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Worried an enjoinder may be my only recourse (MCM in CO)


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Darn it. Today is my wife's pre-trial with MCM. Unfortunately, refuses to go to the pre-trial (she says she HAS to work at our small business today and can't leave to go to court). She only agreed to let me answer the suit and not let them get a default judgment if she would never have to go to court. Unfortunately, MCM has ignored our settlement offers (granted, they were heavily biased in our favor) and so we need to keep going through the "motions" (so to speak).

My wife is the only named defendant and Colorado is NOT a community property state. Do you think the judge will allow me to represent her in court today for a pre-trial? Or will I have to motion to enjoinder myself to the case to be a named defendant in order to represent us?

I don't really want to enjoinder as my wife is a stay-at-home mom with a small business on the side. She's self-employed essentially which means she's garnishment proof. I [currently] have a full-time job that could have my wages garnished if by some miracle we lost, but I'd rather make us as least interesting a prey as possible.

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In my humble opinion, your wife is being a .... well, it's not a nice word. :wink:

Basically, let her know if they win, she will not only have to pay them back for the debt but PLUS ATTORNEY'S COSTS TOO!!! I think that kind of money trumps whatever money she is making with her at home biz to GO TO COURT!!!

Tell her to get her hiney into some nice business clothes, and JUST SHOW UP IN COURT!!! It's HER lawsuit!!! I know you love her, but she has to take responsibility and not try to hide out at home!!!

Just my humble opinion of course.....

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Your wife has to fight this, not you. Either she fights, or she looses. It's that simple.

You cannot practice law without a license. You do not want to have the courts pissed off at you for that.

I absolutely hate to say this, but if she is not going to fight, you had better up your settlement offer or find a way to hire an attorney. Otherwise she's going to get stuck owing the entire amount.

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Haha! Turns out I have another day to work on my wife about going. I was checking to make sure I had all the paperwork in order and ready to go. I also checked the Notice of Pretrial and the date is 10/19 not 10/18!! Whew! Glad I double checked before driving two hours to the courthouse.

Edited by tempteroffate
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Pretrial today and my wife still refuses to go. I'm going and am going to see if the court will let me stand in for her. If not I have the Motion for Joinder ready to go and will file it so I am then a party to the case and can represent myself.

I'm only practicing law in as much as any of us do pro se. The only difference is that I'm not directly named in the suit, but it will affect my household if it is not defended. I'm thinking I may be allowed to speak as when we filled out the paperwork for fee waivers, the entire household income (i.e., MY income) was factored in and considered as opposed to just my wife's non-existent income.

Other than telling me I have to get my wife in the courtroom, which just isn't going to happen, does anyone have any advice or suggestions on going forward today? Do I have any footing for being allowed to be there on behalf of my wife?

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If you were named in the suit, you would have footing. As it stands, your wife is not you, so you cannot represent her pro se. To do so would be unauthorized practice of law.

I have no idea about the enjoinder, but without a specific statute, rule or case law, I wouldn't count on it. I'd seriously be cracking the whip on my wife if I were you. Both you and she are giving those attorneys all sorts of ammo when they normally give somebody who fights the ammo to win. It's Midland being represented by one of the least diligent law firms in the country.

I mean that least diligent bit very literally. I've already dealt with them personally. They're gun-shy right now too.

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The motion to joinder (not enjoinder as I was thinking initially) falls under CRCP 319 that states "Persons having a joint interest shall be made parties and be joined on the same side as plaintiffs or defendants." Since any judgement against my wife would have an effect on our entire household, I know I can join the suit on the defense and win the motion. Problem is my wife is essentially judgment proof and I'm not, so I was trying to avoid doing that. Ah well, looks like we'll need to do that this afternoon.

I know exactly how sloppy F & S is. They filed an Amended Disclosure Statement as a response to my Motion In Limine to exclude their stuff and F forgot to sign it, which is grounds for me to have it stricken entirely. :) Also, they can only offer amended pleadings on order from the court and as there was no ruling on my motion, there was no order from the court which also makes the amended disclosure statement inadmissible (which I have the motion to strike ready in case the judge denies the motion in limine to exclude today).

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I hope that the enjoinder works. If it doesn't, you are going to have to separate all of your finances from your wife's. They will get a judgment against her, they will try to garnish her wages and they will try to seize her bank account. You don't want it being your bank account too.

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Oceanic - In their only settlement offer they offered to let us just pay the amount MCM said we owed (I guess the settlement was to drop the court and attorney's fees?). We rejected that one and sent them an offer for 85% of our counterclaim and a dismissal by them WITH prejudice. They outright ignored it and have never responded to our offer.

debtfighter - Turns out, for pre-trial purposes, the judge was amiable to allowing me to step in for my wife and the Motion For Joinder was not necessary. (More on the appearance below). I have been very careful with the court to have everything presented as if from my wife and made a point several times to state I was not an attorney.

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Meant to update everyone yesterday, but wife and kids were sick and I spent the day playing nursemaid. Illness started for my wife on Wednesday, which was helpful for me in that I could appear in court and tell them she was unable to be there due to illness and it was a) not a lie and B) just because she refused to go.

If you've never been, the Park County Courthouse is very small. I think there may only be two courtrooms and I saw one of them. Our case was one of about 6 - 8 for the entire day and the only one scheduled at the time.

When I got there I went through the metal detector (standard I guess for all courthouses now), but it wasn't on and there wasn't an officer manning the station. I went into the courtroom and was the only one there. A minute or two before the pretrial was scheduled to start the court clerk poked her head through the door and asked if I was there for the pretrial. I said yes and she ducked back out. A minute or two later she and the judge came back in.

Interesting to note, the judge carried on as if I were my wife even referring to me as ma'am (a number of years ago I had long hair and got that a lot, but these days I may be a little shaggy, but I would necessarily expect to be mistaken for a woman). I was tempted to just let it go and proceed as if I were my wife, but decided against it and at the first opportunity I got to speak, I told the judge, "Just to clarify, I am the Defendant's husband. She was unable to attend today due to illness and I wanted to request permission to be here on her behalf."

The judge smiled and said that was fine he always tried to not make any assumptions. He also said that he thought for pretrial purposes it would be okay for me to appear on behalf of my wife (he later asked if her illness was just for the day or a protracted illness and said that go mediation and/or trial she would have to appear herself). I think the plaintiff was a little offput by it as he asked the judge to clarify that it was okay for me to talk to them lacking the presence of a power of attorney document, to which the judge said it was okay for that day.

The judge asked if the parties had had an opportunity to discuss the matter outside of court and since the plaintiff didn't mention their sole offer letter I decided not to mention ours either (they had ignored it anyway, so it wasn't as if we'd really discussed anything anyway). The judge offered to give us a moment to talk off the record (remember the attorneys were appearing by phone) and see if we could hammer something out or wanted to proceed to mediation or trial.

So the judge and clerk left the courtroom for us to talk.

Plaintiff Attorney guy tries to explain what MCM is and says they're willing to accept a one-time lump sum or do payments, would my wife be interested in that? I tell him she would not. Neither she nor I remember this card at all and the only card we remember having with HSBC (the OC) was one I settled in court last year (a year ago exactly) and I give him the county and case number for that one in case he'd like to reference it. I also proceed to tell him that even if it were ours, it's outside the SoL based on what we could find about it. He agrees to look into the SoL issue and asks about where we lived. I let him know we'd been back in Colorado for 4 years and had previously lived in Louisiana. I also mention that the credit card agreement they submitted, even if the debt were valid, wouldn't apply. Why he asks? Because it's dated for 2008 I state and the alleged account went into default in 2006, additionally, even if it were valid, the credit card agreement uses a Choice of Law provision for Nevada I believe. Really? he says. Yes, I say. He agrees again to look into our claims and the judge walks back in.

Back on the record, we agree to set a court ordered mediation for early December, but mostly so the Plaintiff can take some time to go check on our claims. He tells the judge he has just inherited the file, so he really needs to look into it. He asks if we can talk by phone and I agree to let him contact us by e-mail, citing I don't want there to be any confusion and that my wife is intimidated by the whole process and it's better if we can sit down together to understand what's being presented. They again state that to really talk to me going forward they'll need a power of attorney and I again state that I'm not an attorney, just her husband. He says he knows, but the doc would allow him to talk to me.

The judge asks if there's anything else or any other questions and I just verify that we won't be doing discovery (rfa's, rogs, rfp's) until after mediation to which he says yes and that we would do a motion hearing after mediation to rule on the various motions in the case too (my brief regarding SOL and motion in limine to exclude and the plaintiff's motion to dismiss our counterclaim).

We both thank the court for its time and the judge adjourns the session. I had to get some paperwork from the clerk regarding the mediation and notes of the session, but otherwise we were done.

Like I said, we didn't lose. Not an outright victory, but no loss and I didn't have to joinder the case.

There was someone recently here that managed a settlement with MCM where MCM wanted a release of sorts. I'm going to go find that release, essentially copy it and send it as an offer for about 1/2 our counterclaim amount (need to definitely cover our costs and my time to deal with this mess) and see if they agree to it. Otherwise, we'll let the "investigate" and see what they come up with in the next month./ We have until 7 days before the scheduled mediation to cancel.

Edited by tempteroffate
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