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Stuck Between a Rock and a Hard Place - do I settle the lawsuit?


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Ok - I have a trail date set for 7/19/13 in Nebraska.  Here is some history to catch everyone up:

 

 

What:  Lawsuit - being sued by Midland Funding LLC

How much:  Original debt $2500 - now with state laws allowing interest - around $3000+

Where - Nebraska

Original Creditor:  WAMU then Chase

 

History

 

1) Served April 2012.

 

2) Tit for Tat discovery in which no response by Midland

 

3) Filed motion to compel - date of hearing - case dismissed without prejudice

 

 

Current

 

1) Re-served by Midlands for same debt March 2013

 

2) Sent discovery - no response - filed motion to compel

 

3) Motion to compel hearing held in May 2013- had received the response to admissions, but nothing for interrogatories or request for documents - during the hearing the plantiff's attorney handed me vague and obtuse responses to my outstanding discovery requests - I was provided no time to review these prior to the hearing - and when I took a moment to flip through them - I advised the judget that I objected to what they provided me as they failed to address the remaining elements in my motion to compel regarding the incomplete responses received in their reply to my response for admissions.  The judge asked me for an example - and I noted the following:  In their response to admissions they denied that the bill of sale was not a complete document.  I indciated that in examining the bill of sale there was no reference to the defendant, or the alleged account AND it even indicatd on the bill of sale itself that it was an exhibt to another document.  I advised the judge that in order to complete discovery I needed the complete documentation to help me determine standing - in their response to discovery they handed me - they objected to providing me the forward flow documents or the complete documents to which the said bill of sale was noted to be an exhibt (i used the correct verbage but the technical name for it eludes me at the moment)  - the Judge indicated, that's for me to object to during the trial and prove my case - and if I had nothing further - then he was going to dismiss my case for motion to compel as he believed that the plantiff had provided a sufficient response to my requests - HARDLY!!!  But it was clear that the judge thought I was the idiot and away he sent me.

 

4) Since the dimissal of my motion to compel - there has been no communication between myself and the plantiff's attorney.

 

5)  The trial (non jury) is set for 7/19/13.  The exhibits they have submitted include an incomplete bill of sale that doesn't have my name or the alleged account anywhere and clearly states no guarantee as to the validity of the debt and that it is an exhibit to a larger document that they objected to providing me and the judge allowed.  They also have about 20 copies of credit card statements with my name and alleged account number on them.

 

6)  I have prepared myself for trial - I have researched the business heresay laws and rules and can hit them on this for the CC statements in that in order for them to be valid and stand the test to be included as exceptions to the heresay rules, someone has to be present to attest to their validity - and they didn't provide a witness list indicating that someone was prepared to come to attest to their validity who had personal knowledge. Also,  I have the state statutes that allow a defendant the right to request a full document if the evidence presented doesn't fully provide an accurate picture and a few other state statutes that I believe pertain to this situation.

 

HERE IS MY DILEMA:

 

Please understand - I would rather fight this because it is a jdb and not the OC - however, I am stuck in a very difficult place and I am considering negotiating a settlement for the following reasons:

 

1) My husband and I are working to build a house and when we go to refinance it - I need my credit score to be as strong as possible to get the best rate

2) I had fallen on hard times several years ago -but my situation now allows me to rectify some of these past challenges

3) I work in government and in the event the judge continues to show he is not consumer friendly - I really don't want to, nor can I afford to have a judgement on my credit as I am in the position for advancements in the next few years and I can not afford to have a judgement listed on my credit report in the event I lose - it WILL seriously jeapordize my opportunity to be promoted

4) I have no idea how to try to negotiate with the plantiff's attorney to try to reach a settlement to avoid judgement and where to start, what to send - As much as I HATE TO GIVE THEM MONEY:  I am prepared to pay the full amount so long as I can get them to agree to dismiss the case against me AND have the debt deleted from my credit report? Is that unrealistic and what happens with the OC given if I settle with the jdb?

 

I know the majority of you are firm believers in standing and fighting and not laying down for these animals - and on every other day of the week I 100% support that - but there are some very important things that are occuring in my life that I just simply can not risk putting myself in the position to jeapordize them any longer - so ANY HELP you can give me in how to negotitate a settlement prior to the trial on 7/19 would be great!  I have utilized this site to beat a past jdb and I made it to round 2 with this one - but my situation has changed and I stand to lose more than I stand to gain if I am not successful in winning this one - so I hope you all can forgive me for not fighting and settling on this one.  Now I just need your help in figuring out the best strategy to settle and get what I want.

 

Thanks for understanding and for the help!

 

 

 

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Chase laws of Delaware apply

WUMU closed September 2008

laws of Delaware

DELAWARE CODES

Delaware Code Title 5, Chapter 9, § 956. Governing law.

Delaware Code Title 10, Chapter 81, § 8106 Actions subject to 3-year limitation.

(a) No action to recover damages for trespass, no action to regain possession of personal chattels, no action to recover damages for the detention of personal chattels, no action to recover a debt not evidenced by a record or by an instrument under seal, no action based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations, no action based on a promise, no action based on a statute, and no action to recover damages caused by an injury unaccompanied with force or resulting indirectly from the act of the defendant shall be brought after the expiration of 3 years from the accruing of the cause of such action; subject, however, to the provisions of §§ 8108-8110, 8119 and 8127 of this title.
 

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Judge said

the Judge indicated, that's for me to object to during the trial and prove my case

 

That along with the other stuff.

 

I think you need to prepare a great motion in limine.  List everything you are objecting to.  This way not only can the jdb see what they are up against, it also preserves your objections for appeal.  You object to each article of the evidence, state why you object to it, and provide any case law to go with. 

 

judge wont rule on it until trial.  They have incomplete documents, no witnesses, sol is time barred according to del. law, statements are not authenticated, et all, line by line, piece by piece.

 

If they win you can appeal.  If you do it in the time allotted, there should be no judgment recorded against you until after the appeal.  You can always settle then, but the fact they won't provide you all the documents, makes for a great motion in limine stating why you need them, some case law as to why the court says they need them.  I am not from your state so I don't know your rules or any case law to help you, but I am sure there is some, and probably some federal law, or some from your circuit courts relating to the matter.

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.

From BV80

 

. Was the dismissal voluntary by the plaintiff? - yes it was voluntary

 

2. What is the date of last payment on the account? - December 2009

 

 

 

Who is the named plaintiff in the suit? Midland funding LLC

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

3. How much are you being sued for?  $3000

4. Who is the original creditor? (if not the Plaintiff)      WAMU - then Chase

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

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

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

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?  prior case in which the plaintiff voluntarily dismissed the case when they couldn't produce the documents at the motion to compel hearing

9. What state and county do you live in? Nebraska, Dakota

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  December 2009

11. What is the SOL on the debt? To find out: December 2013

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Trial is Friday 7/19/13

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) - No

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. Yes I have done so - and it shows on the credit report that I dispute it

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?  already responded - had a motion to compel hearing - summary of how it went in original posting - but never got any of documents I requested.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  A bill of sale with no link to the alleged account or me - copies of credit card statements
 

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Ok - so the judge's order from the pre-trial indicated that all motions have to be filed and heard 14 days prior to the trail - so seem like this isn't an option for me on this one - I am just going to have to learn how to object and object well when they present their evidence - my question is - do I object as they are giving their opening statement and presenting the evidence or is there a better time after opening statement is complete and when I present my side of the situation in response and pull out all the state statutes and state case law regarding heresay and incomplete document is false and misleading?  Is that my best defense?

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