Consumer Protection Law
Consumer Protection Law Questions? Ask a Lawyer Now.
First of all, let's make sure they are still within the statute of limitation to even be able to sue you. How long ago was the date of default on this card?
thanks for taking my question.
it has been less than 4 years, which is under the statute of limitations in CA, right?
Yes, that's correct. Okay, so to answser your original quesiton then, it is by federal issue that a creditor must supply you with the original documentaiton to prove ownershup of the debt. In fact, here is what the creditor has to provide:
Under the FDCPA, you are allowed to validate this debt, and the creditor (in this case, the collection agency) must show you proof that you owe the debt to the collection agency (not to the original creditor.) If you have asked for validaiton (in writing), and they have not provided it to you, then you can ask for the action to be dismissed.
i know they must supply these documents through the discovery process- and i have requested copies of them as well so i won't be blindsided at trial if they show up with them (Unifund CCR, the Junk Debt Buyer, sent a subpeona to Citibank, my original creditor for these documents)
my question is if i can file a Motion to Dismiss the trial BEFORE it gets to Discovery, just based on the fact that they violated the Trial Rule when they filed their Complaint.
i have already gathered this information thus far.......
This sounds like it is from a site that is selling something. lol. There is no statute in CA that says the contract has to be attached to the summons and complaint or an MTD can be filed. You can file a Motion for Summary Judgment or a Motion for Judgment on the Pleadings after you have answered the complaint and raised an affirmative defense as to the fact that they have proved no privity of contract with you.
yes, they were selling it......and i bought it! lol...... but it has helped me answer the complaint and file my documents, etc. it really was worth the $30 it cost me....
so in California they don't have to have ANY PROOF OF DEBT, or EVEN AN AFFIDAVIT OF THE DEBT filed along with the complaint to BACK UP THEIR CLAIM??????
That is not what I am saying, I am saying that an MTD will not be granted just because they do not attach proof of debt to the summons & complaint. You can still ask that the case be dismissed if they cannot provide original proof of the debt as the case goes on. That being said, if you want to file the MTD, then go ahead and file it. All the judge will do is deny it, BUT the plaintiff may ask for a dismissal without prejudice just because they are not prepared to show proof of debt. It is worth a shot.
i wonder if any other states require some sort of proof to be filed at the time of the Complaint....these documents that i purchased say that its true in INDIANA...TRIAL RULE 9.2...... i wonder if there's any truth to that!!
i think i'm going to file anything and everything that might help get my case dismissed.
i was just hoping to get it dismissed before taking it all the way to trial.... so i'll file the paperwork and just see what happens!!
Yes, IA requires it, as you can see here: http://www.in.gov/judiciary/rules/trial_proc/#_Toc202325641 I would say to go ahead and file it. The court is usually more lenient with pro se litigants, so if the judge knows of a reason he can grant the MTD, he may do it without you having to argue it.
If you have any more questions, I will be happy to answer them. Please don't forget to accept one of my answers so I can receive credit for helping you. Thanks!
thank you kindly for your help!
i'll give ya a tip too for all your time and effort!!
thank you very much!
i am in the midst of filing all my paperwork so something may come up..... this is my first Pro Se defense so i am learning as i go.....
i'm just hoping it all gets dismissed ASAP! i've never had to argue my case in a court before, and hopefully the Plaintiff doesn't get their hands on any documentation!!!!
wish me luck-
i also read this about a SWORN DENIAL. does it apply in CALIFORNIA COURTS??
"Now your sworn denial is very powerful. It will eliminate the Sworn Affidavit of Account that the Junk
Debt Buyer attached with your complaint. Will not work if Statements from the Original Creditor have
When a sworn denial is filed, the debt collection attorney cannot rely upon a sworn affidavit of
account, but must instead produce a live witness to testify about the debt. The requirement of a live
witness changes the dynamic of the collection action considerably. The likelihood that the action will
go no further now increases again.
I YOUR NAME HERE deny this is my debt and if it is my debt, I deny that it is still a valid debt and if
it is a valid debt, I deny the amount sued for is the correct amount.
SHOULD I FILE THIS TOO??
Do you owe the amount in question?
You file an answer to the complaint which you sign and have notarized and it is a verified answer. There is no need for a sworn denial, simply answer each statement in the complaint with "admit" "deny" or "insufficient information to form a reasonable belief to the allegations in this paragraph and leave Plaintiff to its proof thereof." Then you assert any defenses you may have, such as suit barred by statute of limitations, accord and satisfaction, or whatever other defenses you have. You then sign your answer and have it notarized. Then put a section that says "Certificate of Service" and the name/address and date you mailed a copy to the other party to the other party. Then file the original with the clerk of court and get the clerk of court to stamp one copy as proof of filing.As far as discovery, you can serve that at the same time you send your answer to the complaint or at any time after before the court orders discovery closed.
yes i have already filed my answer with affirmative defenses with the court (cost me $205 in Beverly Hills) and sent a copy to the Plaintiff's Law Firm. and filed the notice of appearance as well.
i thought that filing this IN ADDITION to that may be more powerful.......or possibly......as it says........make them BRING A LIVE WITNESS to the trial.
is there any truth to that??
great, i doubt they'll ever bring a live witness to court.
that'd be way too much trouble for them, i think.
hopefully then, they'll just move on to easier fish to fry!!
crossin my fingers........
also, is there a limit to the number of requests for documents in CALIFORNIA?? (my do-it-yourself book says some states limit the number to 5.......whereas in other states it is UNLIMITED).
i currently have 23 INTERROGATORIES, 21 ADMISSIONS, and 21 REQUESTS FOR DOCUMENTS. i'm gonna file it MONDAY. its 15 pages long.....they can have fun with THAT!!!!
i'm not over-the-limit am I ???
i'll pay u again next time. i'm sure to have more questions!
No, not at all. Go ahead and post your question. Then, when I post my answer, you will have the opportunity to accept it like you did the first time.
this is an easy one.....i mailed my first set of interrogatories, request for admissions, and request for production of documents to the plaintiff's lawyer.
they have 30 days to respond, right??????
but when i went to the courthouse, i tried to file a motion for Summary Judgment based on the fact that i had answered thier complaint and raised an affirmative defense as to the fact that the Plaintiff has proved no privity of contract with me, the Defendant.
they wanted $200 to file that motion (in Beverly Hills $$$$$$$$$), and said it would take 70 or 75 days for my Motion to be heard in court.
so do they have 30 days, or 75 days?? because what if they DON'T have it in 30 days, but DO have it within 75 days in time for the hearing???
If they don't have it within the 30 days, you can still file the Motion to Compel and ask for a hearing for that as well. The case needs to proceed as if your MSJ will be denied. That way, if it is, you already have your other bases covered. It will not cost you anything to file your Motion to Compel.
ok, well, i didn't actually file the MSJ yet....just b/c i heard it would take 75 days and cost $200. i wasn't sure if that was still a good idea.
should i move forward and file the MSJ as discussed?
and then also file a motion to compel after 30 days? (if they have not responded)??
no problem!-just wanted to make sure i didn't miss ur post!
so i'll move forward with both MSJ and, if necessary, MTC.
did i tell u the junk debt buyer sent a subpeona to CITBANK for the original documents??
hopefully CITIBANK won't respond. but i requested them too in the Discovery so i won't be blindsided at trial.
BUT DOESN'T THE JUNK DEBT BUYER STILL HAVE TO HAVE THE PROPER ASSIGNMENT FROM CITIBANK??? THEY DID NOT REQUEST SUCH A DOCUMENT FROM CITIBANK IN THE SUBPEONA....
No, you did not tell me that, but it is not uncommon. They have to respond, by law.
You can ask that they show assignment of the debt, yes. They need to show 3rd party privity of contract with you.
ok, so even if they can produce the ORIGINAL CREDIT CARD DOCUMENTS, they must still HAVE SOME SORT OF ASSIGNMENT DOCUMENTS???
like a PURCHASE AGREEMENT or something??
They have to have both. They need to prove that 1) this is actually your debt and 2) that they now have privity of contract with you because they purchased this debt.
They can prove it is your debt by proffering old statements--they don't actually need the credit card application. But then they will also need to prove that they purchased the debt from Citi--so yes, some sort of purchase agreement would suffice.
what if they purchased it from another Junk Debt Buyer?
do they have to the entire string of documentation??
or must it be purchased DIRECTLY FROM CITIBANK?
(i'm almost done with questions...thanks for answering them all.......and i'll give ya a tip again, too)
I really appreciate your attention to detail and your analytical mind, so I enjoy being able to help you with this.
They need to have documentation from the entire string of buyers and sellers.
thank you for the compliment!!! - i am actually beginning to study for the LSAT myself..... i went to undergrad at Pepperdine university and i think they'll accept me for Law school if i can get a 160 or better on my LSAT. that isn't a rediculous score is it??? i think i can pull it off- and i checked the previous students scores and they were all around 160 or so.
SO, i'll bank on them not having all the documentation from the entire string of buyers, just in case they get the subpeona'd forms from CITIBANK-
Fantastic! Well, you are getting good practice then. I got a 162, but took lots of practice tests! You can do it, I'm sure.
Yes, that is a good assumption. If they did not buy it from Citi Bank, then request proof of the whole chain of command. You can even send amended discovery over to them to request this, of you want to.
cool- i've got 10 practice LSAT'S as well as a study guide that has 2 more LSAT'S and lots of tips for the logic games, etc.
nice job on the 162..... i'll be shooting for the same!
i did request the chain of docs in the discovery, so we'll see if they can come up with it.
i'll keep u posted!!
are you online??
i have a quick question.....
Yes, I am here now. How can I help you?
hey- just got a reply from the Plaintiff's lawyer.
they said i went over the limit in my discovery requests.
CCP 94(a) allegedly says i can only submit 35 discovery requests, and as you remember, i submitted about 60.
are these guys telling the truth? i thought i was UNLIMITED in CA!!
now they want me to resubmit my discovery requests, which i assume will give them ANOTHER 30 DAYS to reply.
California curbs various discovery devices by its "Rule of 35." It limits the number of specially prepared interrogatories or requests for admission, with possible supplementation of earlier answers before trial. In limited civil cases, the parties are generally confined to 35 total discovery requests for all forms of discovery, including only one deposition. (Cal. Civ. Proc. Code §§ 94(a), 2030.030(a)1), and 2033.030(a).)
i was hoping they were bluffing.
do u remember me asking u before if i was limited in my discovery requests???
u replied i was UNLIMITED (see previous posts)
anyway, no crying over spilt milk, right?
hopefully 30 days from now they still won't have documentation.
i'll resubmit my discovery requests then.
they supeona'd CITIBANK already for my account documentation, hopefully they won't recieve it in time (or at all) !!!
i'll keep u posted.
what amount should i give u for today's session? $$$
i'll get u next time ;)
happy thanksgiving to u as well!!!
well, i just rec'd the packet of material from my discovery requests. they pretty much answered everything, they had copies of my statements, copies of checks i used to pay my balances with, and a letter from citibank confirming that the collection agency owns the debt.
it looks like i'm screwed. they've got all the proof they need at trial.
i just go to court and take my lashings??? i don't have the money to pay it, so are they gonna garnish my wages or what?
what is my best strategy from here forward??
If they have proved all the necessary elements, and they sound like they have, then the best you can do is to try to settle with them for a lesser amount than they are asking for. Otherwise, if they receive a judgment, they can then obtain a writ of garnishment and garnish your wages, yes. They cannot garnish more than 25%. Here is some more information about what to do to potentially stop a wage garnishment if it happens: http://www.ehow.com/how_5041928_stop-wage-garnishment-california.html
thank you. that is good info on wage garnishment.
could the judge rule in favor of the Prosecution,
BUT NOT allow wage garnishment??
for financial reasons, etc.?? (i can be prepared to show reasons at court)
or is it automatic that if the prosecution wins they get to use wage garnishment as a tool for collecting the money??
The judge can rule in favor of the Plaintiff (they are a plaintiff in a civil action and the state is the prosecution in a criminal action), but that means they only have a judgment in their favor. They still have to go back to the court to seek a garnishment. When they do, you will be served a summons just as you were when the lawsuit was originated. You will have a chance to go back in front of the judge to show why they shouldn't get 25% of your check, etc. You will want to take bank statements, tax returns, pay stubs, all your monthly expenses, etc. The judge can certainly order that less than 25% is taken.
so it sounds like my next battle is over wage garnishment
or, possibly, settle for an amount out-of-court with the collection agency.
do u think hiring a lawyer at this point to help me would be beneficial??
No, I don't think so. You will probably pay the lawyer as much as you would save on any settlement you could negotiate yourself. The best thing to do is to call Plaintiff's attorney and offer a settlement amount. Since litigation is already in progress, they probably won't accept much less than 75% of what they are claiming you owe, if that. But just feel him out and see what the client would be willing to accept. If they are not willing to work with you, the best you can do is to ask the judge to reduce all the late fees and interest they have charged you, which is probably pretty excessive. He can do that. You can also tell the judge you have tried in good faith to settle with the company but that they were not willing to accept a reasonable settlement. The court really doesn't like to hear that. And again, if worse comes to worst, all they can take of your pay is 25% or less, if you can show that 25% is going to be a hardship. So do what you can to get the balance reduced to something you can afford. The creditor should work with you as seeking a wage garnishment will just add to their costs. Plus, if you change jobs or anything like that, they will have to get another one. So they would rather have you making payments to them or to settle with them.
i posted my case on LegalMatch.com
Golden&Cardona replied and i just spoke with them.
they will take the case on partial contingency: $500 up front, and $1500 more if they win or get the case dismissed. if they lose, all i pay them is the $500.
that's $2000 total if i win.
or $500 + wage garnishment if i lose
if i settle for 75% with collection agency that's $3750.
i might give these guys a shot to fight it.
thank you for the advice.
i'll hear what these guys have to say, but won't pay em anything.
by the way, i found out that my original balance was only $4000.
all the rest is late fees.
should i try to settle based on the $4000 amount?
btw, why don't ALL collection agencies take me to court???
it sure seems more effective than just sending me those letters!!!!
also, i take the LSAT feb 6th
study class with TESTMASTERS begins on Saturday.
been scoring around 160....some sections as high as 170's!!!
but i usually run out of time b4 i finish..,....but almost all the questions i complete i get right!! wish me luck!
Litigation is expensive and they are not always sure if they can collect even if they get a judgment. They have to pay the attorneys up front. Some people just quit their jobs when their wages start getting garnished, so it isn't always lucrative. If they can get a person to pay just by spending money sending letters, that is what they want to do.
Good luck on the LSAT! I was in the 160s on the practice and did the same on the exam. Cheers!
If you don't have a job, they can't garnish your wages. Your employer has to withhold them and send them to the creditor. They don't usually like you working the first year of law school anyway. But if you are working somewhere, then technically yes, they can garnish your wages while you are in school. They may not get the 25% if you make a good case to the judge about needing the money for school, etc.
Are you on FB James?
not on FB. probably the last person in the world, huh? maybe 2010 my resolution will be to get on FB.
started my Testmasters lsat review. first test i got a 157....... 30 days till the test....i gotta get it up to 160-170. i'll keep u posted.
found a lawyer on legalmatch.com who said i can still win the case. he's here in Santa monica. he said the only proof of the debt provided by Prosecution is Hearsay. it is not a formal bill of sale, but an affadavit from the OC. he said we can subpeona the employee who provided the affadavit from the OC, and easily find that they know nothing of the case, but merely read a computer screen which said that my Account was sold.
anything short of a bill of sale is not acceptable evidence, apparently.
keep u posted!!
Well let me know if you ever get on FB. It is a good networking site and you may want to consider it.
I thought they had proved privity of contract in your discovery packet? If not, the attorney is correct and you can still win unless they have the bill of sale. That is, if you argue your case on these grounds. It sounds like you have elected to get representation, which may end up paying off for you in the long run since all the elements of the case have not yet been proved. Good luck and please do keep me posted!
Anything in the 150s for the LSAT is still VERY respectable!
i thought they had proved privity of contract as well. they provided an affidavit from the OC (citibank), which listed that they had sold/assigned the account to Unifund CCR.
i thought it sounded prettty legit, but when i spoke to the attorney, he knew exactly what i was speaking about without even seeing the affidavit. he said that was NOT good enough to hold up in court.
but, my lawyer informed me that the OC employee who signed the affidavit would have to be subpeona'd and cross-examined to prove he/she had no real information about my Account and of course, no bill-of-sale to back it up.
that goes beyond my level of experience at this point in time, he's gonna charge me almost $2,000 to handle the case. but if i lose, i'm liable for up to $8000, plus the marks on my credit report.
so, ya got to know when to hold 'em and when to fold 'em right???
so i'm gonna take off my lawyer shoes and let him take the lead at this point.
i'll def. keep u posted and may have more q's for you as i go, just to make sure this lawyer isn't pulling the wool over my eyes.....
160-170 is my goal on the lsat. i know i can get it with hard work, only 30 days to go!!
thanks for your support-
hi lady lawyer-
it's been awhile since we spoke last. just wanted to let you know my lawsuit goes to court in August. I paid a lawyer to handle it for me. thanks for all your advice, and i'll let you know how it turns out.
And ALSO- i got into law school!! i'm going to Chapman Law School in Orange, CA starting in August 18th. They have a great Tax Law program that i'm going to go into. So i'm really excited about that. :)
Just thought i'd let you know..... i hope all is well with you!!
Thought I'd drop a line to see how you are doing. I just finished my first set of finals at Chapman Law. Pretty intense, hopefully I did well.
Have a Merry Christmas, and I'll be sure to recommend you to anyone I know who needs some guidance!
Hello James, darling! Thanks so much for stopping by to wish me a Merry Christmas! A Big Merry Christmas to you and yours as well! Those first set of exams are no joke, to be sure. They are purposely trying to weed out the ones that can't hack it. Keep your chin up. Your next two years will be a breeze. How did everything with the credit card debt work out?
u around? I have a new question for you. and i'll be happy to compensate ;)
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