the "lawyers" suing me from the Credit card company says on the bottom of the letter that this communication is from a debt collector any communication is to collect the debt, does that mean the "lawyers" bought the debt? can I use that as an affirmitive defense that there was no contract between the "lawyers" and me the defendent? How does being judgement proof weigh on getting a judgement or settlement?
Your Answer to a Complaint that a credit card company will have to be filed with the court within the time required (30 days from when you were served with the complaint, if you haven't requested the clerk of court give you an extension of time to respond), and it will need to be mailed to the credit card company's attorney for the case. You should be able to find the attorney's address on the summons and below the attorney's signature on the complaint (e.g., Joe Smith, Attorney for Plaintiff, 123 Swan Way, Smithville, NC).
As far as the "this communication is from a debt collector" line that you're referring to, it is merely letting you know that any information you give to the credit card company or the person collecting the debt will be used against you if it favors them. The law requires debt collectors to include this language, and it has nothing to do with the issue of whether or not you have a contract. Furthermore, an attorney representing the credit card company IS the credit card company, more or less.
Now, please understand that I am not saying you don't have a defense. You could have any number of defenses. For example, you might never have signed up for the card (i.e., no contract), or the contract you signed might not be attached to the complaint, or if your debt has been bought and sold, the creditor might not have any proof establishing their chain of title to ownership of your debt with the original creditor. There are certainly more defenses that you could have. North Carolina has cracked down on creditors and has certain standards they must follow in order to properly sue you.
You should arrange a consultation with an attorney experienced in debtor's rights ASAP. If you're low income, you should first give Legal Aid of North Carolina a call to see if they can help you for free. Get their phone number at http://www.legalaidnc.org/Client/default.aspx
Serve the lawyer and file with the Court.
The first thing you need to do if and when you get sued is file an Answer. The summons will tell you that you must “appear” by way of an Answer in 10, 20 or 30 days, “depending on the method of service.”
PLEASE CHECK THE LAW IN YOUR STATE AS YOU MAY ACTUALLY HAVE TO APPEAR IN COURT, AS IN VIRGINIA, IN ORDER TO AVOID A DEFAULT!
You need a lawyer, but if you cannot afford one right away, rather then do nothing and have a judgment entered against you, is to “appear” by filing something!
Many people think this means they have to go to Court and this is incorrect. 90% of all lawsuits end in Default Judgments because the defendant (person getting sued) did not file an Answer.
I recommend you go to the free form I have on my website. Print it out and fill it out as instructed. You must answer the numbered paragraphs on the Complaint by writing them into the appropriate lines in the Answer. The Answer will allow you to preserve your rights and will prohibit a default judgment (i.e. you did not show up) from being entered against you.
Mimic the paperwork you got when you got sued. Answer all the paragraphs of the Complaint by writing the numbers in lines 1, 2 or 3.
Almost 100% of attorneys will deny what is owed because they did not do the calculations and do not know what the basis for the number is…
When you file the Answer that is your “not guilty”. You have the right to make the person suing you (Plaintiff) prove their case, but you must also answer the complaint truthfully.
Make sure you fill in the name and address of the attorney suing you before you bring this paperwork to the Court. Mail it to the attorney suing you right away!
Check out the guide I have drafted on the Avvo profile. This will provide more detailed instructions. If it is helpful remember to indicate that and get the guide read!
Disclaimer: This answer does not constitute legal advice. I am admitted in the States of New York, New Jersey and Massachusetts only and make no attempt to opine on matters of law that are not relevant to those three States. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. Consult an attorney in your locale before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship. The opinions expressed herein are those of the author only and the fact that he has worked as an Assistant District Attorney; State Supreme Court Clerk; Special Assistant United States Attorney (Hawaii); Assistant Cornell University Counsel or Judge Advocate, United States Marine Corps should not be relied upon to assume that these statements reflect the policy of these organizations.
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