BackFromTheDebt

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  1. Why a complaint? They usually allow alternate service if any bona fide attempt has been made to serve. For example, one time I was out of town for a week on vacation, so I got the alternate service since they stopped by my house twice when I was out of town. There are several possibilities here, and only the last two would warrant a complaint. 1. They will not even bother to try to serve you. In that case, the case will be dismissed without prejudice, meaning they can re-file it later. 2. They will try to serve you, and catch you when you are home. In that case, you will go along as usual. 3. They will try to serve you and fail. In that case, they will need to use alternate methods of service, or else have the case dismissed as in 1. The next two would warrant a complaint: 4. They lie and claim they tried to serve you and you were not home, at times when you were home. 5. The notorious "sewer service" in which they claim they served you when they didn't.
  2. Maybe, maybe not. Depends on the judge. At the very least, at the pre-trial ask the judge for a few weeks to write up a MTC. He might allow that.
  3. I don't know the rules of civil procedure for your court; whether filing today would be sufficient for the court on Monday. It would be better than waiting any longer. Send a fax, with the case name and number, to the other side's attorney. If you have any proof you sent the fax, save it. Make sure to bring extra copies to court Monday. Hopefully the judge will see you have the MTC in, and rule on it Monday. Most judges love to clear out their docket. Arbitration clears out the docket.
  4. Small claims in Wisconsin can be very different from county to county and even case to case within the county. In most situations, the magistrate or some other facilitator wants to get the case off the docket NOW. They have a rather heavy load. Sending the case off to arbitration gets the case off their load. I would suggest going into the hearing with a MTC in hand, and of course a copy for the opposing counsel. If possible, file this at least a few days before the hearing, and send a copy to their attorney CMRRR, so they can't claim they didn't get it. Trust me, if you do NOT send it Certified Mail Return Receipt Requested, many law firms will just claim they never got it, and that puts a burden on you. If you go into the hearing with the MTC, better yet if you have sent it in advance, then all the magistrate has to do is rule on your MTC on the spot. If you have written out a good one, then he won't listen to their complaints. Unless the magistrate just feels like ignoring the law. If that happens, you can appeal to Circuit Court. The advice of @firsthardcheese is not bad advice. It's just that if you have an MTC ready for action before you are even served, you can get this case over with at the initial hearing date. EDIT TO ADD: That, of course, assumes you can get an MTC ready in time. If you can't, ask the magistrate at the hearing for some time to prepare one.
  5. Yes, that is it. Good find. That is a use-it-or-lose-it provision. It is possible a judge or magistrate will rule that if you didn't demand the information when you first heard from the JDB, you lose you rights. In any case, as part of your answer, you should demand the information from the JDB. If you don't, you have certainly waived your rights.
  6. Wisconsin has an interesting law. A debt assignment is not considered valid unless the seller of the debt sends a letter to the consumer that the debt is being sold. Darn near nobody ever does that correctly. But then, try finding a magistrate that actually cares about that law.
  7. I defaulted in the days when arbitration had just dramatically changed, collectors had no idea what to do about it, and records were often bad. Just the threat of arbitration used to keep debt collection attorneys at bay. Then, right before SOL, I started hearing from lawyers about old debts. In one case, and I am NOT making this up, a small town law firm lost their one and only debt collection attorney, and my file sat in the bottom of a desk until a new lawyer discovered it right before SOL. There is something I did in arbitration I could not do in court. Some of the arbitration agreements had clauses that Delaware state law be used in arbitration. Delaware state law SOL is 3 years. So I countered their claims by saying they couldn't collect on these debts past 3 years. Nobody was willing to take that to the hearing.
  8. Indeed. The earlier you start the better. I was fortunate enough to find this forum BEFORE I defaulted on any of my debts. By the time I finally defaulted, I knew the situation quite well. That helped quite a bit, since I documented all the debt collectors' mistakes.
  9. The Wisconsin law for small claims is: A court date is usually set at the time of filing, BUT they have to serve you before the date. There are several ways to legally serve you for small claims court. 1. They can pay for the sherrif's office to serve you. 2. They can have a process server serve you. 3. If they cannot serve you, there are alternate ways of doing it. I can't remember exactly what they are, but they include either publishing it in a newspaper and mailing the claim to you, or else there are other ways they can deliver the service to you either in mail or at your home. Every case is listed online. You can easily look up the status of your case at any time. If they claim you were served, it will be in the court records online. So if the online records don't say you were served, and you weren't served, as far as the court is concerned, you were never served. One thing about small claims court in Wisconsin: Bad news: the magistrates often don't understand the law. Good news: if you don't like the decision, you can appeal the case to Circuit Court, and get the case heard before a real judge. You don't need any grounds for appeal. You just have to file, and the case is heard ab initio. There was a case on CIC not long ago in which somebody filed an MTC, and had that rejected by the magistrate. The magistrate ruled against him (or was it her? I can't remember). Anyway, s/he appealed to Circuit Court, and the real judge granted her MTC. S/he won. I hope that helps.
  10. There are reasons why I don't want to mention what state I am in. Long story, and a few people know the story.
  11. It is too bad you didn't post here BEFORE replying. I will explain at the end. This contract has an arbitration clause. You are dealing with a debt buyer. They rarely follow into arbitration. They almost always win in court. You can figure out what that means. I would VERY VERY VERY strongly suggest you look up the arbitration thread on this forum, and learn everything you can. Then, if I were in your shoes I would file a Motion To Compel (MTC) arbitration very soon Then, file in JAMS. The one caveat -- since you already replied to the case, in SOME jurisdictions (such as Florida) you would be deemed to have waived your rights to arbitration. In my state, you would NOT have been deemed to have waived arbitration. It is different in every state, and sometimes different from one judge to the next in the same state or even one case to the next for the same judge. In a nutshell, if you fight this out in court, you will generally lose. If you get this into arbitration, you will generally win. EDIT TO ADD: Since your pre-trial date is Monday, you are really in a rush to file an MTC. As in, it would be great to have that in today. At the VERY latest, have one ready for your pre-trial on Monday, with a copy for the other side. If you can file it in late this week, and fax a copy to the attorneys so they get it in time, that might be better for you. I am not familiar with the Ohio courts, so I can't tell you for sure.
  12. I hope you are right. Can't provide and haven't provided yet are two different things. You will find out if they can and are willing to provide the proper documentation soon enough. I once had a case in which I spent YEARS demanding certain documentation, and then at discovery time the documentation suddenly appears out of nowhere. Remember, this is like rolling the dice or playing cards. Truly strange things can happen, good and bad. Sometimes a firm will wimp out with other people and go full blast on you. That has happened to me. Or perhaps they will provide documentation and the judge will throw it out, which has happened to me. Or maybe they will run away, which has also happened to me. I will amend my advice. Figure out what you can and are willing to pay in a settlement. If the law firm comes in with the required documentation, I would strongly suggest a settlement. If they run away, so much the better.
  13. I love it when the other side shoots themselves in the foot like that. I had several cases like that. One of the weirder ones: one of my cases was assigned to a law firm in a small city out in the middle of nowhere. By that time none of the big debt collection law firms in my state would touch my cases with a ten foot pole. This was actually the FOURTH law firm to get the case that I know of. The first 3 punted on the case. Anyway, this tiny law firm had one and only one debt collection attorney. She sent me a dunning letter, I replied within 30 days with a DV request and a demand for arbitration (this was a card starting with the letter "d"). She had quit the firm just after sending me the dunning letter. She had filed a number of cases in court, and every one of those cases had to be dismissed after she left the firm. The file sat in the bottom of some drawer for over a year, until the firm hired a new debt collection attorney. He noticed that the state SOL was 6 years, and by this time it was about 5 1/2 years since the default. I filed in JAMS, listing a number of violations. They filed a counter claim for the debt, between 10k-15k. I filed a reply that their arbitration agreement specifies using Delaware law, and that the SOL for Delaware had long passed. We kept on going with this, through discovery, until it was getting time to book an arbitration date. I found that the local courthouse rented out rooms for this sort of thing. So there they were. Facing a hearing coming up soon. They would be on the hook for the room in the courthouse, for the arbitrator's travel, meal and hotel expenses, for the arbitrator's hourly rate for the hearing and for however long it took for the arbitrator to write up a decision after the hearing. And if I lost I would appeal to a 3-arbitrator panel. And, the arbitrator had never made a ruling as to whether they would use my state's law or Delaware law for the SOL. That decision would be made at or after the hearing. On top of that, I found some flaws with their statements. Over 100 flaws, most of them very picky, but enough to cast doubt as to their authenticity. D card decided to settle at that point. NDA and all that, but I was happy with it. Moral of the story -- make sure your firm is covered if the one and only debt collection lawyer walks out in the middle of a bunch of cases. Sorry if this is rambling a bit, but maybe the newer members would like a taste of what things were like in the Wild West days of arbitration, which in this case was less than a decade ago.
  14. You were just given the first step. That will buy you time for the second and subsequent steps. Bad news: no arbitration agreement anymore. If you fight this, you will probably lose. Good news: Texas is one of the most debtor friendly states. I don't think they can garnish your wages. However, there may be other ways they could collect on a judgment. The Texans here know a lot better than I do. There are two questions you need to ask yourself at this point. 1. How much could you afford for a settlement? 2. How bad would a judgment on your record be for you? The answer to #2 varies from person to person. If you are in certain fields where they do a background check, esp. if you ever need security clearance, the answer is very different from someone who is retired. living in a rental property and living off of social security. Meaning, if having a judgment would be bad for you, find some way to get as much money as you can for a settlement, and make a settlement. If having a judgment wouldn't be so bad for you, make sure they are aware of that, and offer whatever you feel like offering.
  15. To be fair, at least in the old days, there was a LOT of reason for hostility towards debt collectors, and debt collection attorneys. Many of them used to play fast and loose with the law, at best. Especially the Buffalo NY crowd, or places like Mitchel N. Kay. I have no idea how good a governor the current NY governor is, nor do I want to get into politics at all, but when he was NY AG he cleaned up the debt collection business quite a bit. I mean, when you have your phone ringing off the hook constantly, or keep getting called at work after sending a letter CMRRR telling them NOT to, one tends to have a rather negative attitude. I don't know if they have cleaned up their act or not. Some, I assume, are good people. Their antics made it easier to beat them in those days. Come in with a ton of counter claims and they were more willing to walk away from the debt. If they have cleaned up their act, it has probably been more because their old tactics were hurting them financially.