what to do now

[endofmyrope]

Wish Id found this forum last year.

Default judgment entered Spring '08 ( I never got summons ) a hearing last fall ( I attended) told the attorney for Midlands that I was unemployed and case was continued to April 09 ( just returned from court). Last payment to OC was in '05, and the charge off was around $4,500 then sold to Midlands. SOL in my state is 6 years ( 2 1/2 years from today )

Got another continuance - to July. Told Midlands lawyer ( local lawfirm representing multiple Collection Agencies) I didn't recall the debt and would like to see evidence. He said that would take some time. Told him I didn't get the original summons, and I just wanted to handle this matter responsibly. They gave me a continuance, and suggested I get a lawyer. I cant afford a lawyer. I am going to go back to court and file a petition to revoke the judgment, as I never received the summons. Then what? I want to fight this all the way, and clear up my credit.

[montanatim]

Welcome, I'm sorry no one saw fit to answer you even to say "I don't know".

File your motion to have the judgment vacated due to improper service. Wait for the ruling on the motion. If it is in your favor and the judgment is vacated, you would then file your answer with the court to the original complaint.

There you would answer their complaint line by line, including any affirmative defenses or counter/cross complaints of your own (if any).

Go through the exchange of discovery (admissions, interrogatories, production of documents)

ETC........

One point of confusion; If you had a judgment entered against you in spring of 08......unless this is a brand new suit against you, what were you going to a hearing for in April 09?

[endofmyrope]

Thanks for the reply Montana Tim! Sounds like good advice!

I have been reading this forum like crazy all weekend, following links, etc. and cant believe all the information here!

To answer your question, the first I heard of the judgment was when I got a notice to appear in court last September for a payment review. Assuming the debt was valid ( my life has been a nightmare since my kids father took off without paying child support ), and at the time barely making ends meet, I asked for and was granted a continuation. Then, stupidly, I forgot about the whole matter until I had to go last week ( actually I have been too overwhelmed to deal with it, and have had a multitude of other crisis' in my life this past year, not that the court cares...)

Anyway, I am trying to get back in the saddle now, and plan on riding this horse. On second thought, maybe its too late to find the saddle, and I'll just have to ride bareback. Ouch. I did pull off getting another continuance - I think by taking control of the conversation ( asking questions - offering nothing).

I have other stuff coming down the road, this is just a primer, so expect to be following this forum for a while to come.

Thanks again. I will repost here with updates.

[endofmyrope]

update. The judgment (default) was vacated. Hooray. Apparently, according to the instructions mailed from court I am to meet for a case management conference with the plaintiff ( attorney representing Midlands ) at court Sept 3. Meanwhile both defendant and plaintiff are to forward copies of any and all documents to be used in court to the opposing parties, by Aug 28.

Not sure about responding to the original complaint - since I never got one in the first place, but recall the judge saying I had only 20 days to do so, so will call court tomorrow and find out the scoop.

Guess I'll find out, but not until only a few days before the conference.

[merrybucks]

The judgment (default) was vacated.

Congrats. Now you can work on your defense.

Not sure about responding to the original complaint - since I never got one in the first place

Get a copy fron the court.

[endofmyrope]

Thanks, I will. I thought of that too after posting.

I couldn't believe it when I was in court - it was default city. I have another judgment to be hopefully revoked. Never saw the summons for it either. What is wrong with my mailman??????

[endofmyrope]

Judge says Im supposed to send everything I have to prove I dont owe this debt. Problem is, I have nothing. I honestly dont know if this debt is mine or not. I did have some credit cards, with low limits, and made many payments, but unfortunately many payments were a bit on the late side due to other more pressing priorities at the time, like keeping food on the table and a roof over the head for the children. The late payment fees eventually drove the balance over the limit then it was over the limit fees as well. I think I paid back everything and a lot more than I ever borrowed, funny , these people say I owe all this money. Anyway, to make a long story shorter, I eventually lost all my records so I have nothing now.

I know, this is a bad story for a judge.

[endofmyrope]

Okay. Now that the judgment was revoked, and I can fight this case in court, starting with our next court date of Sept 3 ( for conference ). Or so I thought.

Just got letter from the law firm representing Midlands saying that the court date has now been changed to a motion for summary judgment. Attached is an affidavit - from a custodian of records for Midlands. They went to court on the 17th and asked for this, without my knowledge, stating they had ample evidence against me. Then they sent me the letter.

Affadavit says she has the books & records of Providian account which Midlands was assigned (with the account number) , and that according to these records, I opened said account on 1999-12-06, I owe $4083.00 as of 2009-08-04, that last pymt was on 2005-10-17, and that the account was charged off on 2006-04-28. They are asking for additional interest - over $1000.

The last thing she says is that attached are records regarding the account and or payments of defendant.

There are no records attached.

Will they bring these records to court ? I have no records to prove anything. I am afraid it is too late to file Ch. 7. I can not afford a lawyer. I am a single mother who paid the OC far more in interest, late fees and over limit fees ( over limit caused by the late fees) than the principle ever was. I want to see the records they have before any judgment is entered.

ANY ADVICE??????????

[merrybucks]

Affadavit says she has the books & records of Providian account which Midlands was assigned (with the account number)

The only way the affadavit is worth anything is if she was the keeper of records for Providian. You need to either object or motion to strike the affadavit as heresay. You need to file a response to their MSJ.

[lilq]

I know this much from this site, is that affidavit is good for wiping one's rear. Since she did not keep the books for Providan, anything she swears to is hearsay and inadmissable. Merrybucks is right, move to strike. (Big piece of their evidence gone)

One other thing, Midland is a bottom feeder with no records. Also, did you make sure that they have the bill of sale to the debt. Don't they have to own it before they can sue you? You need to request that. But there is more technical term for it. There are plenty of resources on here about defending against debt collectors.

But my guess is they have no records. I would just say prove this debt is mine, prove you own in, prove you have the right to sue over it and prove the amount is what you say it is.

Take this with grain of salt, but my guess is that if you fight these people, you will win.

[lilq]

Judge says Im supposed to send everything I have to prove I dont owe this debt. Problem is, I have nothing. I honestly dont know if this debt is mine or not. I did have some credit cards, with low limits, and made many payments, but unfortunately many payments were a bit on the late side due to other more pressing priorities at the time, like keeping food on the table and a roof over the head for the children. The late payment fees eventually drove the balance over the limit then it was over the limit fees as well. I think I paid back everything and a lot more than I ever borrowed, funny , these people say I owe all this money. Anyway, to make a long story shorter, I eventually lost all my records so I have nothing now.

I know, this is a bad story for a judge.

It seems to me the burden of proof is on them to prove that this is your debt not on you to prove it for them. I wouldn't think you'd have to provide any proof it isn't yours, instead request all the paperwork you can to make them prove they own the debt, it's yours and they have the right to sue you. A copy of the orignal contract would be nice. Let us know when you get the papers from the court as to what evidence they have against you.

[trueq]

You may want to exerise arbitration clause to get out of this guy's court.

Check the credit card agreement (if Midland has not submitted it, that's an issue, scream they are depriving you of being fully informed of your rights to arbitrate this dispute!).

[endofmyrope]

You may want to exerise arbitration clause to get out of this guy's court.

Check the credit card agreement (if Midland has not submitted it, that's an issue, scream they are depriving you of being fully informed of your rights to arbitrate this dispute!).

trueq - can you elaborate further?

Also, thanks merrybucks and lilq -

you guys are all great - I really appreciate this help.

[trueq]

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=297350

Arbitration clause applies to assigns of credit card company!

This means scumbags like Midland!

[endofmyrope]

Very interesting information trueq, thank you for sharing, I will think about this route further.

By the way, Midlands has not shown me any copies of original documents.

This is Massachusetts. My plan right now is to contest this latest motion of Midlands. The date was set for case management conference, not for judgment.

On the NOTICE OF CASE MANAGEMENT CONFERENCE

"Agenda. The purpose of the case management conference is to determine the trial readiness of the case; offer and conduct early - intervention alternative dispute resolution; establish deadlines for discovery, amendment of pleading, addition of parties, dispositive motions, and disclosure of expert witnesses; resolve any discovery dispute and address pending motions; review any proposed case management orders submitted by any party; enter case management orders as appropriate; and assign a firm trial date for cases ready for trial or a firm pretrial conference date for all cases not ready for trial. "

In the hopefully unlikely event judge grants Midlands a judgment on this date then I appeal. But how likely is that going to be? They only say they have documents, they haven't produced anything.

I guess my question is if the lawyer representing Midlands shows up in court with real copies or proof or whatever ( even though they haven't shown it to me beforehand and I haven't properly asked for it ) , can they still get a judgment without a trial?

[endofmyrope]

I will file a response to their motion for judgment on Monday, and at the same time file my own motion for production of documents. Then three days later is the court date. If judge rules in favor of their motion I appeal.

Or file Ch. 7 Tuesday. That seems my choice right now. I have another big JDB at my door right - behind this one. This is all rather overwhelming. I need to sit down over the weekend and study court procedure - I know its late but better late than never right?

Anyway, somebody wish me luck. I am very thankful for all you guys help. Im going to bed now with dont worry be happy tune stuck in my head. Things could be a lot worse in life!

[trueq]

Its always an option....and for sake of argument, "if" they get judgment, ch. 7 is available, even after they get judgment.

If you have non-exempt assets to protect, don't pull the Ch. 7 card too early.

You could fight now, perhaps end up with great situation where you can recover from suing them FOR DEBT COLLECTION VIOLATIONS. THAT IS A HIDDEN ASSET TOO MANY PEOPLE OVERLOOK. Giving debt collector more time to violate your rights.

2 years ago I saw best BK attorney in my state. Spent $4000 for consult. I wanted to do a Ch. 13 but he said I was over the unsecured limits and the "payback" would have been voluminous. He said "I have no choice but to do a Ch. 7". I told him "He was crazy." He told me that "I'm crazy and I'm going to get sued." I said I'll just deal with it. He wished me luck.

2 years later. Ch. 7 would have been the dumbest decision of my life.

I only have $35,000 in judgements (all in a 0% debt state law monthly amortization plan over 3 years)

I've obtained approx. $25,000 in judgments for me and cash settlements for debt collection violations.

NO ONE ELSE IS CLOSE TO GETTING A JUDGMENT AGAISNT ME AT CURRENT TIME. (First 2 judgments were my first 2 lawsuits and were a result of ignorance, more than anything else, in proper court strategy.)

I have 3 open lawsuits where I'm plaintiff for debt collection violations. I have AT LEAST 10 more lawsuits to file! (just need time to write them.) PLUS, the violations almost come in daily as this stuff gets "shifted around" from JDB to JDB!

My goal is: the MONEY I TAKE FROM THEM TO FAR EXCEED THE MONEY I'M FORCED TO GIVE THEM!

Lets say, for sake of argument (and this is a stretch): I don't get another dime for debt collection violations. And lets say it gets crazy, beyond my ability to pay, and I get racked up on $200,000 in judgments. I can always "nuke them" with Ch. 7 at that point.

My "position" is good if you can manage your secured debt, have substantial non-exempt assets, are not in foreclosure, and your main "challenge" is unsecured debt.

BTW, that same lawyer checked in on me recently....he's rethinking his advice for his more "motivated" clients like myself.

Edited August 29, 2009 by trueq

[endofmyrope]

trueq,

I thought once there is a judgment it is too late for Ch. 7 . If not then I will most definitely fight these guys in court, and yes, with what I am learning now , I will start a log too, in case of debt collection violation, which I am quite sure I have been missing anyway. These guys have been brutal. As someone said, it is mostly intimidation, very little law. But knowing the law and how it is applied, is the only defense. And of course getting organized with the paperwork. All a lot easier when one has a positive attitude !

I appreciate your story very much.

Edited August 29, 2009 by endofmyrope

[trueq]

The collection action that follows. Usually 3-6 months. So even a judgment gives you time to decide and act:

1.) Just pay it

2.) Ignore it and let them come after you with collection action, which you can oppose.

3.) Ch. 7 it.

4.) Negotiate payment plan (although could be difficult, depending on who it is.)

A judgment is not the "crisis" event people make it out to be. However, it can be a crisis if you do #2 for a long time.

Judgments are essentially treated like unsecured debt in Ch.7. They only become an issue if they eventually start liening against assets and secure themselves down.

If you anticipate a judgment, it makes sense to save money to anticipate paying off the future monkey on your back.

If you need time to save and it looks like you are going to lose, exercise the arbitration clause, that will buy you 6-12 months, minimum.

[david9041]

Endofmyrope , my wife and I have been going through the same thing , we just got our 5 th summons this one the pretrial is Sept 24 , so far no judgments on any of them , we just keep filing motions against everything they do , we demanded jury trials on each case , they are trying to get summary judgments without having a jury trial , the one case they did that , we filed a motion to strike their motion , no ruling yet . We need to hear more about Trueq's ideas on Arbitration , Chapter 7 will wipe out anything they do anyway , so we are just going to enjoy the battle for now .

Good Luck and let us know how that Summary judgment goes

[david9041]

I have 3 open lawsuits where I'm plaintiff for debt collection violations. I have AT LEAST 10 more lawsuits to file! (just need time to write them.) PLUS, the violations almost come in daily as this stuff gets "shifted around" from JDB to JDB!

Question trueq when you say you have 3 open lawsuits , how much do you have to spend for those lawsuits ? I had went down to file a counterclaim and they wanted $385 just to file the counterclaim , would it be the same with the lawsuits you file ? And the things you do in arbitration , does that only apply to certain states ? I am in Florida , is it possible for me to force them to go to Vegas ? Its Capital One , and Jams is on their list , and what happens if the court gives them a summary judgment before I can request Arbitration ?

[endofmyrope]

David -

A motion to strike their motion... yes that's what Ill do. Excellent. (I am going to enjoy the battle too).

Last time I was in court I saw so many - well everyone - cave in - it was appalling. The attorneys attempt to disarm the defendants with gentle manners and then oh so gently lead them straight to slaughter. They seem to have full time jobs in the courthouse - working for multiple collection agencies, mostly junk debt. What a way to earn a living. One little lady attorney called me "dear" like she was inviting me to tea or something. Then started questioning me about my income. Here's what really gets me : the court magistrate, first off, asks the defendant to talk with the attorney for the other side, to try and sort things out.

Edited August 29, 2009 by endofmyrope

[endofmyrope]

So now I have two motions to file Monday. One is MOTION TO STRIKE MOTION FOR SUMMARY JUDGMENT. The other is MOTION FOR PRODUCTION OF DOCUMENTS

Plaintiff says : "the accompanying affidavit demonstrates there is no genuine issue of material fact due to be tried." ( affidavit is from the custodian for Midlands, who attests has books and records pertaining to said account. No records, however, were included ).

So I will say to support my motion that the custodian affidavit is hearsay and inadmissible.

In the second I will say that I have requested records but none have been supplied, so I am asking the court to order the plaintiff to produce them. ( This is true, but I can not prove it, as it was in a phone call. )

[david9041]

Below is what I filed : The part about the Service is because it was improper ,

Endofmyrope , I like your last statement ( I'm going to bed now with don't worry be happy tune stuck in my head. Things could be a lot worse in life! ) We all have to hold on to that kind of thinking . Right now my wife and I are getting ready to go out to Red Lobster to celebrate our big Lotto win on next weeks drawing , we have learned that if we wait till next week there wont be any reason to celebrate . This way it wont be to hard to take next week when we find out we lost because we will be to busy celebrating the next weeks big Lotto win , its better than staying home and worrying about those JDB taking the money . They will have to try to get our money from Red Lobster .

Date 8 / 7 / 2009

IN THE COUNTY COURT IN THE SIXTH JUDCIAL CIRCUIT IN AND FOR THE PASCO COUNTY , FLORIDA No.__51-2009-S-C-xxxx- WS/S

CAPITAL ONE BANK

Plaintiff

Vs.

Xxxxxxxxxxxxxxxx

Defendant

MOTION TO STRIKE PLAINTIFF'S MOTION FOR SUMMARY FINAL JUDGMENT AND ATTORNEY'S FEES

COMES Now Defendant, xxxxxxxxxxxxxand files this MOTION TO STRIKE PLAINTIFF'S MOTION FOR SUMMARY FINAL JUDGMENT AND ATTORNEY'S FEES , and requests the Court to grant this motion based on facts stated below:

Reasons correspond with Plaintiffs numbered statements

1 . Plaintiff has not followed Rule 1.510© , Plaintiff has presented , Falsified Documents , Hearsay Evidence , And to the Defendant's knowledge no Affidavit's as claimed . Plaintiff has refused to answer interrogatories or admissions and has refused to furnish proper documents .

2 . There are several genuine issue's as to material fact , and Plaintiff has not sustained its burden of proof .

3 . The amount of $xxxxxxxxxxxxx, plus interest has not been documented , and no accounting has been stated .

4 . The Agreement filed , shows no connection to the Defendant , and it is impossible for Defendant to have agreed to the filed agreement .

Also Defendant contends Plaintiff is violating the Defendant's civil rights , prosecution without proper Service .

WHEREFORE, Defendant, David P Bowers Respectfully submits that the Court should grant the Defendant's MOTION TO STRIKE PLAINTIFF'S MOTION FOR SUMMARY FINAL JUDGMENT AND ATTORNEY'S FEES

_________________________________

Xxxxxxxxxxxxxxxxxxxxxxxxx

Xxxxxxxxxxxxxxxxxxxxxx

Port Richey Fl 34668

CERTIFICATE OF SERVICE

The undersigned certifies that the above documents were served on all parties in the above cause by depositing in the U.S. Mail, postage prepaid, in an envelope addressed to : Rubin & Debski P . A , P . O . 47718 , Jacksonville , Fl 32247 Date 8 / 7 / 2009

__________________________

Xxxxxxxxxxxxxxxxxxxx

Xxxxxxxxxxxxxxxxxx

Port Richey Fl 34668

[endofmyrope]

Well Thank you David. This is great help. You and your wife enjoy your dinner at Red Lobster!

Reminds me a bit of the Gypsy definition of a millionaire ( from a true autobiographical account).

Someone who has spent a million.

Of course some think Gypsies are all thieves, but in truth they only take what they need. The real

thieves in life seldom get punished!

( Edited to say : this is not meant to suggest support in any way any kind of thievery! )

Edited August 29, 2009 by endofmyrope