anders75

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About anders75

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  1. @calawyer: Thanks again for your reply. I am talking with a bankruptcy attny early next week. The main problem is this: I have the interest in studying up on law in order to fight this myself, but I don't have a ton of extra time right now since I am trying to finish up a dissertation (grad school, by the way, is what got me into this financial mess in the first place). My wife is finishing hers as well--we are slammed right now. I try to work on this on my extra time, and have done pretty well so far, but there's so much more to learn and that court date is rapidly approaching. My wife and I have about 45k in combined credit card debt (all from trying to get through grad school), and that's on top of about 120k in student loans. My inclination is to keep fighting this, but since it's an OC and I am short on time I'm a bit worried about taking the risk and getting a judgment against us. But once I do finish grad school I am going to start studying law. That's for sure. @Wins the Battle: Ya, you're right that I have to think carefully about BK7. I do know that student loans can't be discharged--that's a reality. On a side note, I think it's a reality that needs to be changed, because I know way too many people who are getting crushed by their student loans. It's sort of like all those sub prime loans back in 2008-2009. It's all going to come down at some point, but they keep handing out those loans and tuition keeps rising. Not a good situation. Hopefully Elizabeth Warren and some others start to push harder on that front--it's a truly unjust situation and too many people are making money off of student borrowers. Ok, that's the end of my soapbox rant!! So, getting back on topic, even though I can't get out of my student loans, BK7 looks like one of the best options right now. I'd like to fight, but I'm worried about losing and getting stuck with a lein if I lose. Plus, I'm having a hard time cramming in the study of law on top of everything else. I'm just trying to get the bad financial decision that was grad school behind me as much as possible. But I have to say once again that I really appreciate all the help and info I have found here so far. If it wasn't for you all, I would have lost via a default judgment about 6 months ago, when the suit was first served on us. You folks have really helped me a lot. @BV80: thanks for stepping in before the thread went completely haywire.
  2. Hi Calawyer, Thanks so much for your response. You're right--the declaration says that the person named "is available for service of process through an agent of his/her counsel at the following address: ABC Riverside." I appreciate your help, and pointing me toward Target vs Rocha. I have definitely learned a lot from this forum, and I already consider it a success because I learned how to avoid getting an automatic default judgement by properly responding to the initial suit when I was first served. I'm really glad I found this site. At this point, my wife and I are considering filing for Chapter 7. Mostly because this isn't the only creditor that is going after us. I learned enough to keep thing at bay while we looekd at our options--once again I really appreciate all the support and info on this site. It's pretty amazing. We're both grad students with lots of student loan debt. The credit cards got out of control near the end of grad school, and we're sinking in debt right now. I'm thinking Chapter 7 is the best option at this point. We don't care about our credit scores--we just need to get out from as much debt as possible so we can start to rebuild our lives. But I wanted to run it by some of you here to see what you all think. I could keep fighting this case...but there are 6 others we'd have to deal with right behind it. I have learned a lot by reading through this site. In fact, this experience has really sparked my interest in law. I realize that I find it incredibly fascinating, and I'm seriously considering taking my grad school training (in social science) and going into law. Thanks again to everyone who participates in this site. It's so great that people are willing to create and maintain a site like this, especially when so many people are dealing with debt issues.
  3. Thanks Clydesmom, You're definitely right that I need to study more. I'll admit, all the terms and procedures get confusing. Do you have any advice about dealing with the affiant? In this case, would you recommend trying to subpoena or CCP 98 to get this person to show up to court? Also, in terms of filing a motion to strike evidence as hearsay, does this happen in the actual court proceeding or is this something I can send as a document as well? I know I have a lot to learn. The court date is in the middle of next month so I need to learn as much as possible. Thanks again for your help.
  4. Hello all, My court date with FIA Card Services is coming up next month. I recently received a "Declaration of Plaintiff in Lieu of Personal Testimony at Trial," which was signed by a person who works for a process server. This person claims to have "personal knowledge of plaintiff's procedures for creating and maintaining these records." Exhibit A in the document includes a few monthly statements from 2012 with Bank of America. I just read through this: http://www.creditinfocenter.com/legal/motion-to-strike-affidavit.shtml So it sounds like I should make a motion to strike this evidence, and also subpoena the process server who signed the document. Is there anything else I should be doing to respond to this? If this evidence is thrown out, what can the OC use against me in court? Also, how do I do a subpoena for the process server?? Thanks in advance for any help or advice. This forum has been incredibly helpful as I have tried to learn about this whole process. *** FYI here are my answers to standard questions: 1. Who is the named plaintiff in the suit? FIA Card Services. 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Rather not say. It's a firm located in Northern California. 3. How much are you being sued for? Approx $15,000.00 4. Who is the original creditor? (if not the Plaintiff) Bank of America? 5. How do you know you are being sued? (You were served, right?) Yes, served. 6. How were you served? (Mail, In person, Notice on door) Mail. 7. Was the service legal as required by your state? Yes, I believe so. 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None. 9. What state and county do you live in? California. 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 2012. 11. What is the SOL on the debt? To find out: 4 years. 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). I sent in Answer, req for production, and just received response to the req for production. They did not send the original application or signed contract, only some account statements. I also asked them to verify the debt, which they did. They also sent a Request for Admissions--I responded DENY, saying that all the questions were too vague to make a determination. They sent Specially Prepared Interrogatories as well--I objected to all of those, arguing that the Plaintiff has only provided vague, contradictory, and inconclusive evidence. The Plaintiff did verify the debt, but the account number did not match the account numbers listed on the statements they sent. There were five different numbers on the statements. The most recent document, sent by the process server, attempts to argue that the numbers are different because accounts are changed when they are charged off. 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No. 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. Yes. 15. How long do you have to respond to the suit? Already responded. They claim I owe on an open book account, because of written agreement between plaintiff and defendent. Sued via common counts instead of breach of contract. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. No evidence sent with the summons beyond a vague mention of "an account" and the dollar amount allegedly owed. In my answer I said they failed to state their claim due to a lack of any evidence provided. They did not provide an account number, a signed contract, etc. After the Demand for Production, they did send a big stack of statements and some checks with payment amounts. The statements have various differnet account numbers. The most recent evidence, included as "Exhibit A" by the process server, only includes a few account statements with one of the FIVE account numbers that were included on the earlier statements. 17. Read this article: Done.
  5. Thank you Spikey. I am sending the docs today but was worried that the RFA is past the deadline. You're right that I need to pay close attention to all these deadlines. I did send the original Answer on time, and I appeared in court for the "settlement hearing." The lawyer for the other side seemed shocked that I was actually there, and kept asking me if I would be interested in settling (he even talked over the judge, which she did not appreciate). The law firm sent me a cover letter witht the RFA, Interrogatories, and Demand for Production. I have all these in order but am not sure if I should send a cover letter as well. I have one written that basically says they have no case against me and have only provided vague and inconclusive evidence. In their letter they mention that trial and discovery are expensive and that they would prefer to settle this matter. In my letter I agree, asking them to drop the case and cease all actions against me. I also end the letter by telling them that I am a graduate student with no money, so even if they did have a case against me they would not be able to win a financial settlement. Is it a bad idea to send a letter in reply? Should I just send the documents and stick with the "less is more" approach? Thanks again for your help everyone.
  6. Hi, I received a letter about a month ago from the law firm that is suing me. The cover letter asked for all documents within 35 days. I had everything ready and planned to mail today, but I just realized that the deadline for the RFA was 30 days not 35. It's a detail that I missed. I saw the 35 day deadline on the cover letter and wrote that down in my calendar. What can I do next? Does missing the RFA mean it's an automatic admission? Is there any way to ask for an extension?? Thanks in advance.
  7. Thanks for the replies. I realize my case is a bit more complex because it's a dispute with an OC. Shellieh98: I have not sent a demand for a bill of particulars. I will do that. Do I need to send a copy of this demand to the court, just as I did with the first request for production? Skippy1960: Do you have any suggestions for reading up about the evidence requirements for a case based upon account stated? I have read up a bit about challenging live testimony and affidavits, but clearly I need to read more. It's good to know that nothing they have sent is evidence until it's actually authenticated. The debt is greater than 10k and less than 25k. Thanks again. Back to my new side job of reading up about all this!
  8. Here are all the required questions (sorry for posting this late): 1. Who is the named plaintiff in the suit? FIA Card Services. 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Rather not say. 3. How much are you being sued for? More than 10k 4. Who is the original creditor? (if not the Plaintiff) Bank of America? 5. How do you know you are being sued? (You were served, right?) Yes, served. 6. How were you served? (Mail, In person, Notice on door) Mail. 7. Was the service legal as required by your state? Yes, I believe so. 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None. 9. What state and county do you live in? California. 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) One year ago. 11. What is the SOL on the debt? To find out: 4 years. 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). I sent in Answer, req for production, and just received response to the req for production. They did not send the original application or signed contract, only some account statements. Court date is in about 6 months. 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No. 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. Yes. 15. How long do you have to respond to the suit? Already responded. They claim I owe on an open book account, because of written agreement between plaintiff and defendent. Sued via common counts instead of breach of contract. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. No evidence sent with the summons beyond a vague mention of "an account" and the dollar amount allegedly owed. In my answer I said they failed to state their claim due to a lack of any evidence provided. They did not provide an account number, a signed contract, etc. 17. Read this article: Done. Thanks so much. I am a dead broke graduate student and really need help here. Thanks for any advice you can provide.
  9. I was recently sued by FIA Card Services for credit card debt. The Cause of Action/Common counts alleged a debt owed within the past four years, "because an account was stated in writing by and between plaintiff and defendent in which it was agreed that defendent was indebted to plaintiff." The common counts also states that defendent owes plaintiff "for money lent by plaintiff to defendent at defendent's request" and "for money paid, laid out, and expended to or for defendent at defendent's special insistence and request." I responded with an Answer, a request for validation, and a request for production of documents. I specifically asked for a copy of the original signed application and the executed contract that spells out the terms agreed upon. I also asked for a copy of any modifications to that agreement, a copy of all statements from the account, details about all charges, and evidence of all payments received (six total demands). The attorneys responded with the validation, and I just received the response to the req for production. First, they objected to all of the demands, saying they are "overbroad and unduly burdensome." They also called many of the demands "vague and ambiguous." In response to the demand for a copy of the original signed application, they said they are not required to keep that information as per Regulation Z. They also said they cannot comply with the demand because the account application is no longer available. In response to the demand for a copy of the executed contract that spells out the terms, they objected, saying they did not sue on a formal breach of contract but on common counts. They also objected saying that the defendent is already in possession of the requested information (which is not the case). But they claim to comply by producing the account agreement, ammended account agreement and monthly account statements. However, they say that there is no requirement that the defendent signed the account agreement. Their argument is that "defendent's own voluntary action of using the credit extended" bounds defendent by the terms of the account agreement. They did not supply the original signed applicaton or a copy of the agreement with FIA Card Services. They did send some standard generic account agreements and ammendments, along with some account statements. They also sent six copies of checks from 2006-2007 showing payments, but that's it. The most substantial info they sent was the stack of account statements. The statements consist of 5 different account numbers. QUESTIONS: 1) Don't they have to provide a copy of the signed contract in order to take this to court? Or is this not the case? My understanding was that the creditor has to prove the debt--do they still have a case without the signed contract and/or original application? 2) What is the difference between suing based upon common counts vs breach of contract, and why does this matter? 3) How should I respond to the plantiff's reponse to the req for production? Would it be better not to respond since they admitted they do not have the signed contract? Any advice will be greatly appreciated. Thank you so much.