Bookish

How to stop a debt collection lawsuit currently in Discovery phase

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Currently in Discovery phase of a debt collection lawsuit filed by Bank of America through Nelson & Kennard, in Sacramento. Am Pro Per.  Nelson and Kennard have engaged in a game of deception - through misrepresentation from the get go.  As a Pro Per, despite N & K's bad faith unlawful actions, it seems I have little chance of winning against them. Don't have the resources to hire an attorney or the time to battle it out despite having a good case for violation of FDCPA..

Losing means I pay legal fees for N & K (California).  Highly doubtful a Pro Per without resources can win against a legal debt collection mill. Their "prayer" states I was "informed prior to commencement of  this action that if an action were commenced, the Plaintiff may recover its court costs, where allowed by law, in addition to the principal otherwise owed".  Immediately after the lawsuit was filed, we came to a settlement agreement. At that time,  N & K agreed to stop the lawsuit.  A few days later, I was served anyway. Then, although I was served, N & K advised me on several different occasions that I did not have to file an Answer, because a Stipulation Agreement would be filed with the Court in just a few weeks.  The Stipulation  Agreement arrived several months, not several weeks later. It included many terms never discussed. It looks as though N & K never intended to honor the agreement. They dangled the Stipulation to hopefully talk me out of filing an Answer. When that failed, they had no incentive to stop the lawsuit, since I am paying for their time.   I stopped making monthly payments after I received the Stipulation Agreement. It was obviously  developed in bad faith, as a ruse.   I did file an Answer within the deadline.  

I've spent a number of hours in the law library attempting to determine what they can collect in legal fees, to no avail. They seem to have every incentive to pad their fees. So far, I have not been able to find any way to stop the lawsuit so I can stop the quickly accruing legal fees. Am worried about a judgment that could be double or triple what I owe to Bank of America when legal fees are taken into account.

So, two questions. How much can they collect? And, how can I, a Defendant stop a Collections lawsuit that is currently in Discovery. When they win, I am also curious about the effects of a Default Judgment on my credit. I understand already that they can levy my bank accounts, assets and home.

Thanks in advance for any assistance.  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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33 minutes ago, Bookish said:

Don't have the resources to hire an attorney or the time to battle it out despite having a good case for violation of FDCPA.

If you are being sued by BoA then the FDCPA does not apply as they are an original creditor.  

33 minutes ago, Bookish said:

How much can they collect?

They can submit for reasonable attorney fees based upon the amount of work they did on the case.  If they can prove that they spend 15 billable hours including the trial and their hourly rate is $300 then they can ask the court to award them $4500 in attorney fees.  In reality most attorney costs end up coming in around $1500-2000 for a case like this.  That is unless as a party to the suit you engaged in conduct that was outside they typical debt collection suit and ran the costs up.

There is also court costs which you can find out from the court website.  

33 minutes ago, Bookish said:

And, how can I, a Defendant stop a Collections lawsuit that is currently in Discovery.

Pay the debt in full, reach a settlement you both agree on, or file bankruptcy.

33 minutes ago, Bookish said:

When they win, I am also curious about the effects of a Default Judgment on my credit. I understand already that they can levy my bank accounts, assets and home.

In most states they can also garnish your paycheck.  

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53 minutes ago, Bookish said:

Am worried about a judgment that could be double or triple what I owe to Bank of America when legal fees are taken into account.

It's likely BoA has a capped legal fee agreement, or some ambiguous retainer arrangement with N & K, meaning there is an upper limit on the amount BoA will have to pay,  or the amount can't actually be calculated because it's a flat fee that covers all of thre cases on which N & K represents BoA. This is important to you because the judgment against you can only include legal fees actually PAID by BoA. The unfortunate part is, without a lawyer, it would be difficult for you to find out what arrangements BoA has with N & K until the court finds BoA proved it's case, and they file an affidavit of costs. You can try to get at this though Discovery, but they'll likely object on proprietary or confidential 3rd party info or something like that. 

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ClydesMom,

Thank you for the info. As I understand it, the Act applies to debt collectors, either third party or attorney's for original creditor. N & K is a debt collector. 

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On 9/5/2018 at 7:55 PM, Bookish said:

When they win, I am also curious about the effects of a Default Judgment on my credit. 

A default judgment means the defendant failed to answer the complaint. If your answer to the complaint was timely, there will not be a default judgment.  

Have you checked the court records to see what motions, if any, have been filed with the court?

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2 hours ago, Bookish said:

Thank you for the info. As I understand it, the Act applies to debt collectors, either third party or attorney's for original creditor. N & K is a debt collector. 

Yes, N&K is a debt collector but if you have a violation against them you cannot use it as a counter claim against BoA.  It would be a separate lawsuit between you and the law firm.  The typical response to a counter claim by an OC under your circumstances is to simply get another law firm.  We have seen it too many times.  BoA will dismiss N&K and hire another firm to take their place.  Then they will get the court to dismiss the counter claim because they are no longer the representing counsel.

2 hours ago, Bookish said:

I'll see what I can do about obtaining information about N & K's fee arrangement with B of A.

You won't get it.  That is protected by attorney client privilege and no court will force them to disclose that.  If they win the case they can submit an itemized bill to the court of legal fees incurred and if it is not unrealistic the court will simply accept it.  In cases where the fees seem excessive the court merely reduces the amount the firm is awarded as an expense.  It is rare for them to require to disclose protected information. There would have be to rock solid proof of billing fraud or collusion. You are putting the cart before the horse.  Defend the suit first.  Worry about fees later.

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@OP BofA does not pray for attorney fees in their complaint. They only ask for court costs, I am 99.99% positive. Read the complaint and verify. In California though depending on the amount of Your Debt, court costs including service can be over $400. 

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