lifestoshort

Summary Judgement Help Needed ASAP - Less than a week before court

Recommended Posts

I had a car accident - other persons fault with no insurance. My own insurance company is paying my bills. I had to have surgery and let the dr. know that I had work insurance and my own car insurance company would pay the balance.  I got the one and only  bill in nov. that showed it was sent to my work insurance. Waited for another statement, didn't get one so I called in Feb. to ask if they had submitted it to my adjuster, gave them the info again and told them to submit it to get paid in full. Thought it was a done deal. Never heard anything back from them.  In Aug. I got a summons and was being sued by a collection agency.   I contacted the collection agency and the attorneys office and was told they would only take the full payment plus their attorneys fees.  I called the original creditor  (dr's billing office out of state) and paid the bill . they told me I still might owe attorney fees.  They said they had sent me a statement in  Feb. I told them NO that is when I called in and told you to submit to the adjuster, since I had not heard back from them since the only statement in Nov. . Asked why I never received a phone call or statement to let me know there was a problem they said they did... yet it didn't happen - If I had know there was still an issue I would have taken care of it after all  the adjuster was paying the balances in full. 

When I got the summons - I replied and denied everything - basically any relationship with the  collection agency. I also sent a letter to validate the debt to the lawyer, who is not just the lawyer , but the registered agent for the collection agency llc with the state. Also the collection agency is owned by members of or family members of the law firm, thus why they didn't want to discuss fees and demanded full payment plus lawyer fees- they are in league together.  There was no reply to the validation request, only  a motion for summary judgement. The exhibits were a letter from the manager of the collection agency saying they had a right to collect  and a statement from the original creditor that showed I had a $0 balance that was paid just after the summons was issued. 

Now, How do I defend this? 

Last week on the 13th I had a status hearing before the judge. He told me I had to put something in the file in order to defend their motion for summary judgement, and that I would be held to the same standards as a lawyer, and I had to know the rules for civil procedure. That I had to have something in the file before the hearing on the 24th (yes ONE week away.) But when I finally found the Idaho rules of civil procedure 56, It tells me that I have to file a response to the motion 14 days before the hearing.  SO I ALREADY MISSED THE DEADLINE, even when I met with the judge as according to this I would have had to have a response in by the 10th. So now what do I do? 

Do I ?

1. Turn in my opposition to the motion even though I am past my deadline? was the judge giving me an extension of time to get it in? or did he need to specifically say it was an extension?

2. Do I need to file to ask for the hearing to be moved, so I would have time to response and be in compliance with the rules ?

3. Also I don't know what I would turn in for my opposition  as well? 

 

Help I'm so confused, but I hate to have to pay $600+ dollars to the collection agency and the lawyers for what?  The judge I felt realized that they were trying to get money for nothing... since he realized that the original creditor had been paid in full within days of finding out there was a bill  and the summary judgement was only to pad their bill and hike up attorneys fees. 

Again I am less than 10 days out before the hearing. Thanks for your help.

 

 

 

 

Link to post
Share on other sites

You can ask for a continuance of the motion deadline, sometimes they will allow it.

Idaho Rule of civil procedure 6.1a

When by these rules or by notice given thereunder an act is required or allowed to be done at or within a specified time, the Court, for cause shown, may at any time, with or without motion or notice, order the period be shortened or extended. (a) Requests for Time Extensions Concerning Motions. All requests to extend briefing periods or to vacate or reschedule motion hearing dates must be in writing and state the specific reason(s) for the requested time extension. Such requests will be granted only upon a showing of good cause. A mere stipulation between the parties without providing the reason(s) for the requested time extension will be deemed insufficient. The requesting party must apprise the Court if they have previously been granted any time extensions in this particular action.

If they are asking for summary judgement, they are saying there is not facts dispute and the case should be decided on the papers.  You would have to look at their motion and do an opposition attacking the points they are making.  We would have to see their motion to give you tips, kind of odd that you did a general denial on the complaint and they followed with a summary judgement motion.  They are prob hoping you dont answer and they win by default.  

See this case listed below...

Medical Recovery Services, LLC v. Strawn, 156 Idaho 153, 321 P.3d 703 (2014)

Debtors in Idaho received medical services from a medical service provider. At the time the services were provided the debtors signed a Patient Sign–In Form, which included the following provision:

"I agree to pay my account in full at the time of services unless before services are performed Community Care agrees to other payment arrangements. I understand that Community Care will submit insurance benefits for payment only as a courtesy for me. I agree to pay 18% interest on the outstanding balance on my account with interest to commence 60 days after services even if payment from my insurance company is pending. I also agree to pay an additional service charge of 50 cents per month on my account. If Community Care assigns my account to a collection agency for collection [sic] all reasonable cost and attorney's fees incurred to collect on my account. I agree that a $20.00 collection fee shall be added to my account as a reasonable cost if Community Care assigns my account to a collection agency. I agree to pay as a reasonable attorney's fee $350 or 35% of the principal and interest on my account balance, whichever is greater, if my account is assigned to a collection agency and suit is filed to recover payment on my account. "

The debtors did not make payment and their account was assigned to a collection agency. The collection agency ultimately filed suit to recover payment from the debtors and also sought $350 in attorney fees. The collection agency’s theory was that the $350 in attorney fees was recoverable under Idaho Code § 26-2229A(4) as part of the “principal obligation” owed by the debtors based on the above contractual provision. The trial court judge granted the collection agency a default judgment but disallowed the $350 in attorney fees, substituting a lesser amount. The collection agency appealed, and on appeal the Idaho Supreme Court upheld the lower court. The Court looked at the plain language of Idaho Code § 26-2229A, a provision in the Act that prohibits a collection agency from collecting “. . . any interest or other charges, fees, or expenses, incidental to the principal obligation unless such interest or incidental fees, charges, or expenses . . .” met one of five enumerated exceptions. The Court reasoned that the “principal obligation” was limited to the amount that the debtors owed the creditor for the medical services provided, and did not include the contractual attorney fees specified in the Patient Sign–In Form. The Court holding is very specific. In Strawn, the Court stated:

" Neither “fees” nor “principal obligation” is defined in the ICAA. See I.C. § 26– 2222. The district court found that the “principal obligation” is the money Respondents owe Community Care for the services it provided, and that attorney fees “are subordinate to the debt” and thus, “ ‘incidental to the principal obligation’ for purposes of Idaho Code § 26–2229A(4).” We find no fault with the district court's holding."

When collecting against Idaho debtors, collection agencies are limited to collecting amounts that equate to the “principal obligation,” and may only collect fees or charges incidental to the “principal obligation” if collection of those fees or charges is authorized because of the application of one or more of the five exceptions enumerated in Idaho Code § 26-2229A(4), which states:

 No collection agency licensee, or collection agency required to be licensed under this act, or agent of such collection agency shall collect or attempt to collect any interest or other charges, fees, or expenses incidental to the principal obligation unless such interest or incidental fees, charges, or expenses:

(a) Are expressly authorized by statute; (b) Are allowed by court ruling against the debtor; (c) Have been judicially determined; (d) Are provided for in a written form agreement, signed by both the debtor and the licensee, and which has the prior approval of the director with respect to the terms of the agreement and amounts of the fees, interest, charges and expenses; or (e) Reasonably relate to the actual cost associated with processing a demand draft or other form of electronic payment on behalf of a debtor for a debt payment, provided that the debtor has preauthorized the method of payment and has been notified in advance that such payment may be made by reasonable alternative means that will not result in additional charges, fees or expenses to the debtor.

  • Like 1
Link to post
Share on other sites

Thank you bdrew6 for the reply. Oddly enough it is the same collection agency. I will look into trying to file a continence, not sure how to do that and who has to get what since I only have 4 days left now before the hearing.  I really appreciate you taking the time to educate me on this subject..... and hopefully it will help others as well. 

Link to post
Share on other sites

No problem, I  dont login to the site that much, good look with the case. You could file a motion for sanctions against the attorney for filing a known frivolous action. Might light a fire under them and go away.

 

 Representations to the Court. By presenting to the court a pleading, written motion, or other paper, whether by signing, filing, or submitting, or later advocating it, an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:


(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;


(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;


(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and


(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

 

 

Sanctions.


(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court must impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. A law firm may be held jointly responsible for a violation committed by its partner, associate, or employee.


(2) Motion for Sanction. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party on the motion, reasonable expenses, including attorney’s fees and costs incurred for the motion.

Link to post
Share on other sites
On 10/16/2016 at 0:07 PM, lifestoshort said:

I also sent a letter to validate the debt to the lawyer, who is not just the lawyer , but the registered agent for the collection agency llc with the state.

Once the suit was filed it was WAY too late for validation.  The attorney and collection agency can ignore it and they are not in violation of the FDCPA by continuing the suit.  The way to get evidence and proof is through discovery once the suit was filed not validation.  

 

Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.