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    AMS's Avatar
    AMS Posts: 11, Reputation: 1
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    #1

    Nov 19, 2006, 08:55 PM
    Motion Hearing
    I have to go to court for a civil matter. It is an attorney suing for a remainder balance on a repo. The problem is I had arrangements with the company, and the day I was to make another payment, the vehicle was repo'd. This company has a long trail of victims. I would receive, at times, over 7 calls a day for payment. I reported them to my state Department of Commerce, and I was able to get a phone number to call. Once that call was made, they were more than happy to work with me, and the harassing calls stopped. I posted the contact information on line for everyone else to help them resolve their issues with them also. Now, after a faxed letter about our new payment agreement, and them breaking that agreement, I'm getting sued. I can't afford a lawyer, so I'm going alone. The attorneys office did not verify the debt like I requested, they just sent a photo copy of the signed agreement. I asked for details. What should I do or say in court?
    excon's Avatar
    excon Posts: 21,482, Reputation: 2992
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    #2

    Nov 20, 2006, 05:46 AM
    Hello AMS:

    I don't know. Bottom line is you owe them money and you didn't pay. If you have a defense for not paying, then say that. Otherwise, there is NOTHING you can say. Blaming them isn't going to do it.

    excon
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #3

    Nov 20, 2006, 07:41 AM
    OK, let me understand this. You were dunned by this company over non payment of a car loan. You finally contacted them and worked out a payment arrangement. This payment arrangement is confirmed by a fax that you have.

    However, before you could make the first payment under the arrangement, they repo'ed the car. Now they are suing you for the balance owed on the loan after they sold the car. They have not, to date, shown you documentation to prove the loan balance and how much the car was sold for.

    Do I have the facts correct?

    If so, if they produce the documentation in court, your goose is cooked. The fact that the reneged on the settlement agreement isn't going to carry much wait as I'm sure they will come up with a reason.

    You bought the car, signed the loan agreement, then failed to pay. You ignored their calls for payment (This is one thing I don't understand, if they were calling you, why didn't you speak to them and offer a settlement instead of going to the state and get a different number?), reporting to them to a state agency. You then worked out a settlement and they reneged on it. So you owe they money. They DO have to document how much you owe, but if they do, they will get a judgement against you.
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    AMS Posts: 11, Reputation: 1
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    #4

    Nov 20, 2006, 08:33 AM
    Let me explain again. I think there is a misunderstanding. I did answer when they called. They would continue to call. Calls would happen sometimes 4 in an hour. Each time I would answer the phone, explain that I had already spoken with someone, explained when I would be making the payment etc.. They would just keep calling. That is when I contacted the State for help. That is when I was able to contact the legal department supervisor and have the calls stopped. He is the one the arrangements were made with. I had made two payments on this arranagement, and the last one was due the day they took the car. I tried to contact him and he was not answering the phone. I was only able to go through him since he had the file and knew if the harassment continued from the Texas office, I would pursue the issue. I found out I was not able to make the payment to him because he wasn't in the office that day. This place (which I found out too late) has a trail of victims. We are trying to get a class action going. Please understand, the issues all the victims are facing, does not stem because payments were missed or late. California's Attourney General has over 650 complaints in less than 24 months. No, I didn't receive ANY detailed amounts when they were requested, from this company, nor the lawyers office trying to sue. All my requests went unanswered.
    excon's Avatar
    excon Posts: 21,482, Reputation: 2992
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    #5

    Nov 20, 2006, 08:55 AM
    Quote Originally Posted by AMS
    The attorneys office did not verify the debt like I requested, they just sent a photo copy of the signed agreement.
    Hello again, AMS:

    Dude!! They sent you an agreement with YOUR signature on it. What other verification do you want??

    Let me again see if I can refocus your attention. YES, the collection agent is a sleaze ball and a liar. What? That surprises you?? And, you keep on telling us that, as though it makes a difference. It doesn't! I don't care, and the judge is going to care less.

    The bottom line is (I think I said that before): YOU borrowed the money. YOU didn't pay. YOU have no defense. YOU'RE going to lose.

    excon
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #6

    Nov 20, 2006, 09:10 AM
    I think excon is missing some of the facts you have presented. The copy of the loan document only specifies the original loan terms. Since you made some payments on the loan and, more importantly, they repo'ed and (presumably) sold the car, then you are entitled to an accounting of the balance you owed, how that blanace was calculated (i.e. interest) and what the car sold for. They can't sue you without justifying the amount they are suing for. If they can't produce an accounting the judge will laugh in their face.

    However, any sleaze quotient of the collector is NOT an issue for the court. The only issue for the court is whether you owe money and how much. So you should NOT mention the complaints and tactics used with one exception. I would bring up the fact that you had a settlement arrangement that YOU were upholding making payments as agreed. In fact, in rereading your note, Am I to understand that the LAST payment under this agreement was due the day they took the car? If you had made that payment your debt would have been settled?

    If that's the case, then I would get a lawyer and countersue them. You should be able to successfully sue them for the value of the car PLUS court costs and any cost you encounter because you didn't have the car. So the suit shouldn't cost you anything. If you had a valid, working agreement and they reneged on it without cause, then you have a cause of action against them.
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    AMS Posts: 11, Reputation: 1
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    #7

    Nov 20, 2006, 01:03 PM
    ScottGem, your facts are correct. I even sent the request via certified mail to the attorney. That's when I got the photo copy of the original contract. It shows the full balance, no payments reflected or anything like that. I thought I read that if you requested that info and you were never given that info, they could not go after you. Does that sound right? I think this is the third attorney from the office that has communicated to me by either letters, calls, or filing suit. As far as getting a lawyer, I'm a full time student, have only one income, plus trying to keep up on all the other bills we have. The only thing that will come out of this if the judge favors for them is notice we've filed BK.

    Anyway, I did not get the requested amount, I was harassed, I was making the payments per our agreement(yes it is in writing) and yes the day the payment was due, the vehicle was taken. That's were I'm at on this.
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    ScottGem Posts: 64,966, Reputation: 6056
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    #8

    Nov 20, 2006, 01:25 PM
    Its not so much as they can't go after you, but they sure can't win without a full accounting. What really disturbs me here is the repo. Not only are you out the money you paid, but you are out the car too.

    Does your school have a law school? If so, see if you can get a third year student to help or maybe a professor. Or they might recommend a former student who will help pro bono. But it won't cost you to talk to an attorney. And I think will find one who take this on spec. Because it appears to be pretty much a slam dunk, the collector will foot there bill. There is no reason you should be without the car if you were paying.
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    AMS Posts: 11, Reputation: 1
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    #9

    Nov 20, 2006, 02:08 PM
    Well ScottGem, thanks for your input. I'll go to the hearing and plead my case and ask for it to be dismissed on evidence I have. I'm sure the attorney will object to everything I present claiming he was not informed of my submissions prior to today. What are my chances of having the judge dismiss the case?
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    AMS Posts: 11, Reputation: 1
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    #10

    Nov 20, 2006, 03:35 PM
    Well, I'm back from court. As I was sitting there waiting for the courtroom to open, the attorney for the finance company asked if I had thought about a settlement offer. I told him no I was not willing to settle. I told him I had made it perfectly clear that if the finance company sued, I was going to counter sue. He thought because I hadn't responded to the complaint by the date, he would get the summary judgment. WRONG!! I pleaded my case to the judge, and he denied the motion for a judgment, and allowed me 20 days to respond to the court. I think this my get interesting now. Especially when I told the lawyer I would counter sue. I told him tape recordings can go along way. Thanks again for the advise.
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    ScottGem Posts: 64,966, Reputation: 6056
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    #11

    Nov 20, 2006, 06:46 PM
    Pretty much what I expected. The thing is I think they owe you a car or its value.
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    AMS Posts: 11, Reputation: 1
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    #12

    Nov 20, 2006, 09:22 PM
    All I know is I got satisfaction today by hearing the judge say " Your motion for summary judgment has been denied." That poor fella drove for over 2 hours for something that took less than 10 minutes. The judge told me I had 20 days to file an answer and provide my paperwork. They will have that by the beginning of next week. What I thought was funny, was as we were waiting for the court to open the lawyer asked if I had thought about a settlement. I told him that when I corresponded with them, I told them if they pursued the issue by filing a suit, I would in turn file my own. I guess when I take the papers to the court, I find out how much it will cost to file a counter claim.
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    ScottGem Posts: 64,966, Reputation: 6056
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    #13

    Nov 21, 2006, 06:29 AM
    I would have told the lawyer; "We HAD a settlement, you reneged on it! Why should I trust you to settle now?"

    However, I would, at least listen to the offer. I would settle if they marked the debt as paid in full AND reimbursed me for the book value of the car at the time it was repo'ed. Anything less and you go back to court. You might consider making that offer to them.
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    AMS Posts: 11, Reputation: 1
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    #14

    Nov 21, 2006, 07:47 AM
    Well, when I told the lawyer that tape recordings will go along way, within seconds he was opening his file and writing things down. I don't know what he wrote though. I also told him I was now going to go after the place for the federal violations they made. He jotted some more things down. What was funny, was when I was telling the lawyer what went down, he just sat there and didn't say another thing. He just basically let me talk outside the courtroom and when I said what I had to say in the courtroom, and then hearing from the judge their motion was denied, he said nothing more. It makes me wonder if he is just going to sit back and wait to see if I produce the paperwork, or if he is going to dismiss the suit.
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    ScottGem Posts: 64,966, Reputation: 6056
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    #15

    Nov 21, 2006, 08:11 AM
    I hate to tell you, but the lawyer was being smart. He was letting you reveal your case to him without giving you any idea of what their next step will be. Now he goes back to his office and goes over his notes and compares them with the facts he has. From there he and his colleagues decide how to proceed.

    I also suspect, that the lawyer they sent is an associate. His only task was to try and get a settlement or the default judgement. If he couldn't he was probably instructed to learn what he can and report back.
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    excon Posts: 21,482, Reputation: 2992
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    #16

    Nov 21, 2006, 08:19 AM
    Hello again, AMS:

    I'm glad you're thrilled. But like I said, you're going to LOSE!!

    Do you know that cops can LEGALLY lie to get a confession? Do you know that collectors can LEGALLY enter into a subsequent agreement, EVEN IF THEIR ONLY PURPOSE IS TO LIE, SO THAT THEY CAN GET ACCESS TO THE VEHICLE THAT THEY OWN, SO THAT THEY CAN REPOSSESS IT??

    The subsequent agreement you entered into, does NOT supersede the first. You would think it would, but collectors know what they're doing - unlike yourself.

    You owe the money! You're going to lose!

    excon
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #17

    Nov 21, 2006, 08:29 AM
    Quote Originally Posted by excon
    I'm glad you're thrilled. But like I said, you're gonna LOSE!!!

    You owe the money! You're going to lose!
    I don't understand what your beef is here. A settlement agreement certainly CAN replace the original. Sure the creditor can vacate the settlement at the slightest hint that the borrower is not living up to their end. But that doesn't appear to be the case here.

    Unless the creditor can justify the balance owed and that sale of the car did not cover it, they will lose. If they can, then they will win. However, the settlement offer that was accepted and being paid on is binding.
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    AMS Posts: 11, Reputation: 1
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    #18

    Nov 21, 2006, 06:17 PM
    What I told the attorney sitting outside the courtroom was the same thing I told the judge. Because of what I told him, he found reason to allow me 20 days to respond to the court. I will respond but will add a counter claim. As soon as the Thanksgiving Holiday is over, I will go full blast on getting everything to the court. It's just too hectic right now with Thanksgiving. I have until December 11th to respond. They were just waiting for me not to respond (like I did) so they could have an easy judgment. It didn't work for them. I don't think they thought I was going to fight it, nor have a paper trail to back myself up. We'll wait and see. But thanks for the advise.
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    #19

    Nov 21, 2006, 06:40 PM
    Keep us posted.

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