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Court sets Settlement conference after dismissal, SOL so close what to do


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I have a CC business debt (Wells Fargo) last pay 11/09. So I believe the SOL will be Dec 30 2013. I am in California. (4 year SOL) The debt collector filed a law suit (10/12) but never served me. Filed a non service with the courts 60 days later. Then  3 weeks after that there was a notice of case management conference (Jan/13), 6 weeks later a tentative ruling case is referred to Trial setting process of trial and mandatory settlement conference.,  with no judge signatures or anything. Just kind of a document appearing in the file. Not date stamped or anything. A week after that a minute order is set describing the above. The attorney requests for dismissal end of July/13 . Has clerk signature, and date stamped as filed. Dismissal entered as requested.  Middle to end of August the court sets 2 hearings both in 2014. one Civil settlement conference, and the other Civil trial Assignment. Sent with certificate of mailing to attorney. Both of these dates are after the SOL of course. But also set after the dismissal. 

 

What is going on? I don't want to do anything but breathe with shallow breaths. 

 

Also, what are the chances another or the same JBD will try and jump on this in the next 80 days? 

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I'm not exactly sure what you mean by this...

 

they filed they filed in my personal name, business and does 1-100.

 

...but chances are, even though the card had your business name on it, you were required to personally guarantee it.  That means if the "business" didn't pay it...you would.  Normally, when a CC sues over a personally guaranteed business card, they name the business and the person who guaranteed it in the suit.

 

The assumption is...you used the card for business purposes...which means you have no protection under the FDCPA or FCRA.

 

It could get complicated...which is why I say you need a lawyer.

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I'm not clear on post dismissal events that do not seem to include a refiling of a complaint. An attorney should be able to clear that up.

If my business was insolvent then a judgment against it could prove a waste of money for opposing. If my business has assets or income as well as myself, a settlement might start to make sense. Assuming the party was not a JDB, as indicated by the OP. Not a fan of paying money to JDBs. Although, it is something to consider if there is significant exposure, lien risk, reputational risk, etc. to any adverse judgment and/or enforcement of a judgment.

Any counter-claims for FDCPA are likely non-applicable. I doubt that the FCRA is completely exempt from applying to a personally guaranteed business debt and the reporting of same since the reporting is taking place on a personal credit record. Regardless, personal causes of action under the FCRA may be hard to find and I am not sure I would spend much time looking into such unless there was some egregious behavior done by a furnisher. I doubt it applies, but I would take a quick look or ask a competent attorney if CA's Rosenthal Act applied in anyway.

Most likely the business will require an attorney if it wishes to put on a litigation defense to prevent a grant of an adverse judgment. If the business required a litigation defense (and funds for an attorney were lacking) I would want to determine if CA has any allowance for me to file a simple answer on behalf of the business w/o an attorney.

Defenses for a personal liability business collection are going to be very similar to any personal collection defenses. It is obvious to me that a generic unsigned agreement will not suffice as a guarantee of both personal and business liability. Having both myself and my business being sued I would require admissible evidence of two signatures (on a breach of contract claim) as a personal signature typically cannot bind a business nor can an officer's signature typically bind an individual.

Interestingly, I have seen an application from an N.A. bank for business credit that contained only a single signature and that was for an officer of a corporation. I recall there was some text buried in the agreement that implied some personal liability. I am unclear on how a corporate officer, signing in their capacity as an officer, could ever bind an individual and make them liable. They are not a party to the agreement. I suppose these types of questions are for a competent attorney or possibly the court, lacking an attorney.

All of these thoughts are based on the existence of a legal fictional entity wholly separate from the individual. An entity that it is not trivial to "pierce the corporate veil" on. I don't believe a sole proprietorship would qualify as such and in CO I seem to recall a BK case where a single owner LLCs was treated to be the same as the individual and not a separate entity.

The JDB should lose to a proper defense (no guarantees of course). The business co-defendant is a wild card that I have yet to experience and I am unsure of its full ramifications. Just a few quick questions that come to my mind:

    What happens if the individual wins a judgment against the JDB for costs (and possibly attorney fees) while the business failed to defend and perhaps received a default judgment favoring the JDB?

    Is there an arbitration clause in the alleged agreement that may cause the JDB to fold upon a defendant's successful motion to compel arbitration or would the JDB would move forward and pay their portion and the individual would have to pay the often higher arbitration business fee percentage instead of CA favorable consumer arb fee protections?

 

    If there is an arbitration clause, does it prohibit the joining of more than one party in an arbitration action?

 

    If the card was used more than 50% of the time to purchase household items is the debt really consumer debt and entitled to the protection under various statutes? If that is the case what, if any, are the negative implications of alleging a business card was used mostly for the consumer household? (In a high cost arbitration forum like JAMS it might make sense to reduce the alleged debtor's fees by claiming consumer debt while attempting to use the the cost of arbitration as leverage to cause the JDB to forsake the pursuit of a medium to smaller debt or perhaps generate a more favorable settlement if desired.)

 

I suppose a competent attorney might be able to answer these and other questions that are not routinely applicable in a typical consumer collection action.

I view the world of business credit with personal liability as a bit more complex and less frequently experienced than individual collections and that is why such issues are routinely accompanied with recommendations to seek competent legal advice. Which of course is not available on this forum. :-) Still, it might not hurt to do a thorough search of the forum and Internet for information gleaned from someone that has been there and done that.

Best of success to the OP. Oh, and be sure to take deep breaths and relax! It is likely better for your health. ;-)

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  • 2 weeks later...

First of all, go to the website of superior court of california, if you are in los angeles, it is: www.lasuperiorcourt.org , click the "case summary/ or case summaries", somewhere close to the bottom page, enter your case #.

 

From there, you can see exactly what is the status of your case, any move made by you or other side, must "filing" with the court filing clerk office, such as their summon, answer/ reply, motions...( except discovery, which is not required, but I still strongly suggest you do )....

 

Take a close look at the Case Summary, don't depend on the other side attorney....if you see anything, you should call and ask the Court filing office, they will tell you.

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