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    AmyShallFind's Avatar
    AmyShallFind Posts: 33, Reputation: 1
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    #1

    Aug 5, 2008, 10:22 PM
    Responding to Motion for Summary Judgment
    Hi, I am hoping that someone can help me out with this. I am being sued for a loan from Beneficial which I have defaulted on due to circumstances leading one to another. I am unable to afford an attorney and wish to not have one since I do not deny that I owe the money and wish to settle this debt once and for all.
    1. I had borrowed $10,000 in July 2006 to keep business afloat but still ended up closing down the end of August 2006.
    2. I became a single mother of 2 small children in November 2006.
    3. After living off savings, mutual funds, etc, I finally gained employment in July 2007 that paid enough to cover necessary expenses but yet not enough for daycare.
    4. In February 2008, my place of employment announced that it was downsizing so my financial status was once again not on stable ground. I was finally transferred to another branch in my place of employment in May 2008.
    5. Unfortunately by the time I was ready to start working with Beneficial again to settle this debt, I am being sued.

    Now, the reason it has gotten as far as to the Motion for Summary Judgment stage. I had questioned about the Plaintiff being the correct party to take me to court to collect on the debt even though they had a copy of the Original Contract. So I had denied everything except that the Original Contract was true and correct in the Interrogatories, Request for Admissions, etc. And I had also sent a request for Discovery to the Plaintiff due to the following reasons:
    1. Even though it did include a copy of the Original Contract, the Summons court papers I received were from a lawyer and at the end of the document it stated “This is an attempt to collect a debt” so I had assumed it was a law firm collection agency.
    2. The Plaintiff, Beneficial Nebraska, Inc, is the original party that I had signed with but I had received a notice back in December 2007 that the Beneficial Nebraska, Inc. location in my city has closed so my account was transferred to Beneficial Illinois, Inc. and was assigned a new account number. I had assumed that the Beneficial Nebraska, Inc . No longer existed and the court papers did not state any of the new information.
    3. The amount they state that I owe is about $200 more than the amount stated in my last collection notice. And the dates were only 9 days apart.

    Can someone please review my response to a Summary Judgment and let me know if there's something that could do more harm than good? Or if I am missing something that is crucial to this case? I was planning on sending this certified to the Plaintiff's attorney and copy to the court. Thank you for your time!

    NOW COMES the Defendant responds to qualify her answers to the Request for Admissions, Request for Production of Documents, and Interrogatories. According to Rule 33, the Plaintiff has failed to provide sufficient detail to identify the records from which the answer may be ascertained. The information requested by the Plaintiff should be known or readily obtainable by the Plaintiff, Beneficial Nebraska, Inc.

    1. The Defendant does not deny that Exhibit A is a true and correct copy of the original contract with the Plaintiff, Beneficial Nebraska, Inc.

    2. According to the document dated March 3, 2008, Exhibit C, the balance stated $17,020.97. The Plaintiff states the amount owed as of March 12, 2008 is $13,294.14 plus interest in the amount of $3,915.64 which comes to a total of $17,209.78. Therefore, there is a difference in the amount stated that is owed by the Defendant.

    3. According to the document dated December 7, 2007, Exhibit B, the Defendant's account has been transferred to another party and has been assigned a new account number. Therefore, the Defendant had reasons to believe that the Plaintiff, Beneficial Nebraska, Inc is not the correct proper party to settle this matter.

    4. The Defendant wishes to settle the matter on this account with the proper party. If the Plaintiff, Beneficial Nebraska, Inc is still the true and correct party, the Defendant requests that the settlement offer made on February 1, 2008 in the amount of $10,065.47, Exhibit D, be extended.
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #2

    Aug 6, 2008, 06:40 AM
    Looks good to me. But the plaintiff may see this as simply a delaying tactic on your part.
    mr.yet's Avatar
    mr.yet Posts: 1,725, Reputation: 176
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    #3

    Aug 7, 2008, 06:07 PM
    NOW COMES the Defendant responds to qualify her answers to the Request for Admissions, Request for Production of Documents, and Interrogatories. According to Rule 33, the Plaintiff has failed to provide sufficient detail to identify the records from which the answer may be ascertained. The information requested by the Plaintiff should be known or readily obtainable by the Plaintiff, Beneficial Nebraska, Inc.

    1. The Defendant does not deny that Exhibit A is a true and correct copy of the original contract with the Plaintiff, Beneficial Nebraska, Inc.

    1. Defendant cannot admit or deny that Exhibit A is a true and correct copy of the original contract with the Plainitff, Beneficial Nebraska,inc, without the opportunity to examine it in person the verify the wet ink signature.
    2. According to the document dated March 3, 2008, Exhibit C, the balance stated $17,020.97. The Plaintiff states the amount owed as of March 12, 2008 is $13,294.14 plus interest in the amount of $3,915.64 which comes to a total of $17,209.78. Therefore, there is a difference in the amount stated that is owed by the Defendant.

    This amount is hereby disputed until a complete account of the alleged debt is provided.
    3. According to the document dated December 7, 2007, Exhibit B, the Defendant's account has been transferred to another party and has been assigned a new account number. Therefore, the Defendant had reasons to believe that the Plaintiff, Beneficial Nebraska, Inc is not the correct proper party to settle this matter.


    #3 is OK
    4. The Defendant wishes to settle the matter on this account with the proper party. If the Plaintiff, Beneficial Nebraska, Inc is still the true and correct party, the Defendant requests that the settlement offer made on February 1, 2008 in the amount of $10,065.47, Exhibit D, be extended.

    4. Defendant hereby states once the original contract and proper plaintiff has been verified by the defendant and the court, the Defendant will offer the following settlement in this alleged matter. The Plaintiff must be present in the court and the original contract produced for verification.

    5. If the above is not provided the Defendant hereby move the court to dismiss the above title action with prejudice for lack of proper plaintiff and lack of proof of a valid claim.
    AmyShallFind's Avatar
    AmyShallFind Posts: 33, Reputation: 1
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    #4

    Aug 9, 2008, 05:35 AM
    Thanks Scott, I was wondering how the Plaintiff would perceive it if I did it this way. Also, if they did accept the settlement, am I still responsible for the Plaintiff's lawyer fees? Would they be able to come after me for that as a separate issue?
    AmyShallFind's Avatar
    AmyShallFind Posts: 33, Reputation: 1
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    #5

    Aug 9, 2008, 06:03 AM
    Hi Mr. Yet, For Question #1 I had already admitted that the Exhibit A is a true and correct copy of the Original Contract in the Interrogatories, Response for Admissions, etc. They had it attached to all the legal paperworks and it is Valid. But denied everything else because the Plaintiff was the old company and did not provide any information with the new company and new account number that my account transferred to.

    I liked how you answered the #2 Question. But was wondering if I would be digging myself a hole since I don't deny that the Original Contract is valid. I would like to settle this matter but can only afford to pay off the settlement amount and not the full amount with the interests and fees.

    For Question #3, I had read on here that it did not matter where the account transferred to as long as they could provide a copy of the Original Contract. Is that right? This is why I let this situation get as far as it did. The Plaintiff Beneficial Nebraska, Inc was the party I had originally signed with, but thought the company no longer existed and thought the Plaintiff should have been Beneficial Illinois, Inc.

    For Question #4 & 5, the Plaintiff will be Telephonic. Which I wasn't too happy about since I am hearing impaired and would rather that they were physically present in court. Being telephonic counts for being present in Court doesn't it? Also, should I have requested a copy of a more recent billing statement that shows the new account number that it was transferred to as Validation that they are the correct party to be settling the matter with?
    AmyShallFind's Avatar
    AmyShallFind Posts: 33, Reputation: 1
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    #6

    Aug 16, 2008, 06:56 AM
    Thank you Scott and Mr.Yet!!
    My court date was yesterday and the judge overruled the Plaintiff's lawyer's Affidavit and Dismissed without Prejudice. And I am to contact the Plaintiff's attorney to see if an agreement can be made.
    What surprised me was that the Plaintiff's lawyer was able to argue his case over the telephone. The court papers did say Telephonically but I thought it was for the Plaintiff, not for the lawyer as well. Is that normal? I didn't think it would be allowed otherwise all the lawyers would do it.
    I don't think this case went as well as it could've since it was not Dismissed With Prejudice since the Plaintiff or the lawyer was not in court to provide the documents requested as I had stated in my Response to the Summary Judgment. But I am happy with the fact that the Plaintiff did not win and that the Judge said something about that the Plaintiff needed to provide what I had requested for and I was able to do this without having to hire an attorney.
    excon's Avatar
    excon Posts: 21,482, Reputation: 2992
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    #7

    Aug 16, 2008, 07:05 AM
    Hello Amy:

    ANYTIME is the correct time to negotiate. Yes, the attorney is the guy you need to talk to. The longer you wait, the more it will cost you. Lawyers DO charge for their time.

    You're going to have to negotiate with CASH, though. You already defaulted on payments one time, and I doubt they'll take a chance that you'll adhere this time.

    excon
    AmyShallFind's Avatar
    AmyShallFind Posts: 33, Reputation: 1
    Junior Member
     
    #8

    Aug 16, 2008, 07:50 AM
    Hi excon, glad to hear from you. I have enjoyed your responses to the other posts along with Mr Yet, Scott and Judy.
    I actually had the money with me during court. I was offering the amount that they had offered back in February 1. I wanted to take the offer back then but my employer had announced that my department was downsizing so I was afraid that I was going to be out of a job again. I wasn't transferred to another department until May. I couldn't risk paying that amount of money when I didn't know if I was going to end up being unemployed again.
    If they had hesitated about taking the offer, I would then have offered to pay a certain sum to pay for the Plaintiff's legal fees as well. But since the Plaintiff or the lawyer did not show up in person to court so they could prove that they are the correct party that I still need to pay to, it never got to that point.
    But since the case was Dismissed Without Prejudice, would they still expect me to pay for their legal fees?
    excon's Avatar
    excon Posts: 21,482, Reputation: 2992
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    #9

    Aug 16, 2008, 07:58 AM
    Hello again, Amy:

    Expectation has nothing to do with it. Of course, everybody expects/hopes to get everything they want - but it don't happen that way.

    You get what you get, or you don't agree. If you offer close to what you owe, I'll bet they'll accept it - but start low. The rest of the world knows how to do this. I don't know why we don't.

    excon
    AmyShallFind's Avatar
    AmyShallFind Posts: 33, Reputation: 1
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    #10

    Aug 16, 2008, 08:08 AM
    True true, life would be too easy if we got everything we expected/hoped for. But it can be a one heck of a roller coaster ride that's for sure. I can't really say it it has been all bad since it has been quite a learning experience for me and has even got me thinking about going into the legal field. So who knows!

    I'd be emailing the lawyer and offering the settlement and go from there. Now, do I send it in a settlement letter type format with my offer or would it be best to have the Plaintiff/attorney do it after agreeing to an amount?
    AmyShallFind's Avatar
    AmyShallFind Posts: 33, Reputation: 1
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    #11

    Aug 16, 2008, 08:11 AM
    Oh I forgot, I still want the Plaintiff/attorney to validate that they are the correct party to pay to. If the attorney does not provide some kind of proof with my new account number in a certain number of days, can I contact the company directly with the settlement offer?
    excon's Avatar
    excon Posts: 21,482, Reputation: 2992
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    #12

    Aug 16, 2008, 08:13 AM
    Hello again, Amy:

    If you want to DEFEND the suit, then do that. Negotiating is NOT defending the suit. If you mix them up, you'll get neither. If you get a receipt for your payment, he's the right guy to pay.

    If you're expecting the lawyer to decline your low offer because there's no room for him to make HIS fees in your offer, forget that notion. The lawyer probably owns the account. He probably paid nor more than $5,000 for it. I'd start there.

    I'd also do this by telephone if I could. Email is NOT a good way to negotiate.

    excon
    AmyShallFind's Avatar
    AmyShallFind Posts: 33, Reputation: 1
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    #13

    Aug 16, 2008, 08:33 AM
    When the attorney/collection agency owns the account, wouldn't the name of the Plaintiff be in the attorney/collection agency's name?

    The attorney had responded to my Request for Discovery that the Plaintiff remains the Original Creditor and the attorney is representing the Plaintiff. But my problem is that the Plaintiff is the Original party that I signed the agreement with. A few months later after signing the agreement, I received a letter stating that the company closed down in my town so my account was transferred to another Incorporation in a different state and assigned a new account number. As for this, the way I understand it, the Beneficial company is like a franchise and the original company, Beneficial Nebraska, Inc. that I signed with is closed (aka Bankrupt) and I should be paying the company, Beneficial Illinois, Inc. that my account transferred to.

    Am I way off base by thinking this?

    I would do this by telephone but I am hearing impaired and in my experience, having a third party relay the conversation does not work well in this type of situation.
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #14

    Aug 16, 2008, 05:34 PM
    If you have documentation stating that, then ask the attorney to explain the discrepancy.
    AmyShallFind's Avatar
    AmyShallFind Posts: 33, Reputation: 1
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    #15

    Aug 20, 2008, 06:10 PM
    Ok, I received an explanation from the lawyer which basically repeated what the notice I received back then or information I already knew. I still don't understand why my account would be transferred to another branch outside of the state if it could've remained with the same state. And on top of that, they still did not provide me my current account number. Here's part of the letter that they sent:
    In response to your inquiry as to the letter you received on or about 12/7/2007 (Exhibit “B”); Beneficial Nebraska and Beneficial Illinois are both owned by HSBC. They are the same company. The letter you received was simply a notice that the original branch office had closed and your account was being transferred to a different office and was being assigned a new account number. Regardless of where your account is transferred; the original owner has always been HSBC. Your account was never transferred to a new third party but has been with the same entity. In the case of a lawsuit, the Plaintiff is to be the name that is listed on the original agreement. In your case, this is Beneficial Nebraska, Inc. You have been sued by the correct entity.

    I want to respond to them in so many words with the following:
    That they have yet to provide the current account number for verification purpose. At this time, I am able to provide a one-time lumpsum payment that either can settle this account or I can settle with my 5 other debts. If they wish to pursue this again in court and if the judge does favor them, my income only allows so much amount for garnishment without putting me below poverty level.

    Am I making too big of an issue about wanting verification on the current account number before offering a lumpsum settlement amount? If I keep pushing this issue by responding with the above, will it backfire on me?
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #16

    Aug 21, 2008, 05:47 AM
    Frankly, yes. What account number is assigned to a debt is arbitrary. What the letter is saying is that you took out a loan with an entity of HSBC. As long as they have proof that you took out the loan, they will win a judgement.

    If you can make a lump sum settlement I would go for it.
    JudyKayTee's Avatar
    JudyKayTee Posts: 46,503, Reputation: 4600
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    #17

    Aug 21, 2008, 06:27 AM
    Quote Originally Posted by AmyShallFind
    Am I making too big of an issue about wanting verification on the current account number before offering a lumpsum settlement amount? If I keep pushing this issue by responding with the above, will it backfire on me?


    I don't think you're seeing the forest for the trees - the account number doesn't matter. You either owe them or you don't and the rest of this is just a lot of fuss and muss and changes nothing.

    The account number is immaterial. I think they've pretty well explained the process/procedure/ownership of the account.

    You can, of course, keep pushing the issue but I really don't see the point in it, particularly if you are hoping to negotiate a lower settlement and don't wish to aggravate the creditor and/or law firm.
    excon's Avatar
    excon Posts: 21,482, Reputation: 2992
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    #18

    Aug 21, 2008, 06:49 AM
    Hello again, Amy:

    You ARE missing the boat here. Judy is right on... So is Scott. So was I.

    I think fighting them is great. I HATE collection agency scumbags. We'll help you fight till the end of time...

    But, you want to fight - AND settle... Fighting makes sense. Settling makes sense. But, fighting, and THEN hoping for a good settlement is like shooting yourself in the foot and hoping it won't hurt.

    It WILL hurt. In the first place, lawyers charge LOTS of money. You are forcing them to DO more work. Who do you think is going to pay for their time?? You are, of course. Secondarily, you are aggravating somebody who you want to enter into negotiations with. The more you aggravate them, the less inclined they are to negotiate with you.

    That's my story, and I'm sticking with it.

    excon

    PS> (edited) If a regular telephone won't work, hopefully you have one of those TDDY machines.
    AmyShallFind's Avatar
    AmyShallFind Posts: 33, Reputation: 1
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    #19

    Aug 23, 2008, 06:23 AM
    I definitely don't want to aggravate the lawyers, I want this resolved as quickly as possible.
    I was concerned since by personal and work experience, if the correct account number isn't provided for whatever reason, the correct account doesn't necessary get processed the way it was intended to.
    The only information that the Plaintiff provided that appeared to be correct was a copy of the Original Agreement. So I was afraid that my account wouldn't be closed with the company and wouldn't be reported to the Credit Bureau as settled and it will be a timeconsuming effort to correct. And when the judge dismissed the case, I figured I wasn't being too paranoid.
    Since you all say it is irrelevant for this case, I am just going to add it to the settlement offer letter so that way I can have it on record somehow. I will report back on how it goes.

    Thank you everybody for your help!!
    AmyShallFind's Avatar
    AmyShallFind Posts: 33, Reputation: 1
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    #20

    Sep 8, 2008, 07:52 PM
    Hi again, I finally heard back from the lawyer on my settlement offer. I had certified mailed to the lawyer my offer and they responded by email. They said they would accept the amount now plus an additional $2400 that would need to be paid within 3 months. I am unable to do this at all, my income does not cover all my household expenses as it is. When I respond that I am unable to agree to their terms, what can I expect to happen now? Would they be taking me back to court or would they eventually agree to my settlement offer if I stand my ground?

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