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Sued by PMI in Los Angeles, California - Need Help


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Summons left outside former home on 2/27/14, then mailed at same address.  Found out from current resident (ex-husband). Ex-husband saw summons on the porch when he got home from work. They have my current address on the summons but they didn't serve the summons here. Probably I was out when they tried.

 

Being sued for $15,000 by JDB on behalf of PMI (Private Mortgage Insurance). 6 months before SOL expires. Suit says FIRST CAUSE OF ACTION BREACH OF WRITTEN PROMISSORY NOTE. Checked Superior Court website: Collections Case, Status pending,Summons Issued, Last History shows CASE FILE FORWARDED TO RECORDS RE FILING.  No court date indicated yet. Nothing about SUMMONS SERVED yet.

 

They attached copy of promissory note we signed. I was co-debtor. At the same time, my co-debtor/sister who lives in Maryland is being sued for the same PMI account by another JDB based in Maryland. She has court date in April 2014. She retained a lawyer and thinking of filing for bankruptcy or settlement whichever is better for her. If she settles before my trial date, I'll be okay, but if she files for bankruptcy, I have to go through this case.

 

Read through the forums but still not clear on what to do.  I know I have to send Discovery. Should I send General Denial too?  Do you have a sample on what to write on the Denial?  I also read about sending ANSWER TO COMPLAINT with the Discovery, what Form do I use to send ANSWER TO COMPLAIN?. Do I send all these 3 things at the same time?  Do I attach POS to all these 3 mailings?

 

Will it help me to file ADR before or after I send the 3 mailings?  I'm willing to do ADR ,or settle & negotiate for lower amount (maybe up to $5,000) to avoid trial and pay lawyer's fees.

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First in order to help you better we need to know more details. PMI is the original creditor, but who is the plaintiff? You mentioned a JDB, that is a junk debt buyer which would be different from a law firm filing, or a collection agency.

I'm not sure how the law works in your states, but I would talk to a consumer lawyer. You both should be listed in the suit, not have 2 separate suits for the same debt, you may have grounds for dismissal right there. They are trying to collect twice.

File a general denial, as you don't want to be late with that, maybe @calawyer or @Seadragon has suggestions on if you should include a motion to dismiss with it.

Send off a bill of particulars to them now. On pleading paper, but you do not file that with the court. There is a blank pleading paper in the forum of sample motions. We will let other Cali folks weigh in also.

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Current plaintiff is a law office named Gaba Law Corp. PMI charged off account and passed hands through many debt collectors from different states.  Since they attached the promissory note we signed, I can probably just ask them to provide "Agreement Assigning the Account".  I probably can't use anything else.

 

 I found this sample -  DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil Procedure section 454, to furnish to Defendant ________, within 10 days, a Bill of Particulars setting forth all items and details of the account on which the cause of action for [goods sold and delivered] [money had and received] [money lent or paid] [quantum meruit] of plaintiff's complaint is based, including the date of each transaction, a description of the services, materials or goods supplied or other considerations rendered, the price or charge made for each item, all payments or credits that have been made to the account and any agreement assigning the account at issue to the plaintiff.m different states.

 

I probably can't use pld050 since the amount is $15K and assigned to third party collection, though it's not verified. So, I will have to use legal pleading form, right?

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I'm using the legal pleading template & sample I downloaded and I'm responding to each line/paragraph of the Complaint.

 

I then plan to just include these 2 Affirmative Defenses:  1. Plaintiff has failed to state the facts sufficient to state a cause of action against Defendant.  2. Plaintiff lacks standing to bring this action.

WHEREFORE, the defendant asks the Court for judgment:
a. dismissing the complaint herein with prejudice.
Defendant reserves the right to amend, modify, supplement and otherwise change this answer and the foregoing affirmative defenses based upon legal theories, facts and circumstances which may become known after discovery

 

Question 1: Should I add more Affirmative Defenses?  I've seen over 25 samples I can use.

Question 2:  Should I send my Answer & BOP even though there's no record yet of SUMMONS SERVED?

Question 3: Should I contact plaintiff's lawyer or court clerk to confirm SUMMONS SERVED? They did improper service since they left summons on the porch outside the house that is not my current residence.  

Question 4: My sister's court date in Maryland for the same PMI account is 4/14/14 so she may have a judgment or settlement before me. Should I try to delay or expedite my case here in Los Angeles?  My sister is now retired just collecting Social Security while I still work and have higher income than her.  She will have a better bargaining position if they agree to settle.

 

Thanks for all the responses & guidance.

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I'm using the legal pleading template & sample I downloaded and I'm responding to each line/paragraph of the Complaint.

That will work well

I then plan to just include these 2 Affirmative Defenses:  1. Plaintiff has failed to state the facts sufficient to state a cause of action against Defendant.

Are you sure they did not list ANY cause of action or common count? "Open book, account stated, breach of contract, unjust enrichment etc."

 2. Plaintiff lacks standing to bring this action.

You don't have to assert this one but you can.

WHEREFORE, the defendant asks the Court for judgment:

a. dismissing the complaint herein with prejudice.

The court cannot dismiss the complaint with prejudice at this time, only the plaintiff can.

Defendant reserves the right to amend, modify, supplement and otherwise change this answer and the foregoing affirmative defenses based upon legal theories, facts and circumstances which may become known after discovery

 

Question 1: Should I add more Affirmative Defenses?  I've seen over 25 samples I can use.

If you have one that applies you should use it. Most people list more than they have. If you have something like SOL then you would want to assert it.

Question 2:  Should I send my Answer & BOP even though there's no record yet of SUMMONS SERVED?

In most situations I would say yes.

Question 3: Should I contact plaintiff's lawyer or court clerk to confirm SUMMONS SERVED? They did improper service since they left summons on the porch outside the house that is not my current residence. In most situations I would say no and to just answer it.

Question 4: My sister's court date in Maryland for the same PMI account is 4/14/14 so she may have a judgment or settlement before me. Should I try to delay or expedite my case here in Los Angeles?

Is she being sued by the same JDB? They are suing 2 people on the same account but in TWO separate cases. That is not legal. If they won both cases they would double their money. I would be thinking more of a cross complaint than another affirmative defense. If your sister has a TRIAL date on 4-14 then her case will most likely be resolved before yours begins without doing anything to delay it, but I would not try to expedite it. Trying to delay it in your case makes more sense than other people's because it may be resolved in another case. However you would still be in a lawsuit since they are separate suits. There should be a cross complaint here.

 My sister is now retired just collecting Social Security while I still work and have higher income than her.  She will have a better bargaining position if they agree to settle.

They always want to settle.

 

Thanks for all the responses & guidance.

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This sounds weird. I don't know what the affirmatives defenses would be. As for the motion to quash I believe you are going to find that the ex is a party to the promissory note and thus service would be legal there. It will get into the whole community property thing. Things they will have to show is the promissory note, that you breached the terms of it, and that they are intitled to recover on it.

 

One of the key points is whether the terms allow assignment.

 

You need to send out discovery asap as soon as you decide whether to quash or not. You might want to consult with a lawyer if you have EAP or other program at work.

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Lawyer suing me is admitted debt collector. Lawyer/debt collector in Maryland suing my sister is different person/company. My sister's lawyer said we can both be sued by several debt collectors hoping to extract money from either or both of us, but not exceed the $15K debt on the same PMI account.

SOL will be on 8/30/14 so I guess I can't put that as affirmative defense. Cause of Action asking for $15,000 plus court costs, attorney's fees & 10% interest starting 8/30/2010. Promissory allows PMI to sell, assign & transfer its rights upon providing notice to Borrower. PMI mostly communicated with my sister, she's the main borrower, I was co-signer. I don't know if she received notification from PMI re assignment/transfer.

Already divorced before debt so my ex is not a party. My ex contacted law office suing me that he found summons outside his house and told them I don't live there since we've been divorced 8 years. Law office told him to shred summons and they will try to serve me at my other listed residence. If unsuccessful in finding me at my house, they might try finding me at work, I guess it's just a matter of time.

So, I should send BOP, 1st Discovery letter & General Denial. I'll send them within 2 weeks. MD lawyer/debt collector's 1st offer for settlement is $7500 over the phone. If they meet in person, they may be able to lower the amount. My sister's lawyer will just have to make sure that they will obtain a written agreement that the debt is settled in full, or if partially settled, PMI & other third party debt collectors will not try to collect more money from either one of us in the future. I will need that settlement document. If I show that agreement to the guy suing me, will he drop the case or should I present that to the court with Motion to Dismiss?

Before retaining a lawyer, my sister contacted the law office suing her that she wants to settle & informed them that I'm also being sued for the same PMI account. MD debt collector said they didn't know I'm being sued also. They offered her a settlement of $12,000 if installment or $7500 if one-time payment. I'm thinking of contacting the guy suing me to let him know what's happening in MD and see if he will settle with me for a lot less $$ to save me & my sister some money. I'll tell him that if he doesn't settle with me, he'll get $0 and the debt collector in MD will get everything since they will settle in maybe 3 - 4 weeks from now. Is this a good or bad idea?

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Bad idea. Very bad idea.

You do not want to admit anything, and make them prove everything. They will do or say anything to extract money from you. That will reset the sol if you pay anything.

I would deny the debt, send for a bop and discovery and see just how much they have against you. You don't even know who owns the debt. The fact that you are both being sued by 2 different companies tells you who owns it is in question.

Pull your credit report and see if PMI is reporting, and then see what the status is. The fact that they are asking for 10% interest tells me they either sold the debt, or have no documentation as it sounds like the statutory interest rate for your state! and not what was in the contract. If they were allowed to charge more they would.

I would fight your case while watching to see what happens in your sisters. Send off the bop, answer with a general denial, and investigate a cross complaint.

Who is listed as the plaintiff in both suits? Not the lawyers, but plaintiff? And on the summons it should tell you what they are suing you for...breach of contract, common counts, account stated?

Your sister hired a lawyer? I would tell her to make sure he is a consumer attorney, or she might want to fo it alone if he just wants her to settle. If the debt has been passed around, and the fact they are suing you both, they will have a lot to prove up.

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Plaintiff is PMI in both suits. My sister's case is Breach of Contract.  My case is Breach of Promissory Note. Debt collectors have been sending us letters & phone calls since 2011. PMI debt never appeared in my credit reports, maybe because my sister is the main borrower. Last credit report I checked in July 2013, haven't checked lately. My credit report only showed a foreclosure, we had a short sale for Las Vegas property in 2010. Since we had mortgage insurance, PMI asked us to pay $15,000 and had us sign promissory for the short sale to go through.

 

I'll only settle and pay up if they will drop the lawsuit and will provide documents that my debt is settled in full. I'll even accept partial debt settlement on the record as long as they stipulate that PMI and other third party collection agencies will cease any effort to collect more monies from me and my sister.

 

My sister was never served, only found out she's being sued through a letter from a lawyer offering services. Her Court case summary shows court date was already scheduled for 4/14/14. I also found out I'm being sued through a letter from Legal Wing offering their services to me.  

 

My sister is not willing to fight in court and do any work or research to try to win her case. The lawyer she hired is just to help her negotiate & settle, draft all necessary papers, make sure the lawsuit goes away and to obtain the document stating that the debt is paid in full. 

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Then it sounds like the longer you prolong your case the better off you will be. If your sister settles with them then you should not be sued for co signing. However you already are being sued. This can't be legal. I would look into this.

I think there would have to be a "joinder" as it would be necessary for both parties (you and your sister) to be combined to the same case, otherwise they are getting 2 bites at the apple.  They have 2 case numbers for the same debt, regardless of the amounts in each case that can't be right. They could sue you both as 2 defendants to 1 case, but they can't split 1 case 2 ways (unless maybe you co signed for only a specific amount and that's what their suing for, which I doubt).

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Shellieh makes a very good point above - don't admit anything. They have the burden of proof. Admit anything and it could be game over for you.

 

As to your thought above, "I'll only settle and pay up if they will drop the lawsuit and will provide documents that my debt is settled in full" - if you are talking about them dropping the lawsuit in order to negotiate with you, I doubt they would consider that. The lawsuit is a collection method, they won't give up on any perceived leverage. If you suggest they do this, I think they would only sense this as weakness. Deal with this from a position of strength - make this case hard for them, give them nothing.

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  • 3 months later...

Hello, again.

 

I won Motion to Quash (1st service) by default since they didn't show up.  Process Server again lied about 2nd service.  He lied again on the 2nd Proof of Service filed with the court, claiming a woman (not matching my description) accepted the summons and that a copy of summons & complaint was also mailed by him.

 

Question:  Should I file a 2nd Motion to Quash or should I just file my Answer and send BOP or Discovery letter?

 

My sister's case (same plaintiff & same loan) in Maryland is still pending as she hasn't been served yet.

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Process Server again lied about 2nd service.  He lied again on the 2nd Proof of Service filed with the court, claiming a woman (not matching my description) accepted the summons and that a copy of summons & complaint was also mailed by him.

I'd (strongly) consider filing a cross-complaint WITH the answer. Whenever you choose to file your answer.

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You can send a BOP before you even answer.  You can either file another motion to quash, and when the judge sees it again, he may impose sanctions against the plaintiff, or you can file your own case against the process server.  Others in Cali may have different advice, or what it is you can counterclaim on.The process server should be bonded.

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What will I enter in my cross-complaint?  Is there a sample of cross-complaint I can download from here?

Take a look at the Rosenthal Act and see what might apply. I would think a cross complaint example should be available on the board somewhere. I know for certain that one will be available in about a week.    ::devillaugh::

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When my sister told the Maryland debt collector suing her that I'm also being sued in CA for the same account/amount, they want her to pay half ($7500) and will not include me in the settlement, leaving me responsible for the remaining $7500 balance.

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