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Stuck Between a Rock and a Hard Place - settling my lawsuit - HELP PLEASE


bluejayjack
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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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You will need to call them, remind  them of the last lawsuit, and tell them you will settle for a very low ball amount if they delete the trade line. you will also need a settlement stipulation agreement that can be a nda (non disclosure agreement), it's ok to settle if you got an advantage out of it, just get all in written.

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General Release and settlement agreement

 

Whereas Joe Doe, an individual ("Plaintiff"), filed a lawsuit against The Clown Collection Agency ("Defendant"). Joe Doe v The Clown Collection Agency, X county, x State case No. xxx ("Lawsuit").

 

Whereas, the Lawsuit concerned allegations regarding the collection of money allegedly owed by Plaintiff to Defendant and their assignors and Defendant's collection practices and procedures (the "Dispute"):

 

Whereas, Joe Doe and The Clown Collection Agency ("The Parties") desire to enter into a complete and final settlement in compromise of the Lawsuit, while no fault, wrongdoing, liability, or culpability, or related facts, whatsoever, in entering into the settlement in compromise (the "Agreement:);

 

Whereas,Defendant has full authority to negotiate and resolve Plaintiff's claims, and Plaintiff has full authority to negotiate and resolve claims;

 

Whereas, the parties agree that the consideration stated hereinafter is final, and that the Parties agree that to bear their respective attorney's fees and cost except as expressly stated hereinafter;

 

Therefore, for good and valuable consideration as recited hereinafter, the succicency of which is hereby acknowledged, this Agreement is made by and between the Parties:

 

1 Provided this Agreement is executed by Plaintiff and returned to Defendant's attorney of record, Defendant agree to settle this lawsuit for the following consideration:

 

a Payment of a total of  $0.01 (One Penny) ("Settlement Funds") by Defendant, such payment to be by certified funds or bank tellers check made payable to xx within seven (7) days after execution of this Agreement by Plaintiff;

 

b Payment is deemed made, when it is postmarked and is to be mailed ot delivered to:

 

xx address

 

c Defendant will cause a universal data form ("UDF") to be submitted to any credit bureau they reported the alleged debt and request that the trade line be deleted as to Plaintiff. Defendant will provide Plaintiff's attorney of record a copy of the UDF form it submitted within five (5) days upon receipt of the executed Agreement;

 

d Defendant will close the collection account associated with the Lawsuit as to Plaintiff, which war originated by x bank, account number xxx and will not transfer, sell or assign the account to any other party.

 

2. Plaintiff consideration is:

 

a. Enter into a general release of claims as found in this Agreement;

 

b File a Dimsissal of the Lawsuit, with Prejudice upon clearance of the Settlement Funds.

 

3 Except as to the duties and obligations in this Agreement the Plaintiff Joe Doe does on his behalf, and on behalf of his respective heirs, executors, administrators, principals, partners, officers, directors, and successors and assigns therof, fully and forever releases and discharges Defendan The Clown Collection Agency, and its heirs, executors, administrators, principals, partners, officers, directors, shareholders, subsidiaries, employees, agents, attorneys, clients, assignors, successors and assigns thereof, and holders in due course, of and from any and all liabilities, claims, demands, actions or causes of action, and rights (contingent, inchoate or otherwise) including, without limitation, any claims or demand before any court, administrative body, public agency or any other body, which such Plaintiff may now or hereafter have against any or all of them, or any of them, for reason of any damages, general or special, or injury or injuries, whatsoever, sustained by the Plaintiff, or any of them, arising out of, or related to, the matters sued upon or found in the Lawsuit.

 

4 Paintiff alse entered into this general release of claims as to Defendant and its heirs, executors, administrators, principles, partners, officers, directors, shareholders, subsidieries, employees, agents, attorneys, assignors, successors and assign therof, and holders in due course. Plaintiff acknowledges that he may hereafter discover facts in addition to or different from those which he now knows or believes to be true with respect to the dispute, the subject matter of the Dispute, or the subject matter of this Agreement, but it is his intention to fully and finally and forever settle and release any and all matters, disputes, and differences, known or unknown, suspected or unsuspected, which do now exist, may exist or heretofore have existed between himself and Defendant. In furtherance of this intention, the releases herein shal be and remain in effect as full and complete releases notwithstanding the discovery or existence of any such additional or different facts.

 

to be continued I got to go to eat dinner is ready will edit late 1 1/2 page left.

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  • 2 weeks later...

@bluejayjack

 

I would like to know as well.

 

Off topic:

@admin

I don't think this forum currently defaults to sending emails automatically to people who post in a thread, whenever there is a new post.  You might consider setting your forum software to default to this behavior.  Most forums I frequent (and there are a bunch, though they are for non-credit related topics) default to sending an email to whomever posts to a topic, or starts a new topic, if someone else posts to that thread.

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Yes, I did all of that.

 

I guess I should have said that I was suggesting that Admin set these as the defaults, because it would probably lead to more participation by new members of the forum, who post then assume they will be emailed when someone replies to their thread, because most other forums do this by default, so they expected that on this forum as well.

 

Like a lot of people, I don't keep the forums I participate in up all the time, refreshing them constantly.  I do keep my email up all the time, and rely on that to notify me that someone posted to a thread I am interested in.

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