Our day in Court

[daybyday]

Summary of actions to date:

Started receiving phone calls at home and spouse’s place of employment on an alleged debt owed Citibank. At one opportunity, I confirmed with caller that this collection firm was governed under FDCPA rules. This led me to believe that we were dealing with a Collection Agency (CA) not the Original Creditor (OC). Advised caller on the second call of the same day that they were violating FDCPA by calling more than once a day and dunning at place of employment. This reduced calls to once a day to residence. Shortly thereafter, received demand notice from Law Firm informing my spouse of alleged debt owed to Citibank, amount over 10k.

Responded with Debt Validation (DV) letter with request for production of documents and specifically no calls to place of employment. This eliminated phone calls.

Received only a copy of a statement and a letter with a contact name and phone number of CA a few weeks later. Against advice from members of this forum, I phoned CA contact. My attempt was to confirm whether this debt is being pursued by the OC or a CA. I was informed that the CA had been assigned the alleged debt to litigate for Citibank. Settlement was explored but the least they would settle for was 50%, this is unacceptable in our view as we still do not know for sure this is the OC collecting.

A few weeks later, my spouse was served with a summons to appear in court for a Breach of Contract suit. The only attachments to the suit were a copy of a statement and an affidavit from a person who claimed to be an employee of Citibank with knowledge of the account. We quickly sent off an Affidavit of Denial, Motion for Production of Documents and Request for Admissions. We filed these documents with the court clerk and mailed copies to the CA certified mail with next day delivery. About 10 days before court date the CA called my spouse at work and left a voice mail message. As I was speaking to my spouse at the time on the phone and the CA had immediately called our home and I answered. They want to know if my spouse was willing to settle before going to court. I declined. They then referenced the earlier call that I had made about settlement of 50%. I said, no that is not fact. The CA asked if I was denying the earlier call. I said, no I called to confirm who owns this alleged debt and that settlement had been discussed but nothing more. He asked again if we would like to settle before the court date. I declined.

I had trouble finding the Rules for Civil Court for Missouri, but did finally come across them online a few days before the court date. After reading and digesting the large amount of information, I determined that we still needed to file a Notice of Service with the court for the documents we mailed the attorney and did so the day before trial.

The day of first court appearance.

Not knowing how far things would proceed at court, I over-prepared and coached my spouse as much as she was willing to accept. Upon arrival, we checked the docket to be sure our name was listed. It was, along with 65 other defendants being sued by the same attorney and Citibank. We took a seat in the gallery of benches, designed to hold about 50 people. There were probably 80 people present. The Judge entered the chamber and called court to session. There were probably 12 attorney’s present. The Judge explained that he would call the docket and if we were present, to respond in the affirmative and after he had called the docket the court would take a break so that the people present could meet with the attorney to try and “work things out”. Throughout this procedure it became apparent that only two of the attorney’s had the bulk of the cases. The attorney representing the plaintiff in our suit with Citi and another attorney representing Cap 1, LNV Funding and another that slips my mind. She had well over 100 cases. This process took over an hour.

Now came the break and the attorney’s called the names of the people present. One by one the people approached the table where the attorney was seated and sat down next to them. Most all plead their circumstances to the lawyer as if this person was there to help them! Then the people would sign the judgment the attorney offered and left. The mass exchange of one’s wealth to people who hadn’t even proved it was theirs to take was amazing. Just like sheep they stepped up and got fleeced. I whispered to my wife, “be sure not to take a seat next to the lawyer when she was called. Stand. There is a reason why the Judge is in the highest chair in the room. It’s a sign of superiority. You want to reflect the same toward the attorney.”

After about an hour and one half, her name was called and she approached the lawyer, I was quite surprised that she didn’t even shake the hand that was offered by the lawyer. Game On! I had followed her to the table and refused the hand shake as well. The attorney pointed to the summons he had in a three ring binder that had figures of the alleged debt and cost and said this is the amount due. She responded, “so you allege.” The attorney said you are denying this amount? She said, “I do not believe this to be my debt.” The attorney said we can set it for trial then on a date 2 months out, please sign here. I spoke out at this point and stipulated that she would only sign after we had spoken with the judge about the motions that we had entered since the summons. The attorney said, we can do that and we approached the bench.

At the Bench.

We respectfully greeted the Judge and he did the same. The attorney stated that we had questions. My wife then asked for an answer to the motions she had filed. The Judge looked at the attorney and asked what his response to those motions was. The attorney said he was unaware of any motions. The Judge had the clerk pull the file and reviewed it briefly. He turned to the attorney and said she has responded to the summons, motioned for production of documents and requested affirmative responses. The attorney answered, we never received those, your honor. The Judge then pulled the Notice of Service and handed it to the attorney. The Judge continued, remind me counsel, what is the time limit for responding to discovery, it use to be 20 days? The attorney replied that it was 30 days plus 3 days for mail. This confirmed what I had read in the Court Rules.

The Judge said that only leaves you about 12 days to respond. I spoke up at this point and said this was not the first time we had asked for production of documents, about to refer to the DV letter, when the Judge shut me down. He firmly explained that this is “Real Court” not small claims court and that the reason there are lawyers with a bar number and a license to practice law is to speak on behalf of defendants in a civil court. While a person has the right to defend themselves, unless I had a license to practice law, I would not be allowed to speak on my wife’s behalf. I shut up and pulled a written statement for my wife to read. She began to read a request for intervention that I had prepared. Just before she got to the part citing the civil rule number, the Judge interrupted and said he would not allow this. He explained that I could stand with my spouse and advise her, but I could not speak for her.

The Judge continued that he would set a new docket date to give the plaintiff the required time to respond to the motions and at that time we could motion to compel or ask for sanctions, set a trial date, etc. All this time the attorney was noticeably un-nerved. He was looking over my shoulder as I was taking notes and opening folders. The plaintiff attorney said that a date in late November would work for him. The last thing I wanted to do was give him more time, so I whispered to my spouse to request for a date in October. She did and the attorney said he didn’t know that they could have representation available that soon. The Judge shot him a dirty look and said that wasn’t the courts problem and pulled his calendar and set a date for a docket call in October.

As the attorney and my spouse turned and returned to the table to fill out the necessary forms for the next docket call, I took the time to tell the Judge that I meant no disrespect by speaking. He affirmed none was taken and pulled a big blue book from behind his chair and said we need to get a copy of this. It was the Rules for Civil Court.

Lessons Learned.

You have to be Pro-Active in your defense! If you have done nothing to educate yourself before the CA start pursuing, you’re in denial! You know that you’ve stopped making payments and something bad is coming, waiting until the summons is at the door is not good strategy. The fine folks on this forum are knowledgeable people and have a language that is sometimes foreign to me as well as all newbies. Most of the time these folks can point you in the right direction. Get your mind right. There is no magic spell they can cast for you to make the problem go away. You have to do the hard work for yourself. Remember, the wheels of the judicial system turn slowly. Every state has different rules for court and often use different names for the same type of motions, etc. Find them and learn them for your state. Otherwise, hire a consumer attorney and/or get fleeced like the rest of the sheep.

Our journey is not over with this suit, but I feel we are in a good position to continue fighting. The plaintiff only has 8 business days remaining to complete the discovery because we were pro-active. The objective; dismissal with prejudice.

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[FL4answer58]

I read your Summary:

Have you included a counterclaim with your answer; I cite ‘phone calls spouse’s place of employment on an alleged debt owed Citibank’ and your DV.

Remember they did meet the minimum requirements in answer to your DV - ‘I received only a copy of a statement and a letter with a contact name and phone number of CA a few weeks later.’

You do need to find out - if ‘the CA had been assigned the alleged debt to litigate for Citibank.’

‘Spouse was served with a summons to appear in court for a Breach of Contract suit.’

Attack ‘the only attachments to the suit were a copy of a statement and an affidavit from a person who claimed to be an employee of Citibank with knowledge of the account.’ Noticed you already sent ‘an Affidavit of Denial, Motion for Production of Documents and Request for Admissions.’

The CA called your spouse because they would prefer to settle – may have weak a case – or bluff you out of a prolonged and costly effort, just crunching numbers for a profitable return on investment.

Court appearance. At the Bench.

‘The Judge shut me down. He firmly explained that this is “Real Court” not small claims court and that the reason there are lawyers with a bar number and a license to practice law is to speak on behalf of defendants in a civil court.’ Assume this is not a small alleged debt – over 5k?

Also there are ways to ‘join’ your spouse in defense, but you risk financial responsibility and accountability in judgment. For me, I have no issue with this – and have defended spouse – but in my case spouse was at a great disadvantage to defend (for many reasons including spouse’s health) and while I am not an expert – I was the better choice.

The objective; dismissal with prejudice will be hard if OC.

You may have noted the Arbitration method here – while it will allow you to defend spouse – it has other drawbacks including limited appeals. Some consider this option when dealing with OC. Carefully read and take caution before following these methods. If you feel you can negotiate the court with reasonable outcome – your judge does sound consumer friendly – regardless of his admonishment of your attempt to represent.

Research your judge and the Atty representing Plaintiff - make an informed decission.

[admin]

I think you did so well! Good for you.

I would just research some case law for your state, take the judge's advice to read the civil rules of procedure and see what happens. They will not be able to find anything to present as evidence.

[Guest usctrojanalum]

You and your spouse are taking this way too personally, yes you are in an adversarial court system now but that does not mean you should not be a civilized human being, why would you not shake the guys hand? One of my fathers best friends is an attorney who sued him over a commercial breach of contract 15 years ago.

[Massive]

You and your spouse are taking this way too personally, yes you are in an adversarial court system now but that does not mean you should not be a civilized human being, why would you not shake the guys hand? One of my fathers best friends is an attorney who sued him over a commercial breach of contract 15 years ago.

They didn't shake hands because there is no authenticated evidence in the record that Citibank authorized or for that fact, has Standing to sue in the State of Missouri. There is no evidence whatsoever that Citibank even currently owns the alleged debt, or that it is the defendants debt. I'm not reading the Defendants mind, only giving my opinion from personal experience.

[soveu53]

I really enjoyed how you wrote down your experience in court this was very good information and hopefully newbies will take some information from your experience and learn from it. Good Luck on your fight with them your already heading in the right direction. Hope you win your case

Edited September 29, 2010 by soveu38

[ADSOFT]

I'm kind of at that same point as you. I have requested docs over the phone,(not recommended, they might try to get you to validate the debt) all I got was an account #:. Told them I never heard of them, their acct#, or their OC(why would I admit to anything without proper proof, i.e., not enough information to make a definate statement!!!). So I sent in Bill of Particulars request, waiting for docs.

When you get your docs I would recommend that you post what docs they sent you( I wiill be doing the same). Some of the more experienced members here will let you know if the Plaintiff can win a case against you with the docs provided. I'm not going to make a move untill I review the docs recieved with the members here. From what I have read it's pretty hard for a JDB to get the proper docs to win a case.

[Guest usctrojanalum]

OP is not being sued by a JDB guys.

[ADSOFT]

OP is not being sued by a JDB guys.

Sorry, it appears to be the CA. That could propose a problem as they have better communication with the OC, ... I beieve in most cases the OC is still the owner of the debt, hence they may be able to provide proper docs and witness.

[FL4answer58]

Sorry, it appears to be the CA. That could propose a problem as they have better communication with the OC, ... I beieve in most cases the OC is still the owner of the debt, hence they may be able to provide proper docs and witness.

What ADSOFT said - may be difficult ...

If you feel you can negotiate the court with reasonable outcome – judge consumer friendly - may be able to position yourself to some type of favorable agreement before trial.

Possible MTD wo/Prej - or mutual dismiss, ...or reasonable settlement, maybe.

Edited September 29, 2010 by FL4answer58

[admin]

I agree with usctrojanalum - you can shake the dude's hand, it costs you nothing and makes you look like the better woman.

As far as not being the OC, I wouldn't go down this rabbit hole. Stick to the fact that there is no evidence. One of my friends is currently being sued by "AMEX", even though it looks like a CA. Her case is similar to this one - there is not a shred of evidence submitted. Just focus on that.

[ADSOFT]

I agree with usctrojanalum - you can shake the dude's hand, it costs you nothing and makes you look like the better woman.

As far as not being the OC, I wouldn't go down this rabbit hole. Stick to the fact that there is no evidence. One of my friends is currently being sued by "AMEX", even though it looks like a CA. Her case is similar to this one - there is not a shred of evidence submitted. Just focus on that.

True.

You shouldn't be discourged to file for discovery and see what they come up with. Worst case you might even be able to agrue amount, or at least limit evidence to what they produce. If not enough then you might win the case.

[daybyday]

Hi all! Appreciate every ones contribution to this post. My sincere objective was to share our experience, thus far and as we proceed, to those who may have not experienced a real court process. It’s a little different than what you see on TV and everyone is probably intimidated at their first encounter.

I did not expect the refusal of a handshake to be a hot topic.

From USC -“You and your spouse are taking this way too personally, yes you are in an adversarial court system now but that does not mean you should not be a civilized human being, why would you not shake the guys hand?”

USC, we really appreciate your insights and hope you will continue to contribute to any of my postings and others, as I enjoy reading what you have to say. But, there are many civilized human beings on this planet that do not shake hands. It just depends on what culture you grew up in. Having said that, my family’s culture apparently is the same as yours.

If we had met this attorney at a church picnic, a school event or even if we had gone out in the hallway of the court building, my hand probably would have been extended before his. But, once we have gone though the swinging gate from the gallery into the court arena, we are not in a NEUTRAL position. I did not go into detail about the chit chat and gossip talk that went on between the attorneys, the bailiff and the clerks, before court was in session and between the 1st call and 2nd call of the docket. This is their work place and it really didn’t bother us. But for a Defendant attempting Pro Se, this is not NEUTRAL ground.

Admin, please don’t block me . But, it may have cost us in a couple of ways if we had not shown our resolve. First, my spouse was still in denial of our situation and I was unsure of how she was going to respond. Her refusal of the handshake was pure instinct. I had not suggested the action and was certain of her resolve at that moment. GAME ON! Second, think how uncomfortable this made the attorney and within 60 seconds he was in front of the Judge having to explain why he was not aware of the motions we had filed with the clerk weeks before the docket call. It un-nerved him and took him off his normal game. The attorney is on the defensive and now, in front of the Judge, we are on NEUTRAL ground and the attorney's frustration helped us look more creditable. We do not view the Plaintiff's attorney as someone who there to help us. This was not planned, but that is how it turned out.

At this point we are awaiting discovery. Production of Docs and Affirmations, are due in 10 days as per the rules of Missouri civil court. Remember, we filed these shortly after receiving the summons and hopefully our pro-active stance has thrown the Plaintiff out of their normal template for collecting. Until we get a response, we still do not know if we are dealing with an OC or a CA and still may not know until trial. Any contribution on preparation for either outcome is appreciated.

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[tx3amigos]

I think there is something odd with the judge telling you 'not to talk for your wife' in court when you said earlier the CA discussed a settlement on her account with YOU on the phone at an earlier time.

great posting of info......

[RebelLady]

This was excellent. I thoroughly enjoyed reading it and appreciate that you took the time to post it!

I wish more folks would do the same thing. It would help de-mystify courts and court proceedings (and judges, too).

Thanks a bunch

RL

[Recovering Attorney]

Citibank always has complete records. And they are efficient at producing them. The law firm suing you may not be, and that may help, but Citibank usually is effective. 50% is not bad, btw. They were always higher, then got drunk on TARP and went home with the best offer. But they are getting stingy again. Chances are, if they come back with the complete bible on your wife's account, that offer may disappear. So, collect the pennies and nickels and weigh your risks. And have a settlement figure ready from when you go back in October. Good luck