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Can a settlement offer come back to bite me if CA takes me to court?


fisher09
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Nov 1 I received a letter from Messerli & Kramer that they are representing Midland in trying to collect a debt from me. The joint debt was actually awarded to my ex-wife in the divorce decree, but that is a topic for another thread. The debt was with Capital One loan and charged off in mid 2007 and tossed around a few JDB’s without much fuss until now.

I requested a DV from Messerli & Kramer and got the bare minimum info as I see is typical from them when I did a search. Shortly after I get a 2nd Notice and then 12 days later on 11/28 I get a “final notice” stating that the next step is suing since they have not heard from me to make acceptable arrangements for payment. I didn’t think they would move that fast with the “final notice”. I am NOT going to call them or give them my phone number.

So to bide time while I do more research, I was wondering if sending off a settlement offer would keep them at bay before they jump to a lawsuit. Who knows, maybe they would accept it? I would be sure to write it up correctly. But my question is, what if they don’t accept a settlement offer as me trying to “make acceptable arrangements” and take me to court anyway? I will certainly fight, but would the evidence of a settlement offer make me look to the judge like I’ve already caved in and defaulted? Or will the judge see that I actually tried to bargain with the CA and give me leeway to pay the settlement offer or anything less than the total amount? We’re talking around $9,xxx for the full amount.

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I wouldn't make a settlement offer unless you really planned on settling. I would argue the debt is out of the SOL first. CAP1's governing law is Virginia law which has a SOL of 3 years...

Thanks for the link! I was unaware that some "agreements may stipulate that the laws governing the home state of the issuer determine the terms and major provisions of the contract", according to the link. I will have to investigate further that this is the case for the original loan contract.

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I wouldn't make a settlement offer unless you really planned on settling. I would argue the debt is out of the SOL first. CAP1's governing law is Virginia law which has a SOL of 3 years...

Can anyone point me in the direction of where to find if my state, Minnesota, is a Choice of Law state? In other words would the courts in MN honor VA's SOL? I'm searching high and low and can't find anything. Thanks.

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Can anyone point me in the direction of where to find if my state, Minnesota, is a Choice of Law state? In other words would the courts in MN honor VA's SOL? I'm searching high and low and can't find anything. Thanks.

There is lots of information floating around about choice of law, this state's law applies or that state's law applies, or whatever.

The fact of the matter is, the law of the forum state applies until the court is convinced otherwise. So, unless you feel that you can mount a successful choice of law argument, you're safer sticking with what you know. If you live in Minnesota, conduct yourself as if the Minnesota statute applies.

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Nov 1 I received a letter from Messerli & Kramer that they are representing Midland in trying to collect a debt from me. The joint debt was actually awarded to my ex-wife in the divorce decree, but that is a topic for another thread. The debt was with Capital One loan and charged off in mid 2007 and tossed around a few JDB’s without much fuss until now.

I requested a DV from Messerli & Kramer and got the bare minimum info as I see is typical from them when I did a search. Shortly after I get a 2nd Notice and then 12 days later on 11/28 I get a “final notice” stating that the next step is suing since they have not heard from me to make acceptable arrangements for payment. I didn’t think they would move that fast with the “final notice”. I am NOT going to call them or give them my phone number.

So to bide time while I do more research, I was wondering if sending off a settlement offer would keep them at bay before they jump to a lawsuit. Who knows, maybe they would accept it? I would be sure to write it up correctly. But my question is, what if they don’t accept a settlement offer as me trying to “make acceptable arrangements” and take me to court anyway? I will certainly fight, but would the evidence of a settlement offer make me look to the judge like I’ve already caved in and defaulted? Or will the judge see that I actually tried to bargain with the CA and give me leeway to pay the settlement offer or anything less than the total amount? We’re talking around $9,xxx for the full amount.

The court doesn't want to discourage people from settling out of court, so offers/negotiations for settlement are inadmissible for the purposes of proving you owe the money AS LONG AS you don't admit both the validity of the debt and the amount. In other words, some part has to remain in dispute.

So, as someone else says, make sure it's in writing that the alleged debt remains in dispute in your offer.

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OK, here is what will probably happen, SOL or No SOL, choice of law provision or no choice of law provision.

M&K will have you served by a process server. They will not file the case with the court however because that costs money and they might be able to get out of paying the costs until they are sure they have a win. If you get a summons and complaint, YOU HAVE 20 DAYS TO SEND AN ANSWER TO THE ATTORNEY. Does not matter if the case if filed in court or not. If you miss the 20 days, they get a default in Minnesota.

They also do this in an effort to get you to pay the court fees where they will then try to run roughshod over you. Many attorneys also suggest that you pay the court fees. However, you can play the same game and win. Another user has done just that (and possibly with the same law firm). Do a search on these boards.

In any case, follow this process:

1) Within 20 days of being served with the summons and complaint, get an answer back to the law firm. You can either have them served by the sheriff, a process server, or a friend who is not connected to the case. If a friend does the service, they will have to fill out an affidavit. If they do service by mail, make sure that the friend does the mailing CMRRR. This way, between the affidavit and the CMRRR card, you have proof that they were served.

2) Not long after your serve your answer, serve your ROGs, Admissions, and PODs the same way you served the answer. In MN, a signed contract must be provided to prove contract and all account statements from a balance of 0 must be produced to prove Account Stated. There is a great PDF posting on what it takes to prove a civil case in MN. Read it.

3) If you are served any discovery requests, fill them out to the best of your ability. Read the forums on how to do good objections to requests.

4) If they send back incomplete discovery, send a letter CMRRR letting them know that. If they say the same thing about your answers/docs; try your best to resolve them but don't give in either.

5) Once you are served, watch the court case about once/week (you can do this online) to verify that they are not trying to get a default by lying to the clerk that you did not answer or to verify that they did not pay the court fees. If they try to get a default, you have 20 days to have it vacated. That is why once/week should cover you. Have a motion to vacate ready just in case. The other reason is to see if they decide to go to trial.

6) If you follow the above 4 steps, you will reach an impasse where both sides are refusing to pay the court fees to get this in front of a judge. Either of 2 things will happen at this point. The plaintiff will pay the court fees in which case, you prepare for trial. The other option is that the plaintiff will do a dismissal w/o prejudice. If they decide to do the later, they will keep you hanging for a year hoping you will give in. Don't do it. Most of the time they give up because they get defaults 98% of the time so you are like a piece of sand messing up the machinery. Better to let you go.

Realize that you can indeed settle at any time too, even after the "filed" the case. As above, just make sure that the wording does not admit to any liability. Corporations do it all of the time. You can too. However, if you get a summons and complaint, be ready to answer it. They might string you along hoping to get you to miss a deadline. Don't do that.

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