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Clydesmom last won the day on November 14

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  1. Actually what SCOTUS held was that if immunity to criminal prosecution is offered the State can compel employees or contractors to testify as it is in the public interest. That is not the same as saying that the 5th Amendment can be invoked in a case where no criminal activity is alleged. Under a proper accommodation between the interest of the State and the Fifth Amendment, the State can require employees or contractors to respond to inquiries, but only if it offers them immunity sufficient to supplant their Fifth Amendment privilege. Kastigar v. United States, 406 U. S. 441. Pp. 414 U. S. 84-85. 342 F.Supp. 544, affirmed.
  2. Before you file the MTD you need to file an opposition to the MSJ. I would oppose it on the basis of a laches defense. By waiting so long to move this case forward they have unfairly prejudiced you from defending yourself properly. File both at the same time.
  3. In which one someone would receive: yes. In whether or not the money can be levied or garnished: no. I do know the difference but was in a hurry this morning. Either way they cannot seize up to 2 months worth of benefits from your bank account. Make sure the ONLY money going into the account is that money so there is no question it is exempt from levy.
  4. As was already states you didn't have a 5th amendment right in this case. While creative it wasn't legally allowed. It is. That is the legal standard for discovery in a civil case. The difference in a criminal case is the state is REQUIRED legally to give copies of ALL evidence they intend to use at trial to the defense within a defined time frame so that a solid defense can be developed. Failure to disclose evidence means the defense has a valid basis to object to the state being allowed to use it. If it was attained after discovery the state is still required to disclose it to the defense. For a civil case if you want to know what the other party has in evidence to use against you then you must engage in discovery prior to trial. It is not required. Most states have rules and laws in place that if one party sends discovery to the opposition and they fail to respond the answers are automatically deemed admitted. When you failed to respond the Plaintiff acted accordingly because under California law invoking the 5th amendment in a civil case is not allowed and failure to answer their discovery means you admitted to what they were asking. The only thing that can happen by submitting the answers now is the court rules that you waited too long. You have a chance they show you some leniency because you are pro-se and let the answers in. If you elect to do this you should file it with the court and the Plaintiff to ensure both parties are informed.
  5. The FDCPA does not apply to original creditors. Even if Zwicker did commit violation(s) all Discover will do (as we have seen them do) is dismiss Zwicker and hire another firm on this case. That forces you to pursue your FDCPA and TCPA claims separate from their action against you. You don't have an option on this one. Had you filed prior to them suing you could claim something different. Because they filed the breach of contract suit first and you demanded arbitration you have to arbitrate the claim as filed in court but moved to the arbitration forum. The 60 day window to file the case in JAMS is not unreasonable and actually quite a generous time frame that takes you past the holidays and new year. Chances the court would allow you to extend this are zero in my opinion. There is absolutely NO reason to delay filing the case in JAMS 120 days. NONE that will satisfy the court anyway. Even if you file now the hearings in JAMS are not going to conclude in 120 days. There are multiple stages this will go through and each one will have arbitration deadlines you will be subject to. Attempts to falsely manipulate them will not bode well for you. The entire point to invoking arbitration with Discover or AMEX is to get a better settlement. A bad case in court is equally bad in arbitration. There are windows of opportunity to settle. Research the arbitration threads from those who have done this and successfully settled their claims on when the best times to make an offer are. Typically Discover wants at least 60% on a debt of $10k or more. We have one very recent situation that is a first in our experience where someone recently got the entire thing settled for a LOT less but it involved very tragic circumstances and producing death certificates. Unless you have very extreme circumstances that you can prove I would not count on that happening.
  6. Try Midland again on Monday. This time when you call you should get regular staff not third world weekend help. Ask for the department that handles consumer hardship. Just repeat what you asked the first time you tried. They will want proof of SSI and hardship. Once you submit what they need they will send a letter back stating they are dropping collections and the suit. Then you watch and make sure that happens. If you get the same sparkling personality and response as that woman THEN call the attorneys. You admit to nothing and simply ask about Midland's hardship program. Odds are good the attorneys cannot just apply it and you would have to submit proof but once you do they should withdraw the suit. Regardless even if they get a judgment they cannot collect on it through bank levy or SSI garnishment.
  7. I suspect that the transfer of the funds from the Pay Pal account to your bank account may have rendered it simply "money" rather than wages. I could be wrong but a lawyer would know for certain.
  8. The time for that was when you were sued. It is WAY too late to bring that up now. It will have no affect on the levy. Legally? No. The only way to lower the amount of the judgment is to make a lump sum settlement offer that they accept as payment in full. It is. Once the court ordered the judgment and the time for appeal and a calendar year elapsed it became set in stone. Not the same way they would at trial. You file for exemption. They read the paper asking for it and determine that they do not believe you qualify. If you don't meet the court definition for exemption there won't even be a hearing. If they oppose it and there is a hearing they only need to have their judgment. The burden of proof you are exempt from levy is on you. This is about the levy. Not how much you were ordered to pay in judgment. At trial. BIG difference. Did you read this part: "At the hearing the judge will review the claim of exemptions and determine whether you are entitled to claim the exemptions." What that means is if there is a hearing Midland doesn't need documents and witnesses. You DO. "When the claim of exemptions is allowed it only means that the funds that were levied were exempt. It does not mean that the judgment is not valid" Even if you get the exemption per CA law it doesn't mean the judgment isn't still valid. It means they cannot take your money right now. The judgment will continue to accrue interest. Clearly Midland isn't going to go away since they levied your account. I would beg/borrow the money from a friend or family for a lump sum settlement then pay the person loaning it back ASAP. The sooner you settle this judgment the better.
  9. I think the only state that requires they notify you of an intent to levy is Florida. Were you ever served for the lawsuit itself? California does provide an exemption of levy if you qualify due to disability and other circumstances. The worst that happens is you don't qualify. You should file for it. They don't need to have proof to levy you. Only the judgment. The only witnesses would be you and them. It is too late for a defense to the suit. The time for that was before they got the judgment. Depends on whether you have valid exemptions according to California law. Simply not being able to afford it isn't enough. File the exemption. If you were never served with the suit you should also immediately call a consumer attorney. It may be possible to have the judgment set aside and force them to start over. This is not easy but if they didn't serve you properly the attorney most likely will take the case at no cost to you.
  10. Unfortunately that isn't the kind of hardship that will get Midland to cease collections. Permanent disability or being on social security is. Since they have already sued any discussions would be with the law firm. Settlement talks are not admissible in court. Many parties settle suits simply because it is cheaper not because they agree with the suing party. Synchrony has the best arbitration clause of all the creditors. You can settle at any time prior to a verdict. I would file an answer and then a MTC arbitration. If the MTC is denied then you can make a settlement offer. If the motion is granted Midland will fold and drop the entire thing and you spend nothing.
  11. Talk about an oxymoron. Based on what was posted it cannot possibly be legal.
  12. The court will set a trial date. Most likely the law firm will send you discovery which you have to answer. Failure to answer means you are admitting to their claims. Looks like that is mandatory court mediation. If that isn't until August 2020 then the chances trial happens before that are probably slim. Most likely if you answer now and arbitration isn't until August next year then you should be okay about not getting a judgment prior to your financial circumstances changing. Just make sure to keep track of ALL deadlines and respond so that you don't end up with a default judgment.
  13. You definitely need to file an answer in both suits as soon as possible. The MTC arbitration can be filed separately but it should be raised as an affirmative defense. The problem with this account is CITI has a carve out for arbitration in small claims cases. The papers state they filed in District Court so you should be good on that respect in that you are not in small claims court but be prepared they try to argue this anyway. Synchrony has the best arbitration clause of all the creditors. File your answer invoking private contractual arbitration as an affirmative defense and a MTC arbitration on this one as well.
  14. Texas is still one of the few states that does not allow wage garnishment for civil debts. They do allow bank levy and that is what they are doing. There is nothing new about this. Because they have a judgment against the consumer they can pay the bureaus to subscribe to a list of consumers who apply for or receive new credit. Then they compare the names to those who owe them money. Once they identify someone with a new employer, new address, new credit accounts/loans they know the consumer is rebuilding and it may be a good time to use a bank levy to collect. Not even close. This has been going on since the start of the great recession/depression in 2008. They have simply refined their collection techniques on judgments. Since 95% of judgments they get are default judgment because the consumer never responds they simply let post judgment interest add up then file for a bank levy knowing the paycheck will hit the bank at some point. You will see this kind of activity at tax time when refunds start rolling in as well.