Debt Collector has court date set-HELP

[cameron98r]

I have an auto loan that has been in collections for 3 years now and has a balance of $6500. It has been sent to a local attorneys office/debt collection and I rec'd a settlement letter for $3k. I called today (not admitting anything) to ask about it and he says that they are going to file suit soon but I can settle with pmt arrangements if I cant come up with the $3k.

What should I do? I'm sure they will garnish my wages (which I already have child support garnished) but I dont want a judgement. I dont mind going to court but I want to be prepared. I sent a DV awhile ago and they sent all of my signed docs as proof (but not for the owed amount).

Advice?? Should I wait it out and HOPE nothing happens (but its with a local collector now so thats not likely) -- should I settle w/pmt arrangement (if so, how should I go about doing that?) or go to court and hope the judge likes my colgate smile?

HELP!

[swirlgirl]

Well, it's up to you. Do you think you could muster a credible defense? Also, if they go to court, they will most likely ask for the full amount of deficiency. So, the $3k could be a good deal. you could even try to get them to go lower.

Now, with this being a repo, there were steps they should have followed to notify you of the deficiency balance. Maybe you may have something with that. What paperwork did you receive after the repo?

[cameron98r]

Yeah, I remember the OC sending me documentation regarding the loan and the money amount owed (once they sold it at an auction). So I think they covered their bases on that one.

What would be a credible defense though?

I dont have the 3k to settle with - I wish I did. So I guess I have no choice but to make arrangements. I couldnt find any information on tactics to take when negotiating a settlement pmt amount. Any suggestions or places to direct me to?

[swirlgirl]

Since they covered themselves on the notification, you're best bet is to try to get them to lower the settlement amount. How much can you afford to pay in 3-6 payments? Can you sell anything?

You would write up a simple letter with a good sob story and your offer. Make sure you get everything in writing and include how you want the debt to show on your credit report (full deletion, paid/never late, etc).

Also make sure they agree to drop the court case.

[OMGWhatHaveIdone]

Cameron,

Based upon your first post, I took the liberty of finding this information out for you.

SOL in OK:

State

Oral

Written

Promissory

Open-ended Accounts

State Statute: Open Accounts

OK

3

5

5

3

§12-3-95

Oklahoma Wage Garnishment

Oklahoma specifically authorizes Post-judgment wage attachment. 12 -1151 et al.

Entry of judgment is a condition precedent to a wage attachment. 12 O.S. § 1151 (West 2000).

The judgment creditor has the option of a non-continuing wage attachment that lasts one pay period, or a continuing wage attachment that lasts 180 days.

75% of the debtor's wages are exempt from wage attachment 12 O.S. Sec. 1151.

Note: This 75% exemption could increase if the debtor establishes hardship.

Depending upon the KBB value of your vehicle at the time it was auctioned off, and what it sold for, you could argue that it was auctioned off at a price that was not of fair market value. The judge may or may not agree with this. If you have supporting documentation to prove they could have sold the vehicle for more than what they did, then bring that with you, should you decide to take it to court. There are lots of factors involved, especially with the repossession. I would make sure that the repossession took place legally and that you were provided with all necessary documentation within a timely manner. Look for violations from the lender on this, with regard to your state laws on repossession.

[cameron98r]

Wow -- I really appreciate your help with that. I am grateful that you took the time to actually research OK statues.

Can I say that I love this board!!????!?!

As for your advice, when this car was repo'd, I was very ignorant (even more than I am today--hard to believe huh) and didnt save any paperwork or documents at all. Considering that they are planning to go forth with a suit this month, I dont know if I have time to gather all that stuff. Will the creditor give that to me? I requested a DV but didnt get much besides the signed application.

As for the FMV of the car, it was a friggin 03 Cavalier lol - I remember thinking "wow - somebody paid that much for this crap?".

What info should I ask for to verify against statute that the repo was legal?

If all of the above fails (it was HSBC that was the OC) - here is my plan--

1) I attempt to settle. He asked for 4k to settle. I think there is room to negotiate and actually I do have about 2k that I can use to settle - but of course I want to pay as little as possible. I figured I would make it seem like I have no cash reserves other than my impending tax return and the sale of a girlfriends motorcycle - and of course get it in writing to be Paid in full. Besides not acting to excited to settle, any suggestions??

[nascar]

Depending upon the KBB value of your vehicle at the time it was auctioned off, and what it sold for, you could argue that it was auctioned off at a price that was not of fair market value

This doesn't get mentioned very often in discussions involving repo deficiencies.

Fair market value is not the determining factor in sale of repossessed collateral. The sale need only be "commercially reasonable." The collateral does not have to be sold at or near market value to be deemed a commercially reasonable sale.

[OMGWhatHaveIdone]

Wow -- I really appreciate your help with that. I am grateful that you took the time to actually research OK statues.

Aww shucks... it only took me about five seconds to locate because *evil smile* at the top of every page on these forums are are links... one of which is the Statute of Limitations. As for the wage garnishment, I posted a thread to wage garnishments by state in the Resources forum. I list all states and what they can do with regards to wage garnishments. In my state, it's illegal to have your wages garnished for anything other than Child support, alimony or taxes.

As for your advice, when this car was repo'd, I was very ignorant (even more than I am today--hard to believe huh) and didnt save any paperwork or documents at all. Considering that they are planning to go forth with a suit this month, I dont know if I have time to gather all that stuff. Will the creditor give that to me? I requested a DV but didnt get much besides the signed application.

You could try asking the OC for documentation regarding the repossession, proof of price paid for the sale of the vehicle after it was taken. I looked and looked but could not find any OK statutes on what is required by a lien holder when they have repossessed a vehicle. Perhaps someone else on the boards will know where to look. I'm out of gas on that one (pardon the pun)

As for the FMV of the car, it was a friggin 03 Cavalier lol - I remember thinking "wow - somebody paid that much for this crap?".

So you still have paperwork showing the sale price?

What info should I ask for to verify against statute that the repo was legal?

See my second response.

If all of the above fails (it was HSBC that was the OC) - here is my plan--

1) I attempt to settle. He asked for 3k to settle (original amount was 5700). I think there is room to negotiate and actually I do have about 2k that I can use to settle - but of course I want to pay as little as possible. I figured I would make it seem like I have no cash reserves other than my impending tax return and the sale of a girlfriends motorcycle - and of course get it in writing to be Paid in full. Besides not acting to excited to settle, any suggestions??

When you get something in writing, make sure you request PFD (Pay for Delete). You pay the required settlement amount and they agree to have the TL deleted from all 3 CR's permanently. Sounds like you have your ducks in a row. Keep us posted on the outcome. And I wish you much luck with this one!

[OMGWhatHaveIdone]

This doesn't get mentioned very often in discussions involving repo deficiencies.

Fair market value is not the determining factor in sale of repossessed collateral. The sale need only be "commercially reasonable." The collateral does not have to be sold at or near market value to be deemed a commercially reasonable sale.

That's the term I was looking for! Thanks a bunch Nascar! I used KBB because it was the most logical thing I could think of.

[cameron98r]

Allllriiighhtttyy then...

I know you have other poor souls to help on this board - but I have one last question that i hope SOMEONE could answer.

An attorney offer advice on settlement via his website. He said that you should sent a settlement offer and if no response within 15 days, send a cashiers check with a clause stating "cashing this check means that you agree to accept payment in full and will remove TL from my CR." I know it is not legit in all states - anyone recommend this? Know where to go for state specific info?? I searched and searched but the UCC code makes me feel like my masters degree was downloaded from some spam website.

[nascar]

An attorney offer advice on settlement via his website.

If you're in Oklahoma, then you might want ask an attorney if the following applies to your situation. While the statute seems to allow discharge of debt by restrictive indorsement, I would ask if it has any effect on forcing someone to do something outside the agreement, i.e. deleting a tradeline. My feeling is that it doesn't.

12A-3-311 Accord and Satisfaction by Use of Instrument

(a) If a person against whom a claim is asserted proves that (i) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, (ii) the amount of the claim was unliquidated or subject to a bona fide dispute, and (iii) the claimant obtained payment of the instrument, the following subsections apply.

( Unless subsection © of this section applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.

© Subject to subsection (d) of this section, a claim is not discharged under subsection ( of this section if either of the following applies:

(1) The claimant, if an organization, proves that (i) within a reasonable time before the tender, the claimant sent a conspicuous statement to the person against whom the claim is asserted that communications concerning disputed debts, including an instrument tendered as full satisfaction of a debt, are to be sent to a designated person, office, or place, and (ii) the instrument or accompanying communication was not received by that designated person, office or place; or

(2) The claimant, whether or not an organization, proves that within ninety (90) days after payment of the instrument, the claimant tendered repayment of the amount of the instrument to the person against whom the claim is asserted. This paragraph does not apply if the claimant is an organization that sent a statement complying with subparagraph (i) of paragraph (1) of this subsection.

(d) A claim is discharged if the person against whom the claim is asserted proves that within a reasonable time before collection of the instrument was initiated, the claimant, or an agent of the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim.