     Anonymous | Saturday, February 19, 2000 - 07:03 am 
This is for a Wells Fargo Visa that was sold to First Select in No.Cal, I have been preparing to offering settlements on this and other deliquent accounts, but what should I do now that I have been served. The original acct was for 1500 and has risin to 2700. I do not want my wages garnished. Can I still offer a settlement and ask for deletion? If they refuse, what are my options in court.
Thanks |
| Kristi F.Carreonandassociates.com | Saturday, February 19, 2000 - 08:53 am
Try to work out a settlement before the court date. The creditor would rather be paid then incur additional expenses in court. Getting a judgment does not mean they will be paid. They have to then pay to attach your wages and it is time consuming for them.
Be fair and realistic but offer them only what you can really afford to do. If you get an agreement before the court date, the creditor can just cancel the hearing.
Additionally, you can ask the court to set up a payment plan. The court will do this if your offer is reasonable, say a few hundred dollars amount but then you will have a judgment on your credit. Works your buns off to get this handled before court. I had many customers who contacted me after I had them served and we worked it out.
That was the whole reason I served them was to get their attention. The creditor will accept reasonable offers. If you cant get them to delete it then go for a settled listing. It’s a heck of a lot better then paid charge off or judgment.
Advice the creditor that you are doing everything possible to avoid insolvency. if they think they are going to push you right into the BK court then you have the upper hand. Dont be afraid to deal with them. Do whatever it takes.
Ps: when was the last time you paid this? the SOL in California is 4 years. If yours is up then you can get it dismissed by pointing that out to the judge.
The SOL means NO payments,partials, or renewed written promises have taken place in four years.
Best of luck!
Kristi Feathers
Carreonandassociates.com |
| Gary | Sunday, February 20, 2000 - 08:42 am
You have only 20 days to answer the complaint in writing to the court or the creditor will file a motion for summary judgement. You do not have to admit anything, instead, you simply deny everything. Do it, and don't delay. Then you are required to have a meeting with the creditor and set up a discovery plan for the court. Ask for 180 days for discovery. After the expiration of the 180 days, wait for 40 days and file a motion with the court to dimiss for failure to prosecute the action, it will be granted, and the case is done and over. You win. |
| Kristi F.Carreonandassociates.com | Sunday, February 20, 2000 - 09:50 am
Yes, please try that anon and lets see.
While I know Gary has a suit pending against the CRA, I believe I saw that thread some months back, the truth is, what he is talking about is not so easy for a regular consumer to do. First of all, not everyone thinks like a lawyer and secondly, consumers don't know where to start and get shuffled trying to figure it out.
Why not outline the step-by-step actions for him in more detail?
In my area, it is 30 days to answer the complaint. In addition, was he properly served? If not, he could go in for improper service. Once he is served and he appears to dispute the debt, that may work but what if the creditor has all their ducks in a row? I have seen many judges award on the spot and deny further consideration because the debtor could not lie when asked "Do you owe this debt" if he answers yes,but..... then maybe he has a case If he answers no, and here’s my proof... then your set for delays in your favor.
In reality, a regular consumer who has a family and works and does not study the laws for a living will have no idea what you are talking about. I served up over 120 judgments in my years as a collection manager and always showed up with the proof of the debt and judgment was granted. I had a few attempt what you suggest but I was ready. Therefore, that may not be practical for Anon. Nevertheless, please Gary; tell us systematically how he can do this. I would love to see the steps produce the actions you speak of. Not to mention very interesting to follow online.
As for Anon: My opinion is still as stated: If you owe the debt and there is obvious proof of that, why not work out a plan with the creditor by dealing directly with them and also asking for a postponement. This will serve to give you time to contact the creditor and work out a pay off and avoid the entire risk of judgment. If you don't and you show up in court to try and discuss payments, the judgment can still be awarded. Most creditors do not want to follow up with suit. It is done to get your attention. Contacting the creditor while you also ask for a 30 day postponement will give you ample time to show the creditor you are not hiding and are willing to pay. Creditors know that judgments are not self-collected and it will cost more money for them to collect, so if you were at their doorstep offering payment then why would they bother? Since you spoke of "preparing to offer settlement" then that indicates to me that you can easily call them, offer a payoff or set up payments and be done with the whole judgment worry. They only served you because they probably got tired of waiting for you to pay. Be quick about it and if need be priority mail a down payment of 500$ to them if they agree to set aside or re-calendar court date. Once you do that, they will see you plan to pay, and they have only spent about 40 bucks getting you served. Every time I sued someone and they called me and agreed to pay, I told them Priority mail me a percentage or down and I will set aside hearing for later in case you default. It’s just that simple.
Kristi Feathers
DIsclaimer----------------------------------------
Ps: This is just my opinion and not legal advice. If you need legal advice, consult with an attorney. This opinion is for discussion only. |
| Gary | Monday, February 21, 2000 - 11:45 am
My mistake, I was assuming this was in federal court. A bank visa sold to another bank. I will make a few assumptions here for the help of the forum. I'm guessing a federal bank under federal law will have to sue in federal court (Jurisdiction). There are not many state banks left, that are not incorporated with some other bank, under a federal charter, hence the jurisdiction lies within the federal court system. Not much specific info in the post, only a No. Cal bank, but where do you live? More importantly, where did you live when you signed the contract for the card? The Venue lies where you reside now. If they sued you in No.Cal and you live in Utah, or for that matter, anywhere but No. Cal, you may have the suit dismissed for lack of Venue.
I have no experience in state court where apparently Kristy has sued. In federal court, there is no court date to appear until the judge orders a pretrial conference. That's about a year and a half down the road.
What does your suit say in the caption? United States District Court, District of Northern California? If this is a federal court, don't delay, you have 20 days to answer the Complaint or you're going to lose to Summary Judgement. |
| Anonymous | Monday, February 21, 2000 - 01:19 pm
Speaking as a regular consumer who's been in your shoes, here's my two cents worth.
I agree with Kristi, try to work out a settlement before the court date if you can. However if they're not willing to work with you, you may want to consider hiring an attorney. My experience when I called the creditor was that they were not willing to settle for anything less than the full amount due. Then I asked an attorney to contact them on my behalf, and they changed their tune. He told them we'd like to settle, but if we could not come to agreement, we would defend against the suit (ie: no default judgment, but an expensive court case). We settled for 10 cents on the dollar and deletion from my credit report. Well worth the 15 minutes of attorney time that I had to pay for. Just my experience--every creditor is different. |
| K.Feathers-CarreonandAssociates.com | Monday, February 21, 2000 - 03:29 pm
Gary:
This is a small claims action. Not Federal. We are talking about a 2700.00 civil small claims action not a Federal case. Even Federal Banks and Federal Credit Unions sue in small claims if the note is under 5000.00. As for venue: make sure the creditor has no officers in your area otherwise they will be able to finish up. I doubt they would have filed suit in the first place if they were not near the debtor, otherwise how would they plan to appear? I don't think they would file the case and spend the money without knowing they could persue it. Some cases,(federal) can use the International shoe but not in this kind of creditor-debtor case. This is small potatoes and very easy to solve if annon acts quickly. Great discussion! |
| Anonymous | Tuesday, February 22, 2000 - 07:14 am
If this is a small claims action, then the creditor is looking for a cheap, easy way to get a judgement. Here is how you fight back:
Meet the creditor just outside the courtroom a few minutes before the case is called. Tell them that you intend to file a motion to change venue to superior (or whatever the name in your particular state is) court, and that you want a trial by jury. This is a motion the small claims court judge HAS to grant (he has no choice). Tell the creditors you are looking forward to the chance to "play lawyer" and that you intend to take full advantage of discovery, etc. Tell them you think it will be a lot of fun, and, if nothing else, a valuable learning experience for you. Then tell them that, in the end, years from now, if you still lose, you'll file bankrupcy.
Then offer them 5 cents on the dollar to settle now.
If they refuse to settle (they may think you are bluffing), then file the change of venue motion. Then on the way out of the courtroom, repeat your offer as a final offer. |
| K.Feathers-CarreonandAssociates.com | Tuesday, February 22, 2000 - 08:24 am
That is a good tactic to reduce the debt but remember: If they do not fall for it and judgment is granted and then they do as you suggest and "threaten Bk down the road" , then that lien may survive the BK especially if granted Pre-Petition. Just a thought. If you get on the ball now, then you avoid risking all that by negotiating with the creditor now and getting them to postpone court date or re-calander it. Remember, the creditor does not want to sue, it costs money. They do it as a last resort. While, if you are at their doorstep offering payment even reduced payment, your odds improve. on the other hand if you could care less about the risk of judgment then the tactic above is a good one. |
| Anonymous | Tuesday, February 22, 2000 - 08:41 am
The account was opened in los angeles county and sold to First Select in No.Cal. I was served 2/13 when my nephew-age 11 gave it to me, evidently it was in the screen door. Anyway, I have never been sued and have no idea what to do. Would I obtain a civil law atty? Has anyone used an atty in the los angeles area in a similar action. Any advice would be appreciated. Also, my mother quick-claimed her home to me 3 years do to illness, could they obtain a lien on the property?
Thanks. |
| K.Feathers-CarreonandAssociates.com | Tuesday, February 22, 2000 - 10:54 am
Mmmm. Sound like an improper service to me.... BTW, did you read our posts? You can't have an attorney represent you in a small claims matter. I would contact the court ASAP and say it was an improper summons,left in the door or given to a minor. Get time from that and negotiate with the credtitor to pay and avoid the whole lawsuit. Please read our posts above.
Kristi Feathers
CarreonandAssociates.com
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Notice: This is not legal advice and is opinions for general discussions only. Seek an attorney if you need legal advice. |
| Anonymous | Tuesday, February 22, 2000 - 08:04 pm
Yes, I read the posts above. What I meant was getting an atty to negotiate for me before I go to court.
Thanks |
