Expert: Jason Shear, Esq. - 10/29/2008

Question
Last Friday (Oct. 24, 2008) I got a summons by mail stating that I'm being taken to court by Weltman, Weinberg & Reis Co., L.P.A. (Columbus, OH office) and they are working for Capital One Bank. There is no court date on the papers I got and when both times I have spoken to someone from this law firm, I've been told that my husbands wadges will be garnished and up to 25% which we can't afford. I am not sure how I file a paper with the court which is what I was told will need to be done in order for there to be a court date set. The other issue I have is the fact that I had to send this law firm a no contact letter due to them calling my husbands place of employment which could have cost my husband his job and the law firm knew this and was asked to stop calling my husband at work but they refused. Also, In March of 2007 I went through a credit canceling agency to start making payments to this law firm of $131 a month which I have been making with the exception of a missed payment in June of this year as well as August and September. The papers were filed at the beginning of September. Can you please tell me where I'm expected to file a paper? Is it with the court? If so, what exactly do I say in the letter I file? Can you please tell me what it is the court is exactly looking for in this letter? I do not have the money to get legal council and I'm not sure how to go about defending my self in court can you please give me any information that will help me with my own defense? Thank you so much for your time in this matter, I look forward to hearing from you soon.

Answer
Jennifer:

Sorry to hear about your situation.  It looks like to me that since WW&R has stopped receiving payments from this Credit Counseling Agency they decided to sue.  First, what you need to do is file what is called an Answer, not a letter.  An Answer should sent to the Court as well as WW&R.  Unfortunately, this consumer debt is with the original creditor so therefore they may be able to produce sufficient documentation to win their case in Court, unlike a debt purchaser/collection agency.

Make sure they provide the legal documentation that allows for the amount they are claiming in the Complaint.  Examples would be attorney fees, interest and all other fees.  Be sure that all payments you made so far are credited to you.  

However, do not despair.  I appears to me they violated the Fair Debt Collection Practices Act (FDCPA) by calling your husband's place of employment after being told such calls are not allowed.  In addition, if they spoke to someone at your husband's work about this debt they are also in violation of the FDCPA that could mean possible money damages for you and your husband.  

In regard to your last couple questions regarding the process and preparation of paperwork you must do to defend this yourself in Court.  As I stated in previous posts, if I were to type out the procedure for a consumer/debtor to defend themselves in a consumer credit transaction it would be the size of a small book.  You can however call me and I will be happy to walk you through what to do as well as answer any other questions you may have about what I wrote.  Good luck.  Again, please do not hesitate to call 9:30am to 8:30pm EST.

Jason Shear, Esq.
NY Consumer Lawyer
(716) 566-8988