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Everything posted by debtorshusband

  1. What BTO429 said. Or for that matter, what I said before: But in order to intelligently draw up your Motion in Opposition, you need the paperwork to get the facts. Similarly, you can't intelligently fill out your General Denial until you see the paperwork. Then you'll want to get it ready to submit when your Motion in Opposition is granted. Finally, your second post said "Failure to Request Entry of Default". That's a whole different ballgame. Have you gotten the paperwork? What does it say? In any case, be at that hearing tomorrow without fail to make sure they don't run you over. Good luck, DH
  2. No disagreement with KentWA. Here's the process: On April xx, 2012, they started a lawsuit against you by filing a Compaint with the court. They also generated a document called a Summons, which basically tells you that you are being sued and it tells you what to do. The next step is a copy of the Summons and Complaint are supposed to be served to you. This is either done by finding you and handing the papers to you in person (Personal Service) or giving the papers to a responsible adult at your residence or place of employment and then following up by mailing you copies at the same address (Substitute Service). In rare cases, they may get permission for Service by Publication, which is putting a notice in the newspaper, but this is rare and unlikely in your case due to the time frame involved. For things to have progressed this far, they are claiming that you were served with the paperwork, probably by Personal Service or Substitute Service. Now they are claiming that you did not respond by filing an Answer within 30 days of being served, so they are entitled to win by default. It appears they have filed an Entry of Default Judgment. The Entry of Default is not the same as the Motion for Default Judgment; it is just a placeholder, that notifies the court that they will be moving for Default Judgment soon. Either way, now you do what KentWA said. First thing is to go to the courthouse and get a copy of all the paperwork, pronto. The clock is ticking. Some counties provide access to court documents through their websites, which would save you a trip. Your next step would be to file a Motion in Opposition of Default Judgment, on the grounds that you were not properly served. They will have filed a Proof of Service, and you'll want to attack that: maybe show that they served the wrong addresss, that the individual they claim to have served does not match the description of anyone in your household, etc. You'll want to prepare an Answer. California provides convenient forms for your use. Use one of these two: http://www.courts.ca.gov/documents/pld050.pdf http://www.courts.ca.gov/documents/pldc010.pdf When you find out more, we'll be here for you. Good luck, DH
  3. I have no idea if your request for a fee waiver would be accepted. My impression is that you need to be pretty destitute to qualify, but it can't hurt to try. If you know where the California court forms are found, there's an instruction sheet that goes along with the fee waiver form, so hopefully you can tell from that. If the fee waiver request is denied, you'll need to be ready to pay the filing fee for your Answer to be accepted; $225 for amounts under $10,000. Good luck, DH
  4. You seem to have picked up quite a bit already. Many posters might recommend you move to have service quashed. My advice would be to not waste time with this, as it only prolongs the inevitable; just move on and file an Answer. But you've already considered this and you say you think you need this extra time. In the end, you need to decide for yourself what course of action is right for you. Since you already know about the General Denial, I presume you know where to find the form to use? And that you know what the filing fees will be? Regards, DH
  5. You need to be more specific. What kind of account are you talking about? Credit card? Car loan? Mortgage? Personal line of credit? What information do you want? And why do you want it? Are you being sued? Who do you want the information from? An original creditor? A plaintiff in a lawsuit? Regards, DH
  6. Rivertime has already answered these questions, but since you addressed your question to me, I didn't want you to think I was ignoring you. If you don't know what pleading paper format is, you can probably Google it. Some of the paperwork you've received from the plaintiff is probably in this format, and you can use that as an example. Also, Microsoft Word has a template for this format, so creating your document is very easy. Another good resource is the book Win Your Lawsuit by Judge Roderic Duncan from Nolo Press. In addition to presenting information in one place in a logical sequence, there are sample documents in it. You can find it at libraries, bookstores, or online. Regarding a BOP, calawyer has posted an example. If you do a search you should be able to find it. I do have piece of bad news, however: for a last payment of Jan. 2009, the 4 year statute of limiations would run until Jan. 2013, so it would appear they filed with 8 months to spare. Good luck, DH
  7. You are correct, you only need to check box 2 if you are going to claim some Affirmative Defenses. Filling in your name on box 1 says you deny all their claims. There's been debate on these boards about Affirmative Defenses. One side says don't use any, because the burden shifts to you to prove them. I am not totally comfortable with this approach. While I understand the dangers of listing dozens of AD's especially if you don't understand them, my concern is that without any AD's the plaintiff will immediately move for Summary Judgment stating you have no defenses agains the action. Our attorney put down four. I recently posted them here: http://www.creditinfocenter.com/forums/there-lawyer-house/317179-help-affirmative-defenses.html You'll also find the arguments for the other side. Your spouse can mail the copy to the plaintiff and fill out the POS. I did it for my wife. You shouldn't need to use the POS-030(D) attachment. You would only need that if you were serving a lot of documents and needed the extra room. You should be able to fit yours (General Denial) on line 3 of POS-030. Here's how I did it: I took the signed (by my wife) General Denial form and made 2 copies. I filled out and signed the POS form myself, and made 2 copies of that as well. Then I took the documents to the courthouse to file them. I filed the originals of the GD and POS. The court clerk stamps the GD. The clerk also stamps the other two copies, making them "conformed" copies. I kept one copy of each form, and put the other copy in the mail. This is a bit of a Catch 22: how can I file a form that says I've mailed the Answer, before I've actually mailed it. Not knowing any better, I just did it and hoped I wouldn't get hit by a bus before I got to a mail box. Since then, I think I've learned you should do it this way: You take the signed GD and make two copies. You take all three to the courthouse, file the original, and get the other two stamped. Then your spouse fills out the POS and makes 2 copies. Put one copy in with the GD to mail to the plaintiffs attorney. Then you go to the courthouse to file the original of the POS. In this way you have circumvented the Catch 22 aspect. However, it means two trips to the courthouse. Good luck. DH PS I presume you're aware of the filing fee: $225 amounts under $10K, $370 for amounts between 10 and 25K.
  8. "Charge off" and "sold" are two different things. "Charge off" means the Original Creditor is now reporting the debt as a loss on their financial statements, but they still own the debt. Until it is "sold", at which point the debt is owned by whoever bought it. Regards, DH
  9. I'll give this a try, using the OP's number assumptions. But first, let me tackle the issue of "the JDB should only be able to collect at most what they paid." This is not the case. If it were, they make no profit, and in theory they're entitled to it. To illustrate: Let's say you and I play poker, and it comes to pass that I'm the winner and you're the loser, and you end up owing me $100, which you don't have. So you write me an IOU for $100. I bug you about it regularly, but for one reason or another you can't/won't pay. So one day I'm whining to a buddy named Bluto how I'm owed this money, and I'm having trouble collecting, and now I'm about to go to Hawaii, and I could really use the cash. So Bluto makes me an offer. He says, "I'll buy the IOU from you, so you have some cash to spend in Hawaii. But I want to make a profit for my trouble, so I won't pay the full amount. If this guy was a safe bet, I might be willing to pay you $90, and when I collect I'll make $10. But I might have rough this guy up, and then I'll have to buy some bandaids and mercurochrome for my skinned knuckles, plus suffer the associated pain, so I'll pay you $50. Making a $50 profit is worth the trouble to me." Now, can you see that arguing that Bluto is only entitled to the $50 he paid doesn't really make sense? Where's his profit for his efforts? With expenses, he'd actually lose on the deal. And you owe $100. Why should you get a break because I made a side deal with Bluto? Actually, the ability to buy and sell debt obligations for "what they are worth" when the associated risk is evaluated and factored in is kind of a cornerstone of our financial markets. That's what the bond market is all about. Now, to your money trail question, using all your numbers. (You didn't mention interest, but it's kind of relevant.) The OC loans $10,000 to the consumer. They are now out $10,000. They expect to get that $10K back, plus interest, which is their profit. So now they don't get paid back, and at some point they give up hope of collecting. They're still out that $10K, plus they won't earn the interest on it they were expecting. But meanwhile, they did make, say, $1,000,000 in interest from their other customers. The will owe $200,000 in taxes on that profit. But they get to deduct that $10K from their profit, making their taxable income $990,000, and their tax bill $198,000. (And the IRS take is $2000 short what it would otherwise be.) The OC sells the $10K debt to a JDB for $1,000. Now the OC's taxable income is $991,000, and the tax bill is $198,200. (And the IRS take is $1800 short). If the JDB gets a judgment for $10,000, and collects, they now pay taxes on their profit, which is $10,000 - $1,000 - $9000. The taxes are $1800. Scorecard: OC total loss is $9000. The IRS is out $1800 as a result. The JDB makes a profit of $9000. The IRS makes the $1800 up. IRS take comes out to a wash, and they're happy. Consumer has paid back the $10K they were originally borrowed, so they're back to even. Let's go to ArtVandelay's scenario: consumer settles for $5000. JDB profit is $4000. They pay the IRS their tax bill of $1000. Scorecard: OC total loss is $9000. The IRS is out $1800 as a result. The JDB makes a profit of $4000. The IRS gets $800 on the deal. IRS is still $1000 short of what they "deserve." The consumer has only paid $5000 of their $10,000 debt. They have $5000 "in their pocket" that the IRS considers unearned income. The IRS wants their cut, and they want it from the consumer. When the IRS gets their $1000 for the consumer's $5000 unearned income, the IRS now has broken even; the entire $1800 they didn't get from the OC has now been made up by the JDB and the consumer. I hope this didn't get too confusing. Regards, DH
  10. The only documents you should be producing are those that you want to use to help your case. This is the purpose of Discovery: each side must show their hand to the other. If they ask for something that will help them, you are not obligated to do their legwork for them. The answer is something like "A search of my records has failed to turn up any such documents." Good luck, DH
  11. Don't let the CMC statements distract or upset you; this is just minimum wage office drones pushing paper around without making sure it reflects reality. The judge isn't going to spend much time poring over CMC statements, anyway. You say this isn't your account; what did you say about this in your Answer? Sending a Bill of Particulars is fine. I'm not sure that Requests for Admissions is the way to go. The most important request you can make is for Production of Documents, in short all the documentation they are going to try to introduce as evidence. If this isn't your account, and this is a case of mistaken identity (or identity theft) you will want to really focus on documents that help you prove this, like the SSN of the person they are suing, what address they sent billing statement to, etc., and anything else you can think of along these lines. Good luck, DH
  12. Not only are they not suing the OP, the OP posted "It also states something along the lines of They will not use me for repayment of this obligation ,..." Of course I'm assuming "use" was a typo, and they were saying they will not "sue" him. Tell them to pound sand. And be snarky. Regards, DH
  13. Some comments: First, I don't think there's an FDCPA violation here for third party disclosure. For one thing, this wasn't done by a debt collector (covered by the FDCPA) but by a process server (not a debt collector). Also, in California, service by Substitute Service is proper: giving the papers to a responsible adult at the defendant's home or place of business, and following up by mailing copies to the same address. In this case, it seems to me they believed they had the correct address, and served the papers to a responsible adult. At worst, this is a simple mistake on their part, and one which might be even be laid at the feet of caligirl12, if she failed to inform a creditor of her change of address. Second, with regard to having to file papers in person, all I know is that plaintiff's attorneys file things with the court by fax all the time, including the initial Complaints. Now, it may be possible to quash the service on this complaint. And our OP certainly shouldn't have to bear the burden of fighting a court battle out-of-state. But in order to stand in good with the judge somewhere down the road (and I know this will be distasteful to people here), to show good faith the OP probably needs to contact the plaintiff's attorney, tell them they've sued in the wrong jurisdiction, and give them her correct address, then accept the eventual service of the papers and fight this out in court. Regards, DH
  14. I would send a Cease Communication letter, as provided for by the FDCPA, Section 1692c. I would probably add a snarky comment: "Due to the age of this matter, all records have been archived and my files have been closed." Regards, DH
  15. Here are the Affirmative Defenses my lawyer used on a General Denial, in California, against a JDB suing only for Account Stated: 1. The complaint fails to state facts sufficient to constitute a cause of action as against this defendant. 2. There is no account stated as alleged in paragraph X of said unverified complaint. 3. Plaintiff is not a proper party to this action and is therefore barred from pursuing same. 4. Plaintiff has failed to mitigate its damages, if any it had. Good luck, DH
  16. I think the first step is clear. Your father needs to call the plaintiff's attorney and tell them what you said here: he signed for a certified letter, but upon opening it, realized that it wasn't for him but for his son. Of course, then they'll ask him for your address and phone number. After that, there are two ways you could play this. Option 1. Your father stonewalls, doesn't give them the information. You do nothing. You hope that they cancel their Proof of Service, and continue to try to serve you. You hope they can't find you, and the case eventually gets dismissed. You run the risk that they continue to push the case forward, even with their improper service, and eventually they get their judgment and one day you get a notice that your wages are being garnished. Then you face an uphill battle getting the judgment vacated and stopping the wage garnishment. Option 2. Your father gives them your address, they serve you, and you fight the case head on. Your call. Regards, DH
  17. Make life easy on yourself and just use the form provided by the courts and check the boxes, here: http://www.courts.ca.gov/documents/pld050.pdf Good luck, DH
  18. No, you're not in the clear on anything yet. They are asking for judgment against you, but are dismissing defendants Does 1 to 10. That "Doe"s as in John Doe. This is a stupid thing lawyers in California do all the time, and I don't know why. The Complaint was filed against you and Does 1 to 10, even though there was never any real possibility they would add someone to the lawsuit. The "Does" thing is for use when you don't know the names of the people you are suing, for example, if you sue a company and you don't yet know the names of the company officers. In California debt collection cases, they always do it though, then they have to file paperwork to dismiss them, like they have here. Then, they've provided a calculation of interest they want to collect. The last thing is that they are stating that the original contract has been lost, but they are asking for a default judgment anyway. It appears that after almost 3 weeks you haven't filed in opposition of the judgment, and the case is grinding away against you, and that makes me really nervous. The more you delay the harder things will become. Good luck, DH
  19. Because I'm lazy, I'm cutting and pasting from another post. ---------------------------------------------------------- Do you know what this means? I know this is from the DV letter from this site, but I never put this in my DV letters because I haven't got the foggiest idea what it means. Here's what the FDCPA, Section 1692g, says: Sec. 1692g. Validation of debts (a) Notice of debt; contents Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing-- (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. I have highlighted with Bold font where the words "validity", "valid", or "verification" are used. You'll notice that the word "validation" is never used, except in the section title. According to the FDCPA, you dispute the "validity" of the debt, or else the collector will assume it is "valid." If you dispute, the collector must obtain "verification" and mail a copy of said "verification" to you. So what distinction is your (and the site's) DV letter trying to make? I really haven't got a clue. Regards, DH PS I decided to add the link to the original thread to my signature. Here it is since you don't have 10 posts: http://www.creditinfocenter.com/forums/while-you-debt-validation-q/316486-need-help-portfolil-recovery-associates.html
  20. My take on this is that most of this is just about them claiming they are suing in the correct court. The part about "for personal, family, or household use" just indicates this is a personal debt, not a business debt. The only part that related to the cause of action is "for goods, services, loan or an extension of credit." Whether you use the General Denial, PLD-050, or Answer-Contract, PLD-C-010, makes little difference. I prefer the General Denial, if the conditions for its use are met. Good luck, DH
  21. OK, here goes: http://www.creditinfocenter.com/forums/while-you-debt-validation-q/315510-debtorshusbands-debt-validation-letter.htmlhttp://www.creditinfocenter.com/forums/while-you-debt-validation-q/315510-debtorshusbands-debt-validation-letter.html Regards, DH
  22. If you are not served, the way it's supposed to work is the case gets dismissed. How long for this to happen varies from state to state, and maybe even from county to county. It's in cases where the process server can't locate the defendant that they may give in to tempatation and falsify service in order to get paid. You can prevent this from happening by being vigilant, checking the status of the case on line frequently to make sure they don't get sneaky. If you see they have falsely claimed to have served you, then you definitely leap into action. Also, the court will be mailing you notices along the way before they can get judgment, levy bank accounts, etc. From your previous post I thought the letters were from ambulance-chaser attorneys who wanted you to hire them to defend you against the lawsuit.??? But it doesn't hurt to go to the courthouse to get the paperwork. Knowledge is Power. Good luck, DH
  23. In most cases, I would say to just wait to be served, and spend your time in more productive ways: planning your strategy, get educated, read up on court rules of civil procedure, dig up records you may have that would help, etc. I would say not to go out of your way to get served, because why do the plaintiff/process server's work for them? And in many cases, there's a chance the process server won't be able to locate you. However, that's not the situation in your case; they obviously have your correct address. It's not really likely they're planning something shady; the process server has many cases to handle, and he probably groups them by location to be served, and he won't be working your area again until he goes through his cycle. However, there's a lot to be said for peace of mind. I think your anxiety is unwarranted, but that's not going to change how you feel. So, since it seems like it's only a matter of time before they formally serve you, if the suspense is killing you, go ahead and take the initiative. If you haven't/can't get the paperwork online, go to the courthouse and get copies, read it carefully, and then you can still decide if you want to wait to get served or preemptively file an Answer. Good luck, DH
  24. CACH has a whole stable of "lawyers" who make their living sending out dunning letters. These letters cross state lines all the time, so that in and of itself probably does not break any laws. Their "business plan" is that the letters on law firm stationary will be more effective at scaring consumers. However, their letters must meet all the usual FDCPA requirements. Regards, DH
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