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Settlement before attorney referral with Discover


catnip757
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Hi, I'm in a similar position with Discover, but I waited/ignored the calls until they sued me - I had no money to settle or pay at the time anyway.  I owe $5600. Before I filed my response, they offered to settle for $3900 or make payments for the full amount over 48 months.  I just received their 'Request for Admissions' two days ago.  Our hearing date is set for Feb 2022.  There was never any mention of arbitration.  I am in California.  I'm being sued by Suttell & Hammer on behalf of Discover Bank.

So, at this point, should I try calling to settle or send my response to their Request for Admissions?  I'm not sure how to answer those, but I can post what they asked for and would appreciate any advice on that.  Maybe in a new thread?? 

My goal would be to ride this out and hope to get the lowest settlement possible, as I have a few other creditors who I will probably be hearing from soon too.  I can afford to pay about $3000 right now.

Thank You!

 

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Hi BornFree-

In CA, when you file your response to their initial complaint, you have to pay $225 filing fee; after that, I don't think you have to pay anymore; you just have to answer their request (and send your own) directly with S&H.  Just be sure to file it before the 30 days deadline. Good Luck!

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  • 3 months later...

Finally sued by Glasser and Glasser on behalf of Discover today for 12,494. They only left the warrant in debt on my door and no other information. Called them and turns out there should of been another 14 pages attached.

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37 minutes ago, catnip757 said:

Received the other 14 pages just an affidavit and statements. Called to offer a settlement and they wouldn't listen to my offer till i admitted the debt was mine. This doesn't sound right?

Did you and the attorney agree on a settlement?

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Just now, BV80 said:

Did you and the attorney agree on a settlement?

No they wouldn't even listen to my offer till I admitted the debt was mine. Which I did not do. Trying to learn more before calling back.

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3 hours ago, catnip757 said:

No they wouldn't even listen to my offer till I admitted the debt was mine. Which I did not do. Trying to learn more before calling back.

That is not good.  You could settle without admission, or have admission as part of the settlement.  
 

Demanding admission of the debt before negotiations sounds like a trap.  If they reject your settlement offer they have your admission as a serious weapon. 

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57 minutes ago, BackFromTheDebt said:

That is not good.  You could settle without admission, or have admission as part of the settlement.  
 

Demanding admission of the debt before negotiations sounds like a trap.  If they reject your settlement offer they have your admission as a serious weapon. 

Can they really use that in court against me? The red flags were waving hard when she asked me to admit to it.

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1 hour ago, catnip757 said:

Can they really use that in court against me? The red flags were waving hard when she asked me to admit to it.

Are you in small claims?   

If not, you should speak to a consumer attorney and ask that question.  Also ask if offers made over the phone are considered to be settlement negotiations.  Here is VA Rule of Evidence 2:408.

Rule 2:408 - COMPROMISE OFFERS AND CONDUCT OR STATEMENTS DURING NEGOTIATIONS

(a)Prohibited Uses. Evidence of the following is not admissible on behalf of any party in a civil case - either to prove or disprove the validity or amount of a disputed claim, or to impeach by a prior inconsistent statement or by contradiction: 

(1) furnishing, promising, or offering - or accepting, promising to accept, or offering to accept - a valuable consideration in compromising or attempting to compromise the claim; and 

(2) conduct or any statements made during compromise negotiations about the claim.

(b)Exceptions. The court may admit such evidence for another purpose, such as proving a witness's bias or prejudice or negating a contention of undue delay.

(c)Pre-existing documents or physical evidence. Otherwise admissible evidence that existed prior to the commencement of compromise negotiations, including pre-existing documents or electronic communications, is not excludable under this Rule merely because such evidence was disclosed, produced, or discussed by a party during such negotiations.

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1 hour ago, catnip757 said:

No civil the amount is too big for small claims about $12k. Calling a lawyer tomorrow before I call back Glasser who is suing me.

The reason I asked about small claims is because it appears the rules of evidence might be suspended for small claims court.   However, based upon your rules, I would think that you are not in small claims.

http://www.courts.state.va.us/resources/small_claims_court_procedures.pdf

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2 minutes ago, catnip757 said:

I was not aware. Everything I'm reading online says settlement offers are protected and can't be used as evidence. Still would like to hear firsthand from a Virginia consumer attorney.

Based on the rule, they should not be admissible under most circumstances, but you are wise to want to speak to an attorney.  

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3 hours ago, catnip757 said:

Everything I'm reading online says settlement offers are protected and can't be used as evidence.

They very much are inadmissible.  Cases are settled ALL the time because it is cheaper than litigating all across the legal system without any admission of liability.  What Discover is doing is demanding you admit the debt is yours before entering in to any settlement discussions.  THAT would be admissible in court as a separate issue in my opinion.  I am curious as to what a VA lawyer would say as well.  I would ask the lawyer if you could sent a lawyer stating that without admitting liability you are offering a settlement of $X amount to settle the matter in full.  My guess is that they would consider it.  

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7 hours ago, Clydesmom said:

They very much are inadmissible.  Cases are settled ALL the time because it is cheaper than litigating all across the legal system without any admission of liability.  What Discover is doing is demanding you admit the debt is yours before entering in to any settlement discussions.  THAT would be admissible in court as a separate issue in my opinion.  I am curious as to what a VA lawyer would say as well.  I would ask the lawyer if you could sent a lawyer stating that without admitting liability you are offering a settlement of $X amount to settle the matter in full.  My guess is that they would consider it.  

Unfortunately, I can’t locate any VA rulings to give us guidance.   The relevant VA rule which I cited in a previous post is a 2016 amendment that mirrors the federal rule.  The rule previously read

Rule 2:408 COMPROMISE AND OFFERS TO COMPROMISE
Evidence of offers and responses concerning settlement or compromise of any claim which is disputed as to liability or amount is inadmissible regarding such issues. However, an express admission of liability, or an admission concerning an independent fact pertinent to a question in issue, is admissible even if made during settlement negotiations. Otherwise admissible evidence is not excludable merely because it was presented in the course of compromise negotiations. Nor is it required that evidence of settlement or compromise negotiations be excluded if the evidence is offered for another purpose, such as proving bias or prejudice of a witness or negating a contention of undue delay.

Note that the highlighted section is not included in the current amended rule.  It definitely will be interesting to find out what an attorney has to say.

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What is raising a red flag for me is that the OP must admit liability BEFORE settlement talks can begin.  

As others have pointed out, the settlement talks themselves are probably not admissible in court.  

But an admission of liability BEFORE settlement talks might be admissible.

So my fear is, the opposing attorney could simply reject the settlement offer, and use the admission of liability to win the case.  

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24 minutes ago, BackFromTheDebt said:

What is raising a red flag for me is that the OP must admit liability BEFORE settlement talks can begin.  

They are doing that because if what @BV80posted is no longer correct and and admission of liability during settlement talks cannot be used they want it prior to discussing settlement so they can use it.  It looks to me like they are covering all the bases so to speak.

I should of clarified in my previous post when I said they absolutely are not admissible I meant the settlement discussions NOT admitting it is your account.

26 minutes ago, BackFromTheDebt said:

But an admission of liability BEFORE settlement talks might be admissible.

I think it is but am curious as to what a lawyer will say.

26 minutes ago, BackFromTheDebt said:

So my fear is, the opposing attorney could simply reject the settlement offer, and use the admission of liability to win the case.  

I think the plan is more akin to getting the admission of liability in case the talks fail and they do have to go to trial vs. a set up.  

The good news is there are many ways to settle an account.  As I also stated the OP can send a written offer that specifically states without admitting liability they seek to settle the matter as expediently as possible and are offering a specific amount as settlement in full to be paid on X date via cashier's check and in exchange the remainder is disputed and creditor agrees not to sell the disputed amount and to delete the trade line etc.  If they refuse the terms it cannot be used at trial.  Or have a relative make the settlement offer using the same verbiage.  It can be done without admitting liability.  You just have to be creative.

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1 hour ago, BackFromTheDebt said:

What is raising a red flag for me is that the OP must admit liability BEFORE settlement talks can begin.  

As others have pointed out, the settlement talks themselves are probably not admissible in court.  

But an admission of liability BEFORE settlement talks might be admissible.

So my fear is, the opposing attorney could simply reject the settlement offer, and use the admission of liability to win the case.  

That’s why he needs to speak to an attorney.  The purpose of the amended rule is to encourage settlement and reduce litigation.  It might be considered unfair for opposing parties to force admission of liability in order to end negotiation efforts and use that admission in court.  What would be the purpose of settlement talks if the plaintiff could demand an admission of liability as a requirement to discuss a settlement, then reject any offer, and use the statement in court?

 

18 hours ago, BV80 said:

Evidence of the following is not admissible on behalf of any party in a civil case - either to prove or disprove the validity or amount of a disputed claim,

(2) 

conduct or any statements made during compromise negotiations about the claim

Admitting to the debt after offering to settle might be a statement made during negotiations.  According to the first sentence, statements made during negotiations cannot be used to prove the validity or amount of a disputed claim.  Disputing the claims would be necessary to trigger the exclusions in that rule.

Perhaps, depending on when a negotiation is determined to begin, the attorney’s refusal to talk about settlement unless the OP admits liability could be considered a refusal to negotiate or, at least, hindering a negotiation attempt.  

As previously advised, a consultation with an attorney is needed.  I might also ask the attorney how VA courts define “settlement negotiation” and what constitutes the start of that negotiation.

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Appreciate every ones inputs so far. Talked to a civil and bankruptcy lawyer this morning who deals with Discover and specifically the firm suing me. He advised to stop disputing it, admit its mine and make an offer if I'm serious about settling before court and it can't be used against me. I'm still calling around trying to get a second opinion without having to sit down for an hour long consultation for this one question.

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On 1/24/2021 at 8:16 PM, catnip757 said:

Hello I'm in Virgina about to have my account referred to attorney in late February. The debt is about 13k and I'm not disputing I legally owe it. I can get about 5k cash and would consider offering to settle with them before it goes it court or arbitration. Has anyone successfully done this before they were sued by Discover?

I am in Virginia got call from Discover (not a law firm they said they were going to send to law firm if I did not settle ) 3 months after my charge off.  They offered settlement of 50% on a $8500 debt. I don't have cash so we settled on 10 monthly payments of  $420.00. this was in March 2020.  

Just to give you a data point on settling. 

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