Posts Tagged ‘“Court”’

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 not properly served, so can I file something to dismiss the case?

Tuesday, June 5th, 2012

Question: I did not pay one of my credit cards, because it was too much for me.  Now, I received in the mail a summons and complaint for that credit card debt.  No one in my home knows anything about this, so I don’t believe that this is proper substitute service. Can I file something in Superior Court about not being served? Can I get the case dismissed or put off a long time?

My response:
Whenever the defendant located within California has not been properly served with the lawsuit, in addition to their six options that I explained in the first video on my home page, the person could file a motion to quash.  There is no check-the-box form for this motion in California Superior Court.  Motions to quash are unusual.  People should either file a response to the debt collection lawsuit or exercise one of their other options, such as settling the case.

If the defendant or his/her attorney files a motion to quash and properly presents the Superior Court with the lack of valid service, the result is often the same: the court can grant the motion to quash and some time later, the lawsuit is served properly on the defendant, who then has the given number of days to file a response in the case.  The Judge could also ask the attorney or defendant in court at the hearing: “When do you want to file a response to this lawsuit?”  In other words, you’ve won the battle, but lost the war, since a response to the complaint must still be filed and the case will proceed about the same, as if service has now been properly effected.

The motion to quash is really only an effective means of stopping a lawsuit if the case was filed against an out of state defendant, who has no contacts in California, which would mean the California Superior Court lacks jurisdiction for such lawsuit. Then the motion to quash would have a substantial effect on the outcome of the case.  For this reason, a motion to quash should be reserved for cases where the defendant is out of state, with no connections to California.

Thus, when people post on Avvo.com or ask elsewhere about not being properly served, I typically refer them to my blog posting on making their next steps count.  Defendants should respect the normal time to respond in court to the lawsuit as about the same, if they wish to avoid a default judgment and preserve all of their six options, noted in my first video.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler

You are Summonsed to Court for an Unpaid Debt: Your Next Steps Count

Thursday, December 23rd, 2010

There’s a knock at the door.  You don’t recognize the person through the peep hole. The person persists, so you open the door to find out what they want to deliver.  The person hands you ten pages of legal papers stapled together. It’s a summons and other documents for a lawsuit concerning a debt that you had hoped was forgotten.  It’s seems like years since the last time you sent a payment on it, but the day of reckoning has arrived. The person leaves, after mumbling something about being “served.”

If you recognize the debt as one that you had and the lawsuit filing date is within the statute of limitations period, then as soon as possible, call the law firm on the papers to see what they want to settle.  The summons in California Superior Court provides for 30 days from the date you are personally served, and you will probably need as much time as possible to decide what direction you want to pursue.  Ask the total amount they require and what payment arrangements they would accept.

Find out if they can offer you a hardship waiver and what they need for you to obtain that. Also, how much discount they would offer for your hardship. At this point, you are exploring your options.  Do NOT set up a payment plan when you call the first time and do not give them any of your personal account information in the first call.  You need time to review your options and consider your finances, before you start giving out the keys to your bank vault.  Review your finances carefully, to know what you have and can afford.

They will probably ask you some questions. You need to be truthful, but that does not mean you need to answer every question asked.  They will ask questions about your finances. If you want to try to negotiate with them on the balance, you will need to give them basic information about you, such as your income and ability to pay.  They have probably seen your credit report, so they may already know your debts and payments, almost as well as you do. If they ask you to admit you owe this debt to them, you can truthfully say that you are still researching that and would appreciate them sending you documents they have proving their claim that you owe the debt.  You want proof in writing from this company.  A lawsuit itself is not proof, unless they attach exhibits to the complaint, which may or may not be sufficient.

If you are not sure that they have acquired this debt from a legitimate owner of the account, you should follow up any request by phone with a letter that you send by certified mail, return receipt.  A sample letter for verification of the debt within 30 days of first receiving a letter or other written communication from a debt collector is sample letter 1.1 at http://stopcollectionharassment.com/sample_letters.htm

Sending the letter does not resolve the lawsuit and it may not even stall for time.  If you have decided that they are demanding too much and you want to fight, then you or your debt collection defense attorney must file papers with the court and pay a filing fee to respond (usually hundreds of dollars for each defendant, even both defendants are married).  Timing is important, because if you fail to file the papers timely, the collection attorney for the debt collection agency will try to take advantage of your delay and request entry of a default judgment. That means a judgment may be entered soon thereafter, without a court fight.  To review the timing of when you must respond to a collection lawsuit, please see my blog posting: “Deadline to Respond to a Credit Card Lawsuit, Do Not Confuse with Hearing Dates.”

For a big picture review of all likely options, please visit: www.stopcollectionlawsuits.com

Robert Stempler

Court Furlough Days: Why not on a Monday or Friday?

Wednesday, June 16th, 2010

Starting 2009, to reduce the budget problems of the State, California Superior Courts have been closed on the third Wednesday of each month (see LA Times Article at http://articles.latimes.com/2009/jul/30/local/me-court-close30). Today, for example, June 16, 2010, the court is closed, which affects not only the judges, court clerks, court reporters, and deputies, but also the juries, parties to litigation, and lawyers.

I am trying to understand the logic in closing on a Wednesday, as compared with Friday or Monday, that is not already a holiday. According to the Judicial Council’s report (see page 3 at http://www.courtinfo.ca.gov/jc/documents/reports/072909item3.pdf) if they close the Superior Courts on a Monday or a Friday, it would impose longer detentions over the weekend and thus increase costs on local jails. I have not seen how many people that would impact, but I seriously doubt that many people will be affected because their arraignment is delayed by one day, which already happens when Monday is a holiday.  However, perhaps the criminal court buildings should be exempted from furlough, in any event, in large counties, such as Los Angeles, San Diego, and San Francisco, or opened for this limited situation of hearing arraignments on a “better” furlough (Monday or Friday).

More important in my mind is the extra cost to close down for a day on Tuesday and reopen from the closure on Thursday, only to close again for the weekend two days later. There is likely extra cost in closing for a day and reopening that the Judicial Council did not consider.

Finally, we hear in the news how the court clerks, deputies, and judges dislike the furlough, as it is a nuisance and breaks up the work week. Of course it does.  What employer proposes closing in the middle of the work week, when the closure could be on any Friday or Monday? Of course people that work there would prefer a three day weekend to a single day off. Why can’t the Judicial Council consider job satisfaction as a savings, when they decided on the furlough day?

I hope when the Judicial Council reconsiders the furlough for year 2010/2011 they re-evaluate the impact on the court clerks, deputies, and judges at the courthouse and the costs of closing and reopening mid-week.