Posts Tagged ‘California Superior Court’

What difference is there with an attorney or DIY?

Sunday, February 22nd, 2015

There are plenty of sound reasons to hire a seasoned professional, who has the knowledge, tools, and experience to do the job correctly through to completion. Clearly, others agree with me by their referrals of folks in need of debt collection lawsuit defense or debt settlement. Superior Court dockets around California are flush with money judgments against people who had no legal representation, though the debtor filed documents in the case that he or she believed would prevent a money judgment.

A few people assume that lawyers simply type their new client’s name and case number on a standardized legal form, then pay the court’s fee to file it. Trial could be many months off, so what happens now? Next is the discovery phase, in which both sides get to ask the other for their documents and evidence of the case, to prepare for trial. Lawyers who do these cases are ready, so expect to receive those requests from the debt collection lawyers soon after your response is filed. They can also ask to have you appear in their law office to answer questions under oath at a deposition. Is this something you can handle without an attorney present? You may also expect the debt collection lawyers to file a “motion” stating that you did something incorrectly, which can result in your papers being stricken or you may be ordered to pay more money, known as “monetary sanctions,” to the collection lawyers. If you are fortunate to get to trial, what do you say when the debt collection attorney asks you if this was your debt and if you disputed any of the credit card statements that the judge is reviewing? The knowledge of how to deal with each of these experiences is not learned in school, it is learned by handling these types of cases every day.

Some people believe that they have the same tools as a debt collection defense lawyer uses for taking on a debt collection law firm: a computer, a printer, and the internet. As anyone with a new computer can remind those people, a computer is useless without certain programs and the information those apps require. Even MS Word is a blank slate that needs legal forms in document files, before a lawyer can file it in court. There is also the challenge of representing yourself, when it comes time to serve a document. Serving a legal document must be done by someone who is not party to the lawsuit, which is why a process server, a lawyer and anyone in the law firm can serve legal documents.  Anyone but a party, who is at least age 18.

I cannot imagine someone believing that they have the experience of an attorney who every day represents consumers against debt collection attorneys. Lawyers who rarely handle debt collection cases don’t have the experience to know how much these cases often settle for and which debt collection agencies and creditors settle for less and which demand more. That is why many lawyers who do not handle these cases quote astronomical fees to prospective clients, because they don’t have any idea how much time the case requires and they’d rather not deal in unfamiliar territory. Also, because those lawyers don’t routinely handle debt collect cases, they will take much longer getting papers together and making sure, from start to finish, that key areas have been covered.

When you hire an attorney with the experience handling debt collection cases, you benefit from his or her knowledge, tools and experience, which ends up saving money and reducing the risk of bad outcomes posed by such lawsuits.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler
Facebook: www.facebook.com/SoCalConsumerLawyer

Living Below Radar, Best Time for Hardship Settlement Offer

Wednesday, September 18th, 2013

Question: I am living below the radar, not paying off any debts. I believe that several debt collection lawsuits have been filed against me, which I have ignored. I am not sure if they have gotten judgments against me or not, but there is nothing in my name and all my transactions are in cash, even my income is entirely cash-based. Is there a good time to come out of the shadows and deal with this and, if there is a good time, when and how? Thanks.

My response:
You appear to be following a mish-mash of (a) my “Don’t Pay a Dime Strategy” in which the debtor does not pay the debts in the hope that the creditor or debt buyer will miss the statute of limitations and (b) some other advice you found somewhere commonly referred to as “Judgment Proof.” I am not a fan of your current strategy, because anyone with a house, bank account, or a job that pays more than the minimum wage in California, would not be judgment proof or would be subjected to massive judgments once they get a job, bank account, or real property.

The result is the debtor ends up overpaying to resolve old debts, because the judgment creditor (the person or entity who has a judgment for money) gets a judgment for the full balance, plus accrued interest, court costs, and sometimes attorney’s fees. Defending my clients from debt collection lawsuits has saved my clients so much in most cases. If you’ve ever experienced a small bulb growing into a large flower, you can relate to how these debts blossom and bloom from a simple credit card balance to a default judgment. For the judgment creditor, it’s a sweet smelling, colorful flower. To the judgment debtor, it’s a Venus fly trap!

I have posted several blogs about timely responding when served with a debt collection lawsuit. I have also explained how default judgments are obtained without the debtor knowing about it and what can be done to resolve those old default judgments. I have blogs and legal guides on Avvo.com that explain how to settle and what documentation is essential. Please review my postings, which are organized by several categories.

Great question on when is a good time to settle old debts, including old default judgments. Of course, right now is a great time to settle old debts, especially if the debtor has no assets and very low or no income. When the judgment creditor is unable to collect most or all of the judgment and the debtor could be a candidate for Bankruptcy Chapter 7, that’s when the debtor can propose a “hardship settlement offer,” because they have an actual financial hardship. The offer works best if the debtor has access to additional funds to make an offer that is greater than what their assets and income can provide. For example, since retirement funds are beyond reach of civil judgments, borrowing from a 401-k, a family member, or on an open line of credit, are ways to get the funds for a hardship settlement offer.

How you come out is up to you, but this can be done between the debtor and the debt collection agency directly or the debtor may want to use outside resources. Perhaps there is a family member who is comfortable doing this or hire a debt collection DEFENSE attorney to negotiate. The key is not paying too much for the settlement process, to leave enough to propose an attractive settlement amount. Too little and the debt collector will reject the offer and wait.
Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler
Facebook: www.facebook.com/SoCalConsumerLawyer

Ignoring a Debt Collection Lawsuit That Was Not Personally Delivered

Tuesday, September 10th, 2013

Question: Is it possible a debt collection company can sue the debtor on an unpaid credit card if they have moved to a new address? I have not received the lawsuit papers personally, but I learned from the California Superior court’s online case summary that a debt collection lawsuit has been filed and it states they served me. Can’t I ignore this?

My response:

Yes, the debt collection company can sue for an unpaid debt, even after the debtor moved to a new address, but the lawsuit must be filed in the proper court. In particular, the lawsuit can be filed where the defendant lives when the lawsuit was filed or where the defendant lived when they first entered into the agreement for the credit card.

After that, the debt collection lawsuit must be served in one of the ways permitted by the California Code of Civil Procedure. I explain in other blog postings the two main ways that a defendant can be served in Superior Court on a lawsuit: personal service and substitute service. Substitute service requires a reasonable number of attempts (typically, at least three) at the defendant’s residence or place of business. In your situation, did they try to serve you at your new address or where you work or do business a reasonable number of times? Do they know your new address or did you give that to them at any time?

As the videos on my home page explain, ignoring a debt collection lawsuit is one option of several. I’d recommend exploring carefully each of your options and then call a debt collection DEFENSE attorney (which is what I do) to narrow what options are most appropriate for you and your situation. Putting off dealing with a lawsuit is not suitable for most people, in my opinion.

The way I would compare a defendant’s putting off dealing with a debt collection lawsuit and letting it become a default judgment is that it is similar to not going to the doctor for treatment and anti-biotics of an infected wound. How long before the untreated, festering wound gets worse? How long before the infection spreads and can harm other body parts or even cause the patient to become seriously sick all over?

An unpaid default judgment can be difficult to set aside and is subject to the review by a judge, if after the proper motion is filed. A judge might conclude that the defendant was aware of the judgment and failed to promptly file a response when aware of the lawsuit or promptly file to set aside a default judgment. Thus, an older default judgment becomes almost impossible to set aside and it not only grows with interest at 10 percent per year, but other costs can be added, possibly attorney’s fees. A judgment also impacts, for most people, their personal credit scores for many, many years, making it hard to qualify for credit, property, and sometimes insurance and a job.
Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler
Facebook: www.facebook.com/SoCalConsumerLawyer

Is the worst that can happen being thrown in jail for an unpaid medical debt?

Friday, July 5th, 2013

Question: I had to go to the community hospital, as I was really sick and thought I was going to die. I applied for county indigent assistance on my bill and thought that they would take care of it, as I was unemployed. Then I received debt collection calls demanding that I had to pay more than the original bill. I could not pay it, but now I have been sued and they want to also be paid interest and the court costs. What is the worst? Is jail time possible, if I cannot pay?

My Response:

The question of debtors prison and county jail should be the furthest thing from your mind on an unpaid personal debt. When the Constitution was written and ratified by the states, it allowed Congress to provide a safety valve of filing for bankruptcy, as a last resort to discharge most debts for those who qualify. (Article 1, Section 8, Clause 4.) In 1833, federal law eliminated prison for private debts and the states followed. Now, it would be amazing to find an instance where a person is jailed in any state, simply for not being able to pay their personal debts.

Nevertheless, fear of debtor’s prisons are stoked regularly by the news media, even CBS news uses provocative headlines to catch more readers. As recently as 2012, CBS ran a report with the headline: “Jailed for $280: The return of debtors’ prisons.” In fact, the report had nothing to do with the headline. Someone reading the headline would probably believe that not paying a $280 bill or credit card may result in a jail sentence.

Upon reading the entire 2012 CBS News Report, however, it is clear that there is no return of debtors prisons in the USA. The people who were threatened with or spent time in jail were there because they failed to appear in court when ordered, for criminal acts, or they failed to pay court-imposed fines associated with criminal convictions. The other issue in the CBS report was that several states allowed collection charges to be added on top of already expensive court fines.

A judgment is not inevitable if a debt collection lawsuit is filed against an individual, particularly if defended by an experienced debt collection defense attorney, who will handle the case to get it resolved before trial, either by settlement or dismissal. Moreover, even if a money judgment is entered by the court against a person, there are numerous ways to get that judgment resolved and NO chance of jail time, provided that, when so order, the debtor appears in court, answers questions truthfully, and does not commit any criminal acts that are punishable with jail time.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler
Facebook: www.facebook.com/SoCalConsumerLawyer

I was just served with a credit card collection lawsuit. Now what?

Monday, March 4th, 2013

Question: I stopped paying on my credit card a while back, because I was tired of paying a high interest rate and I did not have enough money to pay it all off. I sort of suspected that this debt would be sold to a debt collection agency for pennies on the dollar, but the papers are asking for me to pay the full balance, plus the high interest rate that I thought I was going to avoid. I contacted the company and they are holding firm on that number. I don’t have the money for this and my income is too high to qualify for a Chapter 7 bankruptcy.

My response:
First, please check out the short videos on my home page. The first video is a quick overview of all options that are possible to the situation of being served with a debt collection lawsuit. That will help you narrow down your options to the one or two that suit your situation and your own preferences. Your posting did not specify what bank had the original credit card or when you last paid it, which will help determine if they filed the lawsuit after the statute of limitations period had expired. That is very important in these cases and makes a big difference.

I’d then suggest reading my blog posting on the defendant’s Next Steps when the consumer has been sued in a debt collection lawsuit on a defaulted credit card. That blog explains how much time is appropriate to avoid a default judgment, as some people confuse a hearing date with the due date for a proper, written response. If you want to defend this lawsuit and have a good chance to settle for much less or possibly get the case dismissed, do not miss the deadline for filing a response or having a lawyer do this for you. It is usually 30 days from the date of being personally served, but please don’t wait for the last minute.

I don’t suggest that consumers or non-litigation attorneys try to handle the lawsuit defense for themselves, as I have seen too many people either pay way more than they should to settle with the debt collection law firm or they file papers with the court, which get stricken as being defective or improperly admit most or all of the debt collection lawsuit. Almost as bad, is when the debt collection lawyers press the case very hard against the defendant, using court procedures and formal discovery requests to overcome the defendant’s attempt to get the case to trial. I have some of these as PDFs on my website, in the Case Examples tab.

To avoid the risk of losing a money judgment for the full balance in the lawsuit plus accrued interest, I urge you to contact an experienced consumer attorney, who regularly handles debt collection lawsuit defense. An experienced attorney should be able to help negotiate a satisfactory settlement or get the case dismissed, depending on the admissible evidence that the debt collection law firm can obtain or not obtain.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler

Facebook: www.facebook.com/SoCalConsumerLawyer

Collection Call from Out Of The Blue for a Credit Card Not Paid In Five Years

Saturday, February 2nd, 2013

Question: Is there any chance that I can be prosecuted for not paying credit card from five years ago? I have been clean and on probation and received a call out of the blue that they have sued me for $2000. Help, I need to stay out of jail. They said they would not dismiss until I make a large down payment and sign an agreement for monthly payment until paid in full, but I cannot afford this.

My Response:
I am very suspicious when a consumer gets phone calls from collectors from out of the blue. If I read your question correctly, you have not heard from these people, never received any collection letters from them, and you were not served with the summons and complaint. Though you did not pay this debt in almost five years, there are those debt collection agencies which prey on consumers for old debt that are expired, because of the statute of limitations.

In California, a debt not paid in more than four years is almost always past the statute of limitations, provided that a debt collection lawsuit was not filed within the correct limitations period for the particular account. Thus, the filing of an untimely lawsuit or threatening to sue you for an expired debt also violates the Fair Debt Collection Practices Act (FDCPA) for harassment and misrepresentations. FDCPA violations can allow the consumer-victim to recover in court his or her actual damages, statutory damages, court costs, and attorney’s fees.

Since you have not received anything in writing from this collection agency, please advise this collector that you need something in writing and to send you the required initial letter, which contains the mini-Miranda statement, required by the FDCPA, for initial contacts of a consumer regarding collection of a debt. Verify that they have your correct mailing address. I do not believe that you should give them your cell phone number or email address, to protect your privacy, but you regular mailing address should be fine. You really don’t want them to contact you in too many ways, regular mail and regular phone calls at home are more than sufficient.

Assuming that they did file a debt collection lawsuit within the proper statute of limitations period, you need to get a copy of the lawsuit and understand your options. The first video of my website’s home page is “Understanding Your Options” when sued on a credit card debt. Please watch my video and a few of my blog postings, such as “Next Steps,” which explains what steps to take and the timing involved, so that you will understand the deadlines that are coming up for you. Please consult with a debt collection defense attorney to ensure that you have covered your bases.

The short answer to your question about going to jail for a probation violation is that our society does not have “debtors prisons.” We did away with that at the time we founded this Country. I would want to review the terms of your probation, but it is doubtful that missing payments on a debt or being sued for an unpaid debt would violate probation. Also, I would not tell the debt collection agent about your probation, as it is none of their business. If you discuss this, I can assure you that they will make all sorts of statement to belittle you. If they threaten you with trying to use this to get you in trouble criminally, that may also be a violation of the FDCPA.

Until you verify whether or not a debt collection lawsuit has been filed, I would ask for the documentation of this lawsuit, the debt collection letter, and check with the court’s online to see if you can determine if the documentation is genuine. Also, reviewing your own personal credit reports may help yield information about this debt collection agency and if there are outstanding judgments against you. I have a legal guide on Avvo.com that help people navigate case information that they can get for free or almost free online. Otherwise, you may need to take a trip to the local Superior Courthouse to ask of any civil cases have been filed against you.

When a debt collection agency calls out of the blue, be ready to ask for everything in writing and refuse to give in to their demands for your credit card number or banking information so that they can take your money over the phone. Until you have verified everything, you don’t know if the person on the phone is a scam debt collector or worse: an identity thief, who will take your credit card number to charge your credit to the max and your bank account information to clean out your account. Also, don’t provide this person with your SSN, DOB or DLN. All of these are private and should not be disclosed by phone from someone who happens to call you, even if they appear to know so much about a particular debt or other credit information about you.

A regular debt collection agent will understand and want to ensure that you get the information verified and in writing. A scam artist or identity thief wants you to give them the money now, right now, without anything in writing. Do not give into high-pressure tactics and risk becoming another victim of identity theft or bogus debt collection operations, collecting on time-barred debts.  Verify everything and consult with a lawyer. You could be waiving many rights by agreeing to pay on a time-barred debt from a high-pressure phone call.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler

Facebook: www.facebook.com/SoCalConsumerLawyer

DIY Collection Lawsuit Defense: Key Pitfalls

Tuesday, January 15th, 2013

Question: I am not attorney, but I want to represent myself in a debt collection lawsuit. What are the major pitfalls that I should study at the law library or online, so that I am ready to take the case to trial?

My response: There are so many books on the web that brag about having had one or two victories in court against debt collection lawyers. While I have gotten many collection cases dismissed for my clients and settled many others, when an individual expects to prevail in court on an unpaid debt, probably they have read too many web sites selling books and other materials that probably will do nothing, other than get a money judgment entered against them for the full balance, plus interest, costs and attorney’s fees.

Here are several of the major pitfalls, which is why it takes years of law school and experience defending debt collection cases, to really be able to have a sound strategy to help the client reach the outcome they desire for the case:
a. If the answer to complaint contains errors, the court may disregard it and enter a money judgment, if the Plaintiff’s attorney files a motion to strike or demurrer to the answer to complaint. Sometimes, the Defendant does not pay the court’s appearance fee.
b. The Plaintiff’s attorney sends written discovery to the Defendant or sets their deposition to answer questions under oath. If the defendant fails to respond timely and in proper form, the Plaintiff’s attorney can seek sanctions of more money or limit the important facts at trial.
c. The Plaintiff’s attorney can file a motion for summary judgment, which adds more costs to the case ($500). If granted, there is no trial, only a judgment.
d. The Plaintiff’s attorney can ask questions at trial of the Defendant, many of which might result in the court entering a judgment.
e. The court can set hearings and conferences that require both sides to attend. Missing these can cause the court to strike the answer to complaint.
f. The Plaintiff’s attorney offers evidence at trial that is hearsay or unreliable, but the defendant does not object properly or fails to explain why the evidence should be rejected, so the evidence is admitted and a money judgment entered.
g. The Defendant does not understand the rules that apply to the debt lawsuit, such as the Statute of Limitations, so they expend their efforts on incorrect views of the law and don’t pursue legitimate defenses that an experienced attorney would have found.

I have had many clients come to me after they try to represent themselves. They typically received papers from the Plaintiff’s attorney or from the court, but didn’t know how to respond, so that they are facing sanctions or have been sanctioned by the court for noncompliance. Or, even worse, a judgment has been entered at trial, but the defendant still believes that they should spend more time and money on an appeal.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler

Facebook: www.facebook.com/SoCalConsumerLawyer

Virtual Law Firm Prepared Legal Papers for Debtor Pro Per, Money Judgment Now Imminent

Thursday, November 1st, 2012

Question:
I found an attorney online and used my only good credit card to have his firm prepare and file the legal forms for me to prevent a default judgment in Superior Court. This was a lawsuit on an old credit card which hired debt collection lawyers in San Diego, California. I read that the collection agency paid pennies on the dollar for my account.  My attorney said they did great paperwork, and that I can handle the rest of this myself, since their papers were so thorough, and that I should win a dismissal at trial.   Now the collection lawyers filed papers for a full money judgment, plus they want their attorney’s fees, too.  I don’t know how to respond to this and my lawyer now wants more money to prepare the papers, otherwise it will become a money judgment. No trial, just a judgment. This is very upsetting and no one told me this might happen and now I may need to explain this to the judge.  Help!

My response:
Virtual law firms preparing legal papers, without representing the debtor consumer, is a new low for lawyers.  In my 19 years as a lawyer, I understand why you should be upset. Lawyers are supposed to take responsibility for handling the case, not dump a bunch of papers onto their client without any guidance.  When a lawyer prepare the legal forms for someone as a “pro per,” then the client is 100% responsible for what happens next and for dealing with the debt collection lawyers and their debt collectors.

Did you know that the collection lawyers still call you and file papers in court to get a money judgment without trial?  Who would be comfortable with that. If you have a lawyer on the case, then you should not need to deal with debt collection calls. Filing the initial papers and sending some written requests is the tip of the iceberg, it does not win the case, without an attorney backing up those documents with actual, legal representation and efforts.

Also, what happens if the case goes to trial?  Do you know how to object to improper evidence, when to object, and what are proper objections? These are legal skills that lawyers take years to develop, even after several years studying at law school and passing the bar exam. I have read trial transcripts of a debtor who represented himself at trial, and he objected at all the wrong times and did not object to the evidence that resulted in a full money judgment against him.

I agree with you. Filing the documents for you and then leaving you to defend this lawsuit is shocking. Perhaps I am too old school, but if a judgment for the debt is entered against you, then I don’t see how this lawyer helped one bit. They charged you money and gave you some sheets of paper that looked really nice, but now you must hire an attorney to see if the case can be salvaged, before the court enters a judgment for the full balance against you. You should call me or another experienced lawyer to oppose this motion and take the immediate steps, before the trial date and to prepare for trial.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler

They did not say, “You’ve been served,” so can I just ignore the Summons Form SUM-100?

Friday, September 21st, 2012

Question: The Summons (Citation Judicial), Form SUM-100, that came with the lawsuit for an unpaid credit card debt has a handwritten date to the left of the Clerk’s signature line.  The summons does not have a date at the bottom, where it says “Notice to Person Served.”  Box 1 is checked for individual defendant.  Someone handed it to me a week ago, but they did not say anything, such as “You’ve been served!” I just received a letter from the attorney firm that says I should call them to settle, because I was served.  Can I just ignore this, until they come back? If I must respond to it, when does my 30 days expire?

My response:
The date on the summons next to the clerk’s signature is the date the summons was endorsed by the Clerk of the Court, typically the same date as the collection complaint was filed. Thus, the summons date should match the complaint filing date.  It would be pretty rare for a lawsuit to be served on a defendant the same day that it is filed with the clerk. Thus, the filing date is usually not used to calculate the due date of the defendant’s response in court.

The date when you (the defendant) must file a response in court is determined by the date and method of delivery to you of the lawsuit papers.  For instance, if the defendant was personally served (meaning the summons and complaint were handed personally to the defendant), then he or she has 30 days from that date to file a written response in court.  If not personally served, but a method known as substitute service was used, then the due date is 40 days from the mailing date, which is why I recommend people save even the envelope, to keep the postmark date on the envelope.

In California, the process server need not say anything if the defendant is being personally served.  The movies about someone saying, “You’ve been served,” either reflect laws of other states or are entertaining in their drama.  Only where the person is not the defendant, should the process server explain that they are being given the legal papers for a lawsuit for the defendant and those papers should be given to the defendant right away.  Problems arise, such as a default judgment, when the recipient receives the papers, but fails to promptly give them to the defendant.

I have on the home page of my web site, a video of understanding your options to consider, before filing a DIY response yourself, against these professional debt collection lawyers.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler

How long to file papers in court, after receiving the summons and complaint via U.S. Mail?

Thursday, September 13th, 2012

Question: No process server ever approached me, but gave the summons and debt collection complaint to my wife.  A few days later, another copy arrived in the mail. I still have the envelope with the postmark. Do I still need to respond within 30 days and from when?

My response:
Under the California Code of Civil Procedure, which governs in Superior Court cases, the defendant must file their response in court not later than 30 calendar days from the date of personal service, which occurs when the server hands the summons and collection complaint personally to the defendant.

Substitute Service occurs after satisfying due diligence in trying several times to perform personal service on the defendant.  After due diligence, the process server hands the summons and collection complaint to an adult member of the defendant’s household or the person who appears to be in charge at the defendant’s place of business, then mails another copy of the summons and collection complaint to the defendant at that same address.

In this case, the process server has performed Substitute Service on you, which adds 10 calendar days, making a total of 40 days from the date of mailing for the defendant to file his or her response in court.

Some defendants receive only a copy of the summons and collection complaint by U.S. Mail and no one at their home or place of business advised them that they were served.  In those cases, you should still go on the premise that you have only 40 calendar days from the mailing date in which to file a response in court, to prevent a default judgment from being entered. Please see other blog postings about default judgments.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler