Butterfly101

Likely hood of junk debt lawsuit going to trial *Edit-I won!!!!!

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Hello. I am being sued in CA for a alleged consumer loan that defaulted in 2005.

Edit-I won!!! Judgment in my favor! I want to give praise to God almighty Jesus Christ for delivering me from my enemies, firstly. I would also like to thank each and every member of this forum especially those who responded to my post and also everyone who has posted info. I lurked here several months looking for help. I believe that God blessed me with all of you and to find this forum to utilize the information here to fight the mighty battle I was facing. At one point I almost lost faith but with God I gained my faith back and the inspiring stories here helped keep me encouraged. I just want to thank you all again you have been such a blessing to me.

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We have some very knowledgeable and helpful CA posters here. Answer the questions in this format and it will be much easier for them to help you. From what little information you have posted it looks like the SOL should take care of it. You may also be able to file against them in federal and/or state court. 

 

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? 

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? To find out: 


12. What is the status of your case? Suit served? Motions filed? You can find this by a) 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.

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3. How much are you being sued for?

$2600

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

Cash Call

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

I was served

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

In person

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

Yes

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

No correspondence, I never heard of them before they filed the suit.

9. What state and county do you live in?

Ca, USA

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

4 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) 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).

Answered complaint. Trial scheduled

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

No, it's not on my credit report.

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.

No I didn't know about the debt, was never notified in writing or by phone prior to the suit.

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?

I answered within 30 days.

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

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Based on your post, SOL is blown. Find consumer attorney, file suit for FDCPA violation. Get him to appear on your behalf in state court as well. This will go away quickly. If you fool around until judgment is entered, it will be much more difficult to deal with.

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When did you send them the CCP96? Did you send it certified mail, with proof of service?

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When did you send them the CCP96? Did you send it certified mail, with proof of service?

Yes I mailed it overnight oct 2. Proof of service. Certified. They responded with the same fraudulent documents, named a live witness and that's all. I was expecting a ccp 98 declaration but they didn't send one. They have put zero effort into the case, no discovery request etc.

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Based on your post, SOL is blown. Find consumer attorney, file suit for FDCPA violation. Get him to appear on your behalf in state court as well. This will go away quickly. If you fool around until judgment is entered, it will be much more difficult to deal with.

Are you saying that it is possible for a consumer to waive the SOL?

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I would do as @nascar suggested and hire an attorney ASAP. Look for a consumer attorney that has FDCPA experience. Many will take your case without up front cost if they think you have a winner. Based on the SOL alone it sounds like you do. 

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Certain actions by you can unknowingly restart the statute of limitations.

1.acknowledging that you owe the debt.

2.making a payment.

3.entering a payment plan.

4.making an agreement to pay.

5.making a charge on the account.

 

The reason for the statue of limitations is to require the prosecution of a right of action within a reasonable time to prevent the loss or impairment of available evidence.

 

I want to hear the excuse of the plaintiff since the statute of limitations has expired by eight years.

 

The current Plaintiff should know or should have known this claim is way past the statue of limitations.

 

I think they were hoping to scare you in to paying them on a debt they bought for .50 cents.

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Certain actions by you can unknowingly restart the statute of limitations.

1.acknowledging that you owe the debt.

2.making a payment.

3.entering a payment plan.

4.making an agreement to pay.

5.making a charge on the account.

The reason for the statue of limitations is to require the prosecution of a right of action within a reasonable time to prevent the loss or impairment of available evidence.

I want to hear the excuse of the plaintiff since the statute of limitations has expired by eight years.

The current Plaintiff should know or should have known this claim is way past the statue of limitations.

I think they were hoping to scare you in to paying them on a debt they bought for .50 cents.

Yes I didn't do any of the above things.

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Yes I didn't do any of the above things. They claim that the contract waived my right to any statute of limitations permanently, yet they can't provide a contract other than the generic one they sent that doesn't belong to me. I'm hoping they will dismiss before trial, is that likely or common?

 

Oh, that's a new one. You "waived" your right to SOL?

 

Utter bollocks. I'd love to see their actual argument on that (if you have a document or something).

 

Even if it does to go trial, their witness won't show up and I bet you folding money they'll dismiss day-of before the start.

 

My advice would be to prepare arguments in advance when you speak with the lawyer (he/she'll pull you aside that morning to discuss a "deal").

 

Although dismissing days before trial is common - it's also common to see a dismissal the morning of trial or even while you're speaking to the judge initially at the start.

 

Prepare for trial as if it was going to go the whole 9 yards.

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Yes I didn't do any of the above things. They claim that the contract waived my right to any statute of limitations permanently, yet they can't provide a contract other than the generic one they sent that doesn't belong to me. I'm hoping they will dismiss before trial, is that likely or common?

It's possible they dismiss. Debt collectors, particularly the junk debt buyers/scammers, will dismiss before trial when the defendant has taken the proper steps to fight them - and it sounds like you have. But I wouldn't depend on that. You could be that one person they try to take all the way. Be ready for it. It sounds like their evidence is very problematic. Be prepared to attack it and "the witness" (should the witness show up).

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They will dismiss before trial junkdebtbuyers don't want trouble they just want money.

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Thank you all very much I will take all the advice I can get and will update the case status to let you know the outcome. I tried finding a consumer law attorney in my area but the two I found were charging over $4,000 or told me they would work out a settlement for me.

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Thank you all very much I will take all the advice I can get and will update the case status to let you know the outcome. I tried finding a consumer law attorney in my area but the two I found were charging over $4,000 or told me they would work out a settlement for me.

 

I agree that they will most likely dismiss, but you need to definitely be prepared if you are the 1% they challenge. As long as you are confident you should do fine. Just make sure and don't make any procedural errors. If you have any more specific questions post them here and the CA posters can help you. Many of them tend to show up later in the day.

 

You will need to do a little more research to find an attorney that is worth hiring. It's insane that an attorney would talk about settlement after you explained your situation. You need to find one that has FDCPA/Rosenthal experience. Based on what you told us one of these attorneys would be happy to work with you. They stand to make a few thousand with very little effort. You might have to pay the court fees, but many will even front you the money for this. 

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Here are a few FDCPA cases where you can find an attorney. You can narrow it down by choosing your district. Click on the ones with JDBs that you are familiar with. Then look at the attorneys listed under the plaintiffs. 

 

http://dockets.justia.com/browse/state-california/nos-890

 

http://dockets.justia.com/browse/state-california/nos-480

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Are you saying that it is possible for a consumer to waive the SOL? Even though I requested a copy of original contract and they didn't provide anything but a generic contract that wasn't mine and that is dated in 2013?

SOL should have run in 2009

 

I think you have a defense to the claim. But, get a lawyer.

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Here are a few FDCPA cases where you can find an attorney. You can narrow it down by choosing your district. Click on the ones with JDBs that you are familiar with. Then look at the attorneys listed under the plaintiffs. 

 

http://dockets.justia.com/browse/state-california/nos-890

 

http://dockets.justia.com/browse/state-california/nos-480

Thank you so much. I will get started fundubg one ASAP.

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CCP 360.5.  No waiver shall bar a defense to any action that the action
was not commenced within the time limited by this title unless the
waiver is in writing and signed by the person obligated.
No waiver
executed prior to the expiration of the time limited for the
commencement of the action by this title shall be effective for a
period exceeding four years from the date of expiration of the time
limited for commencement of the action by this title and no waiver
executed after the expiration of such time shall be effective for a
period exceeding four years from the date thereof, but any such
waiver may be renewed for a further period of not exceeding four
years from the expiration of the immediately preceding waiver. Such
waivers may be made successively. The provisions of this section
shall not be applicable to any acknowledgment, promise or any form of
waiver which is in writing and signed by the person obligated and
given to any county to secure repayment of indigent aid or the
repayment of moneys fraudulently or illegally obtained from the
county.

 

 

 

How will a debt buyer ever prove the contract, much less that you signed it "electronically"?
 

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