Mark_in_CA

Sued by Collection Agency/Fraudulent Service/SOL

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Hello,

I am a California resident:

On March 19th I received notice in the mail of a "request for entry of default/court judgment".

This was the first time I found out I was being sued by Resurgent financial for a debt they bought from Citibank South Dakota NA. They are asking for $9,4xx. I have no idea how they arrived at this number.

On March 25th, I went to the Alameda County Superior Court and obtained the documents on my case: it showed them filed on November 6th, and also contained a "proof of service" claiming to have personally served me which is fraudulent. The clerk stated that "nothing had been filed yet" which I did not really understand as the court papers show filing date of November 17th? I guess she meant no judgment has been entered.

On March 26th, I made an appointment to file a "motion to quash service" in Dept. 31, as that is the best I could figure out what to do at the time. I also consulted an attorney though the Alameda County Bar Association, who suggested bankruptcy.

I have investigated Ca bankruptcy and credit card law to the best of my ability, and as far as I can tell, bankruptcy is a bad idea for me (too many assets). I have requested another attorney consult with someone who is not interested in bankruptcy only (I get the feeling this is an easy dollar for the attorney?)

The debt in question is now more that four years old, and outside the statute of limitations. In the filing I find the following:

"Defendants, and each of them, have breached the terms of the agreement by failing to make the payments as agreed since on or about March 16th 2005",

Also "No part of said sum has been paid although demand therefore has been made and there is now due, owing and unpaid from said Defendants, and to each of them, to Plaintiff the sum of 9,4xx together with interest theron at the rate of 10% per annum from June 23, 2005."


  • My questions: can I use the SOL defense?
    If not can I negotiate in court?
    If they get a judgment against me what mechanisms can they use to collect?
    Should I be filing the motion to squash service, so that I can respond?
    The suit contains only a generic contract, nothing with my signature, should I request the original from the credit card company?
    Should I request a copy of my payment history from the credit card company?

Any advice would be appreciated.

Thank You.

"Mark"

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I would say so, if that is the process in your courts. I would say you need to attack service with more than "I never got it". If the return of service says they served you at your house, you should get statements from anyone that lives there to the fact that nothing was ever delivered, etc.

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If you only found out about a lawsuit after they had gotten a default judgment, you would move to have the judgment vacated on the grounds that you were not properly served.

That's basically the position you're in, except you've found out about it a little earlier, because somehow the request for entry of default found its way to you. I believe you are taking the correct action to challenge it now, before they get the default judgment. I just don't know if "motion to quash service" is right; I'm not an expert in legal terms. But in layman's terms, you want to make the court aware that you were not served properly. Put together the evidence to prove they didn't serve you. Then you will be entitled to file an Answer and defend yourself against the suit.

Are you aware you can access all your case documents on the Alameda County Court website? It makes life a lot easier.

If they have falsified service of the lawsuit, you may be able to counterclaim and get damages. Try consulting a lawyer from www.naca.net. They can tell you if you have a case.

To your list of questions:

- If they filed before the 4 year SOL expired, they got in on time and that defense is not available to you.

- Rather than "negotiate" in court, you want to make them produce the contract you signed, proof they own the debt, and an accounting of the amount they are claiming. IF they produce the documentation, it's time to negotiote a settlement you can afford.

- As I said, I don't know if "motion to quash service" is right (ask that lawyer) but yes, you want to get into the process, and get the right to file an answer in which you deny their claims and state your affirmative defenses.

- Requesting documentation comes later, during the Discovery process. And you will demand that the plaintiff (Resurgent) produce it. The original creditor will not help you even if you ask, and you shouldn't ask.

Good luck.

DH

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