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Summons for credit card debt, can they take our van?


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The other day, a man came to the house & asked for my husband. I saw what looked like a summons. My husband wasn't here so he left. I called the court house to see what I could find out & it's for a $4,*** credit card collections is Midland Funding. The court said it's been noted that it wasn't able to be served (had tried 3x). She said we should just wait until we are served. Because they must give us at least 10 days before the court date (which right now, has been set for April). We don't own much. Just our stuff in our house (which we rent) and our van. Our only income is my husband's ss disability. Our van according to KBB is worth about $14-15k (the transmission has already been replaced so it might be less). Can they take our van? The orig default date was 10/2006. Thanks! Any advice on how to proceed would be great! I have been reading online all day and my head is just swimming.

Edited by Amanda137
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The other day, a man came to the house & asked for my husband. I saw what looked like a summons. My husband wasn't here so he left. I called the court house to see what I could find out & it's for a $4,330 credit card collections is Midland Funding. The court said it's been noted that it wasn't able to be served (had tried 3x). She said we should just wait until we are served. Because they must give us at least 10 days before the court date (which right now, has been set for April 5th). We don't own much. Just our stuff in our house (which we rent) and our van. Our only income is my husband's ss disability. Our van according to KBB is worth about $14-15k (the transmission has already been replaced so it might be less). Can they take our van? The orig default date was 10/2006. Thanks! Any advice on how to proceed would be great! I have been reading online all day and my head is just swimming.

Seizure of property is state law dependent. That being said, if it were possible to take your van in TN, they would have to get a judgment first. Even if they did get a judgement, they rarely seize property like that. Maybe not in your case, but across the board, they are more likely to see a return from somebody on SSDI by badgering them into agreeing to a monthly payment. Companies like Midland go by what they think is across the board rather than your individual circumstances.

There are a few questions:

Did you save every written communication from Midland and/or the law firm?

Can you show the exact last date of payment?

Is your husband a fighter?

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I'm in Tennessee, I forgot to add that.

I probably have the collection notices somewhere from them. I don't know for sure. I will start looking for them. Is it important to have them?

My husband's credit report shows the last payment as 10/2006. That was under the original creditor (HSBC). Does that help?

He is a nervous wreck about all of this right now. I will have to do all of the legwork and get everything together.

What about the court clerk saying we should just wait to do anything until we're served? Is that a good idea since there is already a court date? They have on file that the summons was unable to be served and that they had tried three times. So it was being sent back to them. One of us is usually home and no one had come before that day. She said that they have to give you at least 10 days before the court date. But I worry about them getting a default judgement so I am wanting to cover my bases.

Thank you!

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I'm in Tennessee, I forgot to add that.

I probably have the collection notices somewhere from them. I don't know for sure. I will start looking for them. Is it important to have them?

For leverage, probably. Companies like Midland and the attorneys that they hire can't help but violate the FDCPA. If you have a reason to go after them, they'll probably run away. FDCPA reasons to go after somebody like Midland mean that if there is a good consumer attorney in your area, you can get an attorney on the case without a penny out of your pocket.

My husband's credit report shows the last payment as 10/2006. That was under the original creditor (HSBC). Does that help?

I was looking at the statute of limitations. INAL, but it looks as though TN's SOL is 6 years. It could have helped, but probably not in this case.

He is a nervous wreck about all of this right now. I will have to do all of the legwork and get everything together.

If he wants to fight without an attorney, he'll have to argue the case in court. You cannot argue it for him. There's good news though, Midland is not only pond scum that deserves to get beat down, their business model makes it possible for them to get beat down by any defendant who knows how to use the rules of civil procedure and the rules of evidence.

What about the court clerk saying we should just wait to do anything until we're served? Is that a good idea since there is already a court date? They have on file that the summons was unable to be served and that they had tried three times. So it was being sent back to them. One of us is usually home and no one had come before that day. She said that they have to give you at least 10 days before the court date. But I worry about them getting a default judgement so I am wanting to cover my bases.

Some of what you're asking is TN dependant, but as for waiting to be served, I would, but only in part, given your situation. Either you, or a friend should go to the courthouse and get a copy of the complaint. Me not knowing TN rules, I'd say get a friend or relative who doesn't live with you to do it. That way, they can't claim you husband was properly served, but you and he can start deciphering the complaint so that it can be properly answered when the time comes.

That being said, the only source of income being SSDI may qualify you for some legal help. There are places like legal aid, and some consumer attorneys will take cases on a pro bono basis. You'll have to beat the bushes to find out what you qualify for as they won't come to you, but it is always something to keep in mind. That and if you do still have the written communications, you may be able to find an attorney who will take your case without all of that if there are serious enough violations of federal law. The federal laws that they would have violated provide for attorney's fees.

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Is there something specific I should look for in their letters?

I will call and see what i can find out tomorrow. My husband is bipolar and he's not usually able to deal with stuff like this. Maybe we can find someone who can help us. We definitely don't have money to hire an attorney.

I will also get someone to go down and get a copy of everything. That way we can start preparing.

I have been reading all day seems like and some of this stuff I still don't understand. I know that we need to file an answer. The court clerk said we should include that our only income is disability since that is judgement proof. What all does an answer say? Also, what is the next step after we answer it. Should we ask for proof of the debt? Or do you do that in an answer? I wish I understood all of this better. I may have overloaded myself with info and now I think I am having trouble sorting out what all I need to do.

I did look up the civil procedures for TN. I'm just not sure which part applies to this.

Thank you so much for your help. I am truly overwhelmed.

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If this is your husband's debt only AND the van is owned by both of you, I would find out if TN is a Tenancy By Entirety state. Once you establish that find out if they are full bar. Some states are TBE but not full bar thus some property is not exempt. Here in Missouri, full bar, creditors cannot take any property, including bank accounts, if the debt only belongs to one party of the marriage.

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Is there something specific I should look for in their letters?

If you have more than one or two, there are very likely some violations in them. Yes, there are some specific things to look for, but they are too numerous to list.

I will call and see what i can find out tomorrow. My husband is bipolar and he's not usually able to deal with stuff like this. Maybe we can find someone who can help us. We definitely don't have money to hire an attorney.

Well, if he want's to fight and you cannot find an attorney who will either take it for the FDCPA attorney's fees or on a pro bono basis, you're going to have to be some rock solid support for him.

I have been reading all day seems like and some of this stuff I still don't understand. I know that we need to file an answer. The court clerk said we should include that our only income is disability since that is judgement proof. What all does an answer say? Also, what is the next step after we answer it. Should we ask for proof of the debt? Or do you do that in an answer? I wish I understood all of this better. I may have overloaded myself with info and now I think I am having trouble sorting out what all I need to do.

While letting them know that you're judgment proof may help motivate Midland to go away, it is not in any way, shape or form a valid legal defense.

I did look up the civil procedures for TN. I'm just not sure which part applies to this.

There's a reason that law school is 3 years long. There is a lot to learn and often what you need to learn is framed a bit different that just about everything else that you're used to. All of us who fought were where you are at one point. Mounting a successful defense, in part, depends on you dealing with being firehosed. I had to deal with Citibank. Others have had to deal with other banks. Many others still have dealt successfully with Midland. They can almost never actually prove that they own the debt, which means that they can almost never even prove that they have a right (standing) to sue.

I haven't gone through TN's rules of civil procedure in any detail, but it looks like they are patterened in part after the Federal rules, but they are going to diverge in many places from them because it looks like TN still has courts of chancery. While you aren't going to be dealing with those, it means that anything that you read about the rules should be double checked and if somebody is telling you something, double check unless they are specifically quoting a TN rule.

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It might be a bit comforting to know that these scumbags can be beat. I would recommend reading this post http://http://www.creditinfocenter.com/forums/there-lawyer-house/292720-start-finish-winning-against-midland-funding-aka-jdb.html , it should give you some hope and encouragement regarding fighting them.

If you have no money to settle, you've got nothing to loose by fighting. If you loose, they get the judgment anyway and in the meantime you have some time to make sure you are in a judgment proof position. Don't get me wrong, I'm not recommending settling, I guess it all comes down to your tolerance for putting up a fight. From reading on this forum and the wonderful help that's available here, it sure seem these guys are very beatable.

Good luck,

rt

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My husband's credit report shows the last payment as 10/2006.

HSBC is in Nevada with a 4 year SOL for open accounts, which means credit cards. I would suggest filing a motion to dismiss based upon the fact that the debt is time barred. Credit card agreements ALWAYS specify that the law used in any controversy will be their home state's. Make them adhere to it. There is no reason for any court to interfere when there is a contract specifying the choice of law. Also, check Nascar's posts, he is a TN attorney. Haven't seen him much lately.

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My husband's name is the only name on the van. Maybe we could have mine added if that's the case?

If this is your husband's debt only AND the van is owned by both of you, I would find out if TN is a Tenancy By Entirety state. Once you establish that find out if they are full bar. Some states are TBE but not full bar thus some property is not exempt. Here in Missouri, full bar, creditors cannot take any property, including bank accounts, if the debt only belongs to one party of the marriage.
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If you have more than one or two, there are very likely some violations in them. Yes, there are some specific things to look for, but they are too numerous to list.

So far I have only found one. It looks to be the original letter sent when they first acquired the account. Around July/August of 2011.

Well, if he want's to fight and you cannot find an attorney who will either take it for the FDCPA attorney's fees or on a pro bono basis, you're going to have to be some rock solid support for him.

I can definitely be that for him. I put a call in to legal aid but had to leave a message. Hoping the call back today, if not I will try again.

While letting them know that you're judgment proof may help motivate Midland to go away, it is not in any way, shape or form a valid legal defense.

Should I let them know this in the answer to the summons? My main purpose of letting them know would be hoping they might drop it.

There's a reason that law school is 3 years long. There is a lot to learn and often what you need to learn is framed a bit different that just about everything else that you're used to. All of us who fought were where you are at one point. Mounting a successful defense, in part, depends on you dealing with being firehosed. I had to deal with Citibank. Others have had to deal with other banks. Many others still have dealt successfully with Midland. They can almost never actually prove that they own the debt, which means that they can almost never even prove that they have a right (standing) to sue.

I haven't gone through TN's rules of civil procedure in any detail, but it looks like they are patterened in part after the Federal rules, but they are going to diverge in many places from them because it looks like TN still has courts of chancery. While you aren't going to be dealing with those, it means that anything that you read about the rules should be double checked and if somebody is telling you something, double check unless they are specifically quoting a TN rule.

Thanks again!

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It might be a bit comforting to know that these scumbags can be beat. I would recommend reading this post , it should give you some hope and encouragement regarding fighting them.

If you have no money to settle, you've got nothing to loose by fighting. If you loose, they get the judgment anyway and in the meantime you have some time to make sure you are in a judgment proof position. Don't get me wrong, I'm not recommending settling, I guess it all comes down to your tolerance for putting up a fight. From reading on this forum and the wonderful help that's available here, it sure seem these guys are very beatable.

Good luck,

rt

We don't have any money to settle. The main thing that worried me about a judgement is possibility of them taking our van and selling it to pay for the judgement. We have to have our van. My husband has doc appts every month and I have a child with a craniofacial disorder that goes to Nashville on occasions for appts. I've been reading and reading and I am encouraged but I am still nervous and afraid I will mess something up. Thank you!

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My husband's credit report shows the last payment as 10/2006.

HSBC is in Nevada with a 4 year SOL for open accounts, which means credit cards. I would suggest filing a motion to dismiss based upon the fact that the debt is time barred. Credit card agreements ALWAYS specify that the law used in any controversy will be their home state's. Make them adhere to it. There is no reason for any court to interfere when there is a contract specifying the choice of law. Also, check Nascar's posts, he is a TN attorney. Haven't seen him much lately.

So they will go by the cradit card SOL? I was thinking it would be TN which is 6 years. Just a few months shy of that SOL unfortunately. Should I file an answer first and then a dismissal? I'm getting very confused with all of this. I can't tell you all how much I appreciate your help! Thank you!

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File a motion to dismiss in lieu of an answer. Cite the statute of limitations. Google "Motion to dismiss tennessee" and you should be able to find a template. Also, "selling" the van is an option since there is no judgment against you and they won't be able to do anything about it. Maybe Mom would like to own a van.

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Guest usctrojanalum
Also, "selling" the van is an option since there is no judgment against you and they won't be able to do anything about it. Maybe Mom would like to own a van.

This is also fraud, and yes they can do something about it because their is a lawsuit filed.

That being said, they wouldn't do anything about it. A van that is worth maybe $7000 at auction is not an attractive asset to take.

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Selling an asset which has not been liened does not constitute a fraudulent conveyance. Putting it in someone else's name and retaining use could be a problem. An asset of 7,000 on a credit card case? You think they'd pass on that? they'll take the fillings out of your teeth for the silver value. MVD searches only reveal vehicles in your name. That's about as far as they will go.

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File a motion to dismiss in lieu of an answer. Cite the statute of limitations. Google "Motion to dismiss tennessee" and you should be able to find a template. Also, "selling" the van is an option since there is no judgment against you and they won't be able to do anything about it. Maybe Mom would like to own a van.

Unfortunately I don't think selling it is an option. It's our only vehicle and we got an extended warranty that is non-transferable. The warranty was important to us because we generally don't have money for car repairs when they happen. I will file a motion to dismiss. Thank you!

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The real answer as to whether or not they will take the van depends on if there's a loan on it...

Generally, if there's another lienholder on the title, then a judgment creditor will have to payoff the first lienholder in order to clear the title and sell it...and there's no guarantee they will get what the payoff amount is at auction.

Edited by 1stStep
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I just looked up the credit card aggreement for the credit card company and it says this

APPLICABLE LAWS

This Agreement is governed by Virginia law and federal law.

We make our credit decisions and extend credit to you under this Agreement from Virginia. This Agreement is:

• entered into in Virginia; and

• maintained in Virginia.

This is true whether or not you use your card in Virginia.

Is this what they would have to go by? I looked up Virgina and apparently they have a 3 year SOL for open accounts.

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SSI disability is non garnish able and if that is the only income that is depositied in that account they can't sieze the account.

You need to look in your state courts rules for exemptions covered under claims.

If you tell the judge the facts, that you have only the one vehicle and all the medical appointments your family has I bet they wont allow them to seize it.

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Would it be ok for me to add my name to the title of the van? Is there anything wrong with that? We'd been meaning to anyway just hadn't done it yet. It looks like TN is a Tenancy By Entirety state but I can't seem to find out the full bar part.

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Guest usctrojanalum
An asset of 7,000 on a credit card case? You think they'd pass on that? they'll take the fillings out of your teeth for the silver value. MVD searches only reveal vehicles in your name. That's about as far as they will go.

You are also underestimating how expensive it is to seize a vehicle. It's not like you just pay the sheriff $25.00 to pick it up. It's more like $2500.00

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