Jump to content

My bankruptcy journey


redblazerx
 Share

Recommended Posts

Well the dreaded knock on the door sparked my interest today. As I answered it a gentleman with a white envelope handed it to me and said "have a nice day". My wife has been served papers by CACH from wells fargo credit card in the amount of $9195.00. I knew the day would come and it is finally here. I have never been through this and hadnt planned it but a few dead end jobs have put me here.

 

I finally have a wonderful job making pretty good money, I started in april 2012 and have not paid on any credit cards since early 2010. I also owe bank of america $11000 for a credit card so I am expecting th same dreaded knock on the door soon.

 

I know that I have to answer the summons and either agree to it or deny it, where do I go from here? I have an appointment with a bankruptcy attorney next week to see if that is an option.

 

Total credit card debt is about $26000 all together and I am lost and have no idea on what to do.... :(

Link to comment
Share on other sites

 

sorry about the dreaded knock on the door,now its time to fight back.

cach is a junk debt buyer I would try and get them to agree to jams, The agreement says shall be administered by the American Arbitration Association (AAA), "such other mutually agreeable administrator".

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/

http://www.consumerfinance.gov/credit-cards/agreements/issuer/15/

29) Assignment.

 

 

We have the right to assign your Account to another creditor. The other creditor is then entitled to any rights we assign to them. You do not have the right to assign your Account.

 

(30) Governing Law.

 

 

This Agreement and your Account, is governed by federal law and, to the extent applicable, the laws of the State of South Dakota,no matter where you live or use your Account.

 

 

Arbitration

(31) Dispute Resolution Program: Arbitration Agreement.

a. Binding Arbitration. You and Wells Fargo Bank, N.A. (the "Bank") agree that if a Dispute arises between you and the Bank, upon demand by either you

or the Bank, the Dispute shall be resolved by the following arbitration process. The foregoing notwithstanding, the Bank shall not initiate an arbitration

to collect a consumer debt, but reserves the right to arbitrate all other disputes with its consumer customers. A "Dispute" is any unresolved disagreement

between you and the Bank. It includes any disagreement relating in any way to the Card or related services, Accounts, or matters; to your use of any of

the Bank's banking locations or facilities; or to any means you may use to access the Bank. It includes claims based on broken promises or contracts, torts,

or other wrongful actions. It also includes statutory, common law, and equitable claims. A Dispute also includes any disagreements about the meaning or

application of this Arbitration Agreement. This Arbitration Agreement shall survive the payment or closure of your Account.

 

YOU UNDERSTAND AND

AGREE THAT YOU AND THE BANK ARE WAIVING THE RIGHT TO A JURY TRIAL OR TRIAL BEFORE A JUDGE IN A PUBLIC COURT

 

 

. As the sole

exception to this Arbitration Agreement, you and the Bank retain the right to pursue in small claims court any Dispute that is within that court's

jurisdiction. If either you or the Bank fails to submit to binding arbitration following lawful demand, the party so failing bears all costs and expenses

incurred by the other in compelling arbitration.

b. Arbitration Procedure; Severability. Either you or the Bank may submit a Dispute to binding arbitration at any time notwithstanding that a lawsuit or

other proceeding has been previously commenced.

 

NEITHER YOU NOR THE BANK SHALL BE ENTITLED TO JOIN OR CONSOLIDATE DISPUTES BY OR

AGAINST OTHERS IN ANY ARBITRATION, OR TO INCLUDE IN ANY ARBITRATION ANY DISPUTE AS A REPRESENTATIVE OR MEMBER OF A CLASS,

OR TO ACT IN ANY ARBITRATION IN THE INTEREST OF THE GENERAL PUBLIC OR IN A PRIVATE ATTORNEY GENERAL CAPACITY

 

 

. Each arbitration,

including the selection of the arbitrator(s), shall be administered by the American Arbitration Association (AAA), or such other administrator as you and

the Bank may mutually agree to (the AAA or such other mutually agreeable administrator to be referred to hereinafter as the "Arbitration Administrator"),

according to the Commercial Arbitration Rules and the Supplemental Procedures for Consumer Related Disputes ("AAA Rules"). To the extent that there

is any variance between the AAA Rules and this Arbitration Agreement, this Arbitration Agreement shall control. Arbitrator(s) must be members of the

state bar where the arbitration is held, with expertise in the substantive laws applicable to the subject matter of the Dispute. No arbitrator or other party

to an arbitration proceeding may disclose the existence, content, or results thereof, except for disclosures of information by a party required in the

ordinary course of its business or by applicable law or regulation. You and the Bank (the "Parties") agree that in this relationship: (1) The Parties are

participating in transactions involving interstate commerce; and (2) This Arbitration Agreement and any resulting arbitration are governed by the

provisions of the Federal Arbitration Act (Title 9 of the United States Code), and, to the extent any provision of that Act is inapplicable, unenforceable or

invalid, the laws of the state of South Dakota. If any of the provisions of this Arbitration Agreement dealing with class action, class arbitration, private

attorney general action, other representative action, joinder, or consolidation is found to be illegal or unenforceable, that invalid provision shall not be

severable and this entire Arbitration Agreement shall be unenforceable

c. Rights Preserved. This Arbitration Agreement does not prohibit the Parties from exercising any lawful rights or using other available remedies to

preserve, foreclose, or obtain possession of real or personal property; exercise self-help remedies, including setoff and repossession rights; or obtain

provisional or ancillary remedies such as injunctive relief, attachment, garnishment, or the appointment of a receiver by a court of competent

jurisdiction. Any statute of limitations applicable to any Dispute applies to any arbitration between the Parties. The provisions of this Arbitration

Agreement shall survive termination, amendment, or expiration of the Card or any other relationship between you and the Bank.

d. Fees and Expenses of Arbitration. Arbitration fees shall be determined by the rules or procedures of the Arbitration Administrator, unless limited by

applicable law. Please check with the Arbitration Administrator to determine the fees applicable to any arbitration you may file. If the applicable law of

the state in which you opened your Account limits the amount of fees and expenses to be paid by you, then no allocation of fees and expenses to you

shall exceed this limitation. Unless inconsistent with applicable law, each of us shall bear the expense of our own attorney, expert and witness fees,

regardless of which of us prevails in the arbitration.

Link to comment
Share on other sites

I would go and read up on arbitration and see if its an option for you.click on the link it will take you to Linda7,post's on arbitration.

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/

If you dont want to arbitrate there is also

 http://www.creditinfocenter.com/community/topic/313112-the-all-inclusive-ive-been-sued-or-contacted-by-midland-whats-next-andor-help-me/  Just act like its cach instead of midland while reading.

Link to comment
Share on other sites

Redblazerx,

 

Okay - granted, it's a lot of new information to assimilate, but Racecar means well - he knows his stuff.

 

First - You have to Answer the complaint, and you've got 30 days to do it. You need to read everything you can here on HOW to Answer the Summons & Complaint.

You're basically going to either 1) Admit or 2) Deny certain information that they allege.... you're NOT going to explain, offer excuses etc. It's just Yes or No (Admit or Deny).

 

Second - You need to spend some time here READING and learning how this stuff works. You need to learn the TERMS of this game.

You need to know what a JDB is, what a CA is, what an OC is... what SOL is, etc.... You need to get up to speed pronto.

 

In your case, the OC (Original Creditor) is Wells Fargo. CACH is a JDB (Junk Debt Buyer) who has bought, for pennies on the dollar, your charged-off debt from Wells Fargo.

What does this mean?  It means that Wells Fargo charged off your debt, got a tax writeoff for it and then SOLD that charged-off debt to a Junk Debt Buyer (CACH). CACH now wants you to believe that you have to pay THEM...... in fact, they're sueing you to see that you do pay them....  But - do you owe THEM?  No - you don't. In fact, you no longer owe Wells Fargo. This is key to remember because a lot of people want to do the right thing and 'pay what they owe', figuring that if they pay 'someone' they're doing the right thing. Don't be fooled by this, CACH isn't entitled to collect from you..... or are they?

 

That's the big question. And one that we love to discuss here in the forums....  The question deals with the concept of STANDING.  The point is;  does CACH have the legal *right* to sue you for this debt?  Did you ever have an agreement with CACH? Nope, you didn't...  So, they lack legal STANDING to sue you.  You need to read and learn everything you can that deals with this concept.

 

Lots of great information on this site dealing with how to hammer Standing....  and lots of great people who will be generous with their time to help you, but you've gotta start learning too.

 

First things first though - Learn how to Answer the Summons & Complaint.

 

There is a POST that gives you a list of Questions for you to post the answers here if you've been sued. Check it out and post your answers to it.

It makes it easy for those of us in the forums to help you out....

 

Lots of information to process, but you gotta start somewhere and this is a good place to be.

 

Racecar is correct though - you should find out if JAMS / Arbitration is something you are able to do.

Link to comment
Share on other sites

1. Who is the named plaintiff in the suit?

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

3. How much are you being sued for?

4. Who is the original creditor? (if not the Plaintiff)

5. How do you know you are being sued? (You were served, right?)

6. How were you served? (Mail, In person, Notice on door)

7. Was the service legal as required by your state?

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

9. What state and county do you live in?

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

11. What is the SOL on the debt?

12. What is the status of your case? Suit served? Motions filed? You can find this by calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?


16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

  • Like 1
Link to comment
Share on other sites

If the banks are selling these accounts that they have previously written off you are presently dealing with third parties that really don't have any standing. They are just trying to go for the quick default judgment. Your next move is to commit to fighting them on their own terms. You need to immediately answer the complaint and deny all their allegations. If you don't fight you will find that your wages and/or bank accounts will be levied and you will end up paying a lot more money than you previously owed. So fight. We will help. 

 

Lets get the complaint answered and request production of discovery documents and start costing the plaintiff some unexpected money.  The JAMS method is also and excellent tool in your defense and Linda7 is our resident champion. 

 

HP

  • Like 1
Link to comment
Share on other sites

post the complaint,,its hard to tell someone how to answer a complaint when we do not know what they are claiming,,,you have to answer certain complaints differently than others,,,,such as breech of contract, account stated, common counts etc etc.

 

The Gunny esq.

  • Like 1
Link to comment
Share on other sites

Its a 6 page summons i guess:

 

page 1. state of South Carolina county of Spartanburg    CACH LLC VS (my Wife) 

             submitted by XYZ attorney and it has NON_JURY box checked and DEBT COLLECTIONS checked and its all copies and not originals and photocopied signatures.

 

Page 2: Has some talk about ADR whatever that means. (photocopy signature)

 

Page 3: To the defendant above, you are hereby summoned and required to answer the complaint bla bla within 30 days bla bla if not then judgement will default.  (photocopy signature)

 

Page 4: Talks about My wife is a resident of the above county and that credit was extended on a revolving line of credit on an open account by wells fargo & co. defendant used the account to obtain cash or to make purchases or to transfer balances from other accounts. Statements were provided without protest to defendant and did not object to them or indicate that they were erroneous in any respect. defendant defaulted on the obligation to make the required payments on the account, making the last payment on or about 02/6/2011. Plantiff subsequently purchased the account for valuable consideration and the account was assigned to the plantiff.

 

Page 5: After assessing all due charges and credits, there is now due and owing on this account the principle sum of $9195.80 plus interest from 12/12/2011 at the legal rate of 8.75% per annum as shown by the verified statement of account attached. ( no copies of the account were attached ) Although demand has been made defendant has failed to pay the ammount due. Plantif prays for judgement against defendant in the above amount together with interest and court cost and for such matters that the court deems just, proper and appropiate. (photocopy signature)

 

Page 6: Just a summary of previous 5 pages (photocopy signature)

 

 

 

1. Who is the named plaintiff in the suit?    CACH LLC


2. What is the name of the law firm handling the suit?   XYZ attorney

3. How much are you being sued for?  $9195.80 plus interest frm 02/2011 at 8.75% plus court cost

4. Who is the original creditor?  Wells Fargo Bank

5. How do you know you are being sued?  I guess the server call me and was looking for my wife (the defendant) and said that he had some documents for her. I didnt tell him that she was at home at the time and told him to leave them under the front door mat and then she went outside after he left to get them.


6. How were you served? See #5

7. Was the service legal as required by your state? I dont understand this question.....


8. What was your correspondence (if any) with the people suing you before you think you were being sued? I stopped paying them cold turkey back somewhere around late 2010 early 2011 b/c the company I worked for shut the doors and I took a lesser paying job and almost lost my house so I stopped on all credit card companies.

 

see below threads for my history.

 

 

http://www.creditinfocenter.com/community/topic/311027-here-we-go/

 

http://www.creditinfocenter.com/community/topic/311627-is-bankruptcy-best-for-me/

 

9. What state and county do you live in? South carolina, Spartanburg County

10. When is the last time you paid on this account? Late 2010 or early 2011

11. What is the SOL on the debt? In SC it is 3 years and they are within that

 

 

I hope all of this helps, I have a meeting with a Bankruptcy attorney Wednesday because im sure bank of america is next with a balance of around $11000.

 

I hope he will advise me or help me.

 

What do you guys think about this?

Link to comment
Share on other sites

wow, thats alot of good info but im dumb when it comes to understanding it. The papers are from a local lawyer and are legit. So what Do I do from here?

You fight and we are here to teach you how.

 

Steps:

1.Look up BOP here on the board we have several..

2. think about whether you want to demurrer(will stretch time) or answer within 20 days.

3. If they do not respond to your BOP I would say Motion to preclude(Examples here or ask me)

4. Make 20 posts in the off topic and then PM for help

 

You may want to write out the causes of actions against you to help us help you better.

 

You came to the right place.

Link to comment
Share on other sites

ADR is Alternative Dispute Resolution

http://www.judicial.state.sc.us/courtReg/indexADR.cfm

http://courtadr.org/library/view.php?ID=3728

 

All civil suits and all contested domestic relations cases may be sent to court-ordered mediation unless the parties request arbitration(Dont get excited its not with jams or aaa,Its several attorneys or retired judges that try and get you to settle with the plaintiff). The parties may also submit to mediation, arbitration or early neutral evaluation at any time. The court may appoint a mediator or arbitrator from a roster of certified neutrals, or parties may select their neutral. The rules outline procedures for selection and appointment of neutrals and conducting mediation, arbitration and early neutral evaluation. Topics addressed include scheduling, neutral duties and authority, attendance, confidentiality, impartiality, reporting of results, immunity, compensation, sanctions, qualifications for certification of neutrals in various courts, and discipline of neutrals who violate the standards of conduct outlined in Appendix A.

Link to comment
Share on other sites

ADR is SC's version of mediation.   Mediation must be scheduled within 210 days if there has been no resolution to the case.  If the parties don't file for mediation, the court will do it and will send the parties names of recommended mediators.

 

It's nothing more than one mediator and the 2 parties.  At the scheduled meeting, they first all meet together to see if there's a possibility of a settlement and for how much.  If one party does not agree to any kind of settlement, mediation is ended and the case resumes.

 

If both parties agree that a settlement is possible, but they don't have an amount in mind, the defendant and plaintiff are sent to separate rooms, and the mediator goes back and forth with offers.  If no offer is accepted, mediation is done.  The case will resume.

Link to comment
Share on other sites

Ok, well I talked to what I thought was a bankruptcy attorney and he told me to ignore it and let them get their judgment on my house....WTF???  I told him that I would let him know what I do. (not use him).

 

I stopped by another and attorney and talked to him and he seemed more reasonable and actually listened. With $40000 in debt including my 2 cars, a personal signature loan that I have and the credit cards would be around $675 per month for 57 months. Thats only $75 more that I am paying just on the two cars alone. My house would be seperate as well as utilities.

 

I have a few messages left with one attorney that my former boss used and he has good words to say about him. Whats funny is that my wife works beside an attorney that a coworker of mine is currently filing with and he is also a patient of hers (shes in the medical field). She is going to see him and get a packet to start with and see what he can do for us......

 

Any thoughts?

Link to comment
Share on other sites

Ok, well I talked to what I thought was a bankruptcy attorney and he told me to ignore it and let them get their judgment on my house....WTF???  I told him that I would let him know what I do. (not use him).

 

Without knowing all the details, the attorney's opinion might have been based upon the amount of equity in your home.  In SC, the homestead exemption is around $50,000 for one person.  If the house is jointly owned, both persons can claim that exemption meaning $100,000 of equity would be exempt from judgment. 

 

As an example, let's say a home is worth $200,000 (if you were to sell it right now).   The homeowner still owes $150,000 on his mortgage.  That's $50,000 in equity.  That $50,000 is exempt.  They can't touch it.  A judgment lien in SC lasts 10 years and cannot be renewed.  After 10 years, that's it.

 

The homeowner would have to figure out what his equity in the home would be right before that judgment is up.  If his equity would be only $100,000 or less, the judgment creditor wouldn't be able to force him to sell his home.  Even if his equity were a little over $100,000, it would depend upon how much more as to whether it would be worth it to the judgment creditor to force a sale. 

 

 

I stopped by another and attorney and talked to him and he seemed more reasonable and actually listened. With $40000 in debt including my 2 cars, a personal signature loan that I have and the credit cards would be around $675 per month for 57 months. Thats only $75 more that I am paying just on the two cars alone. My house would be seperate as well as utilities.

 

Was this attorney referring to a Chapter 13?

Link to comment
Share on other sites

Without knowing all the details, the attorney's opinion might have been based upon the amount of equity in your home.  In SC, the homestead exemption is around $50,000 for one person.  If the house is jointly owned, both persons can claim that exemption meaning $100,000 of equity would be exempt from judgment. 

 

As an example, let's say a home is worth $200,000 (if you were to sell it right now).   The homeowner still owes $150,000 on his mortgage.  That's $50,000 in equity.  That $50,000 is exempt.  They can't touch it.  A judgment lien in SC lasts 10 years and cannot be renewed.  After 10 years, that's it.

 

The homeowner would have to figure out what his equity in the home would be right before that judgment is up.  If his equity would be only $100,000 or less, the judgment creditor wouldn't be able to force him to sell his home.  Even if his equity were a little over $100,000, it would depend upon how much more as to whether it would be worth it to the judgment creditor to force a sale. 

 

 

 

Was this attorney referring to a Chapter 13?

 

All the first lawyer asked me about my house is "what is our house pament?"  thats it, nothing else.....I am just afraid that if we ignore it and not respond to the court that we could be arrested or go to jail. Maybe I am freaking out over something simple and thinking of a "criminal court summons". All I know is that I have not slept good since last friday and that my nerves are shot.

 

 

Yes, the second lawyer was looking at chapter 13 bankruptcy. He was basing that on rough numbers though, 2 cars and about $30-40K in debt without figuring in food, gas, utilities or living expenses.......

Link to comment
Share on other sites

You will not be arrested and sent to jail.  However, if you don't answer the complaint, Cach can get a default judgment against you.   You have 30 days from the day you received the complaint to file your answer with the court. 

 

If you have time, speak to another bk attorney.  Write down all your current debt and how much is owed on each credit card, car, house, any other debt you might have. 

 

Also, figure out how much you still owe on your home, and estimate its current value.  You might base it upon what homes in your area are selling for.  Give that info to the attorney.  He could tell you if you qualify for chapter 7 or 13.  He could also possibly help you figure out where you'd stand 10 years from now if a judgment is awarded against you and a lien put on your home. 

 

As I stated before, if you wouldn't have enough equity in your home that they wouldn't act on the lien during the 10 year period, you'd be ok.  BUT, the bad thing about a lien (even if they can't touch your home) is that you wouldn't be able to refinance or sell your home without paying the judgment.

Link to comment
Share on other sites

You will not be arrested and sent to jail.  However, if you don't answer the complaint, Cach can get a default judgment against you.   You have 30 days from the day you received the complaint to file your answer with the court. 

 

If you have time, speak to another bk attorney.  Write down all your current debt and how much is owed on each credit card, car, house, any other debt you might have. 

 

Also, figure out how much you still owe on your home, and estimate its current value.  You might base it upon what homes in your area are selling for.  Give that info to the attorney.  He could tell you if you qualify for chapter 7 or 13.  He could also possibly help you figure out where you'd stand 10 years from now if a judgment is awarded against you and a lien put on your home. 

 

As I stated before, if you wouldn't have enough equity in your home that they wouldn't act on the lien during the 10 year period, you'd be ok.  BUT, the bad thing about a lien (even if they can't touch your home) is that you wouldn't be able to refinance or sell your home without paying the judgment.

 

Great advice!! I have been told by the 3 lawyers that I have talked to is to ignore the lawsuit, that just seems weird to me but they are the pros. I am filing out the bankruptcy forms and im getting down to the property questions. What am I supposed to figure for the value of furniture, appliances, clothing, tools and contents of the house?

 

I guessed the following:

 

Furniture: 2 beedroom sets, dining room set, coffee and end tables, 2 sofas and a recliner $200

 

appliances: washer and dryer, dishwasher, refrigerator and small kitchen appliances $2000

 

dishes: $400

 

Jewelry: my 2 wedding rings and her and misc jewelry that she has $2000

 

Collectables: baseball cards $250

 

Firearm: my pistol $450

 

audio video: 2 flat screen TV's and surround sound system $1000

 

I have no clue on how close I am to this stuff. I havent got to the section yet that includes expenses. What do I figure for gas to and from work, power, water and stuff like that?

 

The more I get into these forms the more stressed I get........

Link to comment
Share on other sites

From what I understand, the value on the items could be what you'd be able to sell them for if you put an ad in the paper or if you sold them at a garage sale.  As far as your expenses are concerned, you average them.  For instance, look at your past few months of electric bills and calculate the average cost.  If your electric bills for the last 3 months were $100, $140, and $150, the average of those 3 would be $130.  For gas and food, you have to estimate. 

 

Jewelry could be estimated at the value you could get at a pawn shop.  Unless her jewelry has large diamonds or alot of gold, jewelry isn't as valuable as we think it is. 

Link to comment
Share on other sites

my bad OP thought you were in ca. maybe motion for more definite statement?

 

That can be done pursuant to RCP 12(e):

 

(e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the Court is not obeyed within 15 days after notice of the order or within such other time as the Court may fix, the Court may strike the pleading to which the motion was directed or make such order as it deems just.

Link to comment
Share on other sites

That can be done pursuant to RCP 12(e):

 

(e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the Court is not obeyed within 15 days after notice of the order or within such other time as the Court may fix, the Court may strike the pleading to which the motion was directed or make such order as it deems just.

 

BV80, thanks for all of your advise!!  I roughly calculated last night that I hae about $40000 in debt with me and my wife only grossing $65K per year.....im in a mess :(

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.