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1st time being sued, yeah


kellyj
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Basics are I have a loan with Wells Fargo. Missed 2 payments non-sequentially, but paid them up. Got served with a summons yesterday.

So, the obligatory:

 

1. Plaintiff: Wells Fargo Financial National Bank

2. Lawfirm: Collection at Law, Inc. A.P.C.

3. Amount:$13,XXX

4. Original Creditor: Plaintiff

5. How do you know? I was served.

6. How: In person.

7. Legal Service? Yes.

8. Correspondence: Monthly billing statements (stopped Oct 2014).

9. State/County: CA/San Diego

10. Last paid: 7 Jan 15.

11. SOL: 4 years.

12. Status: Served; working on response.

13. Disputed Debt? No.

14. Request Validation: No. Did not know I was being sued.

15. Response time: 30 days.

16.Evidence: None.

 

First off, their is no dispute I owe the debt and I have every intention of paying it off in full. However I would like the situation to be resolved in a fashion where their will be no wage garnishments, property seizure/Liens, or other like actions. I just want to continue making payments as I have been doing for 3 years now.

The issue arises over the validity of the lawsuit based on the language used and subsequent actions of the Plaintiff. 

Attached is my proposed response that I will use on Form pld050.

As a noob to this, any advise or help would be greatly appreciated. Thanks

 

 

 

Summons Response.doc

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"The Plaintiff’s claims of Breach of Contract by failure to remit payment are controverted by the Defendants payment records and the Plaintiffs continued acceptance of those payments."

 

Actually the breach of contract claim is VERY possible.  Most if not all loan contracts by major banks have an acceleration clause in them.  That states if the consumer defaults on the agreement the entire loan amount is then immediately due.  Now most lenders do not use this clause if the situation is temporary and simply allow the consumer to resume making payments.  However, it appears that WF may be enforcing this.  You need to read your loan documents and see if this clause is in there.

 

I would also recommend you go to www.naca.net and find a consumer attorney.  Most if not all will do the first consult for free.  It is also very possible that if a lawyer calls WF they drop the whole thing.  A pro-se they are likely to continue to fight.  

 

The last thing to look up is find out what status WF is reporting this loan as.  Take a peek at your credit reports through the "back door" at the bureaus and see what they are reporting there as far as a status and payments.  Having credit reports that show payments in good standing and the account also is proof of there being no breach. 

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Thanks for the advice on NACA. Regarding the loan docs...this was done via a contractor who did work on the house under a payment plan. Unfortunately I did not realize (or ask) exactly what that plan would be. So while the loan was done in my name, I didn't sign it...though I suppose in the legal world the company acted as my authorized agent based on the agreement I had with them.

Long story short, The only thing I got from WF was a "congratulation your approved" letter and then billing statements, so i'm not sure if their is a default clause (the 'loan' was in the form of a "home improvement credit card").

Again, thanks for the directions on the next step.

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Demand a BOP as well...since it is a breach of contract, they will have to provide a timely response.

 

 

Have you made payments since October? If so, then you might have a lot of leverage - since the loan is still performing. It could be a violation of the Rosenthal Fair Debt Collection Practices Act.

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I'll get to work on a Bop tonight. Thanks.

As for payments...Not only have I made payments every month (including October...though that one was late because I was at sea with no access to a phone or internet), I've been doubling them to get caught up (hence the frustration that I was not getting any Billing Statements). Tomorrow I plan to contact WF to get a status of the loan and to verify the payments I sent in have actually been applied to the debt. If not, it will be an interesting conversation on why they are neither applying the payments nor returning the money to my account (though strategically it may be better to let them "hold" that money in limbo so I can show good faith on my part in making payments, but bad faith on their part).

Another course of action I've been thinking of was to take out a loan and use that to payoff the WF debt. With the debt paid the Lawsuit should be dropped at that point.

Maybe.

Thanks all again for the info. It certainly has reduced a lot of the stress I've built up over the past 48 hours.

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And it looks like we have a resolution.

Having gotten all of my facts strait and had all of the paperwork ready to go (again, thank you to the advice and directions you folks provided; not only the responders but also the stickied 'how I won' threads) I contacted the Plaintiffs Lawyer to let him know documents were about to be dropped. Surprisingly their lawyer was a very nice guy and we had a very cordial, non-adversarial, conversation. Being able to speak the "legal-Lingo" along with a dollop of courtesy made a huge difference in his tone with me. He was shocked when I mentioned the continued payments...turns out the WF Accounting Office was not exactly keeping him informed of current events. So he calls WF and rips them a new one for leaving him hanging like that and works out a settlement in my favor...

The remainder of the debt will go into a non-interest bearing account with a 3 year payoff period, no penalty for early payments or early payoff. This setup also lowers my payments by $80.

No courts, no mess, no fuss. And it certainly came out better than I expected.

It certainly pays to do your homework and have them ducks nice and lined up. And to treat their lawyer like a person, be professional, and not be a jack@ss when dealing with him/her.

Thanks again guys.

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