ManFriday

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About ManFriday

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  1. I just ran into an issue in which I discovered that you can claim that the court has no personal jurisdiction over you unless you were properly served. But there are some GOTCHAS from what I have read. You cannot counter-sue. If you file a countersuit in your answer, you have submitted to both the authority and JURISDICTION of the court. Merely answering is not a problem.Try to make sure that you complain about the erroneous service when given a chance. Usually at your first opportunity, you make an affirmative defense that the court has no personal jurisdiction over you. Only if this is "cured" by proper service within (120?) days of the suit will you be properly under jurisdiction.Make a motion (or whatever you do in California) and ask the judge for a hearing to decide jursidiction. Do this after the (120?) days have expired.Courts in most states have zero leniency for improper service. It's either by the book, or it will be dismissed unless cured. I can show you cases in which my state's supreme court will dismiss a case if the subpoena served doesn't have the correct verbiage.
  2. I am interested in this, too and came across this old thread. In fact, I was just coaxed into doing this by someone. Filing in Federal Court seems daunting, but that may be something worth exploring.
  3. A non-suit was a dismissal, without prejudice to refiling. The plaintiff, at any time prior to the trial, can request from the Court or sometimes the Clerk to dismiss the case. Since the trial was moments from beginning, the plaintiff's lawyer asked for the non-suit, which is always allowed by the judge. Case dismissed... but it never went to trial. So there was never a trial on the merits of the case. The lawyer was hoping to coax you into a settlement offer. If he had done so (they always try) then he would have had you fill out some form with some dollar figures inked in, sign it, and when the case was called, he would have told the judge of the settlement. He might have even had something filed with the court and approved and the jury trial waived, etc. You heard the term from the lawyer as a verb, which is common. He "non-suited" the case by withdrawing the complaint.
  4. I have noticed that in the Arkansas Rules of Civil Procedure (check your state), that if a particular time restraint in under 14 days or something short, then there is a permitted 3 days or so for the item to be received in the clerk's office. On LONGER time restraints, such as specific days ordered by the court and 30-day time limits, there is no 3-day addendum permitted. Read the rules 10 times, and once you are sure, send in a very short motion to dismiss, with a short proposed order. Add to that a response/reply/answer to the Motion for Summary Judgement, and it will be much longer. Remind the judge there that the MSJ was defective. Make an attached brief to support your response to the MSJ. Use language of "surprise" and "untimeliness". You may also split this out as a motion to strike, claiming that the MSJ was untimely. However you do it, make sure you use language from the Rules of Civil procedure in your state and cover all your bases... Make sure you ask to strike specific parts and the entirety Respond to the MSJ itself at length as if it is valid and timely Ask for more time to amend your response or your answer to the suit List affirmative defenses in one of these if you haven't already Mention the lack of standing, failure to follow rules, failure to state a claim Write a proposed order or two for dismissal without prejudice as a sanction against untimely filing of MSJ This may be 2 or 3 separate filings. Hit them all on the Friday after Thanksgiving!
  5. It seems to me that any bank account can be levied. This also includes PayPal, as I have seen levy notices appearing on a PayPal account that debtors have posted on the Internet. There are secured credit cards, too, in which you send in $500 and they give you access to your own money. Since a secured credit card is in effect a bank account with access via MasterCard, Visa, or Cirrus/ATM, then the amount deposited for a secured credit card can be levied. The "prepaid" debit cards are a different animal. Read all of the fine print of the Walmart MONEYCARD cardholder agreement. One of their criteria is that this card is available to minors, and it is pretty accessible at thousands of stores. THERE IS NO MENTION of the possibility of levy on this card's balance. In fact, if you don't register the card in your name (and social security number) then they don't even know who the funds belong to. So you can be very, very paranoid and never tell them who the cardholder is. If you don't register the card, you better not lose it or get it stolen, because it might be impossible to recover funds. So it may be better to register it and see how difficult it is for a levy to occur. Reference (not a good URL so remove the extra space): walmartmoneycard .com /walmart/cardholder-agreement Now, as for the actual discovery of which bank you have funds deposited in.... Unless you volunteer this info at a hearing or in paperwork in which the court threatens you with contempt unless you fill it out truthfully, there is a mystery as to where your funds are. You could try using a friend's bank account and borrowing their debit card... or you could try out a non-local bank. Back in my younger years, I moved and maintained an account with a bank in which there were no local branches, so I would simply mail deposits to them and access my account from afar. I did it for a few years. It works okay, but direct deposit is a kicker so be careful. Whatever you do, make it a mystery to the casual collector, and change your formula periodically, and try multiple stashes if you have enough cash flow. Just as an aside, judgments are no guarantee of levy. Not only can you claim a lot of exemptions if they do find your account, the fact is that shotgun levy of 10 local banks is incredibly expensive. So even moving to a smaller bank can make the creditor's job difficult. Watch out for where you get printed checks from, because the large check printing companies may be forced to tell a creditor what your most recent bank & address you used since this is tied often to a SSN on file. So maybe skip the "free" checks when you open a checking account. As other have mentioned, once your creditor finds the bank account, you have no obligation to keep depositing money there. Immediately stop all activity there and go to another method of money management. Direct deposit and recurring payments need to be stopped fast, and of course any bank loan at the frozen account's bank will be a nightmare. This is why it can be convenient to have loans from one source and checking accounts from someplace else. You just found out the hard way if this happens. Heaven forbid if (for example) Bank of America was where you had a car loan, checking, home loan, etc, and then you get levied. You need to call a bankruptcy lawyer. Speaking of cars, there is some difficulty in garnishing a vehicle because of all of the fees, exemptions, prior liens, and the low auction prices. Unless you own a newer vehicle or at least a valuable vehicle, the collector will get very little of the proceeds if they have your car seized by the sheriff. If your car is worth less than $5000, it may be a bad target for the collector. If your vehicle is paid for and is worth $10,000, then watch out. Albeit a slow process, a decent vehicle is worth seizing and auctioning, especially if you park it in a driveway or on the street. Remember that although some of the value of a car belongs to you (if your state has this exemption for $3000 to $6000, for example), you only get this money after the auction as a statutory lien on the auction sale. So this could be months after seizure. Ideally, if you have an expensive car, sell the car, get some cash to buy a clunker, and then settle the judgment for pennies on the dollar. You don't want the sheriff doing it for you. Don't let this be you:
  6. Haha, so this should be a sticky... To avoid an enforceable judgment against you, all you got to do is leave and never come back. (But watch out for pirates out there)
  7. I am looking for a lawyer who practices in Arkansas and is familiar with FDCPA and AFDCPA claims. I will probably need help with the lawsuit filed against me and the resulting countersuit because I will be suing them. I have looked around, but there doesn't seem to be too many that cover creditor versus debtor lawsuits. The location of the lawyer doesn't matter, because I am willing to call and talk with anyone. Maybe Coltfan is around and will have some ideas. Feel free to pm me or send me an email or whatever. Pro se is not all that fun for some of us. Thanks in advance.
  8. It means that while most evidence needs to have an affidavit included with it... a billing statement does not. For example, if you wrote a letter to your creditor, it cannot be entered as evidence without an affidavit that you wrote it. If you are in court, you would be sworn under oath and it would be evidence if you said you wrote it. If your lawyer was there and you were not, then your lawyer could not submit the letter without an affidavit (they could try, but the opposing lawyer would object to it as hearsay under rules of evidence). A billing statement or receipt appearing to be valid can be offered as evidence without the normal rules of evidence. Any objections would likely be over-ruled by the magistrate.
  9. Well, no counterclaims and it was before discovery. The defendant showed in his response, (which was not really a response; it was a motion plus an affidavit) that the case was filed by a Homer Simpson lawyer.... Doh .... in the wrong court. Hence the strong upper hand of the Defendant. Here is what happened. The Plaintiff requested a dismissal w/o prejudice and it was granted the next day. (Too fast to hear any counter-motions.) Meanwhile, Defendant with no immediate knowledge sent a motion to strike their motion (since the Plaintiff could have voluntarily dismissed via the Clerk and a few other reasons), and therein requested a dismissal w/prejudice due to Plaintiff's wasting the court's time on stupid motions. The judge then later saw this (probably laughed) and issued a letter stating he had already dismissed w/o prejudice, and that there was no grounds to strike or to dismiss w/prejudice since it was in the Plaintiff's power to non-suit. Thanks everyone for all the Evil surmisings in this thread.
  10. Why would a plaintiff ask the judge to dismiss a case? Don't they have the right in all states to simply write a letter to the clerk and the clerk will remove it from the docket immediately? I am just wondering if there might be a confused lawyer for the plaintiff who needs to be schooled in how things work... There were a few irregularities in the pre-trial which caused the defendant to have the upper hand, so the plaintiff is going to dismiss it voluntarily, but why would they pray the court to dismiss it when it is in their power?
  11. "What will happen if I can't pay?" "What will happen if I can't pay anything for 2 months?" "What is the name of the company you are working for?" "Did the (Original Creditor) authorize (your company) to collect, or have they sold the debt and written it off?" "I am disputing this. Have you verified this alleged debt with the OC?" "Can I have your name and employee number?" "Could you update your records about me and make a note that it is inconvenient to contact me Sat, Sun... It is also inconvenient to call any day before 6 pm or after 8 pm. It is also inconvenient to call me on Wednesdays. So can you tell me whether you will honor this request to never call me during an inconvenient time? If you call during those other times, I will be able to work with you." "What will happen to my credit rating?"
  12. I just noticed that my cell phone looks like it has a stereo jack for listening, but not for talking. (The iphone may have a similar jack, since I think they made it like an ipod.) If I hooked up a recorder to the headphone jack, my own voice would not be on the recording I don't think. Maybe with enough adapters I could feed in a phone call to a computer's sound card and record it somehow. They normally have a "line in" which could record the stuff from the caller. And if I simultaneously talk into a microphone connected to the computer, we could do something. (Line in - records them, mic records me.) Or maybe a bluetooth accessory exists which enables recording while talking/listening because all cell phones have bluetooth now?
  13. When the SUV was bought, her financial condition was much different, and she traded in an equivalent smaller vehicle for that. I guess Long Island, NY and my area are a bit different. This is not California, either. No $600 vehicle would fit anywhere near her family size. Would likely have to look at something in the $3000 to $5000 range to be realistic and reliable. But that would dry up cash or be a different loan. There's a "can't get there from here" problem when you suggest a cheaper vehicle. Good idea in theory. She'd love a $150 car payment on a VW Bug, but she needs a big boat like she has.
  14. Jo, hold on to your hat. I have some info pertinent to any cases you have, but I would prefer not to publicize them here. Without 20 posts I can't send you a PM, but you could send me one if you think it is right, but I couldn't reply. I did some research, and although this info is available and known, it is likely to be a trump card in your case that I don't want to get widely dispersed. Sorry for being obtuse, and I am not trying to go around the rules of the forum... just want to keep it quiet.
  15. Fight, Jo, fight. Have you explored an arbitration company, yet, about fees and location? Also, being in Arkansas, I found out the lawyers cannot be treated as a collection agent. They are therefore not regulated as such. Have you inquired what the relationship is between them and the original creditor? You need to determine who this is... if it is a CA who hired your local rent-a-lawyer, then you need to push against the CA (not directly, but via their lawyer). Look back at any paperwork that says that it is an "attempt to collect a debt" which they must have put. That is supposed to be sent with the CA's name, who must be registered in AR. If not, they are in deep trouble, because the fines are severe ($50 to $500 per day). See www . asbca.org / collection_agencies/ index.html (remove the spaces) Download the entire set of PDF files with something like DownThemAll (a plugin for Firefox) or something like that. Read the exemptions in 17-24-102, which includes lawyers. The lawyers are exempt from the definition of a CA. If this law firm represents a CA, it HAS to be registered in AR. They could be representing the OC (unlikely), which you could find out by contacting the OC's phone on the back of your old credit card. Or if no answer, contact their legal department for a quick response. A letter to your Attorney General will get a reply from the OC's legal department, too, and even a phone call. OC's are good about speaking with you if you send a letter to your Attorney General, and their answers are generally pretty accurate. Ask them if they have charged off your debt, sold your debt, or are using a CA and if so, who?