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Everything posted by unemployednomore

  1. So, I'm trying to clean up my credit report. The score is absolutely terrible, and it won't seem to go up. I think part of the problem is the set of student loans that defaulted and charged off several years ago. Last time I made a payment was 2009, and they remained unpaid on my report for the next six or so years. Last year, the lender (Wells Fargo) sent me a notice that they weren't collecting anymore and that I would get a 1099c in the mail that I'd need to report to the IRS. I'm insolvent, so I was able to avoid paying taxes on the amount forgiven. The date they were first delinquent was seven years ago (well, it will be next month - they went into delinquency in February 2009). I never paid them over the years (various financial problems like unemployment and housing in security prevented me). Wells Fargo zeroed out the balances at the end of 2014 when they sent me the 1099c. My question is: If these loans don't disappear from my credit report in the next few months (given their date of delinquency more than 7 years ago), can I get them removed even though the lender "paid" them at the close of 2014? Right now, the trade lines look like a nuclear holocaust of late payments. There are about 6 late payments on each loan (there are four of them), as well as about four years of straight charge-off status.
  2. Even if something is charged off, it'll impact your score much less if the debt is paid. The credit scoring model was updated in about 2014 to reflect this change. A payment on an old debt used to not matter much - if you had something derogatory, it didn't matter if it was paid or not; it would harm your score regardless of its payment status. http://www.inc.com/vince-passione/what-you-need-to-know-about-upcoming-changes-to-your-credit-score.html So, the important concept here: "FICO 9 forgives you once you make things right with the collections agency and pay the balance."
  3. Interestingly, it would appear Wells Fargo has decided to stop collection efforts (not that it ever made much effort...) and do a 1099-C. It's over $20,000 (which would more than double my income for 2014), but I'm insolvent, so I'll be submitting my taxes for next year with the insolvent form.
  4. I would send a certified/tracked letter to the lawyer stating your belief of identity theft, so you have something on file to say "hey, I told them this wasn't me." Might come in useful later for a cross-complaint.
  5. Same thing happened to me on my lawsuit. I made rent, car payment, and had a bit for food, but since I wasn't living in my car (or something similarly drastic), they wouldn't give me a fee waiver. The best I could do was to request a payment plan where I could pay over several months.
  6. Have you BOP'd them? Have they responded to any other communications? It wouldn't hurt to send a M&C at some point. Or even two. You could even call them to inquire if the M&Cs don't work. Whether you decide to file a motion or not, your efforts now to get the information outside of court will be appreciated when it comes time for trial.
  7. I do have some federally guaranteed loans, but my Wells Fargo ones aren't as far as I know (they don't show up on the federal database with my other loans that I got through the feds). I don't believe I have the original promissory notes anymore from the 1990s, or I'd check to make sure.
  8. According to this article: http://www.avvo.com/legal-guides/ugc/statute-of-limitations-on-promissory-note-in-california it's 4 years for promissory notes in CA - which is the same for things like credit cards. I know that the SOL won't stop them from suing; however, I've fought off debt collectors before who were trying to get zombie debt. Fairly certain I could do it again. It feels odd that they'd just walk away from 22,000 (or so) worth of debt. My only guess as to their silence is the debt I'm paying off to the IRS. I think they'd try to garnish wages or something but probably notice I owe Uncle Sam about 6K at the moment.
  9. The SOL in CA is 4 years. I made the last payment (no question on this) on 8/27/09. SOL here runs from the date of the last payment. My CR says it will fall off from reporting in 2016. I'm okay with that since I'm not planning to buy a house in the next several years and I also have a vehicle, so I won't need to make any big loan applications. Honestly, I've been waiting for a debt buyer to start calling me and harassing me, but each year Wells Fargo still reports the loans as charge off. Some background: when they originally tried to collect (in late 2009/early 2010), the letters came from 3 different sources. Wells Fargo and 2 of their directly hired collection agencies. No activity after that or contact AT ALL. My Wells Fargo loans aren't listed in there. My $128,000 federally-backed loans are, however. I make too much for food stamps. Which is surprising to me, but the limits are pretty low when you think about the cost of living here. Also, when my loans were current, Wells Fargo refused to do economic hardships or deferments for me. They told me that private student loans couldn't be put on hold for any reason. They were kinda assholish about it.
  10. Interestingly, I've still heard nothing from WF on these loans. Each year, they continue to report them in Charge-Off status. I know this thread is a few years old, but this debt is still following me and I don't seem to be able to do anything about it. Although I've won a court case at this point (on an unrelated debt), I'm still curious what Wells Fargo would ever do with these loans. They're not federally insured and are private loans, but I wonder if they'll ever try to sue. In 2012 they pulled my credit report, but I'm guessing they saw it was a minefield and thought it would be futile to try and sue someone with my laughable income and lack of assets. I know there's a gray area with student loans and SOL, but I'm fairly certain if anything happened at this point, it would be out of the SOL. I paid on these loans for several years until I was laid off during the recession and got the balance from about $25K down to $15K, but then when I couldn't pay the balance went back up to $22K.
  11. I know it's been ages since I won this case, but I thought I'd come back to update things. The lawyer on trial day warned me after the dismissal that they could come back and sue again (since it was w/o prejudice), but I haven't heard back from them yet. I hope they've learned their lesson. I can break out the lawyer garb and my phat legal motion skills again if necessary. I'm half-expecting them to sell the debt to someone else (despite the nearness of the SOL). Will be interesting to see if they do. I want a license plate that says LV2ARGU
  12. Oh, that's a new one. You "waived" your right to SOL? Utter bollocks. I'd love to see their actual argument on that (if you have a document or something). Even if it does to go trial, their witness won't show up and I bet you folding money they'll dismiss day-of before the start. My advice would be to prepare arguments in advance when you speak with the lawyer (he/she'll pull you aside that morning to discuss a "deal"). Although dismissing days before trial is common - it's also common to see a dismissal the morning of trial or even while you're speaking to the judge initially at the start. Prepare for trial as if it was going to go the whole 9 yards.
  13. Statute of limitations for breach of oral contract is 2 years. http://www.saclaw.lib.ca.us/pages/statutes-limitation.aspx Your lawyer might know this already, but just in case.
  14. I can vouch for the time-barred strategy regarding old debts. I had one debt that was an old internet service bill (which I disputed at the time, but they refused to work with me, so I never paid it) and by sending them a notice that the debt was beyond the statute of limitations, I got a favorable reply regarding the debt and how they would no longer collect it and would remove it from my credit report. Likewise, my mother had a old OLD debt from around 2001 (might have even been earlier) that a company was trying to collect and I wrote a letter for her regarding the statute of limitations and time-barred collection activities, and she got a similar favorable response. The debt collector said they'd no longer try to collect (interestingly, it wasn't even being reported on her credit report or my father's - yet they had been trying to collect on it for YEARS).
  15. I did a BOP and a request for production of documents when I was sued. You're never hurt by sending them as many discovery requests as you feel fit. Just remember the guidelines for total inquiries (35) and don't go over it. (well, I believe you can go over it, technically, but it might involve the court or a declaration by you as to why there needs to be more than 35). It's interesting that the verification by the lawyer would include verbiage as far as "this is true to the best of my knowledge." In my experience a lawyer's verification page is simply, "these documents are actually from [JDB] to the best of my knowledge. The lawyer doesn't actually know if the information in them is accurate. Kind of weird, imo, for the lawyer to suggest they know anything about the accuracy of their client's documents. It could actually be a good thing for you down the road if they've got their lawyer authenticating company documents. But I wouldn't worry too much about it just yet. ETA: Don't stress about filling the CMC form correctly. It's just a fill in the blank thing. Really easy.
  16. I'd still do the BOP. The bill of particulars furnished by the plaintiff is treated as an "amplification" of the pleadings. As such, it has the effect of a pleading. Consequently, at trial, Plaintiff is limited to the items and amounts specified in his or her bill of particulars. No additional items can be shown. (See Baroni v. Musick (1934) 3 Cal. App. 2d 419, 421.)
  17. Best thing to remember is that the opening statement shouldn't argue the case. It's a statement of what you'll prove - or what the plaintiff can't prove. Should be short and to-the-point. No rambling about case law and whatever else you might have put into a trial brief. The way I created my opening statement was to list each cause of action brought by the plaintiff and say, very simply, why the plaintiff could not prevail. Here it is (obviously you can't parrot this, but it might help you make your own!): As stated in my general denial, Plaintiff lacks standing to sue upon the alleged account. Plaintiff has based its case upon the existence of a contract, yet Plaintiff will not be able to produce a valid or admissible contract during trial. Plaintiff will not be able to succeed on its breach of contract claim. Plaintiff also alleges an account stated claim yet Plaintiff will not be able to produce evidence regarding any use or existence of any alleged account for which the defendant bears responsibility. In addition, Plaintiff can offer no accurate, valid, or admissible so-called final or closing statement on the alleged account. Therefore, Plaintiff's claims regarding account stated will fail. Plaintiff offers inadmissible evidence that lacks foundation and credibility, and cannot be authenticated by Plaintiff, its witnesses, or its declarant. In addition, Plaintiff's potential witnesses are incompetent and unqualified to testify upon any relevant details regarding the alleged account. Plaintiff's evidence will NOT show Plaintiff's legal ownership or right to collect on the alleged account. Plaintiff's entire argument rests upon the existence of a contract, which it cannot provide. Lastly, I am not an attorney, Your Honor, nor have I attended law school. I therefore request the Court's patience in advance. Thank you.
  18. I agree with the BOP suggestion. Based upon the response to this request, you can figure out further strategy.
  19. Re the subpoena: since you're a party to the action, they can technically subpoena you without actually doing the whole sheriff/process server delivery - you're listed as one of their potential "witnesses," right? In my lawsuit, I got a separate document requesting my attendance at trial - it wasn't a subpoena like the type that would come from the sheriff or process server. It was delivered via First Class Mail and was simply printed up on pleading paper with a request that I attend trial. Did they simply list you as a potential witness without making any formal request that you attend as a potential witness? Since you're a party to the action (a person named in the lawsuit), I'm not sure of the protocol regarding their ability to call you without a formal request. Also, the fact that they've not had a declarant swear to the authenticity of that "affidavit of indebtedness" is good - they don't have anyone attesting to the validity of that document. Without a declarant, the documents lack foundation, lack authenticity, are hearsay, and are ripe for you to make objections against them in your trial brief (or MIL if you decide to submit one to have their evidence thrown out). Also, the fact that Unifund has conveniently skipped over a portion of the chain of assignment is very good for you, I think. This seems like a very, very sloppy attempt on the JDB's part to provide documents proving ownership of the account. No authentication, no declarant attesting to their correctness, not sworn in the state of CA, etc.
  20. Actually, the two rent-a-lawyers with whom I spoke during my various visits to court were both ladies in their 50's (I'd estimate). Interestingly, however, they weren't bound to a specific law firm to argue a bunch of cases. They seemed to deal with cases from JDBs, OCs, and just about anyone considered a creditor.
  21. What I'm brainstorming for your Affidavit and Affidavit of Indebtedness as far as your arguments against them are below. These are just my thoughts, don't take them as gospel! they'll need backup from case law and support from California law! It would also help for me to see the verbiage that they included with their CCP96 response - should be on pleading paper and entitled something like "Plaintiff's response to Defendant's CCP96 request" or something similar. 1. The "Affidavit" is hearsay as it is a document not belonging to the Plaintiff. 2. The declarant in the "Affidavit" has no first-hand knowledge of the account. 3. Plaintiff has provided no address where declarant within the "Affidavit" may be reached for subpoena at trial. 4. The "Affidavit" is not sworn under the laws of the state of California. Also, everything but the first one in my list seems applicable for the "Affidavit of Indebtedness" as well. I never got to use this because my trial didn't get to this point, but I created an objection to their subpoena to me (I think these came from seadragon - if you use them, make sure they conform to your particular case). The objection was on pleading paper and looked just like a motion with the title: "OBJECTIONS TO NOTICE IN LIEU OF SUBPOENA TO COMPEL ATTENDANCE BEFORE THE COURT AND TO PRODUCE DOCUMENTS" with the following objections: 1. Defendant is acting in pro per in this action and as such would not be able to object from the witness stand. 2. Defendant objects to the subpoena on grounds that this request for information is overly broad, burdensome, and oppressive. 3. Defendant objects to the subpoena on grounds that the information sought is under the control of third parties and is, therefore, as easily accessible to plaintiff as it is to defendant. 4. Defendant reserves the right to amend these responses, to correct any inadvertent errors, or otherwise supplement responses if applicable documents are uncovered that were not located by the time of defendant's initial response.
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