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Everything posted by chicamarie

  1. Just to put a final nail in this BK coffin, I thought I'd post with an update, that the trustee finally gave up his quest to get the money that I paid to the IRS, and agreed to drop his threats of filing a turnover motion or pursuing a claim against me, or my husband. He had even asked for and gotten an extension for the date by which claims had to be submitted, so I was still freaking out. I was also becoming concerned about the value of my home. His lawyer lives near me (in a giant house) and home values are ridiculously inflated, so I thought maybe they were going to question my homestead exemption. So, my lawsuit-bankruptcy journey appears to be over! My lawyer just sat back and watched the intermittent emails from the trustee, and the trustee's lawyer, without raising a fuss or contacting them. I was consistently reminded of that Sun Tzu quote about waiting on the banks of the river and watching the bodies of your enemies floating by . . .
  2. He doesn't have a federal tax ID or anything. He has a CCB license with the state but that's just a license to be a contractor and doesn't apply to his business or tax status. I don't even think he has a DBA listed with anyone.
  3. I posted this on my original thread but got no replies so I'm trying a new topic. During the BK hearing the trustee latched on to the payment I made to the IRS with cash I had been sitting on in case of emergencies. We got into a mess in 2009, husband lost his job, tiny kids, no cash, etc, credit cards, and I lost a lawsuit in February which is why the BK. So when I inherited a little bit of money in 2012 I just put it in a cashier's check in a safety deposit box and sat on it so I knew we would have cash if necessary. I am filing singly by the way - spouse is not filing. I was honest and told my lawyer about it and he said to get rid of it, so I put some in my IRA and paid our 2013 taxes. My husband is self-employed but not a corporation or anything so we file together and always end up paying every year - lump sum since I'm never organized enough to do estimated payments. The trustee decides that since the taxes are from my husband's business and theoretically I used MY money to pay them, that I am an "injured spouse" and that he is going to make a claim against my husband - this was in an email to my lawyer. This was a couple of weeks ago, and then last week I got my discharge notice, but I know he could still file a claim, right? My lawyer says he is just blowing smoke, since I would have to make the claim first, and the trustee would be second in line to me. And the rules about injured spouses seem to not apply to me since I didn't have a refund coming or anything, and we're not divorcing, splitting assets, etc. Any one have input about such a thing? I'm wanting this all to be over!
  4. Also, FWIW, I felt completely profiled by the trustee at the meeting. My lawyer's other clients were ahead of me: one woman who was doing BK for the second time, who had given her ex-husband, who still lives with her, all her cash right before the BK, smiling as she said it, and the trustee didn't bat an eye; a couple who had racked up debts at all manner of places (no judgment) and looked pretty relaxed about the whole thing. And maybe because I have a job, and a house, and because my debt isn't super sky-high, he grilled me, and latched on to the tax thing, and was basically salivating. This is after making a joke about my husband's work truck. a 1994 Nissan pickup, being a "classic car". So, he wants to target the guy who would love to buy a new truck but WE DON"T HAVE ANY MONEY. What a POC. Thanks for listening to my rant.
  5. So now that it's been 3 months since I filed, and I've had my meeting with creditors and the trustee, there's a new problem. It came up at the meeting, with the trustee, but he's just now acting on it. Before I filed, I had some money I had been hanging onto in case of emergencies, that I had inherited in 2012. I was pretty afraid to be completely cash poor, like we were when my husband lost his job, we lived off our credit cards, ended up in this mess, etc. But, of course I had to get rid of it so I did it in the approved ways - I made an IRA contribution and I paid our 2013 taxes. My husband is now self-employed but taxes are a bitch, and we have ended up in payment plans with the IRS, or paid late, or at least got an extension and filed and paid in October (with penalties of course). My husband is a sole propietor and we just file jointly every year - his money is my money and vice versa. So, the trustee latches on to this tax payment and says I might have an "injured spouse" claim from paying my husband's taxes. I reiterated that my husband is not a corporation or an LLC of any sort, etc. And it just got left hanging in the air after the meeting. I did some research and found that injured spouse claims to the IRS are not routine and are pretty bound up with divorces and similar circumstances. The trustee sent my lawyer a letter this week saying HE might have a claim against my husband (who isn't part of the BK) for the tax payment. WTF?? My lawyer said that no matter what, my claim would be ahead of his, so he isn't sure why he is trying to bypass me in the process. I am so confused by all of this. It's no different that my paying excess tax throughout the year and then our tax burden being lower at the end, his self-employment taxes being wrapped up in our joint obligation. Unless I felt "injured" in some way, I guess. Any opinions as to whether he has a right to make this claim? I was hoping this BK thing would be bringing my whole CC and lawsuit mess to a close, sooner than later.
  6. I agree with @BV80 as to making him explain why he thinks he can prevail with the SOL defense in your case. I'm thinking there must be more to the story? Also, it doesn't necessarily matter that you filed your answer already. Even if you didn't bring up any defenses in your answer, like standing, you will use what comes out of the discovery period and the documentation they do or don't provide, to make your case. All of these apply whether or not you stick with your lawyer. If everything goes as it usually does, you will soon receive Requests for Admission and Requests for Production of Documents from the plaintiff. You can be putting together your own versions of these also and serving them on the plaintiff, and there are excellent examples in this forum to use as a starting point. Regardless of how much you think you can prove that they don't have standing to sue you on this account, or that they can't provide a complete chain of title for the account, or prove that it's your account, you are still going to have to use the motions, pleadings, etc, to make your case. And, you will also soon receive a notice from the court that an arbitrator will be assigned, and there will be a list of lawyers who are in the arbitration game - you mark any names that you think you don't want, but it doesn't matter because they all seem to be tools of the man, as it were, so there's no strategy to be employed here. I received the arbitration notice about a month after filing my answer, and the JDB promptly filed an MSJ (motion for summary judgment) against me about a month after that. The arbitration date was set for September 5th, and they have to file it no less than 60 days before "trial" - they filed it July 5th. If you lose at arbitration, whether it's via an MSJ or not, you can file for a new trial, Trial de Novo, and it starts over, except the discovery is already complete. The plaintiff will most likely start bombarding you with threats of new documentation they intend to introduce at trial to scare you into settling. I took a less aggressive approach than Huey Pilot, also in Oregon, as he hit them with lots of motions, but he won and I lost, so maybe his approach is better?!
  7. I wouldn't fire him! Since he's the one who lost that SOL defense in the previous case (I'm familiar with him and the case), he wouldn't be offering the SOL as a defense if he knew it was a loser, and he certainly knows more about how his argument will be received than we would. He's a good guy, and I think he wouldn't take your case if he thought it was a slam-dunk for the plaintiff, IMHO. But, also, it's your money and your case, so you do get to choose whether to be represented. I will say that I don't know of many lawyers in Portland who will defend any collections lawsuit these days without CLEAR FDCPA violations, identity theft, etc.
  8. Just FYI - I don't think potential employers can check your credit unless you are applying for a job that involves large amounts of cash handling or other forms of intense financial activity. There are federal rules enacted in 2012, I think. And if they do check your credit, they have to notify you, and there are serious legal ramifications if they do so without going through all of the hoops. Here in Oregon we have passed a bill that basically doesn't allow them to check your credit at all, unless the job falls under exceptions for certain financial institutions. You should check your state - I think there was a pending bill just like Oregon's but I'm not sure it made it out of the legislature. I considered this fact when choosing to file Chapter 7 in February. Plus I work in a fairly warm and fuzzy non-profit industry which is doubtlessly full of people with less-than-perfect credit .
  9. Where did you find this info? I did some searching around but couldn't find anything.
  10. Of course they did 1099 me for the balance after settling, which would mean I could come back at them via the tax problem created when the balance is lower than what they 1099'd me for.
  11. The letter says they "purchased" this account from US Bank. And actually now that I read this letter more closely, it says that CACH has credited this amount to my account, which is now the CACH account. It says "If this credit results in a credit balance to your account, a refund check will be sent to you." So, if we settled this account for less than the balance due, are they required to send me any refund? I can't imagine they would be legally required to although there must be some rule about that somewhere. Weird. Although I'd love to get paid by a JDB any way I can. So far I've only been on the losing end .
  12. I received a letter today from CACH, everyone's best friend, and was sure it was something bad. Back in April of last year I actually settled an old US Bank CC account with CACH because I had just been sued by Unifund and hadn't found this board yet. I panicked when I realized I might have two lawsuits on my hands and it was very small compared to the other account. So, I made it go away. In any case, the letter says that new information about the account has surfaced, that I was overcharged by US Bank as far as interest added, and that any amount calculated to have been overcharged would be credited to my account, and if it left a balance on my account that I would be issued a refund (I'm picturing something along the lines of $8.63 or thereabouts, ha ha). How on earth does that work for an account that was charged off and sold? I imagine that they want to avoid any litigation directed their way, but it seems odd that I could possibly be refunded anything from an account that was sold at a loss, basically. Not that I feel sorry for US Bank or anything. I'm also a member of a class action lawsuit against them for their overdraft policies from the early 2000s. Again, I'm picturing awards in single digits! I haven't heard anything from US Bank, FWIW.
  13. Yes, all the same. When I pointed out, in my MSJ hearing with the arbitrator, that the link/assignment of the OC account between Pilot and Unifund could not be proven by the documents they produced in discovery, the JDB lawyer said "all of PR's accounts are assigned to Unifund." And the arbitrator said "ok" above my objections. I guess all you have to say is that it's true, and then it's true.
  14. @ I just lost my lawsuit with DNG (same plaintiff and OC) and declared BK as a result, but I'm not saying that will happen to you. I WILL say, however, that the amount they are suing you for will dictate how hard they will hang on to this case. Oregon's mandatory arbitration is almost a guaranteed win for the plaintiff/JDB/DNG, so they really have nothing to lose by looking over your answer and pleadings and just shrugging them off as they move forward with their case. Not saying you shouldn't fight, of course, but they are not easily intimidated by the defendant's pro se efforts, even if it looks like you intend to fight them. I assume your case has not been assigned to an arbitrator yet. It will be soon. I was served on April 8 of last year and an arbitrator was assigned by June 1st, even before the discovery stage was completed. They filed an MSJ on me by July 5th, I think, and that's what the arbitrator was hearing and deciding upon at the beginning of August. The arbitrator was lovely and polite, and a civil rights attorney as well, so I thought I might have a chance, but I lost, as my attorney I was consulting with predicted would happen. I applied for a trial de novo, which is always granted, and they promptly filed a new MSJ, which I beat - my only victory!! My lawyer, who is a longtime adversary of DNG, stepped in to represent me right before trial, and, perhaps just to attack him personally, actually flew in a witness from Citibank. The judge took that as a sign that he should let in all of their hearsay documents and the case was decided against me. I only tell you all of this to shed some light on what might happen. I did everything right, I think, but with the interest (illegal, which they were NOT granted by the judge) added on, they were looking at 15k in their pocket. So, there is something to be said for the amount they are suing you for, and as JDBs go, I am saddened by the fact that they don't seem as inept as some others I read about on this board. My only advice, really, especially if they file an MSJ against you, is that I had the opportunity to oppose their MSJ twice, and the short and sweet version I had the second time around was more successful and better tailored to be read by a judge. My first was 15 pages long and I packed it full of everything, and for the second one I picked the three strongest arguments against their documents - statements, bill of sale, affidavits, and it was much better. The kitchen sink approach might work for some judges but I'm pretty sure the edited version was legally more sound. Good luck!
  15. Ouch, @shellieh98. That would be my concern. I'm prepared for the worst but I also know I can probably slide into a Chapter 13 if I have to, although I would rather not!
  16. Hi there. I am still reeling from a loss to U-fund/C-bank earlier this month, and am now doing what I had planned to do if I lost, declare BK. I had a lawyer at the very end and he and I had talked about the possibility. He has dealt with the Plaintiff's law firm many times and is convinced that they came at him extra hard during trial just because of their history, and he encouraged me to BK them rather than give them a penny, which of course I agreed with. So, I only have that 12k judgment and one other card (C-bank of course!) with about 5k on it, to discharge. I am married and filing solo. We barely pass the means test but a 12k judgment would have killed me/us, so I feel ok about it. We filed the petition yesterday so this is all pretty fresh! I had some cash from an inheritance in 2012 that I locked up in a cashier's check when I first got sued, and I told the lawyer about it and we dispersed it to my IRA, and paid our Federal taxes. My husband is self-employed and we always have to pay. So, cash is pretty low, I was honest about it all, and I dealt with it in the "pre-bk-approved way", I think. My question is, I was trying to be honest with the lawyer and told him about everything, as far as income, and I told him I sell things on Ebay from time to time. Most of the time I sell 1000-1500k a year, max. Nothing earth-shattering, and it's all stuff I get from family members that they don't want, or the occasional garage-sale score. He indicated this on the paperwork. But, at the end of last year I sold two things for about $700 total after fees, which bumped my Ebay income for the last six months up around the 1400 mark. I have a Paypal acount and don't transfer $ over to my bank account, and I just use the money to buy household stuff on Ebay, or on Christmas, like I did this year, with the Paypal debit card that just takes $ out of the account. I had to buy a new fridge too, with that money, so it's not like I'm buying fancy things with it. I don't carry any kind of a balance in there. Is this something that will catch the trustee's eye? It's not huge money, but since my debts to discharge aren't huge are they going to look at this even more carefully? I have a big mortgage and student loan debt and two little kids, so my expenses are high and I look ok on paper. I'm just nervous about having to talk to the trustee. Thanks!
  17. I can almost guarantee that Unifund won't be on the credit report, and neither will the OC account. Unifund pulls both when they commence litigation. Sadly, it's not illegal, as they are not required to report, but it always indicates some underhanded dealings on their part. I find it odd that they are even allowed to pull the OC account off the report.
  18. Thanks for the words of wisdom, Credator. I actually found this lawyer by researching Oregon case law. He has his name on 2 or 3 of the only debt collection lawsuits that have made it to the court of appeals and then been published. He didn't come out on top on all of them, but he's been to the show, so to speak, so at least I know that HE knows what he's getting himself into. After we cool off for a couple of days, the conversation will start anew and we will come up with the next plan of attack, or not. As the people here are aware, the JDBs up their game every time they are challenged, and I believe the cases he has argued over the years have reflected this. The documentation grows, they enhance their verbiage to correspond to the prevailing collections laws, etc. I'm sure he preserved everything necessary to at least consider an appeal, but whether he feels like it has enough merit? That's part of the conversation. I'm not hanging my hat on either option yet. It's tough, not having been in the room. I trust him to have made all the right arguments, but as I said, I wasn't there. One thing that stands out to me is that the judge is newly elected and hasn't heard many cases, and was very critical of BOTH sides not having enough case law to support their evidence or objections. And, since the trial was almost 7 hours long, I would be inclined to think that the judge was educating himself about these types of suits. Was he learning the right things? Hard to say. There isn't much case law here, sadly. Too rainy to fight back? Not lately though. I am sitting here in limbo, for the moment . . .
  19. @BV80 I realize that there is no silver bullet for the appeal in this case. I think my lawyer was trying to present all of the available options so I didn't freak out - although I was so shocked by the duration of the trial that I was long past freaking out. I think I am going to have to convince him to tackle the FDCPA issue. Originally, he wasn't sure it was a slam-dunk, not that it has to be, but there isn't much precedent in Oregon or anywhere else - lots of nondisclosure settlements and agreements though, I'm sure. As I have mentioned before, he really wants some published case law regarding this, so he doesn't want the mutual walk-away or nondisclosure settlement. As far as that goes, I don't know what the best case scenario is for me or him. If the judgment goes through without any settling, we bring the FDCPA suit, and they try to settle that without going to trial (settling involving my financial obligation to them going away), then theoretically the FDCPA case isn't on the books but the Oregon case law still stands, correct? Unless the judgment is vacated, and then the case law disappears (I assume) but so does my debt. If they settle for less, or for nothing, does that automatically vacate the judgment? It doesn't sound like it would. Frankly I'm not as concerned as I should be, probably, about the judgment being on my CR, as my credit was destroyed by earlier CC issues and modifying my mortgage. And if he refuses to do the FDCPA suit, which I could hardly get mad at him for after all he's done, then will I be able to rely on another consumer attorney taking the case? I had a terrible time finding anyone to do it the first time, but will the judge's decision in my case make it more tantalizing to other consumer lawyers? I would feel like I was cheating on him, but oh well.
  20. I can't believe they can win without producing any kind of contract or agreement. I've seen at least one state mentioned on this board where a breach of contract case must absolutely involve the production of a contract. Maybe on appeal the court can see the wisdom in such a requirement. As far as the potential for the OC witness to lie, I think that's one reason they have title like "Vice President of flying to hell and beyond to testify". They don't have to say anything other than yes, these are our records. They can say that their position is far too important to actually come in contact with any of these records but they invented the way they were made, built the computers on which they were made, and they robotically manipulate the people who make them. That's what they say in my fantasy trial anyway. But I think the judge must get so dazzled and honored by their presence that when a lawyer attacks their credibility or the records they just think to themselves "banks don't lie, people do!" I think we have a solid case for appeal.
  21. @Savoir He's pretty sure he won the business records argument, it's just that the judge didn't agree. It's definitely appeal worthy. And, I don't feel so much selfless as just a sense of duty, guilt, whatever . . gotta get rid of it somehow. Stupid Catholic school.
  22. Thanks Skippy. He's been doing consumer law, collections suits, and bankruptcy for a few years now. He has a few Oregon appeals cases under his belt - wins and losses, mostly dealing with SOL issues, choice of law regarding SOL, etc. He has a good settlement from a couple of months ago with the FDCPA interest issue. I think that he pegged me as someone, while I really wanted this to be over (he talked me out of settling when they brought it up last week, after I beat their MSJ), who was interested in pursuing the legal end of things and hopefully establishing some case law, because there isn't any in Oregon! He also knows that while I certainly can't comfortably handle a 12000 judgment, I have a roof over my head, a job, a husband with a job, etc, so asking me to participate in creating some legal pathways is acceptable. He has helped me a lot, and for not much $. When I mentioned possibly settling before the judgment order was issued, he basically said that if it goes through, it will be on record that the JDB asked for illegal interest and was denied, because they couldn't produce a contract that showed they were entitled to it. And others after me, like everyone on here, will benefit from it. While a judgment, however it gets resolved - appeal or otherwise, would suck, I relish the thought of people like me having some ammo . . . ammo I didn't have.
  23. It was just south of 12000. With the interest they were asking for it would have pushed it up past 16 and change. Nothing like some of the bigger numbers I've seen on here, but I know it was one of the better ones for them to hang onto. I'm not sure about the last question, but I know she had a 3:00 flight to catch (?!). My lawyer has dealt with OC witnesses before, so I'm confident he knew what to look for - I hope!
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