Settlement Question For The Legal Minds

[kabbalah]

My case is still in discovery stage. I was offered a settlement in writing. I agreed. Now they want me to sign a consent before they drop the lawsuit. Do I have to sign a consent in order for them to drop it? Can I motion the court for dismissal based on the settlement offer & acceptance? What maneuvers do I have left here before signing away. The offer is at 50% over time, but the consent says if I default they can hit me with a judgement for the whole enchilada. My whole case is posted on the "Reached settlement...still trying to avoid judgment" and "Settlement-how to avoid stipulated judgement" threads. I need to respond by Thursday either with a motion or a signature. All advice is welcomed.

Thanks

Edited January 25, 2011 by kabbalah

[jackson212]

what were the terms of the settlement?

the consent should not be contingent on the settlement. i would also think that the settlement would have to be "so ordered" by the judge but i doubt the judge will overlook or not agree to whatever ya'll agreed to settle on.

personally, i dont like consents. the whole "if you miss a payment we'll get a judgment against you" stinks.

my thoughts are in the other thread

[desertrat]

Not sure what the rules are in your state for filing motions but this is what the clerk of court told me (AZ)...in order to file any motions I must have filed an answer to the summons. Once I answered I had the right to file any motions. She said I could file my answer and then anytime file for a motion for dismissal (ie. once I had my settlement letter). Good chance the judge could dismiss without prejudice though just to be sure the settlement gets paid.

[desertrat]

BTW, my settlement is for 12 months of payments which I intend to make, so quite honestly I just want it done with. I can live with the dismissal without prejudice for now, dismissal with prejudice once the final payment is made.

[lheart]

My case is still in discovery stage. I was offered a settlement in writing. I agreed. Now they want me to sign a consent before they drop the lawsuit. Do I have to sign a consent in order for them to drop it? Can I motion the court for dismissal based on the settlement offer & acceptance? What maneuvers do I have left here before signing away. The offer is at 50% over time, but the consent says if I default they can hit me with a judgement for the whole enchilada. My whole case is posted on the "Reached settlement...still trying to avoid judgment" and "Settlement-how to avoid stipulated judgement" threads. I need to respond by Thursday either with a motion or a signature. All advice is welcomed.

Thanks

No you do not have to sign that agreement, you can negotiate a better settlement. No, you cannot motion to dismiss basednon settlement because the two of you have not yet agreed on the terms of the settlement.

[Guest usctrojanalum]

what were the terms of the settlement?

the consent should not be contingent on the settlement. i would also think that the settlement would have to be "so ordered" by the judge but i doubt the judge will overlook or not agree to whatever ya'll agreed to settle on.

personally, i dont like consents. the whole "if you miss a payment we'll get a judgment against you" stinks.

my thoughts are in the other thread

OP is not being clear, he was a bit more clear in his other threads. The "consent" he is referring to is a Consent Order, which like you said will be So Ordered by the a judge. Where OP is from that is called a stipulated judgment, because the judge makes a decree based upon the agreement - not because the defendant agrees to a judgment entered against him.

I did not think the terms of the Consent Order were that bad, the only part I really did not like was that the defendant did not have any notice to cure a potential default. A default of the stipulation judgment could be entered immediately upon a payment being missed, which is kind of unreasonable imo.

In the OP's situation, the case would be marked settled and stayed for the duration of the payment plan. Once the settlement is finished, the case would be dismissed with prejudice.

[VADebtor]

Nothing in settlement discussions is admissable at trial,. the idea is the courts want you to settle for "judicial economy" - to get your case off the docket. You are negotiating an agreement and it's a negotiation, involving give and take.

The creditor wants to get as much money as they can, and if payments are involved, to do all they can to be sure they get what you promise them. So they will want a way to go directly to judgement if you miss a payment - so they can take a judgement now and agree not to file it as long as the settlement is honored, or enter a stipulation they can take back to court without giving you a chance to object and convert to a judgement. They may very well want to have it be for the full amount and only accept the settlement amount if it is paid in full and as agreed. These are all negotiable, as are any requirements for a notice or time to cure default if you miss a payment, but understand what their objective is.

You want to pay as little as possible, and minimize credit report impact (or improve it). So you can ask for a non-disclosure - as long as you meet the settlement term (and during the period you are paying) no disclosure to anyone, specifically including CRAs. This means that if you dispute the TL as inaccurate with the CRA, and the creditor doesn't validate, the TL gets deleted.

[kabbalah]

I have a couple of questions i need clarification on.

1) Are you saying that I can't ask for a motion to dismiss now that I was offered a settlement and agreed to it? It is possible that the Georgia Superior Court rules of civil procedure don't allow that kind of motion while discovery is on, as I have already answered the suit. I don't know the answer to that one.

2)If for argument sake the total amount of the lawsuit is $20k. The settlement offer is $10k over say 12 months. If I have to sign the "consent order", shouldn't I only be signing it for $10k and not $20k? I know that they want everything that they can get but if I settle for an amount before trial, why shouldn't the consent order be for the amount agreed upon.

3) If they do not agree to any of this which they probably won't as they are pretty nasty, since there is an arbitration clause in this CC agreement, can I and should I file a motion to dismiss based upon the arbitration clause in the agreement? The original CC agreement goes back 20 years. Do you think if I spring this on them before filing that they will bend?

4 Should I still bother sending a 1st check to them based on the agreement with some verbiage on there saying this is the 1st of 12 checks as per agreement blah blah blah?

5) If I enact the arbitration clause, which is the best form for that(AAA, JAMs etc), and would their letter offer to me be good ammunition to use as evidence for a settlement agreement

Thanks to everyone

[jackson212]

#1- it depends on what the basis is for your motion to dismiss. they can argue that your motion should be denied because you intended to settle, it would really depend on why you are looking to dismiss though. (lack of standing is usually a good place to start if they are a jdb or ca.)

#2-- i dont know. my opinon only, i dont have any legal support to say this but if it was me i wouldnt sign for anything that's more than the proposed settlement amount. its all a negotiation. dont accept their terms, you should have a say in the negotiation and its terms.

#3- im pretty sure (correct me if im wrong) when it comes to arb you dont file a motio to dismiss, but rather you file a motion for a stay pending arbitration. the state court action would then be stayed (put on pause) until you arbitrate the mater. once arb is sorted out you can then file the respective motion or petition (petition to confirm arbitration award, etc.)

the first thing you'd need to file is a notice of intent to arbitrate, serve it on opposing counsel and file it with your court. this should throw a wrench in their program because they really shouldnt be doing anything in state court anymore once you invoke your intent to arbitrate.

#4- IMO i wouldnt send any money until the judge/court 'so orders' the agreement. the agreement and payments would start as soon as the judge gives the ok, and that starts the 30 days cycle (or whatever payment terms are in the agreement.)

this is a good legal question though

[admin]

NEVER sign a stipulated judgment! You're agreeing to summary judgment.

[davephx]

Note its a consent order not a stipulation of judgment (his other thread which gets confusing)

As I read it it stays any further action and upon full payment the Complaint will be dismissed.

Only if fails to pay on time is there an agreement to a judgment.

kabbalah - appreciate any updates if you were able to get agreement on any modifications. My guess is just for a grace period if default.

The consent order is similar to one I accepted in Court mediation (judicial Court AZ) and had a grace period standard on the form they used.

If avoided further Court action and the case has now been dismissed since I paid as agreed to. This was after answering Complaint and initial discovery 24.1 and some motions.

[kabbalah]

Here is what happened. I refused to sign their consent order. The original settlement was at 45% over 2 years. I was using a debt settler guy (who I am now having somewhat of an issue with which I will post at a later date). They came back and offered me 35% in 3 pmts over 2 months. I agreed and they faxed me a copy of a new consent order, basically the same thing as the previous but with a 7 day cure period. They cashed my 1st check. I never received the consent agreement in the mail as the fax said so I never signed it. I intend to pay them so its not a problem one way or the other.

Here is what I think happened. After I refused to sign the consent for the 1st settlement offer, I hinted to them that I was going to submit a motion to dismiss and ask for arbitration as is in the contract. I think this spooked them into making the new offer which I thought was pretty decent, although nowhere as good as my settlement with BofA.

The debt negotiator guy doesnt believe it was the arbitration clause that spooked them. He tells me that the Feds have outlawed arbitration now. I told him he was wrong.

Just FYI in the course of this negotiation, I received a letter in the mail from their local Zwicker office thanking me for my responses to the interrogatories etc and wanting to talk about a settlement. The actual settlement was worked out with the main office in Mass. I guess my point is if you defend against their lawsuit and take appropriate steps etc, following the guidance of the very helpful people on this site, you can negotiate a settlement with them which may beat going to court for many.