Please help...court date on Thursday...

[justme26]

Hello everyone! I have been a "lurker" on this board for quite awhile now, and I am hoping that someone out there is able to help me... I am being sued by a lawyer representing discover card and my court date is Thursday (the notice says a "hearing on the merits"...I have no idea what that means though). Below is the info., and (in advance) thank you all so much for your time!

1. Who is suing you?

A local lawyer representing Discover card

2. For how much? approx. $3,500.00

3. Who is the original creditor? Discover card

4. How do you know you are being sued? I had a "friend-of-a-friend" who is a lawyer helping me with this (for free) in the past (when I received my first summons, nearly a year ago). The lawyer was helping me to work out a payment arrangement with Discover card's lawyer, but I took too long in "stalling" (I was trying to find a way to get funds together to pay it) and Discover's lawyer sent the notice for a "hearing on the merits." I think I have worn out my welcome with my "friend-of-a-friend" lawyer, so I have to go to court alone this Thursday.

5. How were you served? Were you served?

I received the notice for A Hearing on the Merits via email and US Postal mail from the friend-of-a-friend lawyer that used to be helping me with this. Discover's lawyer sent it to her, and she forwarded it to me.

6. What was your correspondence (if any) with the people suing you before you think you were being sued?

The debt was originally being held by a shady law firm in Buffalo, Ny (I cannot recall the firm at the moment), and I DV'ed this firm back when they first sent me the collection letter (I received no valid response to the DV). They threatened to sue me, but since I don't live in New York anymore, it seems as though Discover card re-assigned the debt to a lawyer in my jurisdiction. I do not recall this new lawyer sending me anything other than a summons.

7. Where do you live?

New Hampshire

8. When is the last time you paid on this account?

The account was already in collection when I sent my last payment to Discover - I do not remember exactly, but I think that it was sometime in 2005. I do know that it was a tiny amount (about $20.00) and I regret ever sending it, because (I could be wrong about this) I think that payment re-started the SOL on the debt.

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily). I have to go to a Hearing on the Merits on Thursday.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Not with the credit bureaus, no. As I wrote above, I disputed it with Discover's original collection agency, and they did not respond to it, other than sending me a letter stating the amount that they said I owed (which was about a thousand dollars more than my actual last credit card bill from Discover said I owed. the lawyer friend I had told me that was ok, as they are allowed to add attorney fees and such to the amount).

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. Yes, as written above, I did this when the debt was handled by the shady collection agency/lawyers in Buffalo, Ny.

12. Does your summons require a response? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? The lawyer friend-of-a-friend responded that I would attend the Hearing on the Merits. Other than that, I do not know. I have not received any questionnaire.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits?

No exhibits that I am aware of.

14. What is the SOL on the debt? 3 years in New Hampshire (where I now live).

[Recovering Attorney]

Keep that 3 yr SOL in mind. You are going to a trial. Lilkely it will be rather informal, just you, the lawyer and the judge ( or a small claims arbitraotr, given the size of the claim). They have to prove you had an account, made charges, were mailed statements and failed to make payments. You could , conceivable, go in and say you had the account but the SOL applies and the case should be dismissed.

You could also argue that the Discover cardholder agreement requires themt o take you to arbitration, not court, and that the court should dismiss the action becuase of that. But you will want to examine the agreement first.

Bring your check book and have an idea of what you want to pay, maybe you can make a deal.

[justme26]

Thank you so much for your reply! I cannot even being to express my gratitude...

A few questions, if anyone out there is able to help me...

As detailed above, my court date is tomorrow (Thursday). I am so worried, mostly because I do not know what to expect. As I wrote above, it is called a "Hearing on the Merits" (what does that mean???) and is being held at the local district court house. I am very interested by both the SOL defense, and the fact that Discover card's member agreement states that disputes, etc... are to be handled by an arbitrator, not in a court.

Here are my questions: First of all, (excuse my ignorance, but I have never been in a court) how would I bring up either of the above things? Will I be given an opportunity to bring them up? Also, this is a very basic thing, I know, but how should I dress for this? (I am a woman, if that helps ) Last question (but perhaps my most important one): What is this court experience going to be like? As in, what should I expect? Are they going to not allow me to speak and just garnish my wages to the point that I can't pay my rent? Or will they let me work out a small, monthly payment plan? Or will they let me determine if this case is actually outside of New Hampshire's SOL (which it may very well be, as long as the small payment that I made about 2 years ago does not reset the "clock" on the SOL - said payment most certainly did not bring my account to a state of being "current" at the time...)

I so greatly appreciate any and all insight that anyone can give to me. I am so scared right now, and have no idea what to expect tomorrow. I have pretty much nothing, money-wise, right now and have no credit cards, etc... that I could use to pay a judgement. I just have my bi-monthly paycheck, which barely covers my rent, utilities, food, etc... I guess I just don't know how much they can garnish or what I can possibly do to try and protect myself in this...

[cjtx]

A hearing on the merits is just a pre-trial hearing to see if the case can proceed to trial. Otherwise the case will be dismissed.

You should dress business casual. No need for a real formal attire, but don't show up in shorts and flip-flops.

The judge calls your docket number and you and the plaintiff approach. The plaintiff speaks first. Let him talk. Even if he is lying through his teeth and you feel like telling him off. Make notes of what he is saying that you don't agree with. When he is finished presenting his case against you, you will be given an opportunity to respond. This is when you explain the facts, and your objections to the lies the other attorney told the judge. Be prepared to tell the judge for example when you made your last payment, that the SOL is run out already, that the case should be dismissed with prejudice and that in the alternative, the credit card agreement includes an arbitration provision and the case should be dismissed so it is presented to an arbitrator. If you have any evidence of your last payment, be prepared with a copy for the judge and one for the other lawyer.

This is not the trial yet. So no need to worry about garnishment or getting a judgment against you. In fact, this is a great opportunity to start becoming familiar with the court, the rules, etc. The worst that can happen at this time is that the judge decides there is enough evidence to continue to trial or that the case should go to arbitration.

[bubbaboo]

I disagree. In my experience,, the hearing on the merits is the actual trial. This is it, you don't get another chance. You will go in, he will present his case, then you present yours. The judge will rule.

Normally, they try to work something out before the hearing. This is your chance to make a deal, so be prepared to tell them what you can do. If you make a deal, they will want you to sign a paper agreeing to a judgement that lays out what you agreed to. Then, if you do not abide by the agreement, they will already have the judgement and can start going after your other assets. If you cannnot make a deal, then you go inside to the courtroom and see the judge for trial and the judge makes a decision. If you lose, a judgement will be issued against you and then the plaintiff can start collection efforts which may include garnishing your wages, seizing assets, and so forth, depending on the laws of your state. There are exemptions from this in each state.

I don't understand the advice on arguing that it should have gone to arbitration. If it does, you will lose for sure. Arbitration is rigged and you almost always will lose. I say to take your chances in court.

In some states, they require you to file an answer; others don't. If you were required to file an answer, the judge may continue the case to give you a chance to answer, or the judge may just default you and give them a judgement.

Most judges are pretty good about dealing with people without lawyers. He will give you a chance to speak and present your case. Normally the judge just decides whether or not you owe the money. I have not seen a judge who will set up a payment plan. For that you will normally deal with the attorney.

Not to be critical, but you waited way too long to get advice. I did not see this post until this morning and you may not see my response until you get back from court.

Let us know how it turns out.

[cjtx]

Arbitration is too expensive. If they want to file again for arbitration they are going to have to pay big bucks and for the amount OP owes it is not worth it to pursue it there.

[justme26]

Yes, I know that I waited too long. In fact, none of this would have happened (most likely) if I had not waited too long to call Discover's lawyer to try and work out a payment plan. I was afraid, so I kept putting it off...

Thank you all for sharing your knowledge with me. I am about to start getting ready to go to the courthouse. I am nervous, but hopefully Discover's lawyer will be willing to accept a payment plan. I cannot pay much, only about $100 per month...so we shall see...

Wish me luck!!!

[jetscarbie]

Good luck today. Come back and let us know what happened.

[justme26]

So I just got back from court (I almost didn't make it in time - there was crazy traffic and I was about 10 minutes late). As I walked into the court room and sat down, the judge was talking to (who I presumed to be) a lawyer, telling him that the defendant may have not been made aware of the hearing, as neither the defendent nor his/her lawyer was present, and that a new hearing would have to be scheduled. The lawyer was trying to protest this, but the judge said that it is not fair to rule if the defendent is not aware that they are supposed to be in court. I had a *hunch* that they were referring to me (ps: I really like that judge!!!). So the lawyer sighed, slumped his shoulders, and left the court room. Perhaps I should have said nothing, and waited for a new trial date. In retrospect, yes, that is most likely what I should have done. But at that moment, I just wanted it to all be done with, so I left the court room and called out to the lawyer, saying "Excuse me! I think you may have been waiting for me." He asked my name, and I told him, and yes, he was infact Discover card's lawyer. Now I am pretty sure that I shouldn't have done any of this, but as I said, I was just so much wanting it to be over at that point...

So then I sat outside the court room with Discover's lawyer and he asked me first if I was currently represented by the lawyer that had been giving me "free help" before. I said, "well, um, not really, I guess." He replied, "well, its like being pregnant, you either are, or you aren't." Um...yeah. He really said that. Sexist much? But I digress...

So I sat outside of the court room and Discover's lawyer asked me about my job and my finances, and I told him that basically, I have no money. (on a side note, I checked my credit report, to find out if this debt is outside the SOL, and I saw that the account was charged off in June of 2005, so I am thinking that unfortunately, this debt is within the 3 year SOL...am I wrong on this?) So I made an agreement with the lawyer to pay $100.00 per month, plus whatever I get from my tax refund, until the debt, plus court appointed interest, is paid off.

I asked the lawyer if this judgement would appear on my credit report. He said that he doesnt deal with that kind of stuff, but that it is a public record, so most likely. I asked if there was a way for it to NOT be put on my credit report. He said, again, that he has nothing to do with any of that, but mentioned that he thought a judgement would look "good" on my report, as it showed that I am paying off a debt. Hrm...I could be wrong, but isnt a judgement BAD to have on one's report?

So since he was unwilling to help me with any credit report-related things, I asked him if it would be ok for me to contact Discover directly and ask them about it. He said that he was "not my lawyer" so why was I asking? I replied that while I understood that he is not my lawyer, surely he could tell me if it was legal for me to contact his client and ask them to not list the judgement on my credit report. He stammered for a second, and then said that I could contact them, but they would just tell me to talk to him. He stammered a bit more, before finally saying that he would ask them about it. I'm not holding my breath.

Ok, so Im thinking that I have dug my grave and can do no more with this. Am I correct in that assumption? Or can I take further action, to make this work out a little bit better for me?

Thank you all so much!!!