[leonardavinchis]

I have an 87 year old mom who's health is slowly deteriorating for the worse. She is currently at the Chronic Care facility in Etobicoke. Although she's no longer aware of it and has no understanding of what she's facing, the current problem that she finds herself in is that the collection agency of Capital One MasterCard is threatening to take court action in getting my mom to pay up her MasterCard loan which is around 7,000 dollars. The amount of the MC load was originally $5,000 but because of her failure to keep up with her monthly payments the loan itself eventually ballooned to around $7,000 brought on by interest rates overtime. Her failure to pay was a result of a number of health misfortunes that started with Strokes, fracture pelvis, more mini-strokes, failing kidneys, possibly diagnosed lung cancer, not to mention dementia.

She is currently on old age pension, both Federal and Provincial and that is the only one she's got. My sister was forced to take possession of her bank account after we realized that my mom can no longer do anything, With only some very minor bills including her life insurance, most of her money now goes towards the Chronic Care facility and has no extra money left to pay towards her MasterCard loan. I've also tried to assist her by sending MasterCard a payment of $50.00 each month but they're now saying that $50.00 is not enough. She's been bedridden for the last 2 years now and is being sustained nutritionally by way of a feeding tube. The collection agency of Capital One Master Card has threatened to bring her to court if the loan doesn't get settled. They are now harassing my sister. To date, the collection agency has informed my sister that if payments can be promptly made for around $4,000 Capital One is willing to face the other way around. My mother doesn't have that kind of money and neither do we. I would like to know what's our best option at this point. Unfortunately, none of us was able to get her a POA prior to her poor health.

[ScottGem]

I've also tried to assist her by sending MasterCard a payment of $50.00 each month but they're now saying that $50.00 is not enough.

BIG mistake. If you paid this out of your own checking account, they may be able to sue you as having taken responsibility for this bill. DO NOT make any more payments.

Send them a letter stating that your mother is confined to a Chronic Care institution (do not give a location). That them her only income is from a pension and that goes to the care facility. Tell them, they are welcome to sue her. If they do, you will provide the court with proof of her dementia and current condition. Further tell them that they are not to contact either you or your sister directly since you have no responsibility for this debt. Send this letter certified.

[excon]

Hello l:

Scott's solution is great, of course... But, there's an easier way... IGNORE them. If your mother has NO assets and NO estate, let them get a judgment... It's NOT going to hurt your mother, or YOU.

excon

[ScottGem]

I don't recommend ever ignoring such a suit. Especially in this case, because you could be named on the suit. Send them the letter as I outlined. From there you can ignore any correspondence, If they do file suit, just make sure only your mother is named. If that's the case, then you can ignore it.

[excon]

Especially in this case, because you could be named on the suit.

Hello again,

Yeah, that too.

Exco

[Jake2008]

If there was no power of attorney prior to your's poor health, how did your sister take over her chequing account?

And, why were there thousands of dollars in health costs, when her health costs are covered.

Is she in a private home in Etobicoke, or has someone applied on her behalf for Government assistance, or subsidy for that. Who is handling her financial affairs, if she has dimentia, and why hasn't he cheques gone directly to the home she is in, in an account set up for her, which can be done, especially where there is nobody legally appointed to manage her affairs.

Many have sadly found themselves in the position you find yourself in, now. Myself included. But, there were never any charges any of us had to put on a credit card. Medical costs associated with the illnesses your mother has, are covered with your health card, as are the medical expenses while she is in the nursing home.

I do appreciate the position you and your sister find yourselves in, but I am curious as to why, if neither of you had access to, or legal standing to, manage any of her resources.

[leonardavinchis]

@ Jake2008: Prior to her poor health condition leading to her current bedridden condition now, she had actually spoken to her bank and asked them if I or my sister can have access to her chequing account. The bank gave her a POA form which she then filled out and named my sister as the only person that will have access to her account. Most of the money that is being paid out of her chequing account is now paying for her long term care at the Chronic Care facility.

@ ScottGem: Yes, I have been making the minimum payments out of my own checking account since more than a year ago. What's weird about this whole thing though, that until recently when my sister has handed me a copy of her Capital One MC statement, they've totally changed her MC account when all this time, my payments where going through an old account. I've read on the statement that while they were reducing her credit limit because of her poor record of monthly payments, they were assigning her a new MC account number. Even if they find out that the minimal payments being made or minimal payments that are still going through are coming from my account, I can always tell them I am making the payments on behalf of my sister who has the only access to my mother's checking account and only because my sister pays all this back every time I go see her. Even then, my sister and I had never given Capital One any indication that the continuous payment being made on her account were coming from me. They had no clue of my mother's current condition until they started with the series of calls recently. If I do send them a letter, how do I get this letter certified? Do I get a lawyer to certify them for me?

I've read somewhere that even if they take my mother to court, the worse thing that can happen to her is that the court can put a lien on her life insurance, or better yet, the court can easily dismissed the case. The social worker who has been assisting my mom to this Chronic Care facility has already made it known that she can produced proof that her current medical condition is beyond any reasonable doubt and she can obtain something from my mom's attending physician.

[ScottGem]

First, certified mail is a done by the post office. It means the recipient has to sign for it and you get proof of delivery.

Second, you can argue the issue of payments if they include you in a suit. Whether a judge will buy it I don't know, but I think there is a good chance.

I don't think the can attach her life insurance. Life Insurance is paid to a beneficiary and is not a part of her estate.

So I think you have enough to get a suit dismissed if they bother to file one. But a letter as I outlined, will probably end the collection effort.

[leonardavinchis]

Good Folks from Ask Me Helpdesk,

First of all, Happy Holidays from the staff and members of this very valuable and informant Ask Me Helpdesk website.

Once again, I've come to ask for your expertise. In August of this year, I had posted this question [URL="https://www.askmehelpdesk.com/seniors/ailing-mother-credit-card-debt-502587.html"] and got some good advice from the likes of excon; ScottGem and Jake2008. On ScottGem's suggestion, I did exactly what he's suggested by sending the collection agency a cease and desist letter. I'd made the letter to look like it it was written by her. I'd asked her to mail this out and each of us kept a copy of this letter. 4 months later, my sister have recently received what looks like a court summon letter which I have not seen nor read it at this point. There are no other member of the family being named on the summon other than my mom.

My next questions are:

1. Other than having a proof of my mom's clear outline of her current deteriorating medical conditions send to the court, what other viable options do we have?

2. Does it still make sense for my mom to file bankruptcy at this point but who can file bankruptcy on her behalf if she's got no POA?

3. Are they going to require my mom to show up in court even though the Chronic Care facility can prove that she is bedridden and incapable to attend in person?

Once more, I would appreciate any advice or suggestions from any expert members on this community.

[ScottGem]

Send a response to the court with a statement from the care facility about her condition. Ask that the case be dismissed because she has no income and is in no condition to defend. Send a copy to the plaintiff.

If a hearing is still scheduled have someone show up to present evidence of her condition.

{threads merged}

[Fr_Chuck]

Correct, always answer at this point and be direct, give no more info than required. If there is a checking account, is there very much money in it, or is it basically month tomonth expense. Since if they get a judgement, they will try to freeze the bank account and take any money that is in the account.

I see no reason for bankruptcy since there is little they can do at this point. But have someone show up on her behalf if they force a hearing, so the other side will not win by default

[leonardavinchis]

Thanks ScottGem. I've just spoken to my older brother who now has possession of the letter from the lawyer representing the collection agency. I'd asked him to read the whole letter to me and the lawyer is demanding immediate payment including interest and lawyer's fee. Total comes to around $10,000. At this point, we're more concern about her government pension from retirement and old age. Are they (the lawyer) going to be able to get their hands on that?

Thanks

[adthern]

I agree with the above posts in that you should stop paying anything towards the bill. (that 1200$ would have been better spent on an attorny).

One of your family should go to the local law library and look at the rules of court. (this may get a bit complicated)--There is a difference between "an answer to the complaint" and a "motion to dismiss" be very careful, when you "answer" you can waive certain rights and defenses, a motion does not.

It sounds like you need a motion to dismiss for lack of competence, if such a defense exists in your jurisdiction.

I would suggest looking around the state/county for elder assistance programs, many non profit groups or the state themselves will offer limited legal assistance/ The local bar assoc. or law schools also may have programs to help.

Bankruptsy, I am on the fense on that one... if she has no assets (money, house, CD, IRA, stock, etc... ) then likely it would only stop the collection agency from bothering you, but would cost more money.

Another thought is to look around for new lawyers and see if any of them would take the case for a flat fee of whatever you can afford, sometimes new attorneys will take a case for the experience more than the money (and they are not turning away other cases to take yours).

[ScottGem]

Its unlikely they can get at the pension. Another source for help would be local law schools. Many run clinics that can help you with the paperwork.

I would take a chance here. I would call the attorney and just ask him if he is aware that your mother is institutionalized with dementia. Ask him if he really intends to bring a suit to court against such a person. DO NOT answer any questions except to say that you will fight it.

[leonardavinchis]

What about sending the lawyer a notice of Judgement proof to clearly indicate my mother has no assets other than her exempt funds and that his firm will just be wasting their time? Also, is it wise to send her bank a request letter to withhold all of her exempt funds from possible garnishment from a judgement creditor?

Thanks again

[excon]

Hello again Leonard:

I again suggest that you IGNORE this guy ENTIRELY. The only reason I went along with defending the suit, is because I thought YOU could be named because you PAID some money out of your bank account...

Since that doesn't look like it's going to happen, and since neither your mother NOR your family will suffer ANY negative consequenses from a judgment being filed against your mother, IGNORE it.

excon

[ScottGem]

First, I would NOT CORRESPOND with the attorney other than to copy them on anything you send to the court.

While excon has a point here, I still rebel against ignoring it entirely. Just doesn't sit well with me. My vote would be filing a motion to dismiss on the grounds that she is incompetent to appear at a trial.

[leonardavinchis]

Can I file a motion myself or is this something that only a lawyer can do? On the lawyer's letter apparently, he's given my mom 10 days to respond which would have been Dec. 21st. Obviously, we did not respond on my mother's behalf. What's going to happen now? Do we wait until they send my mom a court summon and then file a motion to dismiss?

[ScottGem]

First, the lawyer can't give you a deadline to respond. This is a matter of court procedure. And I've never heard of so short a time limit. That makes me wonder whether a court proceeding has actually been filed. Does the summons include a court and docket #. If so, you need to contact the court tomorrow morning and check to see if there really is a suit and what the real deadline for responding is. Whether you can file a motion to dismiss depends on the court that the case was filed in. Ask the court clerk.

[leonardavinchis]

Hi Scott,

It is a letter from the lawyer asking my mom to give them a call and to respond to their request to pay up immediately after 10 days. If not, I can only guess that they'll be ready to bring her to court and seek a judgement. The fact that we didn't do anything nor respond by contacting their firm with intention to settle begs the next question: what now, or better yet, what can my mom expect from this law firm next?