Ask Me Help Desk - Debt judgement and interrogs

Hi, I was sued in 2002 for a credit card I supposedly defauleted on in 1998. I lost the case because I didn't mail a copy of my reply to the attorney. Judgement was dated Nov. 02... I didn't hear anything until Sept 06 when a garnishment was put on my wages. I don't make enough money from that job to have anything taken out. So now a 1 1/2 later I get a letter stating a lien? Has been put on any and all bank accounts with my name and #SS. On it. My bank account is overdrawn(I have overdraft protection) and I have no savings to speak of , so I don't do anything. Then this X-mas I receive interrogs. I don't want to reply as the attorney knows nothing of my husband and other work I have.. hence the interrogs... SOOOOOO is there a way for me to vacate judgement or somehow get out of this..? I have 10 more days before I have to reply to the interrogs... help

misshilde

First of all, I do not believe that your husband has any skin in this issue unless he was your husband at the time you incurred the debt. But I am not an attorney.

However, even if he was married to you at the time, your attorney cannot include or open any discussions with him without your permission. You are the attorney's client, not your spouse.

More than likely, you actually lost the case because you failed to appear at the trial for the original debt. It's nice to know that the judgement is dated Nov. 02, but what is the year? Is the person moving against you now, representing the original creditor or has the original creditor sold that debt to another collection company?

It is still going to come down to the boiler plate issue, is this debt your legal debt that you have an obligation to pay?

So far, I haven't seen anything out of the ordinary in the process the creditor is using to make the collection.

As to whether, this will affect your husband's credit, the answer is yes. If your husband makes a joint application with you, you will be the mill stone that pulls the application down unless his credit is so strong yours can be ignored.

Again, get an attorney or a debt assistance group to help you. Do not do this by yourself.

Hey there,here in California a spouse responsible for any debt incurred by the other. Judgenment was entered NOv.2002 for $12000. I did show up in court 4 times, each time plaintiff's attorney had asked for extension. When case was finnally heard, I was told he( attorney) had not received my reply and therfore I had not followed prociedure even though I showed the judge my copy of reply and filing date... go home and await judges answer.. that was August 2002. And it is a collection agency that is suing me.They had a pice of paper showing my signature and approved on it...

misshilde

[QUOTE=misshilde]Hi, I was sued in 2002 for a credit card I supposedly defauleted on in 1998. I lost the case because I didn't mail a copy of my reply to the attorney. Judgement was dated Nov. 02... I didn't hear anything until Sept 06 when a garnishment was put on my wages. I don't make enough money from that job to have anything taken out. So now a 1 1/2 later I get a letter stating a lien? Has been put on any and all bank accounts with my name and #SS. On it. My bank account is overdrawn(I have overdraft protection) and I have no savings to speak of , so I don't do anything. Then this X-mas I receive interrogs. I don't want to reply as the attorney knows nothing of my husband and other work I have.. hence the interrogs... SOOOOOO is there a way for me to vacate judgement or somehow get out of this..? I have 10 more days before I have to reply to the interrogs... help

I'm stunned that in California a spouse is responsible for the other spouse's credit card debts even if he/she is not on the paperwork and may not even have knowledge of the debt - but you are right about it! That's scary.

I don't think you can get this set aside in 10 days - and if you do and the Judgment is obtained a second time you'll be subject to interrogatories again.

What is your defense to the Judgment? Is it your debt? What do you see as your grounds for vacating the Judgment, particularly if you haven't protested since 2002?

Judy Kay, hey... I read somewhere that the attorney representing the plaintif cannot testify on their behalf... as collection agency was not present at the time of trial.. wouldn't that be grounds to vacate.. also my replies prior to hearing I questioned the paperslip the collection agency had... it was a application for credit... I asked for more proof and slammed the attorney for being a shark.. but to no avail as he apperantly never got my reply... I have no recollection of such credit card and said so when I was being harassed by the collection agency in 2000.The caller threatened to call my work and landlord to tell them I was a horrible person who didn't own up to my debt and when I told her never to call my house again she called me a f*** B***.. I am thinking of not answering the interrogs as this would probably will result in contempt,. so maybe then I'll get a hearing again.. or is this totally stupid and will just get me into more trouble?. also I checked my credit scores... no company has any listing of judgement or negative credit against me... shouldn't that be on there??

misshilde.

Hilde,

I know that Californian Legal Code was written by a collection of dyslexic ocean seals after going months without food and a very bad day. But what you are saying is just way to far out for me to fathom.

The creditor has an attorney goes to court four separate times and stands before a Judge and says (something like), "Good morning your honor, I would like to ask for a continuation of this hearing until I have complete documentation and I am fully prepared to proceed." The Judge says, "Counselor, exactly why are you not ready to proceed at this point?" Creditor's attorney, "Your Honor, the defendant in is this matter has failed to respond to the Interrogatives I sent her."

Judge, "So granted. And you young lady you are to complete those interrogatories immediately, do you clearly understand me?" Defendant says, "Yes, your Honor."

Second Hearing,. Judge, "Young lady, did you complete and return those interrogatories?" Defendant, "No your Honor, I don't have all the information." Judge, "Motion for a Continuation, granted. Young lady, If you have not completed and returned the information, I will charge you with contempt of court, do you understand me?" Defendant, "Yes your Honor."

There would be no third or fourth Continuations granted. You would be in jail until the required Interrogatories were properly answered!

Judges really don't like to be ignored! I don't care if they are on another planet, Its just something you would not be allowed to do!

If the creditor's attorney stood and asked for a continuation for any other reason than you not returning his Interrogates, then you or your attorney, should have moved for an immediate dismissal of all charges, because it is not your fault he is not ready and it's a waste of court's and your time to bring a case before a sitting judge and not be prepared. That's another something you just don't do!

If you do not have an attorney please find one immediately and see if he/she would be willing to represent you and file a very overdue Motion for Dismissal.

Again, I am not an attorney and I certainly I am not a resident in California.

Quote:

Originally Posted by misshilde

Hey there,here in California a spouse responsible for any debt incurred by the other.

Hello miss:

The above is true as long as you were married when the debts were inccured. If this is debt you brought to the marriage, and he never did sign onto the account, then he's NOT responsible.

Course, if you were married, never mind.

excon

Since the judgement was entered in 2002, I doubt if you have any grounds for vacating at this point. I think you need to consult an attorney as to your options.

Thanks y'all.. I am looking for attorney, but as I am not loaded.. far from it.. it's hard to find one with experience in debt... I did all the replies and filed everything in 2002... and Don.. plaintiff's attorney never showed up on the first 3 hearings.. when I checked the docket for the day.. it said it was continued which means he had asked for extensions.. I was never told and dragged my 2 babies into court... you guys are probably right about not being able to vacate after so many years, but it's worth looking into... as for going to jail.. I don't think so.. they just let out 11000 prisoners due to lack of money and fired 300 prison guards, so I don't think any judge would jail me, but hey it's a possibility.. so any other suggestions..

Miss hilde

Who said anything about going to jail? Debotr's prison went out in 19th century.

Read over this response see if it fix your case.

Sample of a defense answer, if it fix your problem.

Defendant ME, answering the Complaint of the Plaintiff, asserts:

1. In response to paragraph #1, the Defendant lacks sufficient knowledge to admit or deny the allegations.

2. In response to paragraph #2, the Defendant admits.

3. In response to paragraph #3, Defendant lacks sufficient knowledge to admit or deny the allegations of paragraph 3 of the Complaint and on that basis denies the allegations therein.

AFFIRMATIVE DEFENSES

As and for a First Defense,

1. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

As and for a Second Defense,

2. Plaintiff has unclean hands as Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

As and for a Third Defense,

3. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

As and for a Fourth Defense,

4. Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the Plaintiff and the Defendant.

As and for a Fifth Defense,

5. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

As and for a Sixth Defense,

6. Plaintiff is not authorized or licensed to advertise or solicit, either in print, by letter, in person or otherwise the right to collect or receive payment of a claim for another, nor to seek to make collection or obtain payment of a claim on behalf of another. The Complaint fails to allege any exception or exemption to these requirements.

As and for a Seventh Defense,

7. Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.

As and for an Eighth Defense,

8. Defendant states that Plaintiff's claim is precluded as Plaintiff failed to follow validation procedures as required by FDCPA 15 U.S.C § 1692g, which include, but are not limited to, obtaining and providing validation of the alleged debt from the original creditor.

As and for a Ninth Defense,

9. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.
COUNTERCLAIM

Statement of Facts

1. Defendant had no knowledge that MRC Receivables Corporation owned above alleged debt.

2. Defendant was under the impression from credit report that Midland Credit Management owned above alleged debt.

3. Defendant had no knowledge that MRC Receivables Corporation and Midland Credit Management are the same company.

4. Defendant sent letter to Midland Credit Management aka MRC Receivables Corporation on February 26, 2007, by way of certified mail; disputing and requesting complete validation of alleged debt.

5. Said letter was returned because the address that appears on Defendants credit report for Plaintiff is incorrect.

6.Defendant had to search the Internet to obtain correct mailing information for Plaintiff.

7. Defendant sent a letter to Lustig, Glaser & Wilson P.C. on February 26, 2007, by way of certified mail, disputing and requesting complete validation of alleged debt.

8. Said letter was received by Plaintiff on February 27, 2007, and signed for by Ed Gordon, agent of said Plaintiff.

9. Defendant sent another letter to Midland Credit Management aka MRC Receivables Corporation on March 27, 2007, by way of certified mail; disputing and requesting complete validation of alleged debt.

10. Plaintiff received said validation letter on March 29, 2007, and signed for by D. Petiotto, agent for the Plaintiff.

11. A complaint and summons was filed and issued on March 21, 2007 with an attached complaint dated March 20, 2007.

12. Up until the date of this filing, no validation was received from MRC Receivables Corporation aka Midland Credit Management or their attorney, yet through their attorney, continued to collect on alleged debt.

13. On March 30, 2007, Defendant was served with the summons and complaint.

Statement of Claim

11. In the course of its action, Plaintiff willfully and/or negligently violated provisions of the Fair Debt Collection Practices Act in the following respect:

(a) by failing to cease collection of an alleged debt after the Defendant notified Plaintiff in writing that the alleged debt was disputed, therefore violating 15 USC 1692g(b).
(b) The failure to communicate that a disputed debt is disputed, therefore violating 15 USC 1692e(8).
(c) The use of any business, company, or organization name other than the true name of the debt collector's business, company, or organization, therefore violating 15 USC 1692e(14).
WHEREFORE the defendant prays the court as follows:

1. That the Plaintiff have and recover nothing of it in this action and that
the Plaintiff's action be dismissed as to it;

2. That the Court grants injunctive relief enjoining plaintiff from selling, transferring, reporting or otherwise assigning the alleged account to any other collection agency, debt collector, debt buyer or credit reporting agency.

3. That the Court grants a judgment against plaintiff on the merit of the Counterclaim in the sum of two thousand dollars ($2,000.00).

4. That the Court grants have and recover all cost of defending against this suit and interposing Counterclaim, including but not limited to attorneys' fees, filing fees, witness costs and postage.

4. That the Court grants to defendant such other and further relief as to the Court may seem just and proper.

Thanks Scott and Mr Yet... will continue my research.. must answer interrogs or file something before the 25th of Jan... or if I ignore intterrogs I will be compelled to answer?. don't have the paperwork in front of me.. but to ignore interrogs is that contempt?
And you can go to jail for contempt.. right? Or at least be fined??

misshilde

Yes you can be jailed for contempt, but that is rare, generally it's a fine. And it rare unless there is a real defiance of the judge.

Seams like the first time around plaintiffs attorney was waiting for a specific judge... at least that's what I think now thinking back on it... I barely got to open my mouth before I was told to leave and await judges answer... too bad I didn't appeal when I first got the judgement(nov 02).. now it's too late... is that why attorney waited so long to put a garnishment on my pay(sept 06)... and why wait another year to do interrogs (dec 07)or is it because now he can get $22000..
misshilde

Quote:

Originally Posted by misshilde

Seams like the first time around plaintiffs attorney was waiting for a specific judge...at least that's what I think now thinking back on it....I barely got to open my mouth before I was told to leave and await judges answer...too bad I didn't appeal when I first got the judgement(nov 02)..now it's too late...is that why attorney waited so long to put a garnishment on my pay(sept 06)...and why wait another year to do interrogs (dec 07)or is it because now he can get $22000..
misshilde

Seems to me like a little bit of everything - possible the creditor kept running credit reports or checks and decided now is a good time; possible they got tired of waiting; possible the judgment was sitting somewhere and someone forgot.

Attorneys do prefer to appear in front of certain Judges and people with a lot of time on their hands have monitored Courtrooms and made a case out of inequitable decisions based on one Attorney and the same Judge. Sounds, though, like this was a pretty clear cut case - you owed, you didn't pay - unless I am reading this wrong.

Well that's the question.. I don't remember having a credit card with the name the collection agency called me about.. they say though luck.. we have an account with your name on it saying you owe $6500... now IF I had this card and defaulted on how could it go from $2000 which was the highes credit limit I had on any card at that time.. to that amount in 1 year.. I know there are a lot of fees, but + $4500 that's way out of line... also the credit slip they showed me has all my names on it... first, maiden - married name... the only place I have that is on my drivers licence and the I don't even sign my maiden name on the driveres licence.. have argued with dmv for years about this , but they seam unable to fix that... my pass port, green card and #SS card has my my first ,maiden initital then married name only... why would I have one credit card with totally different name signed on it and then not pay it, when all my other bills are paid on time... this was my argument then, but as plaintiffs attorney supposedly never got my reply.. I got jipped.. unfortunatley I was stupid enough to not appeal back in 2002 a lot was going on healthwise... anyway am I really stuck now?. there has to be something I can do.. some of the things Mr Yet suggested definitely apply, so I guess I'm going to go for it... will not let these bottomfeeders get to my husbands income... arggggggggggghhhhhhhhhh!!

misshilde

[QUOTE=misshilde]Well that's the question.. I don't remember having a credit card with the name the collection agency called me about.. they say though luck.. we have an account with your name on it saying you owe $6500... now IF I had this card and defaulted on how could it go from $2000 which was the highes credit limit I had on any card at that time.. to that amount in 1 year.. I know there are a lot of fees, but + $4500 that's way out of line... also the credit slip they showed me has all my names on it... first, maiden - married name... the only place I have that is on my drivers licence and the I don't even sign my maiden name on the driveres licence.. have argued with dmv for years about this , but they seam unable to fix that... my pass port, green card and #SS card has my my first ,maiden initital then married name only... why would I have one credit card with totally different name signed on it and then not pay it, when all my other bills are paid on time... this was my argument then, but as plaintiffs attorney supposedly never got my reply.. I got jipped.. unfortunatley I was stupid enough to not appeal back in 2002 a lot was going on healthwise... anyway am I really stuck now?. there has to be something I can do.. some of the things Mr Yet suggested definitely apply, so I guess I'm going to go for it... will not let these bottomfeeders get to my husbands income... arggggggggggghhhhhhhhhh!!

Quite honestly, the "why would I do this when I've never done it this way before; I paid all my other bills, why wouldn't I pay this one" arguments are not a legal defense. A request to see the purported signed documents and having an expert testify that is not your signature, that's a defense; asking to see the charges and some of them are in whatever City and you've never been there, that's a defense; the bills went to an address you've never used, that's a defense. And it's entirely possible for an account to more than double in a year with Attorneys' fees, Court costs, interest, late fees.

You also have a problem with a 2002 Judgment that you never protested until now.

And Mr. Yet knows what he's talking about so I would follow his advice or, in the alternative, retain an Attorney - again!

Yep working on the attorney part.. and I didn't talk about the why in the responses... I just questioned the signature as it looked like mine, but that I never sign my name that way... anyway.. just blowing off some steam... have contacted my city's bar association to find a attorney with debt experience.. so far no response.. so all my friends are asking their friends... looks like the only one in my city is the one representing the party suing me...
Question.. can anyone with a judgement wait however long they want before trying to collect.. oral and written contracts are 2 and 4 years... judgement 10.. meaning is there a sol on collection within a judgement

misshilde