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I have been sued by a creditor, for debt I've owed for 3 years. I'm not even sure where to start.

Lake Elsinore, CA |

I received a summons today that states I am being sued by Cavalry SPV I, LLC for $7,407.01--Bank of America credit card debt. I live in California and when I lost my job 3 years ago, I could not afford to pay my credit cards. Over the last three years I have settled with some credit cards that have smaller balances, but the one I am being sued for is my highest one and I have been trying to safe up to settle as opposed to making a lot of payments.

My court date is not set for another three years, but I know I have to have a written response by 30 days. Should I get an attorney before I file a written response? Also, I am currently a grad student with no income but living off of student loans. Are there lawyers who work with defendants in "limited liability” cases?

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Attorney answers 4

Best Answer
Posted

Naturally, it would be preferable to have an attorney represent you and to prepare and file an Answer on your behalf.

In the event you absolutely cannot afford an attorney to defend you, you can represent yourself "in pro per". You would file either an Answer or a General Denial, and pay the first appearance filing fee.

The form for the Answer is (Judicial Council Form PLD-C-010):

http://www.courts.ca.gov/documents/pldc010.pdf

The form for the General Denial is (Judicial Council Form PLD-050):

http://www.courts.ca.gov/documents/pld050.pdf

If you cannot afford the first appearance filing fee, you may apply for a fee waiver. See:

http://www.courts.ca.gov/selfhelp-lowcosthelp.htm#fees

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult with your own attorney.

Asker

Posted

Thank you for your quick response. Is contacting the debt collector in an attempt to settle out of court or the use of an attorney an option or should I seek further legal advice?

Susan Kathryn Ashabraner

Susan Kathryn Ashabraner

Posted

Do not attempt to negotiate settlement until AFTER you've filed your Answer. You cannot trust plaintiff's attorneys to treat you fairly; they might get a default and default judgment against you while you're negotiating.

Filemon Kevin Samson

Filemon Kevin Samson

Posted

Visit this website www.community-law-center.com They may have very affordable options for you.

Posted

Cavalry is a "debt buyer." It paid a couple of cents on the dollar to purchase the account from the original creditor. If Cavalry wants to go to court, and if a default is not entered against you, Cavalry will need to prove the debt with competent evidence. The might include the account application, monthly statements, the original credit card agreement, etc, etc. And it will need to prove that BofA properly assigned to account to Cavalry. And, it will need a witness to properly identify the documents. This might require Cavalry to subpoena a witness or witnesses from BofA. Such witnesses might need to travel a long way. And, it will need to pay, up front, the cost of an attorney.

You may have good defenses, in addition to Cavalry not having the evidence to prove its case. Your best defense is to consult an attorney now. With attorney advice, you can either file papers representing yourself, or retain an attorney. As far as attorney's fees, if you successfully defend the lawsuit, you might be able to recover attorney's fees from Cavalry.

A consultation may cost $100 to $200, depending upon the attorney. Good attorneys are listed in the National Association of Consumer Advocates. More attorneys are listed in the referral service of the local bar association. Other attorneys post information on Avvo. Basically, you need quality attorney advice now. The information that you can get from Avvo is pretty limited due to the format and the inability of the attorneys to review any documents. So, call a California attorney who is knowledgeable in debt collection law.

Filemon Kevin Samson

Filemon Kevin Samson

Posted

Mr. Sysle is correct IF you intend to engage in a drawn out, potentially expensive, litigation battle regarding circumstances that took place a long time ago. If you just want a FRESH START, then you should meet with with an experienced bankruptcy attorney to see if you qualify for discharge of all your debt under the current guidelines for Chapter 7 Bankruptcy relief. You were wise to seek the correct answer from an experienced bankruptcy attorney. Mr. Salanick is correct. I have offices near you in Riverside and Corona and happy to meet with you for a FREE consultation. www.SamsonAndAssociates.com

Posted

Mr. Chen provided an excellent response.

The Riverside County Bar Association's Lawyer Referral Service offers low-cost attorney consultations: http://riversidecountybar.com/lawyer-referral/index.htm. Or you can Google "pro bono lawyer Riverside County" and see what appears.

If you represent yourself "in pro per," visit your local law library and ask the reference librarian for The Rutter Group "California Civil Procedure Before Trial." It will help you fill out your Answer (Mr. Chen provided the link to the fill-in-the-blank Answer form). It is easy to check Box 3a (defendant generally denies ...) but you will need to research which affirmative defenses to list in Box 4. (One of the affirmative defenses should be "Plaintiff fails to state a cause of action" and another should be "Plaintiff lacks standing to sue.")

Susan Kathryn Ashabraner

Susan Kathryn Ashabraner

Posted

Mr. Lysle also provided an excellent response!

Asker

Posted

Thank you Susan! My summons is from Riverside County but I live in San Diego, should I look for an attorney in Riverside area or San Diego?

Susan Kathryn Ashabraner

Susan Kathryn Ashabraner

Posted

If you'd like your attorney to ask the court to change the venue from Riverside County to San Diego County, then consult with a San Diego County attorney. If not, then consult with a Riverside County attorney; s/he may be more familiar with Riverside County court judges and procedures.

Posted

Understanding your six options is key for you to make a wise decision that suits your circumstances, which is why you should view the short video on the home page of my web site, linked below.

You appear to be aware of the 30 days to file a response from the date of being personally served, but I have linked below my blog posting on making your next steps count after being served with a debt collection lawsuit.

NOTICE: The above statements are provided for general information purposes only and are not intended as legal advice or advice of any sort for a specific case or legal matter. If you do not have a signed attorney-client fee agreement with the Consumer Law Office of Robert Stempler, APC ("the Firm"), then until such written fee agreement is provided and signed by both a prospective client and attorney for a particular case, neither Mr. Stempler nor the Firm will represent you nor will they be your attorney in any matter and you remain responsible for retaining your own attorney and for compliance with any and all deadlines and for any statutes of limitations that may pertain to potential claims. Comments made on a public forum, such as Avvo.com, to not have any confidentiality because others may read them. If you desire a private consultation with Mr. Stempler that is confidential, please go to www.StopCollectionLawsuits.com and submit a free eCase Review. The result portrayed for a client was dependent on the facts of that case. Results will differ if based on different facts. The Firm and Mr. Stempler are a debt relief agency. The Firm and Mr. Stempler help people file for bankruptcy relief under the Bankruptcy Code.