Asked about 1 year ago - San Marcos, CAFlag
I just received a summons to appear in court for credit card debt from a collection agency (portfolio recovery assets, llc.). I have never received anything from them in the past and now all of a sudden I am being sued? How do I even know if this is my debt? I need to answer within 30 days and don't know exactly how to handle this. Any advice would be greatly appreciated. I live in California. Thank you!
In general, you MUST answer within the time period given, or you will lose your rights. I defend credit card suits frequently, and the collection agencies rarely win against an experienced attorney. Their plan is to intimidate consumers into paying more than necessary. At this point, you need to discuss your options with an attorney who understands credit card defenses, since dealing with this is beyond the scope of Avvo. If you wish, feel free to call me to go over your choices and options.
Mr. Ridley is licensed to practice law throughout the state of CA with offices in Ventura and Los Angeles Counties. He is also licensed to handle bankruptcy matters throughout Los Angeles, Ventura and Santa Barbara Counties. His phone number is (805) 244-5291or his email address is email@example.com . His website for more estate, bankruptcy and business information is www.ridleylawoffices.com .
No, a collection agency does not have to notify you first before filing a lawsuit. If you do not pay a debt, a creditor or its debt collector generally may sue you to collect. If they win, the court will enter a judgment against you. The judgment states the amount of money you owe, and allows the creditor or collector to get a garnishment order against you, directing a third party, like your bank, to turn over funds from your account to pay the debt. Wage garnishment happens when your employer withholds part of your pay check to pay your debts. Your wages usually can be garnished only as the result of a court order. In short, do not ignore a lawsuit. If you do, you lose the opportunity to fight a wage garnishment.
You should respond to the lawsuit, either personally or through your lawyer, by the date specified in the court papers to preserve your rights. Once again, do not ignore a lawsuit. One way to verify the debt is to check your credit report. Another way is to check the back of the lawsuit, as the credit card agreement should be attached.
If you have any other questions, please let me know. I have built relationships with credit card companies and collection agencies and can often times come to a settlement agreement quicker and at a more favorable rate than a debtor acting on their own.
No, the collection agency is not required to notify you before filing a lawsuit.
At this point, the best course of action would be to hire an attorney to respond to the summons and complaint on your behalf. Otherwise, if you absolutely must represent yourself, here are some tidbots:
If the summons and complaint were not properly served on you, either in person or via substituted service, you may wish to consider filing a motion to quash service of summons. This is a "special appearance" to challenge personal jurisdiction. Such motions are often disfavored in California because the plaintiff can usually simply re-serve the summons.
There are a variety of possible legal responses to a Complaint. The most common is to file either an Answer or General Denial. The form for the Answer is (Judicial Council Form PLD-C-010):
The form for the General Denial is (Judicial Council Form PLD-050):
There is a first appearance filing fee in connection with filing an Answer or General Denial. If you cannot afford the first appearance filing fee, you may apply for a fee waiver. See:
To ascertain whether or not this is your debt, you can propound written discovery to the plaintiff and/or send a Demand for Bill of Particulars:
Do not attempt to negotiate with them before you get advise from a lawyer. I suggest that you pay for a consultation, about a 1/2 hour of attorney time. You probably have defenses, such as the Statute of Limitations. Quite often the collection agency cannot prove the facts of the underlying debt, and of the assignment, with evidence that properly admissible in court. If they have documents, they must be properly authenticated. If they have live witnesses, they must appear at the trial.
Many times there is an attorney's fees clause in the contract. That means, if you hire an attorney to defend the case, and the collection agency loses at trial, it must pay your attorney's fees.
Get advise before you try to talk with the debt collector. They will say anything just to get your money.
Before you decide what your next step is, you should review your options in the videos on the home page of my web site, below. There is no one-size-fits-all way to handle being sued. It is both a legal question and a financial issue, that must be considered. Consulting promptly with an experienced credit card lawsuit defense attorney is a good first step.
Robert Stempler (please see DISCLAIMER below)
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