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My wife was sued recently by Cap 1 and received a default judgement. Just before the court date, she thought she was doing the right thing and called the CA. In short, she somehow made a "deal" in which she'll pay double the original balance (now $2,821), at $75/month with 26% interest. She thought they'd agreed not to continue the suit but, of course they lied and, she now has the judgement against her.

I'm trying to help clean this up a little if possible. Can she still try to settle with the CA?

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I would think you need to approach this from a consumer standpoint and perhaps get the judgement vacated? Of course, alot would depend on whether the agreement made was verbal or in writing.

Did you ever actually go to court -- did you fail to answer the summons because you assumed an agreement had been reached?

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She did not go to court, or answer the summons. She called the CA and asked to work it out. They offered that she could settle the debt in-full (~$1,400) paying $75 per month. She asked if it would go to court and they said "No, it'll all be taken care of." This was all over an unrecorded phone call. The next correspondence was a letter showing a balance of $2,821 stating that if she didn't pay the $75 per month that:

"We reserve the right to record an Abstract of Judgement. Please be advised that we may execute on the judgment, without additional notice to you, if any payment is not received as stated herein."

Again, any agreement made via phone.

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In today's mail came a thick packet of paper from the law offices of the CA. Date Jan 8th, 2008.

They read:

Ex parte motion for an order of default and entry of general judgment

Affidavit of Nancy B. Patton [lawyer] in support of ex parte motion for an order of default and entry of general judgement

Bill of disbursement in support of ex parte motion for an order of default and entry of general judgment

Filing fee $128

Sheriff or process server's fee $65

Prevailing party fee under ORS xxx $275

Principal amount presently due $1,452.82

Pre-judgment interest at 25.9% from 8/27/04 $1,260.60

Amount Presently Due: $3,181.42

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1. Who is suing you?

Cap 1 via Law Offices of Nelson & Kennard

2. For how much?

Most recently - $3,181.42

previously - $2,821.83 "plus basically anything else they wanted to add interest, fees, etc."

3. Who is the original creditor?

Cap 1

4. How do you know you are being sued?

Received summons.

5. How were you served? Were you served?

Hand delivered to current residence.

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

Lawyer = none

Cap 1 = DV

7. Where do you live?

Oregon

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

August 2004

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

Assuming judgment assessed. Will confirm on Monday.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

Yes

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now.

Yes

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?

Wife lost it.

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

No exhibits...nothing...according to memory.

14. What is the SOL on the debt?

7 years

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Okay... when you confirm on Monday, you need to attempt to get a copy of anything you feel your wife might have lost.

If it was indeed interrogatories or discovery info, you may be able to get this from the court clerk -- depends on your state, some require them to be filed at the court and also delivered to the opposing council, others do not.

Hopefully some of our more legal inspired minds will chime in with some ideas.

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The amounts do not match up....

hmmmmmmmm... any idea why the amount has changed again?

"...payments of $75.00 per month...until this judgment, including accrued interest, court costs and attorney's fees, is satisfied in full"

Maybe they were estimating? I'm really not sure as there is no itemized account on the letter of agreement.

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Okay...no judgment exists according to county court. Wife received copies of all files related to case. They are:

Afidavit of service of summons and complaint (dated Dec. 6th, 2007)

Complaint (filed Nov. 21, 2007)

Summons (filed Dec. 7th, 2007 required motion or answer)

Any idea where we are with this considering docs received on Friday from lawyer?

In today's mail came a thick packet of paper from the law offices of the CA. Date Jan 8th, 2008.

They read:

Ex parte motion for an order of default and entry of general judgment

Affidavit of Nancy B. Patton [lawyer] in support of ex parte motion for an order of default and entry of general judgement

Bill of disbursement in support of ex parte motion for an order of default and entry of general judgment

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This is kind of a bump. I'm also thinking my last post may not have been clear.

We're wondering if anyone can help us understand where things stand in this process or what our next course of action should be.

Here is what has happened to date regarding this debt with Cap 1:

Afidavit of service of summons and complaint (dated Dec. 6th, 2007)

Complaint (filed Nov. 21, 2007)

Summons (filed Dec. 7th, 2007 required motion or answer)

-------------------------------

Wife did not answer summons. Instead she called and made a deal to pay in installments toward what turned out to be a drastically inflated balance. She had the understanding that they would withdraw their complaint.

-------------------------------

On Jan 11th, she received these documents from plaintiff's lawyer all date Jan 8th, 2008:

Ex parte motion for an order of default and entry of general judgment

Affidavit of Nancy B. Patton [lawyer] in support of ex parte motion for an order of default and entry of general judgement

Bill of disbursement in support of ex parte motion for an order of default and entry of general judgment

-------------------------------

Today, Jan 14th, our county court does not have record of a judgement against my wife.

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Any help would be very appreciated.

Right now, we would even be willing to settle for the full amount of the original bill. We CANNOT afford the amount in their most recent correspondence ($3000+).

Please help if you have any idea what the documents mentioned above refer to (the only ones I really understand are the complaint and the summons).

Thanks

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I'm starting to get a few more pieces and maybe this will help nudge someone who may be able to help me.

- revisited court clerk today and discovered that neither party showed for court date. Case is scheduled to be dismissed on 1/23.

- plaintiff has sent to us (my wife) copies of an ex parte motion for order of default and entry of general judgment

My question is:

- Is there anything we can do about the ex parte motion for a judgment?

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Boy, it can be frustrating when you don't get any replies. However, we did visit an attorney locally and he was a little baffled by what's happened too.

I think I'm getting a grasp on this case now. The next day or two will be very telling.

I'm providing this link to the advice I was given in order to follow up on this post and to help anyone else who may have this happen to them.

http://forum.freeadvice.com/showthread.php?t=390068

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From waht you posted...it sounds to me like they got a default judgement against your wife...and you want to settle after the fact, no?

If you cna't challenge the judgement's validity, I think the real answer to your question lies with your situation. Many times a judgement creditor will just wait until they can file a lien on property you own, or wait until you do own property to file the lien. SOL on judgements is 10 years or so...check your state laws, many times they are renewable once.

Sorry to give you a non-answer, but not really sure what kind of options you have, once the judgement has actually been entered and signed.

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Actually, no. No judgment because the plaintiff's attorney did not show up for trial either. It seems that they are trying to scare/trick my wife into paying more money by sending inflated settlement terms with unsubmitted court documents (the ex parte motion). They may very well submit the motion today (case is scheduled to be dismissed today) in order to salvage what they can without having to open a new case (since payment on account has not been received). I believe that a judge will see the deception in this process, especially given the statement my wife will submit today, and allow her to defend her case. We'll see what happens today.

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Here is the letter that my wife will submit today. Any comments or advice...?

RE: CASE #xxxxx

Dear Judge,

I am writing to express my interest in this case against me and to request that the court allows me to participate in any further legal proceedings relevant to the outcome of this case.

I was not present for my trial date because I had been led to believe that a settlement with the plaintiff had been reached and that the lawsuit would be withdrawn (I wouldn’t have settled otherwise). I had called the plaintiff’s lawyer (could not speak to actual attorney) to arrange a settlement on Dec. 20th, 2007 and believed that we had reached an agreement. I received a copy of the settlement agreement in writing on Jan. 8th, 2008 (after the trial date). The settlement agreement did not represent the terms to which we had agreed on the phone (it was over twice the agreed balance).

On Jan. 15th, I received copies of an ex parte motion for a default judgment from the plaintiff’s attorney. I did try again to work with the plaintiff’s lawyer’s office (could not speak directly with lawyer) and was told that they are continuing to seek judgment against me and that they are unwilling to negotiate the settlement terms that I was sent. To my understanding, the ex parte motion has not actually been filed as of Friday (1/18/2008).

I am not a lawyer but, I am doing my best to understand what is happening. My fear is that the ex parte motion will be filed and that I will be unable to defend myself.

Thank you for taking the time to read this.

Sincerely,

xxxxx

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  • 2 weeks later...

My wife submitted a letter to the court which briefly described the botched settlement and that she'd been told that the case would be withdrawn.

She didn't make first payment on 1/20 and, on 1/24, plaintiff's attorney filed ex parte motion for default judgment. That was 6 business days ago.

That's where things stand. We don't know who makes the next move...

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  • 4 months later...

My wife received a notice of a judgement in the mail from this case.

The judgment is in response to the exparte motion filed by the plaintiff. My wife did not file a response or attend the hearing because she had called the lawyer's office previously. She agreed (via the phone) to an offer for settlement and asked if she needed to do anything further about the court case. She was told that "No, we will take care of that since you have settled."

The paperwork for the settlement agreement arrived after the court hearing. The amount was for more than double the amount my wife had agreed to. Of course, we have none of this in writing.

We submitted a letter to the judge which is posted above.

Now that the judgment has been signed, do we have any recourse? It seems silly that if nither they nor my wife was present at the hearing that they should receive a summary judgment just because they asked. Obviously if they had shown up this would make sense but, they didn't.

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