. this is an action to re-stablish a promisory note.

9. on december defendant executed and delivered to plaintiff a promisorry note agreenmen t in favor of the plaintiff wich provided for an extension of credit and later extensions of credit by request.

10. The original document that is the promisorry note was lost on or about may 2006 and the note is no longer within the custody or control of the plaintiff.

11. plaintiff knows of no parties except the defdendant who are interested in the re-establishment of said document.

wherefore plaintiff prays the court an order reestablishing said lost document andf enter such further relief as this court deems just and proper.




Exibit b states as follows;

the regular 30 day to request validation and this here

the law does not require me "the debt collector" to wait untill the end of thirty-day period before suing you to collect this debt. If however you request proof of the debt or the name and adress of the original creditor within thirty days period, wich beggins with the receipt of this notice, the law requires me to suspend my efforts (trough litigation or otherwise) to collect the debt until I mail the requested information to you.

I guess I need to answer but how. Also the attorney suing me never attempted to collect this debt. I simply was sued, any recomendations?

Of course paying it is out the question, if they sue me and get judgement if I file bankrupcy later will that take care of the judgement?

[roybean]

Is this the entire complaint? Is the attorney suing on behalf of the creditor or as a debt collector? I need some more info. You never got a collection letter; you just got a summons, correct? And you got this summons today?
Are you sure it is a real complaint? You know they play games like this, right?

[Debtor]

It is a real complaint. That is pretty much the complaint. Everything not word by word but there are 11 things on the complaint just as posted. The plaintiff is listed as the company where I borrowed money but the fact that i got the fdcpa notice advising me of my rights and telling me that if i want validation i should contact the attorney, leads me to belive that he is acting as a collector?

How can I differentiate?

[Qtip]

Do not panic, you came to the right place!

[cobra759]

are sure it's a real complaint?

have you check at the courthouse to see if anything is listed about you?

did you receive anything in writing defore this?

was the complaint properly served on you?

[Debtor]

Originally Posted by cobra759

are sure it's a real complaint?

have you check at the courthouse to see if anything is listed about you?

did you receive anything in writing defore this?

was the complaint properly served on you?

I did not receive anything in writting before this, got some calls from loan co but that was it. I did not check courthouse yet as i just got served but the numbers on the complaint look authentic plus it has the county seal. The guy that served me looked like a process server, he was wearing something around his neck i did not bother reading.

[centex]

Let's back up a step or two...

Is this personal debt or is this business debt that is the subject of the suit? I know you said personal loan, but...it may actually be business debt under the law. They don't seem to be treating it as such, but it could affect how you want to approach the matter,

It discusses a promissory note executed in December- was this the original extension of credit or was there a reaffirmation of some type?

Was this secured by some form of collateral?

Are you in a position to pay the monthly notes?

Aside from the above questions, it would seem that they don't have all of the paperwork or else Count II would not be requesting judicial reinstatement of the note. As such, if you could pay the note, then it may be worth contacting opposing counsel and getting them to dismiss Count I and join them in urging the Court to grant the order reestablishing the agreement. Any such settlement should include language that would result in both parties bearing their own costs.

[Qtip]

Originally Posted by cobra759

are sure it's a real complaint?

have you check at the courthouse to see if anything is listed about you?

did you receive anything in writing defore this?

was the complaint properly served on you?

Holly crap Cobra, how in the heck are you buddy! I will drop u a pm.

[Debtor]

Originally Posted by centex

Let's back up a step or two...

Is this personal debt or is this business debt that is the subject of the suit? I know you said personal loan, but...it may actually be business debt under the law. They don't seem to be treating it as such, but it could affect how you want to approach the matter,

this is personal debt, a loan on my signature alone.

It discusses a promissory note executed in December- was this the original extension of credit or was there a reaffirmation of some type?

Was this secured by some form of collateral?

Are you in a position to pay the monthly notes?

that was date credit was extended , no collateral just my signature. I am not in position to pay the monthly notes.

Aside from the above questions, it would seem that they don't have all of the paperwork or else Count II would not be requesting judicial reinstatement of the note. As such, if you could pay the note, then it may be worth contacting opposing counsel and getting them to dismiss Count I and join them in urging the Court to grant the order reestablishing the agreement. Any such settlement should include language that would result in both parties bearing their own costs.

I am honestly considering bankrupcy at this point as I am unable to pay the money i got from personal credit to pay for the business loss.


This board is the best!

[cobra759]

still around and kicking

[hannah]

What state are you in?

[roybean]

Remember that attorneys are liable and if you got the little notice then I would still send a DV and start preparing your answer. Here's a little tip: in my state ANYONE collecting debts must be registered with the licensing commission. The only way a lawyer can get around "not being a debt collector" is if he only does so once in while. If he regularly collects debts...he's debt collector buddy, so you've got some research to do. I am assuming you have 20 days to answer?

[hannah]

Ok. Got your PM. You need to look up in state statute and RCP's on lost documents and what is needed to prevail in court without having those documents as these type of loans/notes should be required to be in writing I would think. With what you have posted, it is my opinion that that is your best approach to beating this as it's really odd that an OC "lost" an in-stat doc.

[Debtor]

Originally Posted by roybean

Remember that attorneys are liable and if you got the little notice then I would still send a DV and start preparing your answer. Here's a little tip: in my state ANYONE collecting debts must be registered with the licensing commission. The only way a lawyer can get around "not being a debt collector" is if he only does so once in while. If he regularly collects debts...he's debt collector buddy, so you've got some research to do. I am assuming you have 20 days to answer?

I tought that a collector had to provide notice prior to suing? I have 30 days to answer will have to look in pacer for a similar case to see how to answer.

Originally Posted by hannah

Ok. Got your PM. You need to look up in state statute and RCP's on lost documents and what is needed to prevail in court without having those documents as these type of loans/notes should be required to be in writing I would think. With what you have posted, it is my opinion that that is your best approach to beating this as it's really odd that an OC "lost" an in-stat doc.

will look in state astatues at this point can i take this to federal or should i fight in state court?

[roybean]

You know I prefer federal, but we've got Centex now, which is someone who knows about state court, so what do you want to do? If you remove you have to pay the filing fee and if you stay in state, I think you just have to answer.
Centex, where ya at?

[cobra759]

it depends on what is attached to the complaint, could try filing a motion to dismiss based on failure to state a claim upon which relief can be granted

[hannah]

Originally Posted by Debtor

I tought that a collector had to provide notice prior to suing? I have 30 days to answer will have to look in pacer for a similar case to see how to answer.

No they do not have to provide prior notice as this is the OC. The attorney is for legal purposes as can be proven by the fact that they filed suit for the OC.

Originally Posted by Debtor

will look in state astatues at this point can i take this to federal or should i fight in state court?

Since this is the OC suing you, the FDCPA does not apply EXCEPT to the attorney and only if not excused by state law. You are probably better off in state court but that would be a decision you will need to weigh the pro's and con's on. I don't believe based on what you have posted that you have any federal violations at this time.

[hannah]

Originally Posted by cobra759

it depends on what is attached to the complaint, could try filing a motion to dismiss based on failure to state a claim upon which relief can be granted

Debtor, Was there anything attached to the complaint? The complaint references exhibits but you do not state what they are.