debtstuffed

Small claims appeal in Superior Court- can I ask judge to require stipulated agreement?

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1. Who is the named plaintiff in the suit? A local Credit Union

2. What is the name of the law firm handling the suit? N/A the credit union sends their collections reps

3. How much are you being sued for? $2000ish

4. Who is the original creditor? same credit union

5. How do you know you are being sued? I was served papers at home

6. How were you served? 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? I received some mail and got constant 3 times a day phone calls for about 6 months, which I never answered

9. What state and county do you live in? California, San Diego County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 2015

11. When did you open the account (looking to establish what card agreement may be applicable)? 2012

12. What is the SOL on the debt? 4 years

13. What is the status of your case? In appeal.

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No.

15. Did you request debt validation before the suit was filed? No.

16. How long do you have to respond to the suit? 

Hearing in appellate (Superior) court is on Friday 7/27

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

Nothing

 

I defaulted on a credit card with a local credit union and they took me to small claims. Before the hearing, I'd been speaking with a very nice lady in their collections department who'd said she would be willing to set me up with a payment plan. I needed some time before committing because they served the papers to my workplace and my employers were VERY unhappy about it. I wasn't sure that I would have a job with a paycheck so that I could make payments. When I tried to get in touch with her again I learned that she had died. The new collections worker didn't seem to have any idea what she was doing. I mean none. She was unwilling to talk about a payment plan or settlement, despite my making four good faith attempts to come up with some kind of agreement.

At the small claims trial, their evidence was all over the place. None of the "total amount due" numbers matched up on their paperwork. I asked the judge for a continuance so that I could get accurate information from the credit union and he denied it and found in favor of the plaintiff. I filed an appeal.

At this point, I just want this to be over. I called the credit union and requested a payment plan on the full amount under a stipulated agreement. I think that's the right term. I just signed one with Hunt & Henriques on another debt. Where we agree to a payment plan and if I ever miss a payment they automatically get a judgement? In any case, the collections lady did not know what that was and said that it's too late to enter any kind of agreement (untrue). She also said that the credit union does not know how to produce that kind of agreement and that they depend on the court mediator to draft such an agreement. How can you not know how to do that kind of thing if you're in the business of pursuing legal actions? Anyway... I tried to explain to her how the stipulated agreements work, and how they would still get a judgment if I ever missed a payment, and that they weren't giving anything up by entering into the agreement. Her response was to keep repeating, "You're the one who filed the appeal, now we're going to go through the process." She seemed to be taking the whole thing very personally, and her responses seemed weird, vindictive, and more than a little retaliatory. I explained that the only difference between doing the stipulated agreement and showing up in court was that a) I would have a judgement placed on my record, and b) my time, their time, and the court's time would be wasted because the end result would be the same- they'd get their money. I asked whether she wanted to confer with her company before moving forward, and she again responded that I was the one who filed the appeal, so I was the one who was wasting the court's time and they were going to move forward.

So here's my question: Can I go into court and tell the judge that I'd made several good faith efforts to settle the matter out of court for the full amount of the debt and that the credit union was acting in bad faith, so could he/she please compel the credit union into entering into a stipulated agreement? I would really like to avoid having a judgement on my record.

Is there anything else I can/should say in court? 

Thanks in advance.

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10 minutes ago, debtstuffed said:

Can I go into court and tell the judge that I'd made several good faith efforts to settle the matter out of court for the full amount of the debt and that the credit union was acting in bad faith, so could he/she please compel the credit union into entering into a stipulated agreement?

Can you?  Yes.  Will you be successful?  Probably not.  The court does not have the authority or power to force the creditor to accept your payment plan.  In actuality you did NOT make a good faith effort to settle the debt in full.  You offered a payment plan which the CU does not have to accept.  It is not bad faith to refuse your offer.  They already have a judgment.  You appealed.  Your options are to pay the judgment off or finish the appellate process.  

12 minutes ago, debtstuffed said:

In any case, the collections lady did not know what that was and said that it's too late to enter any kind of agreement (untrue).

Actually it is true.  You already went to trial and lost and now are in the appeals process.  That makes it too late to settle this with a consent judgment.

13 minutes ago, debtstuffed said:

I would really like to avoid having a judgement on my record.

Too late for that.

14 minutes ago, debtstuffed said:

I just signed one with Hunt & Henriques on another debt.

It is up to each individual creditor as to whether or not they will agree to this.  You didn't say who H&H was repersenting.

15 minutes ago, debtstuffed said:

Is there anything else I can/should say in court?

All you can do is ask.  The major problem is unless the appeal is a trial de novo (meaning they do the entire thing again) then they will not hear new evidence or arguments.  They will only look at the reason(s) you appealed and the merits.  I would not get your hopes up though.

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16 minutes ago, debtstuffed said:

could he/she please compel the credit union into entering into a stipulated agreement? 

No. "Stipulated" means "agreed by all parties". No one can force anyone to "agree" to anything.

You should have been dealing with the attorneys on the stipulated judgment request. Collection people know how to dial a phone and ask for money. Understanding stipulated judgments is way above their pay grade. 

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Thanks for your responses! Especially for correcting me where I was wrong.

The trial is indeed a trial de novo.

I'm not sure that they are going to use an attorney. They couldn't in small claims. They don't have any attorneys listed for the appeal in the county's register of actions and I haven't been notified of any attorneys being involved (but I don't know if they would be required to notify me or the court).

Do all the same rules apply even though this started out as a small claims case? I've read hundreds of posts on this forum and wondered if it's worth attacking their paperwork (i.e., inconsistent totals) or their witness.

 

Thanks again

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I'm not sure if I should post this as a separate thread, but... let's say I'm able to just give them the full amount right now to settle the case. Does the judgement still stand, i.e. would it still show on my credit report? @Clydesmom I think that's what you're saying, just wanted to make sure I understood correctly. The lady made it sound like they couldn't take the payment even if they wanted to.

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52 minutes ago, debtstuffed said:

They couldn't in small claims.

They sued without an attorney? This is a first.

15 minutes ago, debtstuffed said:

Does the judgement still stand, i.e. would it still show on my credit report? 

Yes. It's a judgment. The only way you could get it off your report is to get it vacated or find some inaccuracy you can dispute and then nail them in a violation if they don't fix it. 

15 minutes ago, debtstuffed said:

The lady made it sound like they couldn't take the payment even if they wanted to.

I doubt they would turn you away at the door if you walked in with a bag of cash. But they have a point about the appeal. Ironically, the "stipulated" part of this could end up being you agreeing to dismiss your appeal so they can accept your payment. 

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1 hour ago, debtstuffed said:

Does the judgement still stand, i.e. would it still show on my credit report?

Yes.  It would appear as a paid judgment.

1 hour ago, debtstuffed said:

The lady made it sound like they couldn't take the payment even if they wanted to.

That may be because it is in the appeals process.  Try speaking to the manager.

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I was just writing a new thread and found this old one. The judge had us try mediation. I ended up paying them with a big wad of cash. No judgements show on my credit report. 🤷‍♀️ Glad its over

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