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Unemployed and being sued. What not to say?


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This is irrelevant to the matter at hand.

If you admit the debt, you will lose.

you need to raise pre-trial points of defense that will narrow the issues at controversy for the trial.

For instance if the statue of limitations is at issue and which SOL should apply. That is a point to discuss as an issue for trial.

OR

If the account is not yours and its the result of some sort of illegal activity.

Crap1 does not give a crap if your unemployed. They will do everything to bleed it out of you.

Is there a reason why you are not going to use BK?

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BK meaning bankruptsy? With my husbands salary I am able to make small monthly payments. Bankruptsy will be a last resort only. Alleged debt is still within SOL unfortunately. A "stipulation in lieu of judgment" I'm hoping may be an option. They sent me a letter with their disclosure statement a couple weeks ago wanting to settle the matter to avoid anymore litigation, but I've heard of these lawyers doing that and going for a judgment anyway. I asked a few questions about this over the past 2 weeks, but didn't get much advice.

So any and all is appreciated!

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You will be lucky to settle for 75% of the claim.

Its hard to tell you what I suggest because I don't know your "global picture".

If you are "judgment proof" I would say not to worry about it.

If you are not "judgment proof" why would BK (bankruptcy) not be an option? Ch.13 lets you keep everything and forces crap1 into a payment plan, possibly at a substantial discount you can't get with negotiating.

If you have a lot of non-exempt assets and you don't want to pay, you need to get serious about defending and don't sign anything they offer, especially anything that "confesses judgment".

It all depends on your asset and employment situation.

Someone unemployed with a lot of assets has a different answer than someone with a high paying job with no assets.

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Thanks for the response. I don't think I am judgment proof. Where would I find that out?

If a payment arrangement is made does the first payment I make to them restart the CRA reporting or should it still go by the date of first delinquency?

The only asset I have is a home.

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If you can exempt ALL the equity in your home, just blow it up with a Ch. 7.

Otherwise, you can still keep your home with a Ch. 13, but you will have to make payments to the court.

Just do a free BK consult. Lawyers can get pretty close on the right decision for you. If the Ch. 13 payment is going to be worse then negotiating a payment with the creditor....

Then negotiate. Otherwise, you can always shove a Ch. 13 down their throat and the creditor will, invariably come out worse.

"Judgment proof" means you have no assets they can lien, and have no income they can garnish. Each state has limits on what can be collected. You need to do research to find out if you are "judgment proof".

My guess is: you are probably not.

Do BK consult and the path will be clearer.

I did 3 different BK consults and decided to default and negotiate where needed, instead of BK.

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I really appreciate your advice.

So tomorrow at pretrial, I should deny, deny, deny and demand proof through discovery? Then get a BK consult and go from there?

Not really sure what happens at pretrials. Do people usually get pulled aside by the lawyers to try and settle?

And your right, I am not "judgment proof".

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If you tell the judge you need more time for discovery. "The Plaintiff has been less than forthcomming with the requested documents". "I have no idea what this claim is all about other than the Plaintiff's crazy unfounded notion that I, somehow, owe him money.

That should just about do it. But it all depends on a lot of factors I do not know about specific to the case to date.

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Thank you! I am writing up my disclosure statement now as I am to give a copy of one to the Cap1 attny tomorrow at pretrial. In Colorado, discovery can only be asked for at pretrial, so I will do so in order to get the proper documentation to prove this is my debt. I will post updates.

Thank you again for your advice.

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1. Complete and legible copies of each and every cardholder agreement version used by Capital One Bank from January 1, 2003 to date.

2. Complete and legible copies of each and every version of periodic statement form used by Capital One Bank from January 1, 2003 to date. NOTE: Be sure to indicate the time period during which each form was in use.

3. A copy of all documents showing the effective assignment of rights from “Capital One Bank” to “Capital On Bank USA NA”. With originals open for inspection.

4. Complete copies of all documents in the Banks’ files and archives relating to the named Defendant for the time period January 1, 1995 to date.

5. A complete copy of any alleged signed agreement with Capital One, with original open for inspection.

6. A copy of each transaction receipt with Defendant’s original signature showing authorized use, with original open for inspection.

7. Copies of any rejections by the Defendant of Capital One’s attempted Cardholder Amendments.

8. Name, address, and telephone number of corporate officer responsible for the decision to litigate this action.

9. A copy of all the documents showing Plaintiff is allowed to legally operate in the State of Colorado.

10. A copy of the document showing Lincoln County is the “proper place for trial”, directly disputing the arbitration provider in Defense Exhibit “A” as the proper venue for “trial” of the claims. (This was case specific, probably leave this one off. You may not want arbitration in your state)

Naturally, insert your Plaintiff where "Capital One Bank" is. Give list to opposing counsel and judge.

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(I also posted this in another thread I had questions in. Hope that's ok?)

Checked in, lawyer gave me another copy of their disclosure statement and I gave them mine. Lawyer asked what I wanted to do and I said I need more proof this debt is actually mine and that is still owned by Cap 1, ect. Told her I don't recall any of the cc statements she gave me and she said ok so you want to go to trial and I said yes. So we walked up and down two differnet floors to get trial dates and when they couldn't schedule both on the same day she told me as we exited the elevator "If you lose my fees are going to be significantly more because I have to come back on a different day". And told me I was free to go. So I left.

Think I might have messed up though by not formally asking for discovery at pretrial. After leaving the conference room and having to go from floor to floor for trial dates, I completely forgot! Then she dismissed me at the elevators.

Any thoughts on what I should do?

Trials dates are about 2 months out.

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Don't worry about that threat! That is a good sign they got nothing!

If you push, it sounds like he will be forced to dismiss.

At trial. they need to produce a witness. If they don't you can object to EVERYTHING they attempt to enter as "evidence".

You can't cross examine any evidence without a witness!

If that would have been me, I would have told the scumbag "If you don't have a witness...maybe you should consider not showing up at trial."

"And hope I don't file an FDCPA claim over the issue."

But I like to 'stir the pot'.

Just my take on limited info.

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Okay. Couldn't find a form to fill out on my courts website about discovery, so should I make my own? And if there are any good links here, please include.

If I do a motion to dismiss and it is declined, am I still able to continue with discovery?

Only witness at this time per their disclosure statement is "A Representative or an Associate" of an address on Capital One Drive in VA. Only evidence are some statements and the generic card holder agreement.

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Search your county case search website. Look for a credit card case that has discovery sent by a consumer defendant (and ideas on how defendant answered Plaintiff's discovery would not hurt to get either.). Then go to court house and pull that file. Make copies of discovery requests.

You can narrow your search by looking for cases where well known local consumer lawyers are involved in.

Those pleading examples you find will have all your state specific instructions you need to properly send it, and good discovery material you can use. Add my document production list suggestion to your discovery.

COPY AND CONQUER!

If debt lawyer actually cooperates (you can use their non-cooperation against them), usually something pops up as inconsistent or something you can use against them.

Be warned: this will result in either: 1.) Them going away OR 2.) They send you discovery.

This is "turning up the heat" big time in this case, you have to be ready for it if the other guy wants to ratchet it up as well.

If this makes you nervous, you need to get a lawyer.

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"At trial. they need to produce a witness"

Since I am new to this, I am confused on this point. I was reading this link by a Colorado attorney and he gave hearsay rule exceptions. Business records and sworn statements are allowed into evidence if they meet certain criteria. Are you saying that a person must always testify to the evidence being introduced? On this point I am unclear :(

http://www.hmichaelsteinberg.com/thehearsayrule.htm

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Whether civil or criminal you have the right to cross examine your accuser. In this case someone accusing you of not following through on a civil contract.

As a general rule, evidence can only be introduced by a witness and that witness can only testify at trial WITH FIRSTHAND KNOWLEDGE OF THE EVENTS INVOLVED. No witness, no evidence! That was the issue in Bush v. Gore. Gore had all this so-called boxes and boxes of butterfly ballot "evidence", but in the end, it was all ignored because the Gore lawyers had no witness. Judges did not even look at it. "Evidence" does not rise to level of fact before the court until a witness puts his hand on the bible and swears to the truth. Before this point, its all potential evidence.

This is why affidavits from you are important before trial. It counters and deflects any summary judgment or default judgment of the potential evidence.

If the witness does not have firsthand knowledge of events, any testimony about those events is "hearsay". "Hearsay", as a rule, is not allowed.

This presents a tremendous problem for credit card companies.

There are many "exceptions" where hearsay is allowed. The one you talk about is the "business records exception". A bank employee can attempt to testify by merely reviewing the records without being a firsthand witness as long as those records were kept in regular course. States have many varying standards on what is and is not allowed on this business record "hearsay exception".

This is a complex hearsay exception and volumes have been written on what is and is not permisable with much conflicting case law and info.

Suffice to say....

The debt lawyer cannot be witness and counsel in same cause. The only narrow exception is testimony about what he's getting paid and his true relationship to his client if it comes up.

So if you are at trial. They have no witness, they cannot introduce the evidence. You need to object to anything attempted to be introduced as "evidence". You need to be careful about debt attorney calling you to stand and getting you to introduce anything they have. That would be foolish on your part.

Now can the judge allow crap in without a witness? Sure, but now you have solid grounds to appeal.

That link above is a "below average" explaination of the encompassing subject of "hearsay" and its "exceptions". I don't pretend to be an great orator on "hearsay" either, but the point you need to get is that even the business record hearsay exception still requires a witness!!!!

Producing a witness in your jurisdiction is difficult and expensive. most of the time (not always) they will dismiss if they can't get a witness.

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Thank you for all the insite and info! My head is spinning as I am soaking it all in.

Quick question....

Does the plantiff have to let you know before trial if their witness will be showing up physically or by telephone?

If by telephone how is one supposed to verify that they are actually a person employed by the original OC?

Working on all discovery requests now and will post more questions as they arise. Going to get a consult with the NACA lawyer in my area. At his fees of $200 per hour (which he told me are his standard) hiring him may be more costly than the alleged debt itself.

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most states require Plaintiff and Defendant to trade witness lists. You can depo their witnisses beforehand.

Most states you can object to telephone appearance, especially if you demanded a jury.

A jury needs to see the witness demeanor in person to realize if they are being truthful or not. Trust me...there is plenty of potential for untruthful JDB witnesess!

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So I received my notice in the mail regarding the date of my trial but it says nothing about Discovery. It just says all documents must be exchanged 30 days before the trial date. I'm so confused. Any advice?

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So I received my notice in the mail regarding the date of my trial but it says nothing about Discovery. It just says all documents must be exchanged 30 days before the trial date. I'm so confused. Any advice?

request discovery now, a trial can always rescheduled for later,

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