Hearing Scheduled for Jan 28 - Need Help

[chroma]

I've been closely watching this forum since September, when I was served a Summons & Complaint in the State of Michigan. The OC is Citibank, who has assigned the account to an attorney (yes, they're licensed in my state). As of the date of the summons, the balance on the account is $12,750 and approximately 3 years past due. After carefully combing all of the posts here, I gleaned enough information to figure out how to answer the complaint and also ask for DV. Of course, they never responded to my request. I have given them ample time (90 days).

So, I called the District Court today to find out the status of my case, wondering if maybe I had missed something. The woman I spoke with mentioned that it was pending a pre-trial hearing. She then asked me when I would like to schedule that. I set the date for the 28th. My question is: How common is it that the defendant sets their own hearing date? The attorney is on the other side of the state, a good 3 hour drive. Does this mean they may not show up and I'll win by default?

I intend to bring a copy of the FDCPA with me, highlighting the validation section and a copy of my request, which they already have on file. Should I be prepared with anything else? Any help here would be greatly appreciated. Thanks.

chroma

[LadynRed]

Yes. A copy of Spears v. Brennan at least. The FCDPA is pretty vague as to what is validation but Spears. v. Brennan case is pretty specific .

[Lovely]

Good one, ladynred! Where could a topic interested person find specifics on the Spears v Brennan case?

[chroma]

Thanks, LadynRed... I found it right away in the search query. It's been printed and filed for my hearing date. Let's just hope the judge will take the time to look it over. Keep you fingers crossed for me!

chroma

[chroma]

Yesterday I received an enormous packet from the law firm representing Citi in my case. They have responded to my DV request. It includes every statement on my account from May 1998 to December 2004. Yikes! Also, they sent a copy of Citi's card agreement, however it did not include my signature on it anywhere. Plus, there are copies of the last 3 checks they received from me in 2001 (with my signature). Does all of this actually constitute validation on their part?

Additionally, it included the Plaintiff's Motion for Summary Disposition detailing their answers to my DV letter, entitlements they feel they should receive and a request for judgment in their favor. Attached to that is a Notice of Hearing they have scheduled for Feb 15, which differs from the original pre-trial conference date. Supposedly that is still set for January 28. Something strange with that though; I received a separate piece of mail from the lawyer TODAY stating that the Court had granted a request for a Pretrial Conference via telephone. The letter was dated Jan 20 and they listed the teleconference as Jan 21. I have obviously missed that date. Can they do that?! My paperwork from the Court states the 28th; I haven't received anything from them stating the 21st.

HELP!! I guess I'm not sure where to go from here. Am I in way over my head trying to go Pro Se? Have they actually validated my debt by providing all of this material? It certainly looks like they have a good case against me. I really don't have the cash to hire a lawyer. They are currently claiming that I owe $12,750 plus attorney's fees on an original balance of $6,625. What do I do? Advice, in any form, is most welcome!

Many thanks,

chroma

[dixiedrifter]

Hate to say it, but with all they just gave you, to put it bluntly your f*cked.

I suggest from this point onward, you try to:

1. reach some sort of settlment with the law firm where you pay so much per month for a set number of months and they agree not to garnish your wages.

2. move to a state that does not allow wage garnishment.

3. file bankruptcy.

[chroma]

At this point, I feel like it's not even worth the bother showing up to plead my case. For me, it means taking time off from work to deal with all of this. My only saving grace is that I make less than $800 a month in income. If they do try to garnish, there won't be much to take. I guess I'm in for the long haul now...

Many thanks for the response dixiedrifter.

[admin]

Show up in any case, and DO NOT FILE A BK. If you don't show up, they get a judgment. For $18K, it's not worth it. Really, you would regret it. I would try for a settlement. You can pay off the debt eventually.

One question - it's Citibank suing you directly and not a law firm actiing as a colleciton agency?

Kristy

[chroma]

Kristy,

I'm not sure how to determine if it's a law firm acting as a CA or Citibank. There is an affidavit attached to the original summons with a notary's signature by someone from Citi claiming to have first-hand knowledge of my account. Does that mean it is actually Citi suing me through this law firm?

[ghacorp]

I would agree, it's very good validation. Discover and Citibank are usually tough and thorough. A problem here is they can produce a representative in court with statements, checks, etc. I would go for a settlement of some sort before the trial date which is probably several months away. Yes, pre-trial hearings can be manipulated as these are for judges to determine if there actually is a case. As to a DV request, that has to be done prior to the initiation of a complaint clocked into the system. The purpose of the trial is for the creditor to prove before a judge the charges were made by the defendant. In this case, I don't think a DV request would have made any difference even if done at an early stage.

[chroma]

If I were to call the law firm tomorrow (before the scheduled hearing) and try to settle, how likely is it that they will 1) want to settle and 2) take anything less than the amount they are suing me for?

chroma

[admin]

No one likes court, even lawyers. The probability is high, if you have something to settle with -do you have any cash?

[chroma]

I have no real cash-on-hand to speak of. The only things I have going for me are: I don't make much, I have no assets (I rent my house and I own my car which is worth maybe $1000) and I have no savings for them to take. The only thing I can think of is the possibility of wage garnishment. Is it better to just let them finish filing the suit at this stage of the game?

[Recovering Attorney]

My opinion is you should do the pre-trial conference and try to negotiate a a settlement with the judge around. Judges can be powerful allies in that way.

1. What is your defense to the lawsuit? You will need to be articulate in that.

2. Tell the judge that, as a scheduling matter, that you will need time to digest the DV matter and do discovery. Suggest the summary judgment motion be adjourned so you can do this, as it would be otherwise unfair, the plaintiff trying to short circuit everything. Address this to the court, not your adversary.

3. Also, legal fees, if allowable, are determined by the court. This lawfirm has done very little yet, so their fees shouldn't be more than $500. Some states limit attorneys' fees , too ( In NYS, it is 15%). Also, they shouldn't get paid for complying with the DV, as that is a statutory requirement. If you are going topay legal fees, you have to see their bill first.

4. And if they can't produce an agreement with your signature on it, and the account was charged off, argue they should not get 2X % interest from 2001, as you are only required to pay what you contracted to pay, and the Court ( this is an evidence issue) has nothig before it that says you should bde chaged more than the statutory post-judgement interest.

3 and 4 are more arguments to make vis a vis settlement, but you could raise them with the judge as an " I'm having a hard time figuring out where they are coming from, judge" issues.

Have a payment plan at the ready, in case the judge asks if the matter can be settled. Say you might agree to stipulate to x per moth for a total of Y, and that as long as you pay the plaintiff, they won't seek judgment.

Hope this helps. This is nerve-wracking, just don't get scared and put your head in the sand. You can get through it.

Is the judge in your town? If so, GO to the judge's chambers for the conference. That way you'll be in the room next to the judge, who gets to see and talk to you, and the lawyer will be on the speaker phone ( annoying to anybody).

[chroma]

Anyone have thoughts on the following:

1) Looking carefully through the monthly billing statements the law firm forwarded, something strange popped up. In Oct 2001, they included two statements with radically different account #'s. The first account (that I had been paying on all along) shows a ZERO balance. The new assigned account # shows the forwarded balance. What in the world is going on?

2) The copies of the checks which they provided clearly show that I have written the first, original account # in the memo line. There is nothing provided in the Exhibits with my signature that has this new account # on it. Am I in the clear here? Do they need to provide proof of what transpired with these account #'s/why they differ?

chroma

[ladyblue65]

Take your most recent pay check stubs (3 months will do) and file financial hardship papers on this debt with the courts. Hopefully the judge will see this before you go to court that you do not make that much. The judge could throw it out.

[admin]

You might want to look at this link...

http://www.narca.org/Newsletter/2003/1stquarter/challenges.asp

In one of his recent cases, Ken reports that he applied for a default judgment using the affidavit of an officer of the purchasing plaintiff. The affidavit, although able to reference the date of the purchase of the debt and the balance purchased, was deficient in that it did not include any actual business records of the originating creditor. The court found that the affidavit of the debt purchaser was insufficient and conclusory. The court suggested the debt purchaser furnish a copy of the assignment or contract assigning the claims, along with a copy of any statement or record clearly demonstrating the calculation and the amount of the claim. If monthly statements were furnished to the defendant, copies of the most recently sent statements should be annexed. Reliable and factual information concerning the claim is required.

Even if we as attorneys include such items, they are business records of the originating creditor, not the purchasing plaintiff. At least in New York, these business records would have no probative value, because no one at the purchasing plaintiff has "personal knowledge" of the creation, maintenance, issuance, and tracking of the statements. In the eyes of the court, such affidavits are hearsay and therefore not admissible. A purchasing plaintiff is unable to swear to the authenticity of the originating or source documents of a credit transaction because they do not have personal knowledge of the events which transpired at that period of time in the life of the credit agreement. The original cardholder agreement, any correspondence, and monthly statements issued by the original credit grantor are not admissible as the purchasing plaintiff's business records, as the purchasing plaintiff has no personal knowledge of how those records were created or maintained.

How then can the purchasing plaintiff's counsel obtain a judgment for their client in the face of a court's refusal to grant judgment on a legitimate debt purchased by a third-party? The obvious answer is to obtain the affidavit of the originating creditor and annex the documents of the originating creditor to their affidavit. The originating creditor would have actual and personal knowledge of the events which led to the creation of the debt, as well as the events which lead to the sale of the debt. A second alternative would be to attempt to obtain a novation of the original credit agreement, which might be accomplished by either obtaining a signed statement from the debtor agreeing to pay the balance owed. Alternatively, if the debtor refuses to sign such a statement, the purchaser could send monthly statements which, if not objected to by the debtor, might be introduced by way of the purchasing plaintiff's affidavit, indicating that no objection had been made to the statements of account. Therefore, the debtors are estopped from denying the existence of the balance.