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Boyfriend was handed papers saying I'm being sued...now what?
- Thread starter blahbleebloo
- Start date
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OP – DC’s information about collections is extensive and generally spot-on, but something is amiss here.
Direct creditors are not immune to the strictures of the FDCPA in CA because it’s extended to cover them by the Rosenthal Act (CA’s version) (I was a legislative consultant and know it pretty well). But I very much doubt that you incurred a debt to Chexsystems, so why the reference to it? If Chexsytems (which is data clearing house) were the creditor, it would have to be an assignee, and can’t use Small Claims (CCP §116.420(a)). The creditor, I assume, is the credit union or the payee on a check (?).
However, you continue to mention “a collection agency”, which would also be prohibited from using Small Claims court by the same statute.
I strongly agree with the recommendation to try to settle, if the debt is valid (and would say the same thing if it’s past the SOL, but that’s your moral decision). You can’t use an attorney in CA Small Claims, but some continuing action is probably inevitable.
Your post (the information it provides and what it omits) raises more questions for me than it offers direction. If you’re looking for information about the debt and not getting cooperation, I would respond to the Small Claims case and cite as a defense that it should be dismissed in Small Claims for the reasons given above. If I understand your information, it definitely will be. When the creditor is compelled to file in a higher court, you’ll have a right to discovery and are also likely to get more cooperation in effecting an out-of-court resolution. I don't have other advice at this point.
Direct creditors are not immune to the strictures of the FDCPA in CA because it’s extended to cover them by the Rosenthal Act (CA’s version) (I was a legislative consultant and know it pretty well). But I very much doubt that you incurred a debt to Chexsystems, so why the reference to it? If Chexsytems (which is data clearing house) were the creditor, it would have to be an assignee, and can’t use Small Claims (CCP §116.420(a)). The creditor, I assume, is the credit union or the payee on a check (?).
However, you continue to mention “a collection agency”, which would also be prohibited from using Small Claims court by the same statute.
I strongly agree with the recommendation to try to settle, if the debt is valid (and would say the same thing if it’s past the SOL, but that’s your moral decision). You can’t use an attorney in CA Small Claims, but some continuing action is probably inevitable.
Your post (the information it provides and what it omits) raises more questions for me than it offers direction. If you’re looking for information about the debt and not getting cooperation, I would respond to the Small Claims case and cite as a defense that it should be dismissed in Small Claims for the reasons given above. If I understand your information, it definitely will be. When the creditor is compelled to file in a higher court, you’ll have a right to discovery and are also likely to get more cooperation in effecting an out-of-court resolution. I don't have other advice at this point.
blahbleebloo
Member
Well the suit itself was filed by the credit union. I only mentioned Chexsystems, because that was how I first found out about the debt. I ran my Chexsystems report and it showed up there (albeit for a smaller amount). That was the first place I requested a verification of the debt. The Chexsystems website had explicit instructions on how to do so, even though their verification has more to do with removing it from the report than anything. I spoke of a collection agency, because I did later receive letters from a CA, and tried to correspond with them also to no avail. The credit union itself has it's own collections department, and I've left several messages (as recently as this afternoon in fact).
I assure you, I'm not deliberately trying to omit anything. You all have been more than helpful, and I can't begin to express my gratitude! I know you guys probably see a million of these kinds of things during your adventures through these forums, but I truly do appreciate you taking the time to answer my questions.
My court date is in January, and I'm trying to make an appointment with an attorney for a consultation just in case. I figure the more prepared I am, the better.
~A
I assure you, I'm not deliberately trying to omit anything. You all have been more than helpful, and I can't begin to express my gratitude! I know you guys probably see a million of these kinds of things during your adventures through these forums, but I truly do appreciate you taking the time to answer my questions.
My court date is in January, and I'm trying to make an appointment with an attorney for a consultation just in case. I figure the more prepared I am, the better.
~A
Ok. As I suspected and makes sense now.
Substituted service is not a battleground, even if they don’t mail. In SC, they could have served you by certified mail. If you show-up and the court accepts that argument (and I don’t see that as a cause of delay), you’ll just be considered as now having notice and you’ll either get the opportunity to proceed that day (these aren’t complicate matters) or you’ll be given the option of some new date in the fairly immediate future. A discovery issue might justify a bit more time, but it will happen, so go with the flow and file an a response, so that you have a right to get documents. Don't bother to battle over service.
As to the earlier remark that there was no discovery in Small Claims, that’s true in the general sense, but there is all that you need. Look at form SC-107, a fillable form that requests documents and you can find at the CA online self-help site. If your hearing date is in Jan., you have time to use it if you act promptly. If you do, check in the Debt Collection forum, if you don’t already learn what to request. If you serve and don't get a response, tell the court. That's why it wise to serve via certified mail.
Discovery aside, if the debt is yours and not time-barred, the result is probably a foregone conclusion. If you haven’t spoken to the credit union since you were served, that’s the entity to speak to for a negotiation. At this point, no other entity is involved with authority to negotiate. If they’re going forward themselves, they’ve taken it back from the agency.
If it must go forward and it’s “nothing ventured, nothing gained”, defend yourself. In addition to any other defense you may discover, it never hurts to challenge the witness’s capacity to testify. The witness must be “percipient”. That’s such a common and assumed capacity that it’s seldom questioned. It means the witness must have full personal knowledge supporting the validity of the evidence being presented or have the same in a Declaration under oath. It means that, without a Declaration, the witness must have personal knowledge of every act that went into the preparation of a bill: the basis of the debt, any prior notice to you and everything else about this. If this was from almost 4 years ago, it’s probable that only the top and long-time people in accounting and collections have that. If the debt was from 4 years ago and the witness is a junior employee employed 2 years, he/she can’t. Ask the questions in court and object to introduction of the evidence. Case dismissed.
If they’re determined, they will re-file and fix the problem, but the longer they go and the higher-up they have to go for testimony, the likelier you get a chance to negotiate. You don’t need a credit record with a judgment, even if paid.
Good luck
Substituted service is not a battleground, even if they don’t mail. In SC, they could have served you by certified mail. If you show-up and the court accepts that argument (and I don’t see that as a cause of delay), you’ll just be considered as now having notice and you’ll either get the opportunity to proceed that day (these aren’t complicate matters) or you’ll be given the option of some new date in the fairly immediate future. A discovery issue might justify a bit more time, but it will happen, so go with the flow and file an a response, so that you have a right to get documents. Don't bother to battle over service.
As to the earlier remark that there was no discovery in Small Claims, that’s true in the general sense, but there is all that you need. Look at form SC-107, a fillable form that requests documents and you can find at the CA online self-help site. If your hearing date is in Jan., you have time to use it if you act promptly. If you do, check in the Debt Collection forum, if you don’t already learn what to request. If you serve and don't get a response, tell the court. That's why it wise to serve via certified mail.
Discovery aside, if the debt is yours and not time-barred, the result is probably a foregone conclusion. If you haven’t spoken to the credit union since you were served, that’s the entity to speak to for a negotiation. At this point, no other entity is involved with authority to negotiate. If they’re going forward themselves, they’ve taken it back from the agency.
If it must go forward and it’s “nothing ventured, nothing gained”, defend yourself. In addition to any other defense you may discover, it never hurts to challenge the witness’s capacity to testify. The witness must be “percipient”. That’s such a common and assumed capacity that it’s seldom questioned. It means the witness must have full personal knowledge supporting the validity of the evidence being presented or have the same in a Declaration under oath. It means that, without a Declaration, the witness must have personal knowledge of every act that went into the preparation of a bill: the basis of the debt, any prior notice to you and everything else about this. If this was from almost 4 years ago, it’s probable that only the top and long-time people in accounting and collections have that. If the debt was from 4 years ago and the witness is a junior employee employed 2 years, he/she can’t. Ask the questions in court and object to introduction of the evidence. Case dismissed.
If they’re determined, they will re-file and fix the problem, but the longer they go and the higher-up they have to go for testimony, the likelier you get a chance to negotiate. You don’t need a credit record with a judgment, even if paid.
Good luck
blahbleebloo
Member
So I have an update!
I FINALLY got in touch with the credit union, and then the Collection agency. They didn't have anything to say about the fact that I had requested information previously, but they did verify the debt for me. As ridiculous as it seems to me, I do owe all of the money, so I asked them what I could do to settle it out of court (and off my credit report). They agreed to accept the principle balance of $1524 plus $105 filing fee, which is better than $2100! My beloved boyfriend put it on his credit card, so I'll be making payments to him for the rest of my life, but at least it's taken care of!
I was told that I would receive a letter that confirmed the payoff and that they would dismiss the case against me, so I'll make sure and follow up to make sure they do that.
I feel soooo much better now. And just for information's sake, I'm putting together a promissory note for my bf so that he's protected. I know I'm good for it, but we all know how these things go. I figure I'll look for a 2nd job for now so I can get it all done and over with.
Anyway, enough ranting...thank you all so much for the advice!
~A
I FINALLY got in touch with the credit union, and then the Collection agency. They didn't have anything to say about the fact that I had requested information previously, but they did verify the debt for me. As ridiculous as it seems to me, I do owe all of the money, so I asked them what I could do to settle it out of court (and off my credit report). They agreed to accept the principle balance of $1524 plus $105 filing fee, which is better than $2100! My beloved boyfriend put it on his credit card, so I'll be making payments to him for the rest of my life, but at least it's taken care of!
I was told that I would receive a letter that confirmed the payoff and that they would dismiss the case against me, so I'll make sure and follow up to make sure they do that.
I feel soooo much better now. And just for information's sake, I'm putting together a promissory note for my bf so that he's protected. I know I'm good for it, but we all know how these things go.
I figure I'll look for a 2nd job for now so I can get it all done and over with.Anyway, enough ranting...thank you all so much for the advice!
~A
TigerD
Senior Member
Great.
Protect yourself here. When you get the settlement letter, attach it to a copy of the proof of payment (credit card invoice) and keep it forever. Seriously, forever.
Verify that the case has been dismissed with the court -- get a copy of the dismissal and attach it to the other records and keep it forever. If the case has not been dismissed or you cannot get the record from the court -- go to court on that day with your settlement letter and proof of payment to show the judge.
Again, keep copies of everything ... wait for it ... forever.
DC
Protect yourself here. When you get the settlement letter, attach it to a copy of the proof of payment (credit card invoice) and keep it forever. Seriously, forever.
Verify that the case has been dismissed with the court -- get a copy of the dismissal and attach it to the other records and keep it forever. If the case has not been dismissed or you cannot get the record from the court -- go to court on that day with your settlement letter and proof of payment to show the judge.
Again, keep copies of everything ... wait for it ... forever.
DC
blahbleebloo
Member
Thank you! Yes, I believe I'll start a Forever file just for stuff like this!
Do you know of the best way to get copies of the dismissal? I looked on the court website, but didn't see anything helpful. I assume I'll have to actually go to the courthouse and pay for a copy or something. Money well spent of course, but if you guys know of an easier way I would love to know!
~A
Do you know of the best way to get copies of the dismissal? I looked on the court website, but didn't see anything helpful. I assume I'll have to actually go to the courthouse and pay for a copy or something. Money well spent of course, but if you guys know of an easier way I would love to know!
~A