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Dave Kennett
Dave Kennett, Lawyer (JD)
Category: Legal
Satisfied Customers: 27689
Experience:  25 years experience in general law, including real estate, criminal, traffic, and domestic relations
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Can the lawyer of a plantiff cancel a deposition if an agreement

Customer Question

Can the lawyer of a plantiff cancel a deposition if an agreement is reached with the defendant before the deposition date
Submitted: 5 years ago.
Category: Legal
Expert:  Brandon M. replied 5 years ago.
Hello there:

Once the parties have reached a settlement, there is basically no reason for a deposition to move forward, and the deposition may be canceled either by the party (or his/her attorney) who called the deposition or by agreement.

I hope that this helps you to understand the law in your situation. Let me know if I may be of further assistance. Thank you.
Customer: replied 5 years ago.
Hello~So here is the full situation-----In 2007 I purchased a 2007 Ford Mustang. I wasn't able to make payments, it was reposessed, sold at auction, and after all was done and said, I owed about $13,000. I was unable to make any payments until May of 2010-- where I had agreed to pay $400/month. I paid that $400/month for 7 months.... and then had hardship for money.... I didn't pay anything since last November... I haven't been in contact with Ford's Lawyer yet... but I happened to be planning to contact them at the end of this month to offer a settlement amount as I just got married and my wife's mother is willing to help me out with a settlement to make this go away so I can move on with my life... Well, now 2 days ago I got a letter from Ford's lawyer telling me they subpoena'd my bank, and is requiring my bank to give testimony next Friday at a deposition hearing, and telling my bank that they want copies of all checks deposited to my account since March 1, of this year....In the letter Ford's lawyer sent, they included a copy of the "subpoena duces tecum" they issued my bank, they included a copy of a "notice of deposition" to me, and they included a cover letter saying "If you supply the information requested in the subpoena by mail, or by facsimile transmittal on or before the time specified in the subpoena, it will not be necessary to appear in our office and the appearance date set forth on the subpoena will be canceled.So that all said, here are my follow up questions....Would printing out my bank statements for the said time and sending them to them be sufficient? Or do you think it must be the check faces themselves? They aren't going to find out much... March, April, and May were slow for me, I had nearly ZERO money in my account...but then I did deposit checks that were wedding gifts in the account a few weeks ago that were significant (totaling $5,000) --- but that was immediately spent on paying off my wife's credit card that was used for our honeymoon... so I am back to nearly $0 there... nothing for them to take... my wife has $7,000 in her other account.... but that is not the account that is in question..... I don't even know for sure that Ford's Lawyers knows I got married.......BotXXXXX XXXXXne, I have the ability to offer them a settlement via my wife's Mom. I want to be able to call on Monday, tell them ONLY what they NEED to know, and give them ONLY the records that they require and make this all stop.... make them cancel the court deposition, have them accept the settlement offer..... and FINALLY put this behind me.Well my back is up against the wall sorta now, because I have been reading alllllll over online that you should typically start with an offer of 25%, and sometimes they will accept that, and typically always settle for 50%....... So I had been planning to do that, and that is what my mother in law is expecting... but I know at one point, Ford's lawyers had told me "a settlement offer has to be 90% of the amount owed for us to accept it--- any other offers must be submitted to our client (Ford) for review---I want this to go away for as little as possible $$ wise, and DO NOT want this deposition to happen... what is your advice?
Customer: replied 5 years ago.
Please help me... do I need to break down questions or info better? Your help is GREATLY appreciated.
Expert:  Dave Kennett replied 5 years ago.

Dear JACUSTOMER - If the subpoena was to your bank then your bank would have to be the one to send the copy of the statement. If the Notice of Deposition was for you to appear then you can contact the lawyer and see if a copy of the statement will suffice to get the deposition canceled. There is no set amount that must be offered in a settlement and it is entirely up to the creditor whether to accept or not. I have found that offers of between 50-60% generally good starting points but that is just an overall estimate and does not necessarily apply in every case.

I don't know if you have considered bankruptcy protection as an alternative to all of this but certainly it is an option depending on your overall financial position. Ford will never relent until the matter is settled and a payment plan generally never ends. So unless you can come up with a lump sum offer that will be accepted this case will continue whether the depositions are canceled or not.

What they are doing now is trying to determine what assets you may have in order to make a determination of how much they are willing to settle for. They have a right to delve into your entire finances once they have a judgment so it is difficult to hide anything.

Customer: replied 5 years ago.
Thank you Dave~

So I beleive my last questions on the matter then are this-----
1) I am self employed as a freelance graphic designer, and am paid by clients via PayPal. I do not own any property, cars, or anything of any true value. The most expensive thing I do own is my laptop.... which was purchased for about $500 over a year ago. My bank account has less than $1,000 in it, usually less than $100. I did just get married (last month)--- my wife has about $7,000 in her bank account, and is employed, but is due to be let go on the 30th of this month. She has paid off her car (worth about $10K). Otherwise, she owns nothing of any value. We rent our condo.

So the question being, if they determine that I have nothing, do you feel an offer of 50-60% would possibly suffice?

2) I live in Los Angeles, CA now, where as this is all happening in Denver, CO....
that said the bank is the one subpoena'd for the deposition.... I was just sent a copy of the subpoena my bank got, and the "notice of deposition".

Getting to Colorado for this when I was told a week before its happening would cost me an arm and a leg I don't have to spend right now...so is it going to be detrimental to me to not be at the deposition (where they are going to find out from my bank I have nothing for them to take)?

3) Is it actually in my best interest to let them have the deposition so they can find out I have nothing to take? So when I offer to settle after the deposition they take it? Or is it best for me to contact them Monday before the deposition and try to get them to take the 50% settlement offer before they go so I can avoid having them try and tack on court fees etc from the deposition?
Expert:  Dave Kennett replied 5 years ago.
If you are in CA and the case is in CO then I would simply let them proceed with their action with the bank. I see no downside to this and your wife is not responsible for anything since you were not married when all of this occurred so the community property laws would not apply. You are always permitted to try to settle a case so you can make an offer at any time. They can't do anything to you in CA until they have the judgment certified in CA.
Dave Kennett, Lawyer (JD)
Category: Legal
Satisfied Customers: 27689
Experience: 25 years experience in general law, including real estate, criminal, traffic, and domestic relations
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