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Hello Everyone. My 1st post, I really need help.

I'm being sued by Main Street Acquisition Corp for $4000, on behalf of debt incurred throught HSCB. My court date is in just a couple of weeks, on 9/4/10. I'm freeking out.

Long story short... I'm going through divorce and pay my ex $900 a month in alimony. I also pay for rent for myslef. I'm broke! I made (off the top of my head) somewhere in the high 80k's or low 90k's last year. I think on paper it looks like I'm doing really good, but I'm not. My actual "net" take home is MUCH lower than that. Like almost 1/2.

I don't even know where to start. I want to pay my bills, and I would if I could, but I cant. I feel like a scum bag enough already for the situation I've put myself in. Reading what I've written, sounds like I'm crying "poor me", but I'm not the "poor me" type, really.

What should I do?

Thanks in advance for ANY advice.

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Let's assume they get their Judgment - what can you do to protect yourself?

First thing I would do is determine what your "Net Disposable Income" is. That is Gross Income minus all legally required deductions, like State and Federal Income Taxes, Social Security, Medicare and State Unemployment. Multiply this amount by 25% - that is the maximum that can be Garnished under California law. We will call this amount "A".

Next, have the Alimony deducted from your paycheck. That counts as a prior Garnishment. We will call this amount "B". Only the difference between A and B is what the creditor can get in a garnishment.

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Is that based per month or per pay check?? Is it a cap?

EDIT: Also, last night I went online at lasuperiorcourt.org/civilcasesummary and plugged in the case number. It shows me there along with 15 other people under the same case number, however it appears to be different collectors at different courts. I'm confused.

Edited by jeep4x4me
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A copy of the "summons" was delivered to me at work, I was never officially served. What do I do when I get to court? Ask for an extension and find a lawyer? I will have my divorce papers with me showing the alimony $ amount. Anyone know what I should expect?

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If you were never officially served, how did you find out about the lawsuit?

If you received a summons at work, that sounds like you were served. You should have gotten a "Summons", which is a one-page cover sheet which has some instructions and includes the case number assigned by the court, and a "Complaint" which outlines the claims against you.

Assuming you are going to fight this, you need to file an Answer within 30 days of being served. I have a sneaking suspicion that the time to file this is passed, if you have already had a hearing date set. If you didn't file an Answer, they are going to ask for a Default Judgment.

I recommend that you go to the courthouse and get all the documents for your case: Summons, Complaint, and their Proof of Service. If you can access them on-line, even better.

The first court conference is usually just to find out if the defendant (you) has been served.

- If not, the court orders the plaintiff to serve you.

- If you have been served, and no Answer has been filed, the court orders the plaintiff to file an Entry for Default Judgment.

- If you have been served and you have filed an Answer, the court will "continue" the case to allow for Discovery to be completed, and schedule the next conference.

I don't know how to be more helpful because I don't really know what's going on, and it sounds like you really don't, either. Getting more information from the court documents is the place to start.

Good luck,

DH

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Junk Debt Buyer suit, piece of cake. Deny all paragraphs except personal/residential info if correct. File affirmative defenses.

Prepare to send requests for admissions and requests for production of documents.

They won't have any admissible evidence to win their case because junk debt buyers never have sufficient evidence to prevail. They just fish for default judgments. But they will attempt to manufacture evidence, but all you have to do is shut down their sleazy tactics.

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Junk Debt Buyer suit, piece of cake. Deny all paragraphs except personal/residential info if correct. File affirmative defenses.

Prepare to send requests for admissions and requests for production of documents.

They won't have any admissible evidence to win their case because junk debt buyers never have sufficient evidence to prevail. They just fish for default judgments. But they will attempt to manufacture evidence, but all you have to do is shut down their sleazy tactics.

========================

I totally agree with what Massive says. They won't have evidence that is admissible. The garbage they introduce you should challenge. They can not prove their case based on monthly credit card statements if you challenge those statements.

With regard to Massive's other statements concerning discovery. Rock and roll. File your answer ASAP. You have to get your answer on file within 30 days of service. Go to the courthouse. Pull the file, pay particular attention to the date on their proof of service. Get your answer on file ASAP.

Massive is so right about sending over a request for production of documents. You want to see the garbage they build their case on well ahead of trial.

After you file your answer. Send over meet an confer doc asking the plaintiff to stipulate to your filing a cross complaint. They will probably just ignor your a$$. That would be really really good for you. Email the clerk for a hearing date for a motion for leave to file cross action. You can get all of this from the reference librarian at the local law library.

If you follow this process you will get not a dismissal with prejudice but a damn check from the bastards that sued you.

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I usually don't rush through posting on forums but I did yesterday and left with a lot of unanswered questions, my apologies.

- I was never served in person. Court papers were dropped off at the receptionist desk at work for me Thursday the 19th of August (2 weeks ago). The court papers were filed on March 5th of this year (from what I can see of the date stamp on the paperwork).

- I've since looked online for the case and found it and all the action that has taken place since filing. The next step listed is "OSC - 3.740 COLLECTIONS-PROOF OF SERVICE".

- Now going back up to being served, one of the 1st actions I see online was "ORDER TO SHOW CAUSE HEARING/CASE MANAGEMENT REVIEW SIGNED

AND FILED BY ARMANDO V. MORENO, COMMISSIONER TO SHOW WHY

SANCTIONS SHOULD NOT BE IMPOSED FOR FAILURE TO FILE PROOF

OF SERVICE PURSUANT TO CRC 3.740(E). MATTER SET FOR

HEARING ON 09/07/10 AT 09:30A M., IN DEPT. 006 .

CERTIFICATE OF MAILING FILED." ..."why sanctions should not be imposed for failure to file proof of service... " That's bad right?

---- I guess my question right now is the next hearing on Tuesday is "collections proof of service". Do I need to be there for that? Or should I just get as much documentation as I can as debtorshusband has described when the court re-opens on Tuesday and then go from there??

I've been thinking all along that dooms day is Tuesday, but I don't know. Are there other steps?

Thank you in advace for ANY help!

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Absolutely!

You must be present or they will "have their way".

As previously mentioned by others, deny everything and admit to nothing, except name, etc.

Being such short notice it is hard for us to find a "quickie" to use. One thing you can use is this. In the FDCPA (top of page here), read section 809©. This simply says that the judge cannot use your not disputing the claim earlier against you. Therefore, you could state that you do not recall ever having an agreement and/or contract with the plaintiff. Therefore, you must now ask they produce all paperwork they have that shows this to be true, and, if it is true, how they arrived at the amount claimed. What is principal, interest, fees, all of it. And, upon their delivering to you, you will need a minimum of 30 days to study the papers and reasonably arrive at the conclusion if all is or is not true. Understand above all else you may believe, it does not matter that the debt was sold, the JDB cannot claim more than what is allowed by the agreement/contract with the OC, period. If they try, object with all you have, by reminding the judge of this. I don't mean yell it out. Wait for your turn and remind the court of this.

The primary reason for using this is to protect yourself when you deny liability. If you just state the debt is not yours, you have a problem when and if they prove it. But, by telling the court that due to the above, you cannot give an honest and reasonable answer to the question of whether the debt is or is not yours, whether the amount claimed is the amount allowed by agreement/contract, as well as the state statutes.

You could challenge the service to see if it was done as required by statute. I say this based solely on your comment about service.

Go to the California Department of Consumer Affairs and look for the Summary of the FDCPA, also known as the Rosenthal. This is California's own collection statute. The statute is found at California Civil Code 1788.1 et seq. If this is being reported and you were never notified in writing, this is a violation and actionable, and found at CCC 1826(B). Pull a credit report and look. Then double check any written communications you have from this JDB. I doubt if you have time to file before next week, but, you can tell the court you will be filing a claim real soon. Or, if the court will act, tell the judge that due to their violations, as written, it is my prayer this case is dismissed with prejudice, or, that plaintiff agrees to accept "X" amount as payment in full, or, as the court deems fair and just.

The plaintiff most always begins. Let them speak without your saying anything. Have a notepad and pen handy. Note comments or claims made that you know to be untrue, or you feel you must respond to directly. Stand tall and be polite. Yes, your honor, no,your honor. Refer to the plaintiff as the plaintiff. You can sit down over the weekend and write yourself an outline of what you want to say, or, must address.

Your goal is to have this resolved to your benefit, not theirs. Use the weekend to do some serious reading.

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Everything retmar said is good stuff, except I think it's premature. I don't think any of this will come up yet.

First, let's talk about service: California allows what is called "substitute service." This involves giving the paperwork to a responsible adult at the defendant's home or place of employment, then following up by mailing a copy to the defendant. Although you didn't mention getting anything in the mail, I don't think you should quibble about this, and should consider yourself served. Focus on dealing with the lawsuit.

So, you have 30 days from the date of service (August 19) to file an Answer. That means your answer is due Sept. 18. But Sept. 18 is a Saturday, so you have until Monday Sept. 20. Let's discuss Answers at another time. (California provides convenient forms; I have posted links to them before, due to time constraints for the moment I'll leave it to you to search to find them.)

However, if you can get a copy of the Proof of Service they filed, make sure the date matches. If they claim service was earlier, you have less time.

Now, if you're going to fight this, you need to file an Answer. There is a filing fee, and in California it's steep (~$300)

Here's what I think has happened so far.

- They filed the lawsuit on March 5th.

- The process server has probably come knocking on your door many times to serve the papers, but nobody was home.

- Eventually, (Aug 19) he serves you at work.

- Meanwhile, the court has set up the first conference. The main thing they want to know is if the defendant (you) has been served. Maybe they already did this once, and this is the second conference, which is why they are threatening sanctions. The threat of sanctions (a fine) is against the plaintiff for not filing the Proof of Service. The court is asking "you filed the initial paperwork on March 5, why haven't you filed the PoS? What's taking so long?" The plaintiff's answer is likely to be, "we haven't been able to locate the defendant yet to serve him." To which the judge, most likely, will just grant them more time to serve you. After a very long period of time without serving, the judge will eventually dismiss the case. In your case, the the plaintiff may say "we finally served the defendant at work on Aug. 19, here's the Proof of Service." Since your time to file an Answer has not expired, that's probably all that will happen. The judge will "continue" the conference, and set the date for another one, at which time he will want to see whether or not the defendant has filed an Answer.

Since you have not been notified by the court of the conference, you probably don't need to attend. You just need to work on your Answer. However, to be on the safe side and make sure they don't try any monkey business, you should probably go. If they claim they served you earlier than Aug 19, you'll want to object vigorously. All you need to say is that you were served on Aug 19, and will be filing your Answer within the required time.

Good luck,

DH

Edited by debtorshusband
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- Now going back up to being served, one of the 1st actions I see online was "ORDER TO SHOW CAUSE HEARING/CASE MANAGEMENT REVIEW SIGNED

AND FILED BY ARMANDO V. MORENO, COMMISSIONER TO SHOW WHY

SANCTIONS SHOULD NOT BE IMPOSED FOR FAILURE TO FILE PROOF

OF SERVICE PURSUANT TO CRC 3.740(E). MATTER SET FOR

HEARING ON 09/07/10 AT 09:30A M., IN DEPT. 006 .

CERTIFICATE OF MAILING FILED." ..."why sanctions should not be imposed for failure to file proof of service... " That's bad right?

---- I guess my question right now is the next hearing on Tuesday is "collections proof of service". Do I need to be there for that? Or should I just get as much documentation as I can as debtorshusband has described when the court re-opens on Tuesday and then go from there??

I've been thinking all along that dooms day is Tuesday, but I don't know. Are there other steps?

Thank you in advace for ANY help!

-----------------------------------------------------

My take on your posting is that the court on it's own motion has calendared a status conference to deal with the service of process. As you say it's very bad for the moving party. From my read, this jurist has his/her docket clogged by these collection cases and is sick of it. He or she is making these kinds of cases less advantageous to bring.

Specifically he/she is forcing the moving party to spend money on an appearance. You for sure need to be there. This shows the court/jurist that his/her energies are not being wasted as they dismantle this case.

Have you gone to the law library? If not, why not? Contact the court clerk for the department your case is assigned. Get a motion hearing date. Send over that date to the other side. Call them on the phone, voicemail the message that you intend to appear and argue to file a cross-complaint. Do this after you get your answer on file. File you answer ASAP.

On Tuesday, show up an hear what they have to say. Fire off what you can via fax over the next two days. Then show up on Tuesday with file copies of what you sent over via fax.

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Most likely true I jumped the gun. I bow my head in shame, but, it is just me. I try and stay one step ahead of them. I try and be prepared for all they could possibly come up with to turn things their way. I know, bad habit, but, it did stop those who did bother me in the past. True, we were not liable for the claims anyway, and the statute had run, but, since I refuse to stand in any court but a court of the Common Law, I do all I can so as to avoid having to appear only to challenge the court regarding jurisdiction, let alone the claims made by a CA/JDB/ATTY.

"The stupid question is the question not asked!" - me

"The argument lost is the argument not presented!" - me

"I reserve all of my rights and waive none of my rights!" - my brother

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I truly appreciate all of your comments more than you could possibly know. Thank you ALL again! I never thought I would be in this situation but here I am. At one time $4000 wasn't much to me, but now it's devastating.

I will go tomorrow with my paperwork and see what's what. I wont get much sleep tonight.

I'll post back tomorrow of what happens.

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I talked to the clerk who wasn't much help but she came across as if I show up it shows I've been served.

I looked online again, the next step is Future Hearings "Future Hearings

11/16/2010 at 09:30 AM ...ORDER TO SHOW CAUSE".

Is that good or bad? I'm still thinking I'm under some kind of timeline of the 30 days from 19th of August?

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Your earlier posts said you had a court date on 9/4/2010. Did you go? What happened?

If you didn't go, the judge probably issued some kind of order, in addition to setting another conference for 11/16/2010. You should get a copy of the judge's order and see what it says.

I'm still just guessing, but either the plaintiff isn't claiming to have served you yet, or they just haven't filed the Proof of Service yet. Now the judge is giving them another 2+ months to serve you and/or file the Proof of Service. Again, that's just guessing.

Good luck,

DH

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Yes, you best be paying very close attention right now. Go to the court house ASAP and get copies of all they can give you for now. Be polite and innocent. Rely on the "this is my first time, I am very confused" attitude. Be a lamb in wolf's clothing. In short, do not let anyone know you have done your "homework", yet. And, most important, do not rely on the knowledge of any person at the counter. Most are "wannabe's" who know little, if anything, but, try to convince you they know all. You want them, the plaintiff mostly, to bury themselves by giving you ammo to fight back, so, even if they do prevail, this being a legit debt, you have the opportunity to reduce the amount of claim. Yes, you would have to file a Defendant's claim, for your own protection, but, when the time is right, and you have found some violations, you can easily inform the court of your intent to file, unless the plaintiff agrees to drop the claim entirely, or ????.

Never trust a one of them. What would stop the plaintiff from filing for a default at same time they file the service? Did the filing of the service actually meet the parameters as written in the California Code? Look it up and read the whole of Service in the state. Remember, it is up to you to assure this is a two way street, otherwise, if you relied on either the court or the plaintiff, just sit down and cave now.

Edited by retmar
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