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Clydesmom last won the day on September 17

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About Clydesmom

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  1. Because an attorney knows the rules of civil procedure and will follow them. You are really making this into more than what it is. They don't need to appeal the majority of their cases because they are default judgments in their favor. For the small number of consumers who actually answer and show up AND win they can appeal de novo to state court. As you said in another post the rules in Magistrate court are "lax" which allows citizens to defend themselves in court without the expense of a lawyer. By appealing to a court where they will follow ALL the rules to the letter and you don't know those rules one of two things is likely to happen: they steam roll you on the procedures because you don't know them and get a win; or you settle because you don't know all the rules or don't defend the appeal. The Magistrate basically showed them where their case against you was weak and now they are going to shore that up and try and seal the deal.
  2. They did file for default but odds are good that some low paid clerk or associate at the large debt collection law firm handling the case was clueless the answer was filed and properly served. The court will deny the motion (if they haven't already) because there is an answer properly filed with the court and the Plaintiff. Hence the trial scheduled for Friday.
  3. The entry may be incorrect but they may have filed for summary judgment. Without seeing the actual filing it is hard to guess what they were thinking. If it is for default judgment then it is likely nothing more than one hand doesn't know what the other is doing. You can but the court will deny both. Your remedy is that the court denies the motion for default judgment because you answered and you showed up for trial. It does not give rise to a legal reason to toss the entire case. As for sanctions unless you can prove it was negligent or illegal it sanctions are unlikely.
  4. The SOL in FL is 5 years. As long as they filed within that time it is timely and not covered by a laches defense. The courts in all states know there is no contract in a credit card case. They won't be needing one to find that the account is yours and you defaulted. The court cannot order them to accept payments for five years. You could settle for that but they will require you to sign a consent judgment. What that means is that if you default again they would not have to sue you in court to enforce the judgment. They can proceed right to a debtor's exam, wage garnishment or bank levy. If you have more than one debt that puts you at risk for suits then a consult with a few bankruptcy attorneys is in order to discuss your options. Most if not all do a first consult for free.
  5. If you mean does the judge have the discretion to award them $2000 because you are unable to pay the answer is no. If they are unable to prove the amount of the debt the judge can lower the amount to what they can prove. That rarely happens with an original creditor. Capital One will have all their own records to prove the amount of $7200. Most BK attorneys will do a consult for free. You can probably even get one for tomorrow. If you can't get at least one before the trial date ask for a continuance then consult a few. They can advise you based on your circumstances what the best course of action is.
  6. There is a lot more to it than just what tasks are performed. I am in direct patient care and most people in those types of jobs are hourly non-exempt. However, due to what we do and the demands it is more advantageous for both sides to be classified exempt. More often than not employers get it wrong and classify someone as exempt when they are actually an hourly employee. Not the other way around. Typically the employer gets caught when trying to deduct for time off like a doctors appointment while paying exempt salary but not paying over time when going over 40 in a week. They can't have it both ways. I am sure she is an employee as well. However, the cursory conversation on the phone with the DOL is meaningless at this point. Until she actually files a complaint with the DOL and they do an investigation and rule she is an employee and classify her exempt or non-exempt the discussion is pointless. No attorney will pursue a civil case against the employer without a ruling from the DOL and the phone conversation is not proof.
  7. Not quite. Once classified as an employee there are two pay categories. Exempt and non-exempt. Non-exempt employees are paid by the hour and legally entitled to over time for all hours over 40 in each 7 day work week. Exempt employees also known as salaried are paid an annual rate regardless of the total hours worked in a week. If your wife can legally be classified as an exempt employee then she would not be entitled to back wages or over time even if she is an employee not a contractor.
  8. If you are happy with the outcome then it did work out. Congratulations. You are the only one who decides if it worked out because you have to live with it.
  9. OJ doesn't live in FL. He resides in Las Vegas Nevada. He is collection proof because his NFL pension cannot be garnished or levied and a buddy allows him to live in a luxury home in the most expensive community here RENT FREE. He drives a Bentley free as well. He wanted to move to FL when he was paroled but the state refused to accept him. Until he is off parole he is required to remain in NV. You can settle them yourself at much less expense. A debt settlement company will keep a huge chunk of what ever you pay as their "fee" and you likely will be sued anyway. Many creditors will not work with them because of this. First: consider removing your name from the deed on the home so that they cannot put a lien on it. Do this before you default. Have your retirement funds deposited into a separate account so that they cannot be levied. Take your name off the joint bank accounts so they cannot be levied. If your husband is still working you don't want his wages seized in a bank levy simply because your name is on the account. They cannot garnish his wages for your debt but any amount over your monthly retirement deposit would be fair game in a bank account you are listed on. There are ways to protect your assets when there is a risk of judgment but your income is exempt. Study up on those.
  10. It might but file it first thing Monday anyway. My guess is they won't oppose it or show for trial.
  11. Sadly in Texas that could very well happen. There are court rulings that said just that: engaging in the litigation process waives the right to arbitration. Nothing to lose by trying it could work.
  12. Unfortunately this will not help her with this lawsuit. Sadly one of several major problems with debt settlement companies is the creditor is not contractually bound by the agreement you made with Lexington Law. Many consumers find themselves being sued anyway and the debt settlement company is not going to represent them in the suit. The hearing should be a pre-trial one. If the MTC is denied you want to immediately motion for discovery. Justice Court requires that in Texas.
  13. I have to second this and the other opinion. Cap1 is one of the top 3 aggressive OCs in court. They also have the advantage that arbitration was removed from their card agreements almost a decade ago. Your options are limited and they know it. This is accurate as well. They have a hard line stance on not doing this.