Fighting a lawsuit even though I owe the money

[socalcraigster]

I am being sued by Discover by CIR for a debt I owe and answered their complaint with a general denial. (I am not sure if CIR bought the debt or is suing on behalf of Discover, it shows as a charge off.) Right before the case management conference a couple of months ago, plaintiffs filed a required case management statement with the same generic language on the original complaint. The conference was taken off calendar and the trial date set for mid-December.

I owe the debt (although I believe their amount is slightly incorrect) but since they have the burden of proof, I want them to prove it up. My plan at this point is to go on the offensive and file a BOP (and then other discovery devices).

My concern while I am doing all this, I want to see if they would settle for 25% of what I owe. However, I do not want to incriminate myself by acknowledging that I owe this debt. Am I allowed to negotiate without that admission being used at trial? Also, assuming they can prove it up at trial, should I settle there? What I do not understand is if they send me interrogatories and I am required to answer, won't I be admitting that I owe the debt and lose my case?

My bigger concern is that if I try all these tactics, and they respond with the info, I will lose in court.

Any comments or suggestions would be helpful. Please kind in mind that I wrote this at 3am.

Thank you

[VADebtor]

I am being sued by Discover by CIR for a debt I owe and answered their complaint with a general denial. (I am not sure if CIR bought the debt or is suing on behalf of Discover, it shows as a charge off.) Right before the case management conference a couple of months ago, plaintiffs filed a required case management statement with the same generic language on the original complaint. The conference was taken off calendar and the trial date set for mid-December.

I owe the debt (although I believe their amount is slightly incorrect) but since they have the burden of proof, I want them to prove it up. My plan at this point is to go on the offensive and file a BOP (and then other discovery devices).

My concern while I am doing all this, I want to see if they would settle for 25% of what I owe. However, I do not want to incriminate myself by acknowledging that I owe this debt. Am I allowed to negotiate without that admission being used at trial? Also, assuming they can prove it up at trial, should I settle there? What I do not understand is if they send me interrogatories and I am required to answer, won't I be admitting that I owe the debt and lose my case?

My bigger concern is that if I try all these tactics, and they respond with the info, I will lose in court.

Any comments or suggestions would be helpful. Please kind in mind that I wrote this at 3am.

Thank you

Settlement negotiations usually aren't admissable, the reason is the courts actually encourage settlements to avoid the burden on the court system of full trials. So your offer to make a payment in settlement can't be used against you, if they were to say "we can't find the original agreement" you can't use that against them.

You don't have to admit anything to offer a settlement. You could say "While I deny I owe this debt, to avoid the costs and time involved in court proceedings I would be willing to ..."

[Coltfan1972]

You can say pretty much anything you want in settlement talks. It's more uncommon for there not to be settlement talks. The courts want you to settle or an a minimum at least enter into talks. That part you have nothing to worry about. You can even do them in letter form and it can't be held against you.

I'm not sure how much I can stress in just mere typed words that you need to find out if Discover or a junk debt buyer is suing you. It literally makes all the difference in the world. If it is Discovery, there is a very good chance they will be able to meet all the burden to win. If it is a junk debt buyer, there is a very slim chance they can meet there full burden, espicially if challenged correctly. Unfortuantley, I have a feeling it is Discover suing you.

The whole idea of discovery and sending interrogatories is just what you fear. It's to win the case without a trial. Look out for the questions and requests that do not appear to be asking straight forward questions. Anybody can deny when a question is asked, such as, do you owe this debt. Look out for questions like, please state the bank and bank account number for the funds in your October payment 2009, in the amount of 400.00 that was paid on your Discover Card account.

[LearningasIgo]

I am being sued by Discover by CIR for a debt I owe and answered their complaint with a general denial. (I am not sure if CIR bought the debt or is suing on behalf of Discover, it shows as a charge off.)

In a general and practical sense, it behooves to find out the status, since that can determine the directions to pursue. Offhand, it appears that Discover has a percentage arrangement with CIR, which is often the case when a debt is charged off. Knowing that CIR is working on a contingency basis can affect how aggressive one should be in putting up roadblocks. The more hoops to jump through, the more cost to CIR. And the possibility of a "not worth it" determination by CIR.

Knowing the creditor/attorney arrangement is very important.

[Seadragon]

In California you can use the CCP998 to further your position.

998. (a) The costs allowed under Sections 1031 and 1032 shall be

withheld or augmented as provided in this section.

( Not less than 10 days prior to commencement of trial or

arbitration (as provided in Section 1281 or 1295) of a dispute to be

resolved by arbitration, any party may serve an offer in writing upon

any other party to the action to allow judgment to be taken or an

award to be entered in accordance with the terms and conditions

stated at that time. The written offer shall include a statement of

the offer, containing the terms and conditions of the judgment or

award, and a provision that allows the accepting party to indicate

acceptance of the offer by signing a statement that the offer is

accepted. Any acceptance of the offer, whether made on the document

containing the offer or on a separate document of acceptance, shall

be in writing and shall be signed by counsel for the accepting party

or, if not represented by counsel, by the accepting party.

(1) If the offer is accepted, the offer with proof of acceptance

shall be filed and the clerk or the judge shall enter judgment

accordingly. In the case of an arbitration, the offer with proof of

acceptance shall be filed with the arbitrator or arbitrators who

shall promptly render an award accordingly.

(2) If the offer is not accepted prior to trial or arbitration or

within 30 days after it is made, whichever occurs first, it shall be

deemed withdrawn, and cannot be given in evidence upon the trial or

arbitration.

(3) For purposes of this subdivision, a trial or arbitration shall

be deemed to be actually commenced at the beginning of the opening

statement of the plaintiff or counsel, and if there is no opening

statement, then at the time of the administering of the oath or

affirmation to the first witness, or the introduction of any

evidence.

© (1) If an offer made by a defendant is not accepted and the

plaintiff fails to obtain a more favorable judgment or award, the

plaintiff shall not recover his or her postoffer costs and shall pay

the defendant's costs from the time of the offer. In addition, in any

action or proceeding other than an eminent domain action, the court

or arbitrator, in its discretion, may require the plaintiff to pay a

reasonable sum to cover costs of the services of expert witnesses,

who are not regular employees of any party, actually incurred and

reasonably necessary in either, or both, preparation for trial or

arbitration, or during trial or arbitration, of the case by the

defendant.

(2) (A) In determining whether the plaintiff obtains a more

favorable judgment, the court or arbitrator shall exclude the

postoffer costs.

( It is the intent of the Legislature in enacting subparagraph

(A) to supersede the holding in Encinitas Plaza Real v. Knight, 209

Cal.App.3d 996, that attorney's fees awarded to the prevailing party

were not costs for purposes of this section but were part of the

judgment.

(d) If an offer made by a plaintiff is not accepted and the

defendant fails to obtain a more favorable judgment or award in any

action or proceeding other than an eminent domain action, the court

or arbitrator, in its discretion, may require the defendant to pay a

reasonable sum to cover postoffer costs of the services of expert

witnesses, who are not regular employees of any party, actually

incurred and reasonably necessary in either, or both, preparation for

trial or arbitration, or during trial or arbitration, of the case by

the plaintiff, in addition to plaintiff's costs.

(e) If an offer made by a defendant is not accepted and the

plaintiff fails to obtain a more favorable judgment or award, the

costs under this section, from the time of the offer, shall be

deducted from any damages awarded in favor of the plaintiff. If the

costs awarded under this section exceed the amount of the damages

awarded to the plaintiff the net amount shall be awarded to the

defendant and judgment or award shall be entered accordingly.

(f) Police officers shall be deemed to be expert witnesses for the

purposes of this section. For purposes of this section, "plaintiff"

includes a cross-complainant and "defendant" includes a

cross-defendant. Any judgment or award entered pursuant to this

section shall be deemed to be a compromise settlement.

(g) This chapter does not apply to either of the following:

(1) An offer that is made by a plaintiff in an eminent domain

action.

(2) Any enforcement action brought in the name of the people of

the State of California by the Attorney General, a district attorney,

or a city attorney, acting as a public prosecutor.

(h) The costs for services of expert witnesses for trial under

subdivisions © and (d) shall not exceed those specified in Section

68092.5 of the Government Code.

(i) This section shall not apply to labor arbitrations filed

pursuant to memoranda of understanding under the Ralph C. Dills Act

(Chapter 10.3 (commencing with Section 3512) of Division 4 of Title 1

of the Government Code).

While settlement is an option There is another way to raise the cost to get them to want to quit. Linda7 is a proud proponent of arbitration strategy. This hoists them on their on haunches by making them play by the rules of their agreement. These arbitration provisions were originally put on the card agreements to make it impossible for consumers to bring claims against them.

also you can get some coin if you bring up improper venue claims against them. you can get the arb started then if denied discovery.

It allows more flexibility for you, rather than just giving up rights you have.

You could make it better for you. If you make a CCP998 offer then they go for it you might fail to make a payment, then they would get all of it and attorneys fees. My approach allows more flexibility and more time to save money for your offer.

[socalcraigster]

I pulled a copy of my credit report and it shows my Discover debt as Charged Off. The lawsuit names Discover bank as Plaintiff. So I believe that CIR (law firm) is getting some kind of percentage deal. I am going to send them a BOP this week and follow up with motion to compel if they fail to comply. Does a BOP require proof of service or would a return receipt be sufficient?

My question is - should I do a meet and confer? Is a phone call with CIR sufficient to be considered a meet and confer? Or do I actually have to physically meet with them?

I am also considering initiating arbitration. However, the trial is set for mid-Dec. Can I initiate a motion for arbitration still?

Thank you.