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Court day is tomorrow - questions


D.Ann
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After you are certain they are going to win.

What have you done so far.

We have talked twice to the lawyers for Capital One and they will not really work with us, as they want too much for a settlement and for payments they want to large of an amount along with putting a lien on our home.

Court day is tomorrow and since it is our debt I don't know why they wouldn't win?

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What they want is that lien on your property. They know you can't afford to settle and that's why they won't work with you on getting the settlement down or reasonable monthly payments. They want the lien! I'm sure their complaint states an interest rate above 20%. In their eyes they will win, they will accrue interest on your judgement, and they also hope that in a couple years you try to get a refi or sell your home and bam, they get their judgement with interest thanks to the lien. If a person owns property crap1 is relentless and hard to beat regardless of what people may tell you. Especially if it is infact your account. If it is your account I just don't see how one can fight it without an attorney.

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What they want is that lien on your property. They know you can't afford to settle and that's why they won't work with you on getting the settlement down or reasonable monthly payments. They want the lien! I'm sure their complaint states an interest rate above 20%. In their eyes they will win, they will accrue interest on your judgement, and they also hope that in a couple years you try to get a refi or sell your home and bam, they get their judgement with interest thanks to the lien. If a person owns property crap1 is relentless and hard to beat regardless of what people may tell you. Especially if it is infact your account. If it is your account I just don't see how one can fight it without an attorney.

Sadly we can't afford an attorney. When my husband was talking to the lawyers for Capital One and they were discussing about the lien they said that they would attach if we go for the payment plan or if we go to court (if we could come up with the settlement amount then they would not attach a lien, but we can't come up with the amount they want for settlement) my husband asked them what could they do with our home since it is a double-wide sitting on 5 acres of land? and that we would not be selling our home nor will we be refinancing as it is hard to get a refinance on a mobile home...we have checked into this when we thought of refinancing for lower interest rates and no one wanted to discuss a refinance after finding out it was a double wide. When the person he was talking to at the lawyers for Cap1 heard this they said a disappointed "oh". We don't own either the home or the land, yet. We just bought both approx. 4 years ago so we have a long way to go on the mortgage.

What I am wondering about also, in a judgment can they take a vehicle even if it is used for a home business?

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We have talked twice to the lawyers for Capital One and they will not really work with us, as they want too much for a settlement and for payments they want to large of an amount along with putting a lien on our home.

Court day is tomorrow and since it is our debt I don't know why they wouldn't win?

D.Ann, Since your court date is tomorrow, you may be in a bind, but you could go in and tell the judge "We hadn't been prepared to fight this, because we thought we owed the money, but it has just come to our attention that we may not owe this company anything. Could we get a postponement so that we can have a little more time to research this, and maybe consult an attorney?"

Do a search here for Capitol One! There are many cases where Capitol One has sold their old defaulted accounts to third party "Junk Debt Buyers". If you never made any agreements to pay this JDB, then you may not owe them anything. In fact, if the JDB is representing themselves as being an attorney representing Capitol One, instead of truthfully disclosing that they own the debt and and are trying to collect it themselves, you may be able to sue them for fraud!

Good luck!

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They can't just come in and start taking your property no. What they can do is put a lien on property, freeze your bank account, or garnish wages. They can still get a lien even though the bank owns the note on the property, it's still "your" property. The longer the judement is in effect the more they like it coz the interest just keeps racking up. Judgements are valid in MO for 10 yrs and are supposed to be unrenewable although a local attorney told me that's easy to get around and can make it last forever. I think he's full of ***t myself. This was a guy we went to to possibally hire and instead he tried to thrill us with what an awesome debt collector he himself was...total moron.

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They can't just come in and start taking your property no. What they can do is put a lien on property, freeze your bank account, or garnish wages. They can still get a lien even though the bank owns the note on the property, it's still "your" property. The longer the judement is in effect the more they like it coz the interest just keeps racking up. Judgements are valid in MO for 10 yrs and are supposed to be unrenewable although a local attorney told me that's easy to get around and can make it last forever. I think he's full of ***t myself. This was a guy we went to to possibally hire and instead he tried to thrill us with what an awesome debt collector he himself was...total moron.

wow what a jerk! well if you do let them get a default and they put a lein on the house, just never sell it.. let them suffer and maybe after 10 years they will forget to renew the judgement, or I think if you fiel bankrupcy it will get rid of the lein, am i correct about this?

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(poorbastard42, I wished we would have got your message before we went to court!)

We just arrived back from court. I think we are messed up as we come away owing more than we did going in. Here's what happened:

The debt collector attorney for Cap1 consulted with us before we went before the judge. She showed us a paper that had the total we owed (3781.45) plus interest (591.07) and lawyer fee (655.88). She asked my husband (which is the name the credit card is in) if he agreed to the amount and he said he only agrees to the 3781.45 but not to the interest nor the lawyer fees. She said ok did he want to the Judge to decide concerning those fees and he said yes.

Before the judge my husband said he did not agree that to the interest nor lawyer fees and the judge said ok, so you are disputing and we can set up a date for trial and named a date in Jan. My husband spoke up and said he didn't want to go to trial nor have to come back. The judge explained to him that if he disputed the totals that he would have to come back for a trial or get an extension to consult a lawyer (we can't afford a lawyer). The judge suggested that the debt collector talk further to my husband and that he would put our case at the end of the docket for that day and call him back up after the debt collector spoke further with him.

We went out into the hall with the debt collector and she asked my husband what he could pay and he said he could not pay any more than $50 a month and that he wanted the interest lowered from 23% to 10%. She first said she couldn't drop the interest rate and that cap1 wanted $185 a month payments, but my husband said he had talked prior to coming to court with Cap1 lawyers and they had agreed to a %10 interest but that they would not agree on a a $50 payment and that is what we are here at court. She then came back with that she could drop the interest to 9% with $50 a month payment plan only for three months, after that we would have to talk with Cap1 and set up a different payment plan. She said they would have a judgment and since my husband was on disability soc. sec. that they probably couldn't touch that bank account. My husband agreed to that and went back before the judge.

Once again in front of the judge he asked my husband if he agreed to that and my husband said yes and said are you making a judgment (he was wanting to ask about property exemption and slow pay through the court but thought he was suppose to wait until a judgement was made). The judge made the judgment and my husband said he wanted to exercise his right to exempt personal property and file a motion for slow pay through the court. The judge looked at him blankly and said that he would have to talk to a lawyer about that that he didn't know about any type of papers nor know where they are at for that. He said he couldn't advise him, but said that my husband should be able to ask a lawyer or find what he needs on the internet.

When we left I went to the circuit court clerks window and asked them for the forms to file for the exemption and slow pay and they looked at me like I was from another planet and said they never heard of such a thing and didn't have any such forms, but if I find such forms they will sure file them for us.

What did we do wrong? We thought after judgement we would be able to file these forms to at least protect some of our personal property and slow pay.

Where can we get these forms at and how long after judgment is made is it too late to file them?

Is there something specific we need to do to protect our bank account from garnishment since the only money that goes in there is my husbands disability? Since both our names are on the account can they garnishe my income (a home business) even though I do not use that account for my business and never put money into that account. It is solely used for my husbands disability and to pay our mortage, land payment, utilities.

Since the judge was no help at all in my husband exercise his right to file the exemption and slow pay is there something we can do about that?

I know this is a lot of questions but I really need help with knowing what to do now to protect ourselves.

Thanks in advance for any help.

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They can't garnish social security to include disability. They can however freeze your bank account and if the SOLE source of funds for said bank acct are his disability then that's the same as a garnishment which technically they cannot do. If you get your bank acct frozen you'll need to go to the sherriff and get an exemption.

One thing you need to do is make sure that the bank account in which his disability goes into only reflects deposits in the form of his disability. Don't deposit any other money's into it, that way it is trackable that the only money going in is disability, THEY CAN'T TOUCH IT!

This is what more than one local atty told us.

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This MO Maybury judge should have his law license revoked.

If the defendant disputed some or all of the charges. Judge should have set it for trial date...then it is up to Defendant to come back and defend.

If defendant does not show up to trial, fine, enter judgment.

It at least gives Defendant time to mount a defense, think about a different strategy like arbitration, or negotiate.

I don't agree with ringing this case up at all at this hearing.

I just had to vent.

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This MO Maybury judge should have his law license revoked.

If the defendant disputed some or all of the charges. Judge should have set it for trial date...then it is up to Defendant to come back and defend.

If defendant does not show up to trial, fine, enter judgment.

It at least gives Defendant time to mount a defense, think about a different strategy like arbitration, or negotiate.

I don't agree with ringing this case up at all at this hearing.

I just had to vent.

This is a very small town and is probably like Maybury! We lived here for approx 4 years now.

The judge was going to set up a trial date but my husband spoke up and said he didn't want to go to trial or come back so the judge to the debt collector to discuss more about Cap1 wants with us and come back in.

Why is it that he wouldn't let my husband request his rights of personal property exemption and slow pay through the court? I thought that was our right after judgement?

No one at the court knew what these forms were. Is there such forms and where can I find them?

Edited by D.Ann
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Google Slow Pay Motion.

Thanks, I did and that is what I am referring to but as it states in the section "how to file a slow pay motion". It instructs to "go to the Court Clerk's Office" and the clerk will give you a paper. It asks where you work, how much you make and how ofte you are paid," etc., see here: http://docs.google.com/gview?a=v&q=cache:GfKQg8M8Ud0J:www.tennlegalaid.com/Library/Documents/1152650371.03/Garnishmentweb905.pdf+Slow+Pay+Motion&hl=en&gl=us&pid=bl&srcid=ADGEESiRTRLUvp_lpLLHzmntMiW00rMGmA0Yw83YiRdDAnMqg3rXxoEbSj7q3vKPu7iIywM72R8e-0fAfQS1Ffyw-UmW9TOUH7DMRg6Nm3dVpnG2aCPzjDJuSBQUOxjmqsReJmqvcaaa&sig=AFQjCNExhQipP6P_eOoy0AhyRHrZor83Ew

Immediately after we came out of the court room I went to the Court Clerk's Office and requested this but they had no idea what I was talking about.

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Thanks, I did and that is what I am referring to but as it states in the section "how to file a slow pay motion". It instructs to "go to the Court Clerk's Office" and the clerk will give you a paper. It asks where you work, how much you make and how ofte you are paid," etc., see here: http://docs.google.com/gview?a=v&q=cache:GfKQg8M8Ud0J:www.tennlegalaid.com/Library/Documents/1152650371.03/Garnishmentweb905.pdf+Slow+Pay+Motion&hl=en&gl=us&pid=bl&srcid=ADGEESiRTRLUvp_lpLLHzmntMiW00rMGmA0Yw83YiRdDAnMqg3rXxoEbSj7q3vKPu7iIywM72R8e-0fAfQS1Ffyw-UmW9TOUH7DMRg6Nm3dVpnG2aCPzjDJuSBQUOxjmqsReJmqvcaaa&sig=AFQjCNExhQipP6P_eOoy0AhyRHrZor83Ew

Immediately after we came out of the court room I went to the Court Clerk's Office and requested this but they had no idea what I was talking about.

You are relying on a publication from Tennessee regarding Tennessee law. That would be why the Missouri Court and Clerk's office knows little to nothing about it.

I have never practiced in a state with such a motion. Hence the reason I had never heard of it until you mentioned it. Have you researched your states garnishment procedure? Here in Florida they actually have to file a Writ of Garnishment before they can garnish wages. It is in response to such a motion that exemptions may be raised.

I am confused as to why a judge should be penalized for not knowing another state's odd procedural novelty.

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Thanks FlaLawyer. I searched online and found the following (below) for garnishment procedure for Missouri. I really do not understand what it is saying. Cap1 may not try to garnishee my husbands bank account since a payment plan for at least the next three months was accepted in court today by the debt collector for Cap1, but it is after this that worries me....they probably can then ask for the full payment first requested ($185) and if we say we cannot afford that amount it is then they will probably apply garnishment?

Since the card is in my husband's name can they come after my income (since his income is disability) even though I am not on the cc account nor named in the suit/judgment?

Missouri Procedural Requirements

The party in whose favor any judgment or decree is rendered, may have an execution in conformity therewith. Mo. Ann. Statute. _ 513.015. When a fieri facias shall be issued and placed in the hands of an officer for collection, it shall be the duty of the officer, when directed by the plaintiff to summon garnishees. Mo. Ann. Statute. _ 525.020. Mo. R. Civil. P. 90.03.

Notice of garnishment shall be served on a corporation, in writing, by delivering such notice, or a copy thereof, only to a person designated by the corporation in a registered letter filed with the sheriff or officer for collection in the corporation's county of primary business. If such designated person is not available or if such designation is not filed, then such notice may be served upon the president, secretary, treasurer, cashier or other chief or managing officer. Mo. Ann. Statute. _ 525.050.

Notice of garnishment shall have the effect of attaching all personal property, money, rights, credits, bonds, bills, notes, drafts, checks or other chooses in action of the defendant in the garnishee's possession or charge, or under his control at the time of the service of the garnishment, or which may come into his possession or charge, or under his control or be owing by him, between that time and the time of filing his answer. Mo. Ann. Statute. _ 525.040. Mo. R. Civil. P. 90.06.

Prior to the issuance of the summons of garnishment, the garnisher shall file written interrogatories asking the garnishee to Statutee the property subject to garnishment in the possession, charge or control of the garnishee. The interrogatories shall be served simultaneously with the summons of garnishment. Mo. R. Civil. P. 90.13.

If by answer, not excepted or denied, it appears that the garnishee has property subject to garnishment, the court shall allow the garnishee a reasonable amount for the trouble and expense of answering, including attorney's fees, to be paid out of the funds or proceeds of the property subject to garnishment. If a garnisher does not recover judgment against the garnishee, all of the costs attending such garnishment shall be taxed against the garnisher. Mo. R. Civil. P. 90.18. Mo. Ann. Statute. __ 525.230, 240. [1]

Note: The notice of garnishment shall contain the social security number, when available, of the judgment debtor. Mo. Ann. Statute. _ 525.233.

Interest Rate at which Judgments Accrue Interest shall be allowed on all money due upon any judgment or order of any court from the day of rendering the same until satisfaction be made by payment, accord or sale of property; all such judgments and orders for money upon contracts bearing more than nine percent interest shall bear the same interest borne by such contracts, and all other judgments and orders shall bear nine percent per annum. In tort actions, if a claimant has made a demand for payment of a claim or an offer of settlement of a claim, to the parties and the amount of the judgment or order exceeds the demand or offer, prejudgment interest shall be calculated from a date sixty days after the demand or offer or from the date the demand or offer was rejected without counter offer, whichever is earlier. Mo. Ann. Statute. _ 408.040.

Applicable Forms Interrogatories to Garnishee, Mo. R. Civil. P., Form 13. 1 The court shall make the garnishee a reasonable allowance for his trouble and expenses in answering the interrogatories, to be paid out of the funds or proceeds of the property or effects confessed in his hands. The court also show allow the garnishee in addition to the reasonable allowance, to claim a fee consisting of the greater of eight dollars or two percent of the amount required to be deducted by any court ordered garnishment for the trouble and expenses in administering the notice of garnishment. Mo. Ann. Statute. _ 525.230.

Edited by D.Ann
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If your name is on that bank account, remove it at once. I think I read that you should notify your bank and make sure no funds are removed from there to pay any judgements.

As far as your home and land go, someone else will have to answer that.

I wish your husband would have taken the trial. That would have allowed you more time to research and a better chance to fight this thing. And I wish he had not admitted any of the debt.

At this point, people who are knowledgeable about post judgement issues are going to have to help you. I would start a new thread.

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Thanks lilq. He probably would have taken the trial but we were under the assumption that we could file for personal property exemption/slow pay motion. It is appearing like that this is not something that Missouri knows anything about because I called the next big city over from us and their circuit court clerk knows nothing about it either. We also noticed on the judgement paper the debt collector handed my husband has only note of 9% interest, there is no statement or note that she said we could pay $50 a month for the first 3 months.

I wonder, can we file for an appeal to go back into court on this since we were under a false assumption of a right for slow pay that may not be a right for our state, causing my husband to accept the debt collectors offer and the judgement of the judge?

Edited by D.Ann
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