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I live in AZ, the debt is mine. I have been out of full time work for over three years. Not sure when the last payment I made maybe a year ago it is roghly $5000. Would love to play it back but not working can't really afford the payments they (the collections people, did try to work with them) wanted. What do I do now? Do I respond to the summons, do I call the lawyer? Help!
Stress Out in AZ
What are you going to tell their lawyer, he will want to know when you are going to write them a check ? Can you prove you don't owe the money ?
Next if you owed them 5000 expect it to be closer to 10,000 by the time late fees, lawyer fees, court fees and more are added when it goes to court.
There isn't a whole lot you can do here. You can try to work with them, but if they are on their way to getting a judgment, they probably won't settle for less. Even if they can't use the judgment to collect from you now, it is renewable, and they can wait until you are working or have money in the bank to collect. I'm sorry the news isn't better.
Respond to the summons! If you have the time you can always request a copy of the original agreement. Maybe the creditor can't find it (although I highly doubt it).
If the worst happens, respond and go to Court and appear. Maybe you can make an "outside the Court" arrangement - maybe.
Doing nothing is the worst thing you can do.
I agree with JudyKayTee. It is extremely important that you file an answer in response to the summons and complaint. There are a few things you can do: (1) determine if it is the credit card company that is suing you or a collection agency that purchased your debt. (2) check to see who filed the affidavit that accompanied the complaint. If a collection agency purchased your debt then you have a decent chance of getting it thrown out if you file the right paperwork. Many credit card companies now have their own collection services or hire attorneys who have a collections department. If that's the case, then item (1) is out and the credit card company is still the owner of your debt and you won't be able to use that defense. Regarding the affidavit attached to the complaint, it is supposed to be based on personal knowledge. The people that sign these affidavits do not really know who you are or have any personal knowledge of your debt. You can file a Motion to Strike the affidavit which if granted can lead to a Motion to Dismiss with Prejudice. There are court rules and procedures to be followed so do your homework if you plan on defending this yourself. If you work hard at this then even though you may not be able to get the case dismissed, you will be causing the credit card company enough grief that they may eventually take a nominal sum as payment.
While I agree with much of what you posted, this part bothered me. The OP didn't mention any affidavit. Nor am I aware of what you are referring to. Courts are tightening up both on the plaintiff and defendant sides. Small Claims courts are not as formal about procedure. They do require that the plaintiff prove the debt. But they are looser about what constitutes proof. Also, the OP stated he has tried to work with the collection agency, so it appears he has already acknowledged the debt.Quote:
Originally Posted by anotheridiot
To AZstressed,
It may be that you are currently judgment proof. But there appears to be little you can do to stop the judgment. However, ignoring it sis NOT the answer. File a response, get your day in court and if you lose then tell them that you currently have no assets to pay the debt.
If you have a checking account, don't deposit anything in it. If you have any other assets, they may come after them.
Quote:
Originally Posted by anotheridiot
I'd like more info on this - including a source if you have one.
Small claims court is for claims up to $2,500. The amount of this debt would throw it into the next higher court in AZ. I'm not from AZ but I do know that most states follow the federal guidelines. (FRCP) When the complaint was filed, the plaintiff attached either some proof of the debt or an affidavit from someone stating that there is a debt, blah, blah, blah. If an affidavit was used, it must be based on PERSONAL knowledge. Records keepers have no personal knowledge. Therefore, the plaintiff has failed to state a cause of action upon which relief can be granted. So, first thing is a motion to strike the affidavit because it was not based on personal knowledge. Then a motion to dismiss because the striking of the affidavit took away the basis for the complaint. Now, if the plaintiff attached the actual proof of the debt (credit card statements, your signature on charges and checks, etc.) then a motion to strike will not work. In any event, these are delaying tactics. A judge will seldom let you win on these technicalities. BUT, you have caused the opposition time and money to appear at the hearings and to respond to your filings. If you stay at it, you have a really good chance to pay just pennies on the dollar. And, who knows, you may get a judge who plays fair. But don't count on it.
I guess you have never heard of the business records exception to the hearsay rule, have you?Quote:
Originally Posted by anotheridiot
I don't believe delaying tactics "buy" a person time to "promote" settlement. They do aggravate the Court and opposing Attorneys.
Would you post your source for the "must" testify to personal knowledge "rule" you refer to?
No this isn't a contest, but it is a matter of getting accurate info. That's why we are asking you to produce a source.
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