LawKitty

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Everything posted by LawKitty

  1. There was recent case law that ruled that notice of assignment of the debt is not considered a condition precedent to filing a lawsuit. Many judges considered if they could produce a letter and state it was sent that it was good enough even before the case law but occasionally you could get a judge to want more proof. But now it isn’t a condition precedent. I don’t have the case at hand but there was one in the last few years that ruled that way. For pro se parties if you can do the arbitration method it still seems to have some success. Fighting in court is more difficult now but if you’re going to fight in court, demand a jury trial in your answer. Too many judges are creditor and bank friendly in Florida and will almost always rule for creditors.
  2. I am still around but don’t get on here as much. Yes you need to find out how service was made. Often I find that someone you were living with may have been served and may have not told you or people forget if it was a while ago. If service is valid then you have limited options. First things is file for a claim of exemption if you have kids or pay 51% of another person’s living expenses. You have to do this quickly as there are time limits. You will have to attend a hearing and prove that you are head of family and your wages were in the bank account to get your money back. The other thing is that you could possibly talk to the creditor’s attorney and settle the debt, however if the judgment is a few years old it may have ballooned to a large amount compared to original debt due to interest. Last thing is you can file bankruptcy but not as likely to get your money back if they already got it. And would only do that as last resort if you have other debts you’ve been sued for or are in danger of getting sued for. Florida has had some unfavorable case law the last few years that favor creditors so it’s gotten harder to fight these cases and the JDBs are not giving up as easily anymore.
  3. Yes, you can PM me about your situation. I'm licensed in two districts in Florida, but not the third. If necessary, I can refer out if I have to.
  4. Arbitration only works if they don't follow you into arbitration. It's expensive for them to arbitrate so they often drop the case instead of arbitrating. If they follow you into arbitration, you will lose. They aren't going to take a promise to pay later when you have a job. They will get the judgment, sit on it, let it earn interest, and then wait until you have a job and garnish you. By then, the judgment will have interest tacked onto it. If you can use arbitration, I'd suggest going that way in hopes they won't follow you into arbitration. But if they are going to follow you in, you will need to try and settle if you can to avoid a judgment. Even if you have to promise to pay $50/month or they get the judgment, that will at least keep you from having the judgment entered right away. As long as you keep up the payments, you would be fine. Better option if you have to settle is to use student loan money (if you can of course), or borrow it if needed and pay a lump sum because they often discount it. If you have medical bills in collection (which could sue you too) or any other debts in collections, charged off, etc., you can also consider bankruptcy to get a fresh start.
  5. Most likely they will file a lawsuit against you, as that seems to be what they like to do. With it being an original creditor and for the amount of debt it is, going the arbitration route once you are served with a lawsuit might be the best way. The cardmember agreement will need to have an arbitration clause in it. There are a lot of people on this forum experienced with using the arbitration method and can help with what you need to do in a general sense. Fighting an original creditor lawsuit in Florida in Court these days is almost always a losing battle. If you can't use the arbitration method, you may be able to negotiate settlement terms with Discover but even if they agree to payments to settle the amount, if you fail to make payments they will still end up with a judgment. If you're getting student loan money, you could also consider trying to do a lump sum settlement with them as sometimes they will discount the amount if you can pay a lump sum. You don't want a judgment because the judgment will follow you for many years and they could wait to come after you until you have a good job and some assets.
  6. I'm just stating that I've seen collection lawyers get past an arbitration demand with that argument and I've seen judges go along with it. I didn't say it was right. Debtors don't usually appeal those decisions though. As a pro se I would just be mindful that their attorneys have used that argument and state they are not suing on the basis of a cardmemeber agreement in account stated actions.
  7. Who is the attorney on the lawsuit? If it's an inhouse attorney that is good. Lately the JDBs are farming out their lawsuits to collection law firms and some of them can be a real bear. Also the statutory notice that used to be a condition precedent has now had an appellate court rule it is NOT a condition precedent anymore so it's no longer a valid defense. Generally we can still attack standing, of course, and also the requirements of an action for Account Stated, which in Florida generally requires that they be able to show the entire accounting, including payments and purchases, from the account inception until present day. A lot of these JDBs can't do that because they only get 6 months to maybe a year of statements from the original creditor. Also, some of these collection law firms are getting wise to the arbitration method and arguing that account stated does not require a written agreement so trying to bring in a cardmember agreement with arbitration provisions can sometimes be stricken because the cause of action is based on the account stated of mailing statements and agreeing to a balance to be paid, etc. So just be mindful of that.
  8. I would watch the court docket regarding service. If they haven't personally served you by pretrial date, the plaintiff will usually get an extension to try and serve you. If they know where you work, you could get served at work. Pretrial will be all about settling and getting you to agree it's your debt and making payments or consenting to a judgment. Debt collectors love this because they don't want to have to prove their case. If you hire an attorney you will have a FAR greater possibility of getting Midland to dismiss, especially in a small claims case. Arbitration is one way to go but Midland suits can often be defended and even taken off your credit reports along with a dismissal with prejudice (generally with an attorney). If you're going to do it pro se, then read up on arbitration as others around here successfully used arbitration to defeat the lawsuits. One wrinkle is that if they sue on "account stated", they can often get around arbitration demands because the lawsuit isn't based on the catdmember agreement per se, but on the mailing of statements and you 'agreeing' that a certain amount is owed. Account stated is the debt collector's favorite and most used cause of action too. Feel free to PM me if you have other questions as well.
  9. You need to object to the witness appearing by telephone right away. That gives them an unfair advantage as the witness will have access to information and/or be coached when if they appeared in person on the witness stand they would not have notes on the stand. File a motion to invoke the rules of civil procedure at the same time as that gives the basis to object to the witness appearing by phone. Once they file their motion for summary judgment it gets harder now to beat the case in Florida, especially for a pro se. You will need to argue material facts in dispute and that will depend on what causes of action they sued you on. If it is Account Stated (which is the favorite) then you have to argue standing (whether they have proven that they actually own the account), the entire accounting including purchases, payments etc. and whether there was an agreement as to amount owed (look at jury instructions for Account Stated), and try to get the affidavit of their witness struck due to lack of personal knowledge. I'd also ask for a continuance of the trial to do discovery and ask to take the deposition of the records witness, send requests for admissions, interrogatories and request to produce.
  10. You can motion for dismissal but you need to read up and understand WHY you are asking it to be dismissed and be able to argue that at the hearing. And to be honest, the PRA attorneys are pretty good at getting past a motion for dismissal, because it is a common tactic for defendants and lawyers to try and use. In fact, it is commonly used in a large percentage of lawsuits of all types and therefore it is usually fairly easy to get past a motion for dismissal. As for starting discovery, you will need to read up on this site and also the Florida Small Claims Rules and Civil Rules. Since you are pro se, PRA cannot initiate discovery against you. If you initiate discovery, then PRA can also ask for discovery. But you can't really prepare a case for trial without discovery. Discovery consists of written discovery requests, such as Requests for Admission (which you definitely want to file because if they don't answer them timely, it may really help your case); Requests for Production (which is where you ask for any documents, such as all of the statements of the account from its inception, all documents showing exactly how PRA got your account, and procedures for checking records, etc.); and Interrogatories (where you ask them written questions regarding the evidence they have or witnesses they will call, etc.). Interrogatories must be answered under oath. You could also ask to take depositions of their witnesses. This is where you ask them oral questions under oath in front of a court reporter. PRA will also be able to ask you to produce things. They often send requests for bank statements to try and get you to prove you made payments on the account they are suing you for.
  11. With small claims cases, we usually ask or stipulate to "invoking the rules" of civil procedure as those rules are different than small claims rules and then it would be on the plaintiff to get their witness there if you objected to telephonic appearance. They sued you in that venue so you shouldn't have to pay for their witness to appear to prove THEIR case. With a witness on the phone you can't tell if they are being coached or have info in front of them so most likely at trial they will seem very knowledgeable. I also always ask for a jury trial. You could still do a motion to invoke the Rules, file an answer asking for a jury trial. And file an objection to any witness or party appearing by telephone. Then I would send out requests for admissions, interrogatories, and requests for production. PRA is usually not geared up for a long fight in small claims court but with you being pro se, they will fight some but will generally do a Motion for Summary Judgment as their next tactic to end the case quickly and get their judgment, relying only on affidavits of their witness. If at all possible, I would do a consult with an attorney ( many will consult for free) or be prepared to spend some time on this site learning how to defend the case yourself. Plenty of people on this site have successfully beaten PRA. I've defended a lot of small claims cases for pretty cheap (always less than what the debt is) and I think people felt better about paying me than paying the JDB who bought your debt for pennies on the dollar and is trying to collect the full amount to make a profit. They file a ton of lawsuits because it's cost effective and they usually get payments or judgments that have extended their SOL considerably and have greater collection power AND earn interest. I've seen them get default judgments for $2000 or so and then sit on them for 5 years. After 5 years they will clean out a debtor's bank accounts or garnish wages or take a vehicle to be sold at auction and now the judgment is closer to $5000 to pay off. I had one client that actually got arrested because the judgment was on his business, not him personally, yet he ignored a personal summons to appear for a deposition in aid of execution and to fill out an information sheet on his assets. He ended up filing a bankruptcy at the end, but the judgment had been sitting for several years before the creditor decided to go after his assets. You may have nothing they can go after right now but people's financial situation can change and they will be watching for the time when it does and then go after you. So do what you can to avoid a judgment if at all possible. Once they get one, often the only way out is to pay it, or to file bankruptcy, which is generally more expensive than people realize. There is a lot of material on this site to help you and you have a bit of time, but you want to get discovery sent out right away because they need 30-45 days to respond to any discovery and they generally ask for an extension.
  12. It will be a LOT cheaper and easier to hire an attorney at this stage than post-judgment. It is much more difficult to have a judgment set aside than to avoid a judgment to begin with. Portfolio generally does not have the documentation to prove their case. Also I would object to their witness appearing by phone. You don't want their witness to be able to look something up or have notes. That's why it is so important to force them to appear in person so the jury or judge can see how well their "personal knowledge" is under cross examination.
  13. I see your court date is tomorrow. Hopefully you will appear to avoid the default. Just don't admit to the debt or any amount of it. They are going to try to get you to agree to make monthly payments or if you can't make any payments, to consent to a judgment. I would advise against either of those. Most people don't follow through on the payments and end up with a judgment anyhow. And consenting to a judgment, not making them prove their case, is never a good idea. Make them prove their case at least. They bought your debt for pennies and want to collect the whole amount plus interest. Plus a judgment can last a long time and they are often forgotten about until your financial situation improves and you suddenly have money in a joint account or are working a good job, or just paid off your car. Then they can go after your assets at that time. Some judgment holders prefer to sit on judgments because they earn interest and several years down the road, your $5000 judgment now is $10000. Since you are probably representing yourself, don't admit to the debt, having the credit card or anything. Anything you say can be used against you, but unlike criminal court, you don't have the right to remain silent. After all, it's quite common you may not recall the account. Tell the court you're not sure if they are the proper owners of the debt or that the debt is even yours. You want to do some discovery and ask for it to be set for a jury trial. A jury trial pushes it out even farther, usually. You always have the option to settle later. Many cases settle the day of trial, so having it set for trial will buy you some time to figure out what you want to do. If you are planning to try the arbitration route, I think that will have to be brought up at pre-trial tomorrow that you wish to elect arbitration. Make sure to read up on using that method and that you have the correct cardmember agreement that has arbitration in it. There are plenty of people on this site that can advise you regarding using the arbitration defense. Good luck and hopefully you will post back and let us know how it went.
  14. I have had pretty good luck getting PRA to dismiss the case and getting them to take it off the credit report. I personally am not sold on the arbitration method with JDBs, but I know some that have had good luck with it. With an original creditor, arbitration may be the best way to go because they DO have the documentation to prove the debt. With a small claims summons they will most likely require you to mediate and attempt you to get to admit to some or all of the debt and agree to make payments. That way they don't have to prove anything. Make sure you show up when they say or you will get a default judgment and they will try to raid your bank accounts or garnish your wages. Definitely do not ignore a summons.
  15. Your best bet would be to find a lawyer to represent you in the state you're getting sued in. Then you won't have to appear in court or your attorney can file a motion for you to appear telephonically if absolutely necessary. There are some attorneys who will take on JDB cases on contingency even. I personally don't because JDBs fight hard on attorney fees and I find it's easier for me to help more people by just charging flat rates for my services. But contingency lawyers make 3 times more per case than I do. So while they have to fight for their fees, it is more lucrative per case. You might look for a consumer attorney and try that route. Hope you get to feeling better.
  16. Are you being sued directly by the hospital or medical provider? Or is it a collection agency that has bought or been assigned the medical debt?
  17. Generally if the Plaintiff doesn't show up to Court, the judge will dismiss without prejudice (meaning that the Plaintiff can refile the case if they want and it is still within SOL). It's quite possible that the Plaintiff asked the judge not to dismiss if they were close to the SOL when they filed and the reason that they didn't show was due to excusable neglect. It sounds to me what might have happened is that either a) your wife moved after the original court date and didn't update her address with the courts (court notices are usually mailed to last address on file, but it is the party's responsibility to update the address with the court when they move, especially if there is an open case) and so she didn't receive important pleadings and/or notices and they got a default judgment against her if she didn't show up to another court date that they sent a notice for (and she didn't receive); b] the Plaintiff mistyped or there was an error in the certificate of service with your wife's address, and so she didn't receive important notices (attorneys often copy/paste certificate of service information from earlier pleadings so it's not unusual that an error might not get caught); or c) the Plaintiff certified they mailed a copy and didn't (usually something like this would only happen for a single document, unless the Plaintiff attorney, or legal assistant, willfully did not mail documents but said they did. Out of the 3, I'm thinking it is more likely A or B, as attorneys usually do not risk their licenses by submitting documents to the court without notifying the other side. If you can look at the docket in the case, it might tell you what happened. Sometimes if mail is returned, that is actually filed with the court. If you haven't moved, then you can check the address on the notice you did receive with the address on documents you didn't, to see if there is an error. If there is an error, you might have grounds to get the judgment set aside because there wasn't proper notice. However, if she moved and didn't notify the court, then it's very unlikely that the judge would set aside a judgment since it is her responsibility to keep her address current if there is a court case going on. Also, sometimes people receive things from the court and may not remember they received it, especially if it was over 8 years ago. If the docket does not show any mail being returned, then you might want to check around your house to see if any documents regarding the court case can be found. As far as there being two law firms having people of the same last name, that will most likely have no bearing as long as there wasn't a willful and knowing attempt to not notice her. If the Judge is related to the attorneys, then she probably should have recused herself, but again, you'd have to find out if she is related and how close. If she is closely related, then that might be basis to try and have the judgment voided, especially if your wife didn't move or she provided the court with her address if she did. The larger amount of the judgment is most likely due to interest for 8 years or so. It definitely sounds like she would qualify as 'head of family' and be exempt from wages being garnished. However, keep in mind that judgments are good for 20 years and can be renewed. They can attempt to garnish her wages again or clean out any bank account with her name on it. Generally they won't try again for at least 6 months or maybe even several years, but the judgment is continuing to accrue interest the whole time. They could also seize any non-exempt assets, such as a paid for vehicle If the value is enough to offset sheriff levy fees and storage fees. They can also attach a lien to real property so that if she sells it, the judgment gets paid first from the proceeds. If there isn't any way to find the judgment void or have it set aside because of improper notice, then she could always file for bankruptcy and that would stop all garnishments and the judgment could most likely be discharged. That might be an option if she has other debts piling up, anyhow. The exemption will hopefully give you all some breathing room while you decide what to do next, at least.
  18. Once you declare Bankruptcy (as long as this debt is included in the BK), then they can't come after you unless you sign, execute and file a re-affirmation agreement with them that states that you are not including them in the BK, or you commit some sort of fraud or misrepresentation to the BK court, or it is not a dischargeable debt (of which they are only a handful of those). The only thing I would be careful of is if you do go to arbitration and in arbitration, you sign an agreement with the creditor, make sure there isn't some clause in the agreement that says you agree to re-affirm the debt in the event that you file BK.
  19. Unfortunately with Discover being an original creditor, beating them in court is a long shot, at best. I would suggest going the arbitration route. Otherwise you might need to try settling with them or if you have other debts, file bankruptcy. An attorney might be able to negotiate a better settlement than you can get on your own but whether you want to pay an attorney for that or not is up to you.
  20. Generally the court-ordered mediation I've seen is in small claims debt cases only, or in family law cases. Yes, if an agreement or stipulation is signed in mediation, it will be binding. It may not be a consent to judgment, although that is possible that someone might get pressured into signing a consent if they can't make payments. Normally they try to get you to agree to make payments and you sign a stipulation. But if you fail to make one of the payments, the plaintiff can file an affidavit that you didn't make a payment, and then just get a judgment without further hearing or notice. Basically if you sign any agreement in mediation, they don't have to prove their case. That's why they like it. And to be honest, most people do owe a debt, although it is usually to a creditor who has sold it off to a JDB and they have already written it off their taxes as a bad debt. Because most people know they fell behind and owe a debt, they end up caving to the pressure of just making payments to a JDB and settling the case. The problem is that what often leads someone to have trouble paying the debt in the first place makes it so they can't keep up with the stipulation payments and they end up with a judgment and then their bank account is drained one day or their wages get garnished. If you want to fight the case, then don't agree to making payments in mediation.
  21. For some reason the forum quit sending me email notification when I was tagged or got a PM so I hadn't been on here as much. I don't know if I'm too late to help. They will just try to get you to agree to some type of payment plan in mediation. If you don't want to settle, don't let the plaintiff and mediator push you. Any negotiations discussed in mediation can't come out in trial if you don't settle because it's confidential.
  22. If Kenneth Sell is an employee of Midland, I'd object to that affidavit as being hearsay because how can he certify that business records from another company are accurate when he didn't work there, and probably isn't familiar with the original creditor's system of record-keeping and how they check for accuracy, how payments are credited, etc.
  23. It's still valid because the lawsuit was still active or open. It's customary for Judges to give Plaintiffs additional time to serve a Defendant. Plaintiff probably filed the motion for enlargement of time to get service because they didn't want the suit to get dismissed for lack of service. But at some point, a Judge will generally stop allowing extensions to get a party served, but of course, it depends on what county. Some counties will let a case linger for years open with no activity while others will file notices for lack of prosecution if the case is inactive too long.
  24. The date of filing the lawsuit is what determines if it is within SOL. When did you last pay on the debt? If the case gets dismissed and they have to refile, it will then be outside of SOL, if your dates are correct.