Haskin Posted September 17, 2018 Report Share Posted September 17, 2018 Hi, Mike from Minnesota and looking for some urgent legal help/advice) I am being sued by American Express represented by Zwicker PC I have filed an answer to the complaint denying all but my name, address, and county. In it I also mentioned ~11 defenses I was then sent an ELT Scheduling Order that states the following: -joinder of additional parties accomplished on or before Aigust 17th 2018 -Discovery completed and discovery-related motions/ non-dispositive motions scheduled to be heard on or before September 17th 2018 -Dispositive motions on or before Oct. 26th 2018 -pretrial conference November 30th 2018 -trial block week of December 10th 2018 It may have been a stupid decision to represent myself as I fear I have gotten in over my head. I wanted to hire an attorney but with our new daughter and my wife being a stay at home mom, I have been working long hours every day just to keep food on the table. I couldn't afford it. This ELT scheduling is seeming to be too quick of a timeline. The plaintiff made a motion for summary judgement around the 17th of August which cited no discrepancies or dispute had been brought forth. I was late at serving my interrogatories, request for production of documents, and request for admissions. It would have been the 18th of August, but I was required to file online and initially had issues with accessing that system. Once accessed, my initial filings were denied due to improper fees. I then resubmitted and they were accepted around the 24th of August. At the same time I filed a responsive motion asking the judge to deny the motion for summary judgement on the grounds that there is dispute and that discovery was served and is ongoing. At this point I have not heard anything from the plaintiff, but I fear I made a mistake as there was no discovery plan put together or filed. (My mistake, lack of knowledge) Today is the 17th and I'm wondering if I have any other actions I can take or if I'm in danger of losing due to lack of preparation? I did more research and it states that no discovery dispute can be brought before the court unless the parties have conferred to settle their dispute first. This means I can't file a motion to compel because the deadline for that meeting or filing the motion would seem to be today? The only things I have seen wrong with the Plaintiff's filings are: -no page numbers in their filing format (none in mine either) -no initial disclosure was done on their part -no evidence of a credit agreement or contract has been brought forth despite being mentioned as in the original answer, as a defense, in the responsive motion, and requesting during discovery. Do I have any options at this point with the deadline today? Thanks, -Mike Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted September 17, 2018 Report Share Posted September 17, 2018 11 hours ago, Haskin said: Do I have any options at this point with the deadline today? Yeah. Try to settle with them. How much is the debt? 1 Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted September 18, 2018 Report Share Posted September 18, 2018 18 hours ago, Haskin said: In it I also mentioned ~11 defenses Were these cut and pasted from the internet? I can't fathom what possible 11 defenses there could be against a suit by the original creditor. Standing, statute of frauds and most of the garbage you read about does not apply. Sadly by listing a bunch of defenses that are nonsense you simply telegraphed to them you don' know what you are doing. 18 hours ago, Haskin said: Do I have any options at this point with the deadline today? I agree with Harry. Settle. This is an original creditor lawsuit being represented by probably one of the top 5 debt collecting firms in the county in a state that is VERY creditor friendly. Unless they are outside the SOL you have no defenses really. AMEX will not back down and will follow you into arbitration. Settling or bankruptcy are your only options beyond a judgment. Quote Link to comment Share on other sites More sharing options...
Haskin Posted September 18, 2018 Author Report Share Posted September 18, 2018 The defenses mentioned were not affirmative defenses, but I can see where you are coming from. I read and researched a bunch of different cases, including ones that zwicker had lost. I looked at defenses listed, looked up the terminology, and applied the ones that fit my standing. If I gave the appearance of both knowing what I'm doing that is completely correct. Once I was informed the deadline to hire an attorney had passed i was already over my head, but I was committed to at least try. I appreciate the help and advice, but would they consider settlement even though they already have the MSJ in the works? Obviously they have the advantage currently. If a settlement was to happen, would that also be wiped by bankruptcy if filed later? Thanks, Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted September 18, 2018 Report Share Posted September 18, 2018 6 hours ago, Haskin said: I appreciate the help and advice, but would they consider settlement even though they already have the MSJ in the works? Depends on how serious your settlement offer is. If the debt is $4k and you offer $50 they won't consider it. Offer 70% or more and they probably will. No one can predict with absolute certainty how they will react. Settlement talks are not admissible at trial so you have nothing to lose by trying. 6 hours ago, Haskin said: If a settlement was to happen, would that also be wiped by bankruptcy if filed later? If you settle in full for a lump sum payment no. If you are making payments the remainder would be. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted September 18, 2018 Report Share Posted September 18, 2018 33 minutes ago, Clydesmom said: If you settle in full for a lump sum payment no. @HaskinI'm almost certain this information is not correct (I can't find anything that confirms it), but check with a couple of BK lawyers before agreeing to any settlement just to be sure. Quote Link to comment Share on other sites More sharing options...
BackFromTheDebt Posted September 18, 2018 Report Share Posted September 18, 2018 If you are considering BK, then at this point your best bet is to contact a BK attorney NOW. The reason being, if you file BK, this debt will be included in the bankruptcy filing. The case will be stayed pending the results of the BK petition. Which means there is really no point in settling if you will file BK anyway. The ONLY reason you would settle would be if it gives you some advantage in your BK proceedings. This MIGHT happen. Probably not, but it might. Which is why you need to consult a BK attorney ASAP. Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted September 18, 2018 Report Share Posted September 18, 2018 3 hours ago, Harry Seaward said: @HaskinI'm almost certain this information is not correct (I can't find anything that confirms it), but check with a couple of BK lawyers before agreeing to any settlement just to be sure. If he settles the debt in full now and files BK 6 months or more later then it is a moot point. The BK trustee will ask if he paid off creditors but if it was not a preferential payment and done as settlement for a suit the BK court is not likely to intervene. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted September 19, 2018 Report Share Posted September 19, 2018 15 hours ago, Clydesmom said: If he settles the debt in full now and files BK 6 months or more later then it is a moot point. Yes, of course if he pays it. It came across like you were saying if he makes an agreement to pay, but didn't actually pay anything. Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted September 19, 2018 Report Share Posted September 19, 2018 2 hours ago, Harry Seaward said: Yes, of course if he pays it. It came across like you were saying if he makes an agreement to pay, but didn't actualpay anything. The second sentence addressed a payment agreement: "If you are making payments the remainder would be." Any payment agreement would be wiped out by a BK filing and discharge. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted September 19, 2018 Report Share Posted September 19, 2018 1 hour ago, Clydesmom said: The second sentence addressed a payment agreement: Right. I'm not addressing that. I'm addressing the possibility that he signs a lump sum settlement but then files BK before he pays on it. Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted September 19, 2018 Report Share Posted September 19, 2018 4 hours ago, Harry Seaward said: Right. I'm not addressing that. I'm addressing the possibility that he signs a lump sum settlement but then files BK before he pays on it. WHY would anyone sign an agreement to pay right before filing bankruptcy? Just file. Filing stops the suit cold in its tracks no settlement necessary. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted September 19, 2018 Report Share Posted September 19, 2018 37 minutes ago, Clydesmom said: WHY would anyone sign an agreement to pay right before filing bankruptcy? Because they hadn't seriously considered BK prior to agreeing to pay their debts. Quote Link to comment Share on other sites More sharing options...
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