How badly did I mess up - didn't respond to civil suit serving

[wakingupnow]

I was sued in 9/18 in california and did not respond. I foolishly was waiting for a notice of a hearing. I don't want to run from the debt anymore. I'm hoping to settle for close to what I owe as that's the limits of what I could possibly do (hoping to not have to pay double in court costs). I was naive and thought some more contact or papers would come from the attorneys.

 What do I do if there is no further court action found beyond the initial lawsuit filing? Do I just have to wait for a default judgement or do I contact the attorneys? Thanks in advance.

 

1. Who is the named plaintiff in the suit?

PORTFOLIO RECOVERY ASSOCIATES,

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

HUNT & HENRIQUES    

3. How much are you being sued for?

$1,500

4. Who is the original creditor? (if not the Plaintiff)

Amazon

5. How do you know you are being sued? (You were served, right?)

served

6. How were you served? (Mail, In person, Notice on door)

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?

none

9. What state and county do you live in?

Orange County, CA

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

6/2017

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

`10/2014

12. What is the SOL on the debt? 

4 years

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

only initial summons and complaint filed same day - no hearings

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? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').

no

16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

no - filed in 9/18 - I only received the initial summons - I was stupid. I was waiting for a hearing notice. Just dumb.

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

copy of last statements

18.  How did you find out about this site?

google search

 

[wakingupnow]

also, if I pay, how do I protect myself so that they don't come back and try to collect again later on?

[Harry Seaward]

2 hours ago, wakingupnow said:

 What do I do if there is no further court action found beyond the initial lawsuit filing? Do I just have to wait for a default judgement or do I contact the attorneys?

The default judgment has already happened.  If they haven't tried to collect it, they likely will eventually.  Interest is accruing in the mean time, so it's best to get on this sooner than later.

Give the attorneys a call and see what kind of a deal you can work out with them.  They probably won't take less than the full amount owed at this point, but you never know and it never hurts to try to negotiate with them.

1 hour ago, wakingupnow said:

also, if I pay, how do I protect myself so that they don't come back and try to collect again later on?

They will have an agreement for you to sign.  It should include a "full release".  Pay only with a cashier's check/money order, keep your receipt and copy of the agreement.  If they ever try to collect it in the future, you'll have proof that it was paid and settled in full.

[wakingupnow]

hi - and thanks.  I don't see the default judgement in the case search nor on credit checks. Do I need to get myself an attorney to attempt to pay this? Do I need to contact the courts at all and inform them I will try to settle? 

[fisthardcheese]

6 hours ago, Harry Seaward said:

The default judgment has already happened.

We don't know that.  CA Courts move slower than any others.

If there is no judgement yet and this were me, I would immediately file an answer denying all claims.  I would watch for them to file a motion for default and state that your answer was too late, and you will then have to respond with some kind of reason as to why you filed a late answer and just hope the court will deny their default.

[wakingupnow]

hi fisthardcheese,

 

Would this make them more or less likely to settle or make them push for higher attorney's fees? Thanks in advance.

[Harry Seaward]

3 hours ago, fisthardcheese said:

We don't know that.  CA Courts move slower than any others.

OP said she was sued 9 months ago.  Can it really take 9+ months for the court to enter default judgment?

[Clydesmom]

1 hour ago, Harry Seaward said:

OP said she was sued 9 months ago.  Can it really take 9+ months for the court to enter default judgment?

In California: yes.  LA County is unbelievably busy and the time from filing to trial is about 2 years.  It is possible that it took 9 months.  Due to the crowded docket when a case is filed the court sets strict guidelines.  I am pretty sure that if a Defendant does not respond after being served the default judgment is automatic.

[wakingupnow]

hi - what are your thought on contacting the attorneys? Do I need an attorney to do so? Am I going to be on the hook for significantly more than the lawsuit amount? I may consider a BK as a I have other debts. Or is it worth trying to settle? Thanks

[Jackie1989]

In Connecticut, I have looked at many cases online and am amazed how some of them drag on. I see where they filed for default and a year later it's granted, then they must submit motion for payments and the plaintiffs sometimes follow up a year later. It's crazy. In Connecticut, plaintiff can file for default, court will grant it - when it gets around to it- and defendant will receive a letter.  They state that if you file an answer before judgement, they will set it aside.

[Harry Seaward]

2 hours ago, Clydesmom said:

am pretty sure that if a Defendant does not respond after being served the default judgment is automatic.

Which is what happened here.

[Harry Seaward]

52 minutes ago, wakingupnow said:

hi - what are your thought on contacting the attorneys? Do I need an attorney to do so?

You don't need an attorney. Just tell them you would like to see what they will accept to settle the debt. Or you can use the method @fisthardcheese suggested. 

[BV80]

@RyanEX

@sadinca

Is this the correct rule?

 

CHAPTER 2. Judgment Upon Failure to Answer [585 - 587.5]

585. Judgment may be had, if the defendant fails to answer the complaint, as follows:

(a) In an action arising upon contract or judgment for the recovery of money or damages only, if the defendant has, or if more than one defendant, if any of the defendants have, been served, other than by publication, and no answer, demurrer, notice of motion to strike of the character specified in subdivision (f), notice of motion to transfer pursuant to Section 396b, notice of motion to dismiss pursuant to Article 2 (commencing with Section 583.210) of Chapter 1.5 of Title 8, notice of motion to quash service of summons or to stay or dismiss the action pursuant to Section 418.10, or notice of the filing of a petition for writ of mandate as provided in Section 418.10 has been filed with the clerk of the court within the time specified in the summons, or within further time as may be allowed, the clerk, upon written application of the plaintiff, and proof of the service of summons, shall enter the default of the defendant or defendants, so served, and immediately thereafter enter judgment for the principal amount demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for in Section 425.115, or a lesser amount if credit has been acknowledged, together with interest allowed by law or in accordance with the terms of the contract, and the costs against the defendant, or defendants, or against one or more of the defendants.

[wakingupnow]

I called an attorney to see if I needed help in defending this or getting the right kind of settlement paperwork. Quote was $800 plus court filing fees. Worth it? I'm a little hesitant to call the suing attorneys on my own. Thoughts? Seems like I could pay over $1100 or more just to have to pay their attorneys anyway. But the guy was really helpful and I feel like I'd use them if the amounts were larger. Maybe I still need them? Seems if I lose, than I have nothing left to pay the original bill.

[wakingupnow]

Came back to edit after I saw the post about not needing an attorney. Sorry I didn't see that. 

[wakingupnow]

hi @fisthardcheese  thanks. I'm thinking of doing this. Question: does this help me in settling or give me better leverage in settling.

I'm afraid of this: I respond and they come at me with no settlement offer and I have to pay some attorney fees that bring me to double my debt or more. This would indeed force me into BK.

I called an attorney (I'm sorry I did not at first see your advice @Harry Seaward and they wanted a healthy amount to file the answer for me and negotiate with some leverage or get the judgment set aside (if one exists that isn't showing in the court online search -still no change there). But that seems like I'm going to spend almost my debt amount and then risk the judgement fees.

 

@Harry SeawardI am open to calling the suing attorneys, but what I can pay is about what I owe (and that affects me deeply for a few months for sure), but I'm afraid of what I read on some sites about them here: http://californiacollectiondefense.com/sued-hunt-henriques/  They say I could agree to a settlement and pay while they obtain a judgement anyway and come after me for the whole thing? I don't know if I could file a belated answer to beat their electronic filing services or make it to a BK lawyer fast enough if they want over the original debt.

 

I know this whole thing operates on fear, lack of resources and being in the wrong in the face of the law. I'm trying to do the right thing too late. 

[Harry Seaward]

1 hour ago, wakingupnow said:

I know this whole thing operates on fear

Only if you let it. You have the money they want. It benefits them to be reasonable. That doesn't mean for sure they will, but the odds are good. 

1 hour ago, wakingupnow said:

They say I could agree to a settlement and pay while they obtain a judgement anyway and come after me for the whole thing?

The settlement is a legally binding contract. They can't do anything the agreement doesn't allow them to do. If they agree to accept $50 a month for 100 months, they can't take you back to court unless you miss your payments. 

You also need to be smart about what you agree to. They may initially present you with an agreement that says if you miss one payment by 3 days, you forfeit any amount you've paid on your payment plan. Obviously it wouldn't be smart to agree to that condition. 

If you're worried about it, post the agreement here and we'll let you know if anything looks like a potential problem. 

[fisthardcheese]

On 6/4/2019 at 1:00 PM, wakingupnow said:

hi - what are your thought on contacting the attorneys? Do I need an attorney to do so? Am I going to be on the hook for significantly more than the lawsuit amount? I may consider a BK as a I have other debts. Or is it worth trying to settle? Thanks

Personally, I would not contact the attorneys until I at least filed a late answer.  Otherwise they will just file the default immediately after getting off the phone with you, if they haven't already.

Once, and if, you can get around a late answer and avoid a default judgement, this is a fairly easy winnable case, in my opinion.  You have a Synchrony Card agreement in California.  That is a slam dunk arbitration win.  Filing a Motion to Compel Private arbitration should send PRA packing shorty after.  But your major problem is the fact you still haven't filed an answer and we don't know if you can avoid a default judgement yet.

[LaneBlane]

Have you tried to access the case information through the OC Court's website to find out what the status is and whether a default judgment has been granted?

https://www.occourts.org/online-services/case-access/

[RyanEX]

On 6/4/2019 at 11:58 AM, BV80 said:

@RyanEX

@sadinca

Is this the correct rule?

 

CHAPTER 2. Judgment Upon Failure to Answer [585 - 587.5]

585. Judgment may be had, if the defendant fails to answer the complaint, as follows:

(a) In an action arising upon contract or judgment for the recovery of money or damages only, if the defendant has, or if more than one defendant, if any of the defendants have, been served, other than by publication, and no answer, demurrer, notice of motion to strike of the character specified in subdivision (f), notice of motion to transfer pursuant to Section 396b, notice of motion to dismiss pursuant to Article 2 (commencing with Section 583.210) of Chapter 1.5 of Title 8, notice of motion to quash service of summons or to stay or dismiss the action pursuant to Section 418.10, or notice of the filing of a petition for writ of mandate as provided in Section 418.10 has been filed with the clerk of the court within the time specified in the summons, or within further time as may be allowed, the clerk, upon written application of the plaintiff, and proof of the service of summons, shall enter the default of the defendant or defendants, so served, and immediately thereafter enter judgment for the principal amount demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for in Section 425.115, or a lesser amount if credit has been acknowledged, together with interest allowed by law or in accordance with the terms of the contract, and the costs against the defendant, or defendants, or against one or more of the defendants.

I haven't dealt with this code before - but I always understood that the plaintiff needed to file for a default judgment in order to get one.

@wakingupnow If you haven't done so yet, file an answer.

[wakingupnow]

hi all - I'm back. Thanks for all the advice. I took the advice of @fisthardcheese and others and wrote up the answer.

Yes, I did file an answer. I went to the courthouse and asked if a default judgement was entered (I had been checking the court search daily and hadn't seen one). Clerk said I can still file.

I asked if the plaintiff can just get an automatic default because I was late. Clerk said they (Orange County, CA court) will take the answer and it will prevent the default if the plaintiff hadn't filed for one yet. Also, there was nothing showing in her pending queue (that part maybe isn't online).  I only had one copy of the answer, so I was advised to return this week for a court records copy to mail to plaintiff (I guess the mailer can not be me as there's a form).

I checked the court search again over the weekend. It showed my answer, my fees paid, and that a case management conference about 2 1/2 months out from now. 

Q: So now what? Are we (not me, but someone on my behalf) mailing this answer certified mail with return receipts?

Q: is there some discovery process?

I checked the arbitration for synchrony as you suggested and there's a definite arbitration clause there. I answered point by point, mostly that I did not recognize if this company had standing, nor that I had confidence the debt was mine and if it was, how could I be confident the amount at chargeoff was accurate. Also mentioned if there was supposed to an alternate settlement process like arbitration.

Q: is the arbitration clause in effect in the last statement at chargeoff?

That's would cover the clause. I have no idea and no access to the contract I signed up with originally. I think it was different company possibly before it was synchrony.

I have to admit that I felt good driving to the court to file the answer that I diligently researched how to write the evening before. If I'm in over my head, I don't feel like it anymore. I feel energized. I was afraid of the courthouse, but I felt good there. What is this madness? Am I crazy for enjoying that filing? 

If I'm going to lose in court, I might as well get some adventure and legal education for this money. I don't plan to go down easy, though. I'm not ruling out settling, but I am ruling out laying down. If things get too hairy, I'll hire an attorney (I found a good one, I think, and he said even if I don't hire them now, answer right away).

I hope the clerk was right about the answer being valid as I beat them in filing for the default. She said it's whatever comes first. 

Okay wise people of this board, what say you next? I am your humble student.

 

[fisthardcheese]

6 hours ago, wakingupnow said:

Am I crazy for enjoying that filing? 

That's called taking control of the situation instead of burying your head in the sand and being afraid.  It's proper to feel good about that.

6 hours ago, wakingupnow said:

I think it was different company possibly before it was synchrony

GEMB was taken over by Synchrony, but it is the Synchrony Card Agreement you will use. 

I would work on an MTC and file it in the next 30 days or so.  You can flip this thing on it's head by making the Case Management conference all about your MTC and arbitration instead of their alleged debt against you.

[wakingupnow]

Hello - I'm back. Thanks for all the help @fisthardcheese

I filed my answer a month back and was waiting for a response. Finally got one. 

First off: case management conference is scheduled for end of August.  Their statement asked the court for more time for discovery. I have not filed my case management statement yet. I have the form (from CA), but not sure how to fill it out. Also plan to file the motion to compel arbitration. 

Q: the attorneys also have mailed me interrogatories. Some questions are simple: did I open the account, what date was it, were there other signers on the account (there were not). Is the balance of the sum the correct sum as of the due date on the account. But there's another set of questions: do I have copies of all correspondence I sent the CC company? They want copies of each canceled check and bank statement where I made a payment to the CC company. They demand all this in a few weeks. How do I answer this? Do I really need to provide copies of all my payments to the CC company?  Or if I file my case management statement and a motion to compel arbitration, can request this that be answered first?

 

Thanks again for all the help

[fisthardcheese]

If you are going to use arbitration, you do NOT want to participate in discovery.  This is why I suggested getting the MTC filed asap. 

If your plan is to use arbitration, I would file it now and respond to discovery with objections as being outside the jurisdiction of the court due to a private arbitration clause that Defendant has exercised.

[wakingupnow]

@fisthardcheese  @Harry Seaward on my way to my case management conference now. Wish me luck. Motion to compel arbitration is already filed. No new info in docket, so I assume I'll see their attorney in court in the hallways. Insisting on arbitration as it's my right per the CC agreement. Thanks to all so far. We'll see how this first skirmish goes and how long the battle will be.