onelove

Help! I've been served.

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Good morning all,

 

I am new here and wish I can get help. Yesterday I found a summon in my mail box, Bank of America Suing me for a credit card balance.

I don't know where to start with this and any help would be greatly appreciated, as I do not know what to do.

I am attaching all the documents that I receive with the package to make things easier to understand what is going on.

 

Please help.

 

Thanks in advance. God bless

 

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4 hours ago, onelove said:

I don't know where to start with this and any help would be greatly appreciated, as I do not know what to do.

I took a look at those papers.  I would start with a consultation with a bankruptcy attorney IF you have a lot of other defaulted debts and expenses.  That suit is for almost $20k and they are not going to just drop this.  At that amount the case will be in State/District Court where they follow ALL the rules and a Defendant representing themselves can easily be steam rolled by an attorney familiar with the rules.

You are being sued by an original creditor.  The only 2 defenses are identity theft or the SOL being expired.  Based on your date of default in their evidence they filed timely so that is not an option.  BoA might have an arbitration clause but that might get you a better settlement.  BoA can attest to their own records so that is not an avenue of attack.  

For this amount of money you might want to do a free consult with a Consumer Attorney to discuss the costs of defending and possible bankruptcy.  With an OC suit of this amount your 2 best options are settling or bankruptcy.

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5 minutes ago, Clydesmom said:

I took a look at those papers.  I would start with a consultation with a bankruptcy attorney IF you have a lot of other defaulted debts and expenses.  That suit is for almost $20k and they are not going to just drop this.  At that amount the case will be in State/District Court where they follow ALL the rules and a Defendant representing themselves can easily be steam rolled by an attorney familiar with the rules.

You are being sued by an original creditor.  The only 2 defenses are identity theft or the SOL being expired.  Based on your date of default in their evidence they filed timely so that is not an option.  BoA might have an arbitration clause but that might get you a better settlement.  BoA can attest to their own records so that is not an avenue of attack.  

For this amount of money you might want to do a free consult with a Consumer Attorney to discuss the costs of defending and possible bankruptcy.  With an OC suit of this amount your 2 best options are settling or bankruptcy.

My other debts are fairly small. I own a property, how will the bankruptcy play out?

I was thinking maybe setting the debt with them. Last time they wanted a settlement of $12k over 24 months.

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8 minutes ago, Goody_Ouchless said:

It's been reported that BoA removed arb clause, long ago, so settlement is really the only option. They will win in court.

 

Do i call Stillman Law for settlement?

Can I also request the original contract? I have been disputing the accounts, and requested that the credit bureaus provide me with the document they used to verify the account but never got anything.

Don't they have to provide me with the Signed Contract?

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27 minutes ago, onelove said:

I have been disputing the accounts, and requested that the credit bureaus provide me with the document they used to verify the account but never got anything.

This would be an issue between you and the CRA. BofA has nothing to do with this interaction, unless the CRA were to claim they requested the records and BofA never complied. Since BofA pays a lot of salaries at the CRAs, the CRAs won't claim this outside of a discovery request in a lawsuit against them. 

27 minutes ago, onelove said:

Don't they have to provide me with the Signed Contract?

Only if this were a written contract. I.e. a loan with fixed terms and set number of monthly payments. Credit cards almost never have signed contracts. You agree to the terms by using the card, which they can easily prove with the monthly statements.

Unfortunately you're very likely up against a brick wall. If this were a debt that had been sold to a debt buyer, you'd have a better chance but only slightly without arbitration as an option.

27 minutes ago, onelove said:

Do i call Stillman Law for settlement?

Yes. I wouldn't expect a much different settlement offer than you had on your last attempt. Especially now that they have expenses (lawyer fees, court filing costs, etc) that they didn't have before.

If your household income is less than around $50-60k a year and you don't have a bunch of cars, boats or a lot of equity in a house, you would probably qualify for Ch.7 bankruptcy. Google "chapter 7 means calculator" for your state. Takes about 10 minutes and you'll have a pretty good idea where you stand.

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4 minutes ago, Harry Seaward said:

This would be an issue between you and the CRA. BofA has nothing to do with this interaction, unless the CRA were to claim they requested the records and BofA never complied. Since BofA pays a lot of salaries at the CRAs, the CRAs won't claim this outside of a discovery request in a lawsuit against them. 

Only of this were a written contract. I.e. a loan with fixed terms and set number of monthly payments. Credit cards almost never have signed contracts. You agree to the terms by using the card, which they can easily prove with the monthly statements.

Unfortunately you're very likely up against a brick wall. If this were a debt that had been sold to a debt buyer, you'd have a better chance but only slightly without arbitration as an option.

Yes. I wouldn't expect a much different settlement offer than you had on your last attempt. Especially now that they have expenses (lawyer fees, court filing costs, etc) that they didn't have before.

If your household income is less than around $50-60k a year and you don't have a bunch of cars, boats or a lot of equity in a house, you would probably qualify for Ch.7 bankruptcy. Google "chapter 7 means calculator" for your state. Takes about 10 minutes and you'll have a pretty good idea where you stand.

I have good amount of equity in my house, and my combine defaulted debts are about $35k, so dont think Ch.7 is the right thing for me.

Should I call them for the settlement or send them a letter?

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15 minutes ago, onelove said:

I have good amount of equity in my house, and my combine defaulted debts are about $35k, so dont think Ch.7 is the right thing for me.

The amount of debt has less to do with qualifying than your household income. $35k is nothing to sneeze at. I'd at least run though the means test to see what it looks like, and then if you're in the ballpark, have a free consult with a BK attorney.

37 minutes ago, onelove said:

Should I call them for the settlement or send them a letter?

I'd call. They can 'lose' a letter pretty easily.

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3 hours ago, Harry Seaward said:

The amount of debt has less to do with qualifying than your household income. $35k is nothing to sneeze at. I'd at least run though the means test to see what it looks like, and then if you're in the ballpark, have a free consult with a BK attorney.

I'd call. They can 'lose' a letter pretty easily.

I did call, the guy wanted to settle at $13k...but talked him into accepting $10k . He then mentioned paying it monthly over 24 months, but told me he would send me a Automatic Judgement to agree on and sign. Told him i not going to sign and agree on any Judgment. He try to explain that that is the process because they will be giving me 24 months to make payments.

He said if I pay $10k lump sum then then can just stop the law suet and settle the account. Thats where the conversation Ended. Gave me his number to contact him once I make a decision.

 

Note: he was sound surprised when I mentioned that I will sending in my Answers to the court and the law firm, and his language started to change. They were probably hoping for a default judgement.

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45 minutes ago, onelove said:

Told him i not going to sign and agree on any Judgment.

Can you seriously blame them for wanting this?   You defaulted on $20k in debt and they are settling for half.  You failed to make payments before.  This is VERY common because should you default again they do not have to sue you to recover the money you owe.  If you don't want to sign it then you better be able to come up with the $10k.

47 minutes ago, onelove said:

Note: he was sound surprised when I mentioned that I will sending in my Answers to the court and the law firm, and his language started to change. They were probably hoping for a default judgement.

Typically at that amount of money involved people either hire a lawyer or default.  They do not represent themselves.

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3 minutes ago, Clydesmom said:

Can you seriously blame them for wanting this?   You defaulted on $20k in debt and they are settling for half.  You failed to make payments before.  This is VERY common because should you default again they do not have to sue you to recover the money you owe.  If you don't want to sign it then you better be able to come up with the $10k.

Typically at that amount of money involved people either hire a lawyer or default.  They do not represent themselves.

Why dont you explain to me how that judgment upon payment agreement  works  rather then you judging me???

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29 minutes ago, onelove said:

explain to me how that judgment upon payment agreement  works

What happens is they have you enter into a stipulated judgment agreement. It means if you default on the payment agreements, they don't have to take you back to court all over again. They just come an affidavit of default and the court grants judgment in their favor. They would still have to go to court to get a garnishment order to be able to garnish you wages should you default on the payment agreement, but it's really not hard once they have the judgment. 

And he's right, by the way. They won't agree to a payment plan without a stipulated judgment. 

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36 minutes ago, Harry Seaward said:

What happens is they have you enter into a stipulated judgment agreement. It means if you default on the payment agreements, they don't have to take you back to court all over again. They just come an affidavit of default and the court grants judgment in their favor. They would still have to go to court to get a garnishment order to be able to garnish you wages should you default on the payment agreement, but it's really not hard once they have the judgment. 

And he's right, by the way. They won't agree to a payment plan without a stipulated judgment. 

Ok I see. Is this a bad thing to do?

If i can find a lump sum ther're welling to accept, how should i go about it? What type of agreement should i request and what should do before making any payment?

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44 minutes ago, onelove said:

Ok I see. Is this a bad thing to do?

Compared to what?  They'll get a judgment either way.  With the stipulated judgment you'll have however long to make the payments, which you wouldn't get if you try to fight in court.  It also has zero negative impact on bankruptcy so you'll still have that option if you later decide you want to go that route.

44 minutes ago, onelove said:

If i can find a lump sum ther're welling to accept, how should i go about it? What type of agreement should i request and what should do before making any payment?

With a lump sum agreement, you just want to make sure it's a "settled in full" agreement where they can't later claim you still owe the balance.  You can post the terms here for us to look over before you agree to it.  Sometimes they include a non-disclosure clause, so in that case you might want to have a lawyer look over it instead of posting it on a public forum.

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If I do a settlement, should I try to get a PAY FOR DELETE agreement out of it? If not would I be able to get the record removed from my report afterward?

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14 hours ago, onelove said:

Why dont you explain to me how that judgment upon payment agreement  works  rather then you judging me?

This isn't judgment it is FACT.  The reality of the situation is that you have already defaulted once on their trust that you would make the payments as agreed.  If there is going to be another payment agreement they will want a guarantee/insurance policy against it happening again.  You cannot miss ONE payment.  You cannot make ANY mistakes for the entire 2 years of the agreement.  If you do as Harry said they do not have to sue you again.  They simply have to file that judgment with the court and then can seek to garnish wages or levy bank accounts.  Worse, they do not have to notify you before they do any of that and you have no right to dispute it or basis to fight it because you consented to it.

The other thing about a consent judgment is it will say they are agreeing to $X amount of payments for 24 months for a total of $Y which will satisfy the debt in full as settled for less.  If you default on that arrangement the entire amount you owed to begin with minus those payments plus interest for that time period comes due on that judgment not the balance that was left on the lower settlement amount.

1 hour ago, onelove said:

If I do a settlement, should I try to get a PAY FOR DELETE agreement out of it?

You can ask but most creditors have taken a hard line stance against agreeing to it.  You have no leverage to get them to agree to it so if they decline I would not drop the settlement because of it.  If you lose the court case you not only have the negative trade line for the account but a judgment as a public record.

1 hour ago, onelove said:

If not would I be able to get the record removed from my report afterward?

Doubtful.  Reporting has become extremely accurate and there is no legal basis to delete it.  

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2 hours ago, Clydesmom said:

This isn't judgment it is FACT.  The reality of the situation is that you have already defaulted once on their trust that you would make the payments as agreed.  If there is going to be another payment agreement they will want a guarantee/insurance policy against it happening again.  You cannot miss ONE payment.  You cannot make ANY mistakes for the entire 2 years of the agreement.  If you do as Harry said they do not have to sue you again.  They simply have to file that judgment with the court and then can seek to garnish wages or levy bank accounts.  Worse, they do not have to notify you before they do any of that and you have no right to dispute it or basis to fight it because you consented to it.

The other thing about a consent judgment is it will say they are agreeing to $X amount of payments for 24 months for a total of $Y which will satisfy the debt in full as settled for less.  If you default on that arrangement the entire amount you owed to begin with minus those payments plus interest for that time period comes due on that judgment not the balance that was left on the lower settlement amount.

You can ask but most creditors have taken a hard line stance against agreeing to it.  You have no leverage to get them to agree to it so if they decline I would not drop the settlement because of it.  If you lose the court case you not only have the negative trade line for the account but a judgment as a public record.

Doubtful.  Reporting has become extremely accurate and there is no legal basis to delete it.  

 

Thanks.. I will reach back to them to see if I can come up with an amount they would accept as a lump sum to satisfy the balance.

Hopefully I see few points increase on my report once its paid and reported.

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2 hours ago, Clydesmom said:

Worse, they do not have to notify you before they do any of that and you have no right to dispute it or basis to fight it because you consented to it.

They don't have to notify you of the judgment, but you will be notified when they initiate garnishment and levy proceedings. The court has to give you an opportunity to respond in case the plaintiff has made an error. It's usually only about 10 days to respond, though. 

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5 minutes ago, Harry Seaward said:

They don't have to notify you of the judgment, but you will be notified when they initiate garnishment and levy proceedings. The court has to give you an opportunity to respond in case the plaintiff has made an error. It's usually only about 10 days to respond, though. 

Thanks for the clarification, but it's not going to get to that.

God is good!

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On 1/29/2019 at 3:02 PM, onelove said:

I have been disputing the accounts, and requested that the credit bureaus provide me with the document they used to verify the account but never got anything.

The CRAs are not required to provide documentation.

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2 hours ago, BV80 said:

The CRAs are not required to provide documentation.

I did read somewhere that the consumer has the right to request how an account was verified.

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24 minutes ago, onelove said:

I did read somewhere that the consumer has the right to request how an account was verified.

:Yes.  You’re referring to the method of verification.  However, it still does not require documentation.  It merely requires a description.

15 U.S.C. 1681i(a)(6)(B)(iii)

(iii)  a notice that, if requested by the consumer, a description of the procedure used to determine the accuracy and completeness of the information shall be provided to the consumer by the agency, including the business name and address of any furnisher of information contacted in connection with such information and the telephone number of such furnisher, if reasonably available;

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13 minutes ago, BV80 said:

:Yes.  You’re referring to the method of verification.  However, it still does not require documentation.  It merely requires a description.

15 U.S.C. 1681i(a)(6)(B)(iii)

(iii)  a notice that, if requested by the consumer, a description of the procedure used to determine the accuracy and completeness of the information shall be provided to the consumer by the agency, including the business name and address of any furnisher of information contacted in connection with such information and the telephone number of such furnisher, if reasonably available;

Correct, they are not providing me any of that.

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14 minutes ago, onelove said:

Correct, they are not providing me any of that.

Have you requested a description pursuant to the cited section of the statute?

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4 minutes ago, BV80 said:

Have you requested a description pursuant to the cited section of the statute?

that request wasnt for this account am being sued for. It was on other accounts on my reports that they claim was verified

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