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Can I use a General Denial form ? ( California)

Chino Hills, CA |

A collection agency, on behalf of Bank One is suing me for $4000-credit card debt.
I was advised on your forum to file the General Denial ( I don't recognize the debt).
My understanding is I can do it only if less than $1000 and if not being sued by a third party ( collection agency?)
Thank you in advance
Peter

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Attorney answers 3

Best Answer
Posted

Bank One has been out of business for several years. Moreover, their cardholder agreement has a Delaware choice of law provision, making the statute of limitations 3 years instead of the normal 4 years. You should seek the advise of an experienced debt collection defense attorney before filing an Answer. If the consumer account is beyond the statute of limitations, you may be able to get an attorney to represent you at no cost.

Asker

Posted

How is it that you would be able to get attorney representation at no cost for a statute of limitations account on a consumer account as a defendant?

Frederick William Schwinn

Frederick William Schwinn

Posted

Suing on a time barred account violates the FDCPA.

Asker

Posted

Thank you. I already have a time barred account which I contacted all 3 major credit bureaus to investigate (Nissan-Infiniti) because the tradeline was reporting "Pending". My last recorded payment was 11/2007 and they sold the car 12/2007. I believe Transunion told me the other day when I called to get status on the case that they are going to report it as a "Paid" charge off..your thoughts please

Asker

Posted

I dont have the original contract on a credit card that shows that card has a Delaware choice of law(therefore making it a time barred account as of last payment) can that be proven .Also do judges stick to the choice of law provision in those cases,I would be concerned I would could loose the case.

Posted

Yes, you can use the General Denial form so long as the complaint is not "verified". A verified complaint is one in which the last page (or somewhere at the end of the complaint) it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury.

If the complaint is not verified, you can use the General Denial form. (I know, it is somewhat confusing on the form itself).

Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.

Asker

Posted

my "COMPLAINT"-contract Form PLD-C-001 is 2 pages. There is nothing stating "under penalty of perjury". There is a seperate page "CAUSE OF ACTION"-Common Counts *Form PLD-C-001(2)*, and lasty the only this using the verbage "under penalty and perjury" is the last page which is titled "STATEMENT OF LOCATION/VENUE", the plaintiff checked the last box: "Defendant resides in this judicial district. The address of the defendant is: (my parents address where I have not resided at since 2004). Can I still fill out a General Denial with my motion to set aside the judgment?

Asker

Posted

the plaintiff prayed for damages of $4,235.01...

Frank Wei-Hong Chen

Frank Wei-Hong Chen

Posted

From your description, it does not appear the complaint is a verified complaint. Accordingly, you can use a General Denial.

Asker

Posted

What do I file if I do not recognize the debt and do not agree? A motion to vacate or to set aside the judgment? Please advise....

Frank Wei-Hong Chen

Frank Wei-Hong Chen

Posted

You would still need to first get the default judgment vacated. Once that happens, you can conduct written discovery in order to ascertain whether you owe the debt, and whether you are the proper person to be sued.

Asker

Posted

so to finalize, I need to go to the civil court with my completed motion to vacate the judgment and a general denial form, correct? What should I write in the general denial if I do not agree with any of the four alllegation on the complaint?

Frank Wei-Hong Chen

Frank Wei-Hong Chen

Posted

Correct. You can use a General Denial form which does not require you to explain anything: http://www.courts.ca.gov/documents/pld050.pdf

Asker

Posted

Good....you are a life saver...

Posted

If you do not recognize the debt, you should dispute it immediately. Is the debt on your credit report? Which law firm is suing?

To dispute credit report errors, you should:

1. Get a free copy of your credit report http://agrusslawfirm.com/index.php/Free-Credit-Report

2. Write a letter to all three of the nationwide consumer credit reporting companies—Equifax, Experian, and TransUnion. Tell the credit reporting companies what information is incorrect in your credit report. Include documents that support your position. State the facts and exactly why you dispute the information, and request that the inaccuracy be removed or corrected. It is also helpful to enclose a copy of your credit report with your dispute and circle the items that are incorrect. Your dispute letter should include your: (1) full legal name, (2) date of birth, (3) social security number, (4) current mailing address, and (5) a copy of your driver’s license.

3. Mail your dispute letter and supporting documents certified mail return receipt to the following three credit reporting agencies:

Experian
P.O. Box 9556
Allen, TX 75013

Equifax
P.O. Box 740241
Atlanta, GA 30374-0241

TransUnion
Trans Union Consumer Relations
P.O. Box 2000
Chester, PA 19022-2000

4. Write a letter to the original creditor (e.g. credit card company, hospital, utility company) or other information provider that you dispute an item in your credit report. Most providers specify an address for disputes. Provide the original creditor or other information provider the exact same information you provided above in number 2.

5. Wait about 30 days from the date the credit reporting companies and original creditor receive your dispute letter. In other words, wait about 30 days from the date on the return receipt you receive back from the credit report company. After the credit reporting company investigates your dispute, the credit reporting company must give you the results of their investigation in writing.

6. If the credit reporting agency does not correct the inaccurate information in your credit report, contact Agruss Law Firm, LLC, for further help.

*Keep copies of your letter and supporting documents to all three credit reporting agencies, and to the original creditor or other information provider.

Information on Avvo should not be construed as legal advice, as each case is different. For information about your specific case, please contact a consumer law attorney, or contact me at www.agrusslawfirm.com