Response to Summons: No Original Credit Card Agreement Attached with the Summons

If you recently received a summons from your creditor and the documents did not include the original credit card agreement you signed then your case is off to a good start. You can turn things around and create your response to summons with the higher possibility of winning your case if you use the fact that the summons did not include important documents like the signed credit card agreement.

Before you create your response to summons, it is best to check your state’s Rules of Trial procedure. A simple search on Google should suffice.

Once you found your state’s Rules of Trial procedure’s look under Written Instrument or Pleading Special Matters section and look for either written instrument or Pleading and Proof of written instrument. From here, you will see your local court’s requirements to be attached to the complaint.

For instance, if you are from Indiana, you will find this under the Indiana Trial Rule 9.2, which states that:

(A) When the copy or instrument must be filed

When any pleading allowed these rules is founded on a written instrument, the original, or a copy of the original document but be attached or filed along with the pleading.

Such instrument, whether copied in the pleadings or not, will be considered as part of the record.

This means that in order for your creditor to sue you, they will have to attach the copy or original credit card contract. If they did not include the copy or original credit card contract, you can file a Motion to Dismiss in Lieu of an Answer. Depending on your state’s court rules, you may also file a Motion to Dismiss for Failure to Comply with the trial rule.

If your creditor failed to provide the right documents together with the complaint, check if court rules allow you to create your Motion to Dismiss along with your response to summons. It should be granted without prejudice.

On the other hand, if the case did not get dismissed with prejudice because the Plaintiff was allowed to Amend their complaint, which simply means the court deem the case unfair to dismiss with prejudice without allowing the second party to correct their mistake, the plaintiff can file for a Motion for Extension of time to Correct the Error.

If this motion is granted, the plaintiff is given several days to amend their pleadings. If the plaintiff failed to produce the necessary documents beyond the given period, you can either leave the case to be or file another Motion, this time with prejudice for the plaintiff’s failure to Amend their pleadings within the allotted time given by the court.

Before creating a response to summons, note that different rules apply to different states. However, if the plaintiff failed to provide the necessary documents to prove their case, then you have the right to defend yourself.

If a Motion to Dismiss in Lieu of an Answer is not allowed in your court, you need to create a response to summons anyway and make sure to indicate in your Affirmative Defense that the plaintiff failed to attach the original or copy of the original credit card agreement.

Whether the trial pushes through or not, the plaintiff is expect to produce the necessary documents and if your credit card debt was bought by a junk debt buyer or forwarded to a collection agency, the chances of them giving the necessary documents in court is slim to none because such documents are not turned over to them. Once the original creditor closed to book to a certain account, the documents with it will not be accessed. This means, you need to make it clear in court that you want the plaintiff to produce the documents and if they can’t, then they can’t prove that the debt is yours. That ought to stop them from pursuing the case altogether.

If the plaintiff presented an Affidavit of Debt signed by one of their employees and not by the Original Creditor, you need to check your state’s evidence rules and look under Hearsay. You may have to file a Motion to Strike the Plaintiff’s Affidavit of Debt as being Hearsay.