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How to respond to court summons after settling with collector?

Discussion in 'Other Debt, Collection, Garnishment' started by ClemFandango, Dec 6, 2019.

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  1. ClemFandango

    ClemFandango Law Topic Starter New Member

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    Jurisdiction:
    California
    Hello!

    Long story, short:

    • sued by a debt collection law firm on behalf of another debt collection company? (A bit confused on that part)
    • Called the law firm and settled my account
      • I have the settlement agreement in writing from them
    • went to the courthouse the other day and asked the clerk what I have to do to respond to the court summons now that we have settled the account I’m being sued over
      • He checked the system and said the law firm has not submitted anything on their end yet and to call back in a couple days
    • I called the debt collectors, they directed me back to the law firm, so I called them and they haven’t answered or returned my calls

    I now have 9 days to respond to the court summons. What form do I have to fill out to respond to the summons? I want to protect myself, rather than rely on the law firm to do their due diligence and alert the courts that this has been settled.
     
  2. Zigner

    Zigner Well-Known Member

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    Being Sued - small_claims_selfhelp

    EDIT: Of course, that link assumes you are talking about small claims court. You are not required to file an answer in small claims court in California.
     
    Last edited: Dec 6, 2019
  3. zddoodah

    zddoodah Well-Known Member

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    Despite your use of a question mark, this isn't a question. If you intended a question, I cannot discern what you intended to ask. We obviously have no information about your situation beyond what you told us.

    Who are the parties to the settlement agreement? Note that I'm not looking for names, and it might help if you gave a bit of back story (e.g., In 2016, I borrowed $5,000 from ABC Loan Sharks, Inc. to finance a coke-fueled weekend in Las Vegas....).

    How long ago did the settlement happen? Does the written settlement agreement require the plaintiff to dismiss the lawsuit within a particular amount of time? If so, has that time passed?

    You called the law firm when? Two weeks ago? Two hours before you posted here?

    You posted on Friday, December 6. Nine days from that date is Sunday, December 15, so your statement that you have to respond in nine days cannot be correct.

    You don't respond to a summons. You respond to the complaint, and you need to file an answer or general denial or a motion to strike and/or demurrer. Judicial Council forms are available here. If you answer my questions, I might be able to give you a bit more insight.

    Also, since there are no summonses in small claims court, I assume your case is in the unlimited or limited division of the superior court.
     
  4. mightymoose

    mightymoose Moderator

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    If you were served with something ordering you to appear in court it should have been accompanied by instructions how to answer.
    If all else fails just show up when required and bring copies of everything you have.
     
  5. ClemFandango

    ClemFandango Law Topic Starter New Member

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    1. It was meant as more of a confused statement, as I'm just not certain how it works. The original creditor sells the debt to X Portfolio Recovery Company and then I get letterheads with X Law Firm that is a law firm but also a debt collector suing me on behalf of X Portfolio Recovery Company.

    2. Backstory: in 2017 I got a $2400 private loan to help after moving across the country. Bad idea, as 6 months later I wasn't able to keep up with the payments. Last payment I made was November 2017. At some point after that, the Original Creditor sold the debt to a collections company. I don't actually remember this company ever contacting me attempting to recover the $2399.77 in question. I got a letterhead from a Law Firm in July threatening a lawsuit. I turned to the internet then, and they wrongly told me this is a scare tactic to get me to pay up. I ignored, and a couple days after I was let go from my previous job I received another letterhead from the Law Firm stating they want a response in 10 days or they're moving forward with the suit. This was in September.

    3. Nov. 15 I was served the court summons and the following week I called the law firm and settled the account for 50% split into 2 payments. The agreement doesn't state that the plaintiff has to dismiss the case. The statement itself states that the account # in question with them is to be considered settled with these 2 agreed upon payments.

    4. I called the law firm prior to making this post on Friday. I actually decided to call the Collection Company first, and then they got my info and then directed me back to the Law Firm. I called the law firm over the course of the following 30 minutes and no one was picking up, not even reception.

    5.Since I was served on Nov. 15, I have until the 15th of December to respond, according to the cover sheet.

    6. Correct. This was filed in the superior court under limited civil.

    Thanks so much for your insight. This whole process is very stressful and new to me. And I'm hoping to never have to deal with it again after this has passed.
     
  6. ClemFandango

    ClemFandango Law Topic Starter New Member

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    I called the court today and the plaintiff has yet to file a dismissal or anything yet.
    I asked the clerk what I could do to protect myself, and what form I need to fill out to answer this complaint and was understandably given the "I can't tell you how to proceed as I am not able to give you legal advice."

    She did, however, state that as long as I have official letterhead settling this account, that should protect me.

    I still want to file an answer to this complaint to avoid this ever getting to the court.

    So I'm finding here (Being Sued - money_selfhelp), under the responding to the lawsuit section, that I can either find a form here (Browse All Forms - forms_and_rules), or file a custom response using pleading paper.

    Do I file this general denial form (https://www.courts.ca.gov/documents/pld050.pdf)? Do I use this Request for Court Order and Answer form (https://www.courts.ca.gov/documents/sc105.pdf)? Or do I use this general pleading paper template to draft my own response (https://www.northwestregisteredagent.com/pdf/Answer-Example.pdf)? Can I attach the official correspondence from the law firm that states the account is settled to any or all of these? These all need to be filed at the courthouse, and a copy mailed to the plaintiff?

    Sorry for all of these questions (and apologies it wouldn't let me reply with hyperlinks). I'm down the the last few days before my response is due so I'd like to go to the courthouse tomorrow morning and get this over with.
     
  7. zddoodah

    zddoodah Well-Known Member

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    So...your attempts to communicate about this have spanned only two business days? If so, it's not entirely unreasonable that you haven't heard anything back. Keep calling. Also email the lawyer with whom you dealt.

    As I noted previously, December 15, 2019 is a Sunday. Courts are closed on Sundays. When a response due date falls on a weekend or holiday, the response is due the next business day (in your case, next Monday, December 16, 2019).

    If you haven't gotten confirmation by Thursday or Friday that the case has been dismissed, then you'll need to file an answer or general denial. The forms are available at the link I provided previously. Make sure you allege the settlement as an affirmative defense and attach a signed copy of the settlement agreement.

    The SC-105 form is for small claims court and not at all what you want. The general denial form would be a proper form. No need to draft an answer on your own.

    Yup (to the plaintiff's attorney of record, not to the plaintiff).

    P.S. It is unlikely that the plaintiff's attorney is going to race to the courthouse with a request for default if you don't file something by next Monday, and the court doesn't care if your answer is late as long as the plaintiff hasn't filed a request for default.
     
  8. Zigner

    Zigner Well-Known Member

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    If the other side moves for a default AFTER settling, then, I believe they can be subject to sanctions.
     
  9. ClemFandango

    ClemFandango Law Topic Starter New Member

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    Thanks so much for this information, you've been incredibly helpful!
    In the General Denial form, there is the following:
    Screen Shot 2019-12-12 at 4.37.00 PM.png
    Does this mean I cannot use this form?
     
  10. zddoodah

    zddoodah Well-Known Member

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    That depends...
    How much is the plaintiff suing you for?
    Is the complaint verified (i.e., at the end of the complaint, is there a verification that says that someone is swearing under penalty of perjury that the facts alleged are true)? Most complaints are not verified.
     
  11. ClemFandango

    ClemFandango Law Topic Starter New Member

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    There is, in fact, a Verification page at the end of the complain signed by the attorney.
     
  12. ClemFandango

    ClemFandango Law Topic Starter New Member

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    And they are suing for $2499.77
     
  13. zddoodah

    zddoodah Well-Known Member

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    Since the case apparently has been assigned to a third-party collector, you cannot properly use the general denial form.
     
  14. ClemFandango

    ClemFandango Law Topic Starter New Member

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    Understood. In that case, do I file a custom response on pleading paper?
     
  15. ClemFandango

    ClemFandango Law Topic Starter New Member

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    Okay, so . I think I found the form I will need; Answer-Contract, as the complaint title is "Complaint for money due on breach of contract; money lent, paid, or expended"

    Screen Shot 2019-12-13 at 10.17.57 AM.png

    Not sure how to respond to section #3. There are 14. paragraphs under the "Allegations Common to All Causes of Action," followed by 4 paragraphs under "First Cause of Action (Breach of Contract)" and then 3 paragraphs under "Second Cause of Action (Money Lent, Paid, or Expended)," which says:

    19. Plaintiff refers to and incorporates paragraphs 1 through 18.
    20. On information and belief, pursuant to the terms and conditions governing the Account, within the last four years, Defendant became indebted for money lent to or paid out for the benefit of Defendant at the Defendant's request.
    21. Although demand has been made upon Defendant to pay said amount there remains an outstanding balance on the Account of $2,399.77, which has not been paid, and is now due and owing from Defendant to Plaintiff, as successor in interest.
    After that is the WHEREFORE the Plaintiff prays for judgement against Defendant for damages and cost of suit.


    From what I gather, after filling out the Answer-Contract, I will attach form "Attachment 4: Affirmative Defenses–Contract" and check "Accord and Satisfaction – Plaintiff and I already resolved our problem, so Plaintiff cannot sue me." and attach a copy of the Law Firm letterhead notice of settlement of the account. Then I would need to draft a Verification.

    I found a step by step here, though it is from Sacramento County. I'm assuming the process for responding and filing remains the same?
     
    Last edited: Dec 13, 2019
  16. Zigner

    Zigner Well-Known Member

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    If you are not sure how to complete this (or any) form, you will need to speak to a local attorney.
     
  17. ClemFandango

    ClemFandango Law Topic Starter New Member

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    One other Q: Is it considered uncouth to email the plaintiff's lawyer, asking if they are filing a dismissal now that we have settled the account?

    Perhaps an important note: we settled the account and are splitting it into 2 payments. I've paid the first one already, and the second payment isn't due to come out until the 27th of December. I thought maybe this was holding things up, however, I've read they can file the dismissal "with prejudice" in the event that I fail to make one of these payments.
     
  18. Zigner

    Zigner Well-Known Member

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    Great thing to bring up with your attorney.
     
  19. ClemFandango

    ClemFandango Law Topic Starter New Member

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    Understood, thank you. I thought of this, but was weary about what fees they might charge me for their services regarding this.
     
  20. zddoodah

    zddoodah Well-Known Member

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    Not at all, although I'd do it by phone if I were you.
     

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