helpimbeingsued

I'm being sued by Suttell and Hammer on behalf of OC Discover

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I am being sued by Suttell and Hammer on behalf of original creditor Discover

  1. Named Plantiff: Discover Bank
  2. Name of Law Firm: Suttell and Hammer
  3. Amount sued for: $6900.00
  4. Original creditor: Discover Bank
  5. Was served on 07/15/2018
  6. Served by person coming to my residence
  7. Letters from Suttel And Hammer before filing suit/prelegal letter
  8. Live in Woodland Hills, CA
  9. Last time paid account: around 1.5 years ago
  10. Opened account more than 3 years ago
  11. SOL on account: For CA,  is 4 years
  12. Status on case:Filed a General Denial within time limit and also served Plantiff with request for production of documents certified.

I am wondering what my next step is. I served Suttell and Hammer with request for production of documents and the time frame has now passed (35) days to respond. They have not provided any type of documentation attached to summons and now are not responding to my requests. I am starting to wonder if they have the necessary paperwork to win in court. I was reading that I should file a meet and confer and then a motion to compel discovery, but I am a little confused on how to do all that. I know if they don't respond to that I can file a motion to dismiss. Can anyone help me with this? I was looking on the court website and there is no form for motion to compel discovery only a meet and confer form. What needs to be filed and how do I do this? Any help would be greatly appreciated. Our court date is not till 07/11/2019. I want to make sure I'm prepared and file all the necessary paperwork within the time limits. Also I have read a lot about pushing them into arbitration to get them to drop the case. Is that something I should be considering? 

Thank you

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How far are you past the deadline for them to respond? Do your court rules allow for extra time for postal mail? And what do your rules say about what to do if they miss a deadline? 

I can guarantee you right now the court won't dismiss the lawsuit for not responding to your first discovery requests. First you will have to file a second request, and notify the court. If you still get nothing,  you then fine a motion to compel them to respond. The court will issue an order for them to respond within 10 days or whatever. But it'll never get that far. I'm guessing the responses are in the mail already. If not, you'll definitely get a response after your second request. 

And they will win in court, so be prepared for that reality. 

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it has been 35 days. I was going to send out a letter today giving them a deadline to respond so that when I file the motion I have everything documented if I still don't get a response.

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What do your rules say about how to proceed when the other party doesn't respond by the deadline? 

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Just got a response today. They sent a blank contract from 2015 which has no terms of use on it along with ending statement balances starting in 2016( ending monthly statement with balance, payment and interest charged but nothing saying what the charges were for).  There is nothing before that date and the starting balance is $3600. The statements done have any individual charges either. Don’t they have to provide that? There was a validation letter signed by a witness in Ohio as well. 

They responded to my requests refusing to send any more documents because it was too costly, burdomesome and stated I could get the documents myself. They also objected stating that they don’t have to disclose anything about their case before trial and the documents are unnecessary which is absolutely not true. 

 

What is my next step here? 

I have 2 accounts and forgot password to the first one so I am using this one now. If I can’t win this I will settle at trial however I know there is more paperwork I can file first to try and win. 

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1 hour ago, SarahK said:

They sent a blank contract from 2015 which has no terms of use on it

What do you mean a blank contract with no terms of use?

1 hour ago, SarahK said:

Don’t they have to provide that?

Are you saying you didn't get monthly billing statements from Discover while the account was active?  You only have 60 days to dispute a charge.  If you didn't dispute it at the time, the only way you can re-open that can of worms is to allege you didn't get billing statements.  They will testify they sent them to the name and address shown on the statements and, if this is (or was) your correct address, that will be that.

1 hour ago, SarahK said:

They also objected stating that they don’t have to disclose anything about their case before trial and the documents are unnecessary which is absolutely not true. 

What exactly did you ask for and what exactly did they say?  Exactly....

2 hours ago, SarahK said:

I know there is more paperwork I can file first to try and win.

Like what?

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I guess what I meant by that is they sent me a 3 page print out of terms of credit which has no interest rate or anything like that and no signature. It's just a printout of their terms of usage.

The other paper that I was trying to upload was their response to my production of documents.

1.It says plaintiff objects on the ground of relevancy that information or documents sought do not appear to be reasonably calculated to lead to admissible evidence. 

2. Plaintiff objects to the disclosure of any documents that are privileged or contain facts or information that is privileged as the result of a communication between Plaintiff and its attorneys.

3. Plaintiff objects to the production of the Plaintiff's counsel trial preparation materials and/or contain mental impressions, conclusions, opinions or legal theories of Plaintiff's attorneys and further objects on the grounds that the information requested was prepared in anticipation of litigation or of trial.

4. Plaintiff objects to any Requests that require Plaintiff to obtain documents from third parties that are equally available to Defendant and could be obtained by Defendant directly and is therefore more convenient for Defendant and less burdensome and expensive to the Plaintiff.

I had asked for the original contract, proof that they own the debt and a set of accounting statements. They sent the accounting statements. 

There objections are as follows: Plaintiff objects to this discovery request on the grounds that it is improper as overbroad, unduly burdensome, vague and ambiguous. Plaintiff further objects in so far as this request seeks documentation which is or should be in the Defendant's possession. 

 

3. There was a letter signed by Courtney Reams verifying the records sent which is signed and dated from New Albany, Ohio, so I'm assuming this is their witness? Is this who I would subpoena to go to court? 

I'm not sure what to do next. I have read a lot that Discover is a tough one, but if they do have all the valid documents, I'd like to make a settlement offer rather than get a judgement in court. How does that work? When is the best time to propose that? Do I wait till we go to court and then ask if we can have a settlement conference before the trial to try to come up with an amount? 

Any advice would be greatly appreciated as I have never been sued before and would like to put this behind me. 

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10 hours ago, SarahK said:

I guess what I meant by that is they sent me a 3 page print out of terms of credit which has no interest rate or anything like that and no signature. It's just a printout of their terms of usage.

There is no signed contract and the courts know it. You know you didn't sign a contract.  The TOU defines your use of the card and their responsibilities. Once you applied for and received the account the TOU clearly states that using the account and making payments IS the contract between you and Discover.  The interest rate is NEVER in the TOU.  It is a separate document.  The court knows that too.  Not to mention the interest rate is irrelevant to your default.

10 hours ago, SarahK said:

I had asked for the original contract, proof that they own the debt and a set of accounting statements. They sent the accounting statements. 

There is no original contract and the court knows it.  Waste of time. Proof they own the debt?  They ARE the creditor. Good grief.  

10 hours ago, SarahK said:

I'd like to make a settlement offer rather than get a judgement in court. How does that work? When is the best time to propose that? Do I wait till we go to court and then ask if we can have a settlement conference before the trial to try to come up with an amount? 

You need to settle this.  Discover is the creditor and you used defenses for a junk debt buyer suit.  All you did was advertise to them you don't know what you are doing.  Second:  they don't necessarily need a live witness to attest to their own records even in Cali. They are the creditor.  

You simply call the attorney and make a settlement offer.  If it is accepted get ALL terms in writing before you pay.  

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10 hours ago, SarahK said:

I have read a lot that Discover is a tough one, but if they do have all the valid documents, I'd like to make a settlement offer rather than get a judgement in court.

What they have produced is sufficient to win in court. They are the original creditor so any possible chain of custody arguments are of the table. They've produced undisputed billing statements in your name and address. Credit cards do not, and virtually never have, a "signed" contract. They also have a witness testifying about your account. 

This isn't a criminal trial with a beyond reasonable doubt threshold. It's preponderance of evidence - most likely scenario. They are presenting hard copy black and white evidence and your only argument is "so what?". In order to overcome what they have,  you have to a.) present a plausible alternate explanation for all of their evidence, or b.) make their records untrustworthy. You won't succeed on b.) with "so what?". You might be able to raise a doubt on the affidavit, but that's only possible at trial, and by then your settlement window will have closed. 

 

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Thanks for the info. The only reason I asked for all those documents was because I read about it on this forum so I thought I was doing the right thing. Like I mentioned I haven't been through this before. I am going to wait 60-90 days and try to make a settlement offer. Hopefully they will accept. 

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Yeah, unfortunately what you read here isn't always accurate. Also, it sounds like you are confusing lawsuits from JDB with those from original creditors. While the gap is narrowing, a JDB does have a higher burden of proof because of the fact they have to prove they purchased your debt. This is not the case with an OC and all they have to show is you made charges and didn't repay it. 

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Spoke to Discovers attorneys today and they are offering a 70% settlement in the amount of 4650. Original debt is 6540 which over 1000 is interest and fees. Isn't this a bit high? I initially countered at 40% and she barely came down. I was hoping to at least get to a 60% offer if paid in lump sum. She also offered monthly payment arrangements which are doable but they are for the entire balance. Any advice on how to get this number down? We are leaning towards the payment plan just in case we do decide to file for BK next year we wouldn't be out very much money. Shouldn't they give you a break on the balance on the payment plan as well?

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6 hours ago, SarahK said:

Original debt is 6540 which over 1000 is interest and fees. Isn't this a bit high?

You are fortunate they discounted it at all.  This is an easy win for them in court or arbitration.

6 hours ago, SarahK said:

Any advice on how to get this number down?

Getting a lower settlement is about leverage.  You have none.  The cards are stacked on their side of the table.

6 hours ago, SarahK said:

Shouldn't they give you a break on the balance on the payment plan as well?

SMH.  NO.  You defaulted once.  If you expect them to take a chance on you again that you will make all your payments as agreed they will want a consent judgment and the full amount.  The problem is you are looking at this as personal and emotionally.  They are a business whose goal is to make a profit.  Once your default disrupted their business their willingness to work with you ended.  This is a business decision for them and nothing more.  It is based on risk to benefit ratio and your risk is high because you already defaulted once and they are suing you.

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I just went on the court website and I was hoping that someone could explain this to me. There is no trial date set. Next court date is for order to show cause re: failure to file proof of service and failure to file default judgment pursuant to crc 3.740. I know this is referring to the plaintiff, but what exactly does this mean and what happens next? I'm very confused but it seems like they have made a mistake? Will this get dismissed if they can't answer to this? 

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It seems there's been a paperwork glitch. Either the process server didn't file the affidavit of service with the court, or the court lost it. I would show up to the hearing, but stay quiet as a church mouse until you see something else happen on the court docket. Chances are Discover will show up to the hearing with the paperwork and that will be that. It's possible (but highly unlikely) Discover won't respond and the case will get dismissed. Even if that happens, though, Discover could still sue you again and make sure to get the paperwork from the process server. 

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On 4/16/2019 at 2:03 AM, SarahK said:

Spoke to Discovers attorneys today and they are offering a 70% settlement in the amount of 4650. Original debt is 6540 which over 1000 is interest and fees. Isn't this a bit high? I initially countered at 40% and she barely came down. I was hoping to at least get to a 60% offer if paid in lump sum. She also offered monthly payment arrangements which are doable but they are for the entire balance. Any advice on how to get this number down? We are leaning towards the payment plan just in case we do decide to file for BK next year we wouldn't be out very much money. Shouldn't they give you a break on the balance on the payment plan as well?

That 60% settlement would probably be possible with arbitration, but I am not sure if that is a choice now that you have been through discovery in court.

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Spoke to discover again and they agreed to a payment arrangement for the entire amount of the debt over 4 years or a settlement for 70% which can be broken into a few payments. They said they would send paperwork of the agreement which we have still not received as of yet. They also said we could mail our payments in before the agreement which I laughed at and said absolutely not! They want to do  a stipulated agreement/judgement which is not what I'm looking to accomplish because I don't want a judgement on my credit at any time. If  I am paying as agreed the case should be dismissed and no judgement filed. If I didn't care about the judgement on my credit I would just continue with the lawsuit and make them do the work. 

My question would be that once they do send the agreement, what needs to be included on their end so that they can't file a judgement unless I default. Nothing should be reported on my credit report and if it is there needs to be something stating that I can sue them for breaking the agreement. If they don't agree to change the agreement what is my next option? Let it go to court and ask for a payment arrangement? Or will that also lead to a judgement on my credit report? The last option I have is to file BK which I'm trying to avoid as I am trying to clean up my credit rather than destroy it. Any advice would be helpful. 

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3 hours ago, SarahK said:

They want to do  a stipulated agreement/judgement which is not what I'm looking to accomplish because I don't want a judgement on my credit at any time.

The agreement will say something to the effect that if you successfully abide by the agreement, the debt will be satisfied. The stipulated judgment only comes into play if you default on the agreement. 

3 hours ago, SarahK said:

Nothing should be reported on my credit report 

What?? No way will they agree to this. 

3 hours ago, SarahK said:

there needs to be something stating that I can sue them for breaking the agreement.

No there doesn't. If they breach the contract, you sue them for breach of contract. 

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I know they will report on the credit report but what I meant is I don’t want a judgement reported or entered on my credit report. I read that as soon as I sign the agreement they will enter a stipulated judgement with the court which will show on my credit report for 7-10 years. That’s basically just as bad to me as a default judgement or a BK showing on my credit report.

I also read that they usually try to sneak language in that would dismiss them from any counterclaims arising if they breach the agreement. My whole reason for agreeing to pay this rather than file BK on them is to Do as little further damage to my credit as possible. I have also requested for it to state I am not admitting liability rather agreeing to settle out of court. 

The third thing they mentioned was not dropping the current lawsuit until the entire debt was paid off( which wouldn’t be for four years). So what you’re saying is a judgement will only show if I default?  I’m set to speak with a lawyer this week about different options because I want someone to review the contract before I sign anything. 

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14 hours ago, SarahK said:

 I’m set to speak with a lawyer this week about different options because I want someone to review the contract before I sign anything.

Good call.

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So we agreed to pay the lump sum to withdraw the lawsuit. They sent us a letter stating the debt can be settled if paid by 5/24/19 and where to mail pmt to. Shouldn’t they send some sort of contract stating the lawsuit will be dismissed and the balance of the debt can’t be resold along with that the account will state settled for less? 

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10 hours ago, SarahK said:

So we agreed to pay the lump sum to withdraw the lawsuit. They sent us a letter stating the debt can be settled if paid by 5/24/19 and where to mail pmt to. Shouldn’t they send some sort of contract stating the lawsuit will be dismissed and the balance of the debt can’t be resold along with that the account will state settled for less? 

Did they agree to the deal through email?

Feel free to email them and state that you are ready to send payment as agreed but would like a written settlement agreement stating that your payment will constitute full and final payment and that the suit will be dismissed.

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We agreed over the phone. I was just confused because I figured there should have been some sort of paperwork stating paid in full before I mail off a large money order. 

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They sent the wrong one. It took them over 3 weeks to compose one that had a monthly payment plan on it. The attorney wanted $1000 just to look at it so we decided to take the lump sum and pay it all at once so that there would be no judgement recorded. We were supposed to get the new one but instead they just sent a vague piece of paper. I’m going to call them again today. 

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