Am I Screwed?

[jo201434]

So, I have been fighting a collection case with a local collection company who is a local lawyer for about 2 years now, pro se.  Initially when it started, I filed a motion to dismiss due to the collection company not filing their motion for summary judgement correctly.  The judge stated that I was correct and that she could grant my motion to dismiss, but that all the collection company had to do was to refile the motion correctly, so instead she reset the hearing to another date and told the company to file correctly and provide discovery evidence.  I filed my motion for discovery that week and received the informaion a month later.  Time for the hearing came around and because the hearing was initially set when I went to court the first time and I never received a confirmation letter of it in the mail, I decided to call the courts to validate the date and time.  Well, to my surpise, the date had changed.  I didn't think much of it at the time and put the new date in my calendar. 

 

Moving along, the day before my court date I received a letter in the mail indicating that the courts granted the motion for summary judgement.  I called the court confused about it all because my court date wasn't even scheduled until the next day.  When I called them, they said I missed my court date.

 

I then filed a motion to reverse the summary judgement.  That motion was denied because it was the courts word against mine and the courts wouldn't make such a mistake.

 

So I have a hallway meeting with the collection company lawyer and he demands $X.XX bi-weekly or garnishment.  Now note, there were many people that met with him before me and I heard him make arrangements with them for very small amounts.  Well, my amount was not so small.  When questioning him about it, he said it was because I put them through the ringer.

 

Here is my question.  Am I screwed.  Is there anything I can do.  I know I can do a counter suit because they were collecting a payment from me while the case was in court and per the FDCPA that aren't allowed to do that (I only stopped when I filed the motion to reverse judgement).  But, aren't they suppose to treat everyone the same or fairly.  Because I gave them a hard time they are trying to punish me.  Is that right?  Can I do anything?

[jo201434]

Is there anyone out there than can give me any adivce.  I am in tears over this.  Thank you!

[BV80]

@jo201434

 

I know I can do a counter suit because they were collecting a payment from me while the case was in court and per the FDCPA that aren't allowed to do that (I only stopped when I filed the motion to reverse judgement).

 

 

Explain the above please.  I don't understand what you mean.

[jo201434]

@jo201434

 

 

Explain the above please.  I don't understand what you mean.

Per the FDCPA, if you dispute a debt (which I was doing by fighting the judgement summary), the debt collection cannot continue their collection processes until it has been resolved.  By taking payments from me by automatically withdrawing it from my account (which I approved prior to the case going to court for a judgement because it was initially set up as a payment arrangement) they are continuing collection processes and violating FDCPA rules.

[BV80]

@jo201434

 

Fighting a summary judgment is not the type of dispute referenced in the FDCPA.  The type of dispute to which the FDCPA refers is under 1692g which is a dispute of the debt in response to an initial communication (first communication) from a debt collector.  That dispute must be sent within 30 days of the first communication that contains the 30-day validation notice.

[jo201434]

So outside of doing a counter suit, is there anything i can do about my above situation?

[BV80]

@jo201434

 

A countersuit against the other party is filed while you're being sued.   Since judgment has already been rendered, you can't file a countersuit.   You'd have to file your own lawsuit.  What would be your grounds for a lawsuit against them?

 

In regard to the judgment, you need to speak to an attorney to see if you can appeal, but I'm not sure you'd have any grounds for an appeal unless you could prove that the court changed the dates without informing you. 

[jo201434]

So bascially, I have nothing and have to accept whatever the collection company lawyer throws at me and because they are mad at me and don't want to work with me I have to just suck it up.  I want them to work with me to lower my payments, but they wont, so I guess it's take what they offer or get a garnishment, correct?

[BV80]

@jo201434

 

Unfortunately, a collection agency doesn't have to work with us, especially when they have a judgment in their favor.

 

If it were me, I'd speak to a consumer attorney.  He might be able to find a good reason for you to appeal.  Also, if they violated any provision of the FDCPA or Indiana law, he'd find it.   Whether or not he finds anything, you'd know that you left no stone unturned. 

[Clydesmom]

"I know I can do a counter suit because they were collecting a payment from me while the case was in court and per the FDCPA that aren't allowed to do that (I only stopped when I filed the motion to reverse judgement)."

 

The time to file a counter suit was when you were being sued.  Now that the case has been decided and there is a judgment it is too late for that.

 

If the window to appeal has not expired that is your only option.

 

"But, aren't they suppose to treat everyone the same or fairly."

 

No.  They cannot illegally discriminate but nothing requires they be "fair" or treat everyone the same.  If they want to go harder on you because you fought back they can.

 

"Because I gave them a hard time they are trying to punish me.  Is that right? "

 

It may not be morally right but it is legal.

[TomnTex]

You were VERY foolish to have given them access to your checking account and banking information. They can clean you out anytime they want now. First thing I would do is close that account and open another one some where else. I also wouldn not keep much money in it. If you are on any kind of disability income, that is protected. If you have no assects, and no money in the bank they are SOL........

 

If you are married and in a community property state they can try and attch your spouse's income etc. You have a lot of things you need to figure out before you proceed. How much are they trying to get from you?

[shellieh98]

So let me ask you this.....you were already paying them when they filed suit? Did you have an agreement when you made payment arrangements? Did you ever miss an agreed upon payment?

You may have some recourse if you were paying as agreed when they sued you. I would do a free consult with a consumer lawyer.

[Harry Seaward]

Aren't the courts supposed to favor an 'appear and defend on the merits' approach over a default judgment?

I know I've seen case law to this effect. I don't know if it would apply to summary judgment but I don't see why not.

[BV80]

@Harry Seaward

 

An "appearance" can mean to answer the complaint.  I believe in most states, if you fail to answer a complaint, there's been no appearance, so a default judgment is awarded to the plaintiff.

 

However, when a date has been set for a summary judgment motion, you have to be there.  If you fail to show up, you have to have a really good reason.

[energizer]

Shellieh has asked a very good/legititmate question? Cant you appeal to a higher court if you fail at in lower courts? or is it dead once a judgement is rendered?

 

This is case lost by OP in the small claims court? if he believes strongly that he needs to appeal, does the OP have rights to take it to higher courts? is it too expensive going to higher courts without an attorney.

 

This may also be a lesson in obtaining the next court date in writing from the courts and/or confirm via writing the set date of court. Just becoz of a tiny mistake in the misunderstanding of the next court date the OP got screwed here. The OP called the court to verify his court date, however, what the OP understood to be the date was not what the judge and the OP agreed to be his court date. A Huge Misunderstanding of the court date which led to the OP loosing his case here.

 

I'd still consult with a Consumer Attorney and explain and know for sure you are SCREWED or really out of options?

[debtzapper]

I would see a lawyer, as advised.  Quite a while back, in one of my posts,  I gave a link to a  ( I  think) Wall Street Journal article about the sorry state of affairs in some Ind. courts relating to debt collection cases.

[Harry Seaward]

@BV80

I realize the difference between an answer and summary judgment but the end result is a default. And I don't know how many times I've read on here where the lawyer is a no-show and the court calls them to see what's up or they give an excuse about mixing up the dates and the case is continued. This seems like a prejudicial move here, especially when OP was responsibly confirming the dates with the clerk. The claim that "the court doesn't make these kinds of mistakes" is a ridiculous one.

I know there is probably no sense in trying to get the trial court to change its mind but it feels appealable to me.

[BV80]

@Harry Seaward

 

I didn't mean to imply that you don't know the difference between a default judgment and a summary judgment.  But I guess I don't understand what you mean by "the end result is a default".   Summary judgment is not a default.  What am I not understanding?

[Harry Seaward]

@BV80

@Harry Seaward

 

I didn't mean to imply that you don't know the difference between a default judgment and a summary judgment.  But I guess I don't understand what you mean by "the end result is a default".   Summary judgment is not a default.  What am I not understanding?

No, I know you weren't implying that.

What I mean is that there was a summary judgment hearing and we're all assuming (maybe improperly so) that the judge ruled in plaintiff's favor because OP was a no-show. If our assumptions are correct, it was a default judgment; not in the 'failure to answer a complaint' sense, but it was a failure to act nonetheless.

[Harry Seaward]

This may be useful:
 

Coslett v. Weddle Bros. Const. Co., Inc., 798 NE 2d 859 - Ind: Supreme Court 2003

Indiana law strongly prefers disposition of cases on their merits. State v. Van Keppel, 583 N.E.2d 161, 162 (Ind.Ct.App.1991). A trial court will not be found to have abused its discretion "so long as there exists even slight evidence of excusable neglect." Security Bank & Trust Co. v. Citizens Nat. Bank, 533 N.E.2d 1245, 1247 (Ind.Ct.App. 1989).

 

All of these cases are failure to file an answer, but since summary judgment results in the disposition of a case, I might be thinking of a way to argue to have the judgment set aside due to excusable neglect.

[TomnTex]

That's why I tell everyone to ALWAYS show up at those court dates, even if moved or canceled. The otherside always have a plan to screw you up by doing so. Seen it happen too many times.

[Guest]

So bascially, I have nothing and have to accept whatever the collection company lawyer throws at me and because they are mad at me and don't want to work with me I have to just suck it up.  I want them to work with me to lower my payments, but they wont, so I guess it's take what they offer or get a garnishment, correct?

 

@jo201434 I think you should file a Motion to Vacate. I had an attorney obtain a default judgment against me by sending the appearance notice to an old address of mine. He certainly had the proper address, which is where they served the complaint and a dozen other notices. Since I was unaware of the hearing and did not show, the Judge gave him a default. I filed a Motion to Vacate with copies of the errant hearing notice. The Judge agreed, and vacated the Judgment. Eventually I got the case dismissed.

 

I agree with others who have said you may have appeal rights.  You should explore those avenues, as well. But first, try the Motion to Vacate route. Attach to the motion any Hearing notices that you believe created a miscommunication and caused you to miss a court date. I like @Harry Seaward's advice that a case should be determined on its merits. That issue should be raised with the Judge.

 

You may wish to consider closing the bank account where payments were being deducted.  My hunch is a Motion to Vacate or an Appeal will make the other party more negotiable, not less so. Hang tough!