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Settlement-How To Avoid Stipulated Judgement

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So here is my question. I was sued by Zwicker in GA on behalf of Amex. Have been doing all the necessary court filings etc. Pro Se, I was offered a settlement in writing by them for approximately half over 2 years. 1st pmt must be received by then by end of month. I have agreed but asked them to drop the lawsuit. They said that I would have to sign a "stipulated judgement'. There is no way that I will sign that. My question is, if they don't agree to settlement without me signing & them dropping lawsuit, can I post the $$$ with the court and petition the court to enforce their offer of settlement without them dropping it? I would think that the judge/courts would respond to why are they wasting my time if they offered to settle and take this off the calendar.

Any advise from those in the know would be appreciated.

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I agree with you on not wanting to sign a stipulated judgment. There is never really ever a reason to agree to enter judgment, if you are going to end up with a judgment you are better off fighting your case to the bitter end and making them at least work for it.

I would counter with something like, "I will agree to pay off the outstanding balance <terms and other conditions go here> in exchange the case gets marked settled by both parties and then if in the case of a default of the settlement agreement plaintiff is entitled to enter judgment for the outstanding balance less any payments made."

I have a sample of a stipulation that has worked for me, and I will share with you and others if you so desire. But be warned, others on this board have said they would not sign the agreement if it were offered to them. I personally never had a problem with it because a) the debt never goes on my credit report as a judgment, and B) when I paid the debt off I got a discontinuance with prejudice.

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I just rec'd by fax their"consent order" that they want me to sign. There is no way that will happen. I would consider signing something admitting to the settlement amount which is half, but not to what they want. Incidentally, the offer that they first sent yesterday had no conditions of signing a consent or stipulation. I will post these shortly for comments as soon as I can scan them.

In the meantime, please share with me your sample stipulation.

Much appreciated

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I will share the template I use tomorrow in the AM. It is currently saved on my laptop which I don't have access to at the moment. I am very interested in seeing what they are offering you via the consent order.

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I agree with you on not wanting to sign a stipulated judgment.

I second that. I would not sign one either -- you're dealing with liars and thieves. Why would you trust them?

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For some a stipulation agreement may be far better than a judgment if you can make the payments.

Other option is the battle on the suit which depending on local court and whims of the judge may result in a worse judgment depending on how strong your case is and again the whim it seems of the Court per results posted here.

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Sorry I don't have a PDF editor so I had to copy & paste as best as I can. Here is the first part, sent yesterday offering a settlement. These is no mention of a consent or stipulation in this.

This letter will confirm that our client Amex has

agreed to accept $xxxx as settlement in full of

the above referenced acct. This settlement is

conditional upon receipt by this office of a

check in the amount of $xxxx on or before the

28th of the month oe each consecutive month

beginning January 2011 until december 2012.

Amex has requested that we advise you of the

following:

By accepting this amount Amex releases Mr Nice

Guy from further liability on this acct only. No

attempts will be made to collect the remaining

balance. However it should be noted that the acct

will continue to reflect the remaining balance

which would need to be paid before Amex processes

any future applications that you may choose to

submit for Amex accts or that an employer may

submit on your behalf for an Amex corporate card.

Notewithstanding the foregoing future

applications may still be declined based on the

credit criteria in place at the time the

application is submitted.

Upon timely receipt of said payment and

successful negotiation thereof, this office shall

advise our client that the account is settled in

full. Thereafter in due course our client will

notify the appropriate credit reporting agencies

of the accounts settled status.

If the payment of the settlement account is not

received on or before the date stated above,

acceptance of this settlement offer is withdrawn.

If there are any questions or concerns please

contact ...

They called me today and said that I would need to sign certain docs. Here is what they faxed to me

----

ZWICKER & ASSOCIATES

vs.

Civil Case No:

IN THE STATE COURT OF FULTON COUNTY

STATE OF GEORGIA

AMERJCAN EXPRESS CENTURION )

BANK, )

)

)

)

)

)

)

Mr Nice Guy )

Defendant )

------------------------~

Plaintiff,

CONSENT ORDER

Come now the parties, who consent the following be made an order of the Court:

1.

Defendant in the above styled case waives service of process, sub its to the jurisdiction

of this court, and dismisses any Counterclaims with prejudice.

2.

Defendant admits to owing plaintiff the principal sum prayed for i its Complaint in the

amount of $xxxxx plus interest in the amount of $0, and court costs in the amount of

$xxxxx, less credits made in the amount of $0 for a total balance due and wing of $xxxxxx.

3.

Plaintiff shall not undertake to collect said amount by garnishment execution or

otherwise so long as Defendant pays a total settlement amount of $xxxxxx on the following

terms:

$xxxx per month for 24 months beginning on 1/28/11 and payable or before the

28th of each month until the agreed upon settlement is paid in full.

4.

All payments shall be made payable to the above-named Plaintiff d mailed to the office

of Zwicker & Associates, P. c., 80 Minuteman Road, Andover, MA 0181

5.

Upon completion of all payments by Defendant, and processi g of payments by the

Plaintiff's counsel's corporate office. the Plaintiff will dismiss the Complaint with prejudice.

6.

In the event that the Defendant fails to make any payment in a timely manner and thereby

defaults, Defendant hereby consents to the entry of a judgment in favor of the Plaintiff instanter

and without notice to the Defendant, in the amount of $xxxxx less credit for payments made

prior to default, plus court costs and post-judgment interest at the legal rate.

7.

Counsel for Plaintiff will submit an affidavit of default to the Clerk of Court showing the

amounts remaining unpaid, following which the Court will enter a fina1 judgment in such

amount, instanter.

Dated this day of January, 2011.

ZWICKER & ASSOCIATES, P. C.

ATTORNEYS AT LAW

BY:

Defendant's Attorney name & Bar #

Defendant's Attorney address

Defendant' 5 Attorney phone

IT IS SO ORDERED this __ day of -',20_.

Judge

State Court of Fulton County

I'm open to any suggestion as to how to get around this. Is there some motion that I can make to the court to compel them to settle and can I post the money(at least the 1st pmt) with the court as I don't think that they will cash my check if I don't sign.

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That is not the same thing as a stipulated judgment. A stipulated judgment is agreeing to a judgment being entered against you and you making a payment plan that is set forth. (or it's not the same stipulated judgment I was thinking of, I can see why this would be called a stipulated judgment)

TBH, that consent order they are offering is not really all that bad. There is no judgment entered against you while you pay it back, and the only way it will be entered against you is if you default in your payments.

This is simply an agreement between the parties that is so ordered by a judge, hence the name "Consent Order"

The only paragraph I have issue with is number 6. I don't like that they can enter a judgment if you default without notice. Ideally you would like at least 10 days written notice so you may cure the default.

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I think there also needs to be somewhere that not only will plaintiff dismiss with prejudice but they will not sell or transfer the account to anyone else. Don't want someone else coming after you for the remainder.

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For some a stipulation agreement may be far better than a judgment if you can make the payments.

Other option is the battle on the suit which depending on local court and whims of the judge may result in a worse judgment depending on how strong your case is and again the whim it seems of the Court per results posted here.

Exactly. I don't see whats so bad about it. I just signed one with Citibank. The alternative involved going through all the BS court proceedings and trial and then most likely paying the FULL amount and having them GARNISH it out of my paycheck where they would take up to 25% of my check each time.

With this route, I'm making the payments on my own, only paying half the amount, and I don't have to deal with the court or go to trial. I was planning on settling with them anyway when I had saved up enough money, this summons just pushed me to do it sooner.

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I don't want to sign their consent order that does not have a cure period in it. Does anybody know if there is some kind of motion or petition that I can file with the court along with my first check asking the court to enforce or agree to the settlement offer (I will file the settlement offer along with it). Is there a list of motions somewhere for Georgia Superior Court that I can look at? Can I ask the court to dismiss the case based upon their offer and my acceptance and post a check with the court?

If I can't get them to modify this, is this settlement offer good ammunition to use at arbitration if they offered it and I accepted it if I can get the case dismissed by invoking the arbitration clause.

Clock is ticking. I need to finalize this by the EOM.

Thanks

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I agree with you on not wanting to sign a stipulated judgment. There is never really ever a reason to agree to enter judgment, if you are going to end up with a judgment you are better off fighting your case to the bitter end and making them at least work for it.

i agree with you 1000000%.

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The only paragraph I have issue with is number 6. I don't like that they can enter a judgment if you default without notice. Ideally you would like at least 10 days written notice so you may cure the default.

i agree 100%.

i dont know how hard this would be, but is it possible to remove this language altogether?

but i have a problem with some other items in that order.

1-Defendant in the above styled case waives service of process, sub its to the jurisdiction

of this court, and dismisses any Counterclaims with prejudice.

dismisses counterlclaims without prejudice. why would you give up potential claims against them with prejudice? if you guys end up in court again, you signed off on your counterclaims. no way.

2- Defendant admits to owing plaintiff the principal sum prayed for i its Complaint in the

amount of $xxxxx plus interest in the amount of $0, and court costs in the amount of

$xxxxx, less credits made in the amount of $0 for a total balance due and wing of $xxxxxx.

defendant consents to the terms of this order without admitting liability.

dont admit liability.

personally, i wouldnt' admit to court costs either. but that's just me. if youre going to consent to paying, pay what the underlying alleged debt is. nothing more. IMO, im sure others may disagree.

6.

In the event that the Defendant fails to make any payment in a timely manner and thereby

defaults, Defendant hereby consents to the entry of a judgment in favor of the Plaintiff instanter

and without notice to the Defendant, in the amount of $xxxxx less credit for payments made

prior to default, plus court costs and post-judgment interest at the legal rate.

no, make them file a motion for default judgment if you fail to make payments. IMO though, i know others may disagree. or allow some time to cure the default, like processServer mentioned (30 days is reasonable to me, hey, sh*t happens in life, they should be happy they're getting paid via consent.)

7.

Counsel for Plaintiff will submit an affidavit of default to the Clerk of Court showing the

amounts remaining unpaid, following which the Court will enter a fina1 judgment in such

amount, instanter.

see #6

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I was asked to sign a stipulated judgement with covenent not to execute also, and basically I am admitting guilt. Is there any way to get them to enter this so this language is not in there? Also, it states that 'post judgement interest on the judgement will accrue at 9.00% per annum' when I was told that all I had to pay was the debt and no interest. Bascially, this is saying that the interest will still accrue??

I am doing this 'pro se' as well, could use some guidance if anyone would like to respond. Debtor is National Collegiate Student Loan.

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So here is my question. I was sued by Zwicker in GA on behalf of Amex. Have been doing all the necessary court filings etc. Pro Se, I was offered a settlement in writing by them for approximately half over 2 years. 1st pmt must be received by then by end of month. I have agreed but asked them to drop the lawsuit. They said that I would have to sign a "stipulated judgement'. There is no way that I will sign that. My question is, if they don't agree to settlement without me signing & them dropping lawsuit, can I post the $$$ with the court and petition the court to enforce their offer of settlement without them dropping it? I would think that the judge/courts would respond to why are they wasting my time if they offered to settle and take this off the calendar.

Any advise from those in the know would be appreciated.

Zwicker tried doing that to me as well. The stipulation allows them to garnish your bank account on top of the payments and that you cannot come back after them. Stipulated means that it is a mutual agreement, not one side gaining advantage over another. Say to them, how about a stipulated agreement to dismiss with prejudice. If you do not agree to the stipulation, then their next step is MSJ. Zwicker tries to scare you by saying they have to fly in the witness...etc, but if you can get through the MSJ then they might want to work with you. Best of Luck.

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