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nikkitoney61 · Feb 7, 2007, 02:37 PM

1 more question, I promise I won't bother anyone again. To summarize, I was served a summons from MBNA from the county sheriff. I had 30 days to respond to a PO Box at the court house. I sent a letter( didn't know better-now since reading should have done it differently). I called the law firm trying to make a payment arrangement. She wanted me to pay 1400 as a good faith deposit then make payments of a ridiculous amount. I have since received a letter stating that I now have 10 days before they get a judgment on me & could possibly force a sheriff execution? I checked my credit report & the account was a charge off by MBNA. Doesn't this mean they are not pursing the collection & the debt has been sold to these attorneys? I also show that the account was in good standing up until 9/06, then 12/06 they put a big red KD on there. Any words of wisdom? Should I contact them again?

bretb · Feb 8, 2007, 09:01 AM

LOL, you're not bothering us. We're here to help and hopefully you'll return to relate your experience and help others. There's no bother. Imagine what good this forum would be if no one posted, being worried about bothering people. ;)

Anyway... I wouldn't waste time talking to them, but definitely get to the courthouse with a paper in hand. Type out an "answer" to the complaint that has been filed against you.

I recommend taking it in person, take two copies and the clerks office should stamp the second copy for you to keep for your records (proof that you filed an answer, in time).

You're probably right, if the amount was charged off, the debt has probably been sold. I'd still call the original creditor if you're interested in paying, otherwise, save your money and put it towards other bills. If the original creditor (MBNA) tells you they sold the debt and you will HAVE to arrange payment with them, then forget it. The scavengers aren't worth paying (in my opinion).

I'm assuming the 'alleged' balance is pretty high. If you decide to 'attempt' to settle the account with the scavengers, I'd offer them like 10% to 15% of the stated balance. If they don't take it, I'd wait six to 12 months and try again (reminding them that in 7 years negative marks fall off your credit report anyway).

The threat of being sued should not scare you as they are just hoping to scare you into payment. Remember, it's called UNsecured debt for a REASON! By all means, pay your house and car payments first before anything else. The creditor for those assets can grab 'em if you don't pay. Credit cards or any other unsecured debt are totally different.

If worse comes to worse, if you end up facing a sheriff execution, they should at least give you the option of lethal injection or electricution. :) (tongue in cheek)

Seriously though, don't sweat it. File your answer and good luck. It's a bit stressful (been there, done that), but you'll get through it. Just get that answer filed and then update us as to where you're at and the response the collector takes. :)

nikkitoney61 · Feb 8, 2007, 02:15 PM

THe letter I received said they could issue a Sheriff execution to recover the debt. What do they mean?

bretb · Feb 9, 2007, 12:59 AM

Hmmm. You got me there. Have you tried to Google it? I'm very curious now. I may need to check it out. I could venture a guess to say that perhaps the Sheriff comes out and tries to scare you into paying. But not paying a debt is a civil matter, not a criminal matter.

I'd hate to think that the Sheriff doesn't have better things to do with his time. :)

excon · Feb 9, 2007, 08:12 AM

Originally Posted by bretb

The threat of being sued should not scare you as they are just hoping to scare you into payment. Remember, it's called UNsecured debt for a REASON!

Hello nikki:

I don't know what you guys have been discussing, so I don't know if my 2 cents is worth anything.

However, if they get a judgment, bret is right, they can't make you sell your house. But they CAN empty your bank accounts and garnish your wages. That's something that I would be concerned about.

excon

nikkitoney61 · Feb 9, 2007, 08:51 AM

I don't think a cc company can garnish wages in NC but how would they get hold of my bank info?

excon · Feb 9, 2007, 09:27 AM

Hello nikki:

Don't know about wages in NC. They'll do an asset search. It'll turn up. At worst, they'll call you in to testify about your accounts under oath. Then you'll tell 'em.

excon

ScottGem · Feb 9, 2007, 10:02 AM

Originally Posted by nikkitoney61

THe letter I received said they could issue a Sheriff execution to recover the debt. What do they mean?

Generally, asset recovery in case of debt is performed by local Sheriffs. These are not necessarily law enforcement people, but quasi officials (usually political appointees) that have the right to collect a fee to collect debts.

If they get a judgement against you, a sheriff would deliver the order to seize any property.

As noted, they cannot make you sell your house. At the most they can put a lien on it that would need to be satisfied before you can sell it. They can garnish wages (subject to local laws) or seize bank accounts. There are a variety of ways they can find out about your assets including requiring that you tell them.

bretb · Feb 9, 2007, 10:18 AM

There's not a lot that can be done for UNsecured debt. "IF" they could cease bank account assets, the only way they would know the bank and account number is if you either gave it to them voluntarily, or they got a court order demanding it from you. I don't think you have to worry about that. I'm not familiar with NC state law, but in most states, no collector, even with a judgement and court order can garnish enough of your wages that you can't maintain liveliness. It's not like, even if they could garnish your wages, you're suddently not getting a pay check because they're taking it all. A small portion would be sent to the collector each pay period is usually how that would be handled.

HOWEVER, allow me to reiterate... I don't think you have to worry about ANY of this. The scavengers have VERY limited power. They use more scare tactics and hope to recover some funds from folks who are push overs and don't know any better. You really don't need to worry about wage garnishment or account asset ceasure.

excon · Feb 9, 2007, 10:50 AM

Hello again, nikki:

I respectfully disagree with bret. They have the power to sue you and get a judgment. IF you have money in the bank, they have the power to seize it. That's NOT limited. That's damn powerful in my book.

excon

bretb · Feb 9, 2007, 11:14 AM

I think it's probably note worthy to point out that you're referring to the exception rather than the rule excon.

I'd venture a guess to say that perhaps 1 out of every 500 people would have to worry about a judgement (not including default judgement if a debtor stubbornly does NOTHING when a complaint is filed against him/her), and perhaps 1 out of every 5,000 would need to fear that the collector (who met the 1 out of 500 odds) would them be able to find out who you bank with, what your account numbers is and that you have a balance that would even be worth them pursuing.

If Nikki's account is link mine and MOST people's, immediately following payday, there's a sizable chunk of change in there, and once bills are paid a week later, there's barely enough to get by to next pay day. Hardly worth a collector's time and legal cost to pay their attorney to file with the court to acquire a court order to seize account assets.

All in all, I guess I needed to be VERY clear that I am NOT saying the collector CANNOT do that, I'm just saying they're not the type to do it. That it's just flat out not something that MOST (99.9999%) of those of us in collections situations, do NOT need to worry about.

That's just the flat out facts man. If the collector successfully gets a judgement (usually by 'default' by neglect of the debtor - near impossible and too expensive for the collector to prove anyway, if it were to move to litigation when debtor 'answers' the collectors complaint) and decides to blow the extra cash to then try to get a court order to grab your bank account, then you're just one of those unluck 1 out of 5000 that is also the 1 out of 500 that perhaps GAVE the collector the evidence/documentation that they needed to successfully sue you in court... AND WIN.

MOST (ventureing a 99.999% guess) of us are NOT in that situation. ;)

ScottGem · Feb 9, 2007, 11:17 AM

Originally Posted by bretb

There's not a lot that can be done for UNsecured debt. "IF" they could cease bank account assets, the only way they would know the bank and account number is if you either gave it to them voluntarily, or they got a court order demanding it from you. I don't think you have to worry about that. I'm not familiar with NC state law, but in most states, no collector, even with a judgement and court order can garnish enough of your wages that you can't maintain liveliness. It's not like, even if they could garnish your wages, you're suddently not getting a pay check because they're taking it all. A small portion would be sent to the collector each pay period is usually how that would be handled.

HOWEVER, allow me to reiterate... I don't think you have to worry about ANY of this. The scavengers have VERY limited power. They use more scare tactics and hope to recover some funds from folks who are push overs and don't know any better. You really don't need to worry about wage garnishment or account asset ceasure.

Actually the main thing she WOULD have to worry about is seizing her bank accounts. Its not that hard for a seasoned creditor to find that info. As for garnishments I just checked and it appears that NC does not allow wage garnishments for regular creditors only for government creditors.

While I agree that the scavengers use scare tactics, IF the debt is valid and they have proof of it, the law is on their side. They will obtain a judgement that can be used against her. One of the reasons they use scare tactics to to get them not to fight the judgement so they don't have to offer proof.

I think it's probably note worthy to point out that you're referring to the exception rather than the rule excon.

Originally Posted by bretb

I'd venture a guess to say that perhaps 1 out of every 500 people would have to worry about a judgement (not including default judgement if a debtor stubbornly does NOTHING when a complaint is filed against him/her), and perhaps 1 out of every 5,000 would need to fear that the collector (who met the 1 out of 500 odds) would them be able to find out who you bank with, what your account numbers is and that you have a balance that would even be worth them pursuing.

I have no statistics nor would I be willing to guess at them. With one exception. Out of those creditors that DO obtain a judgement (and I'm talking about agencies in the business of collections) I would say a rather high percentage do find and go after cash assets. That's their business. They probably wouldn't go to the trouble of getting a judgement if they didn't have some inkling that there were assets to attach. Even if the account is small, just the fact of seizing any account is often enough to scare a debtor into paying. I worked in this field for a few years so I know what I'm talking about. From what I gather your experience is from the debtor side which would be minimal.

bretb · Feb 9, 2007, 11:39 AM

MOST of the time. I repeat... MOST of the time, they don't HAVE the proof. And hence the action of bring a lawsuit is additional "smoke and mirrors" to try to get you THINK that they have proof, as they will also try to get you to say things on the phone (while recording the call) and get you to submit documentation that they can use against you in court.

A collector with a SOLID case, has not need to "FISH" for additional proof or confession that the debt is yours and/or that you should pay it.

You state that "They will obtain a judgement that can buse used against her", and that's just NOT true.

IF, I repeat, "IF" (and that's a pretty MAJOR 'if' too ;) ) the collector chooses to miticate, the COURT will determine IF they obtain a judgement. You state it like it's automatic.

In a lot of cases, people have transferred credit card balances from another card, and so even the original creditor has NO evidence or proof of purchases made with the card, etc.

If you really want to waste your money, consult an attorney on this. It is true that everyone encourages you to settle outside of court (even the judge)... there's just flat out TOO many lawsuits. However, encouragement to settle should not be confused with 'you may lose if you fight this in court'.

And on bank accounts, I personally wouldn't worry about it Nikki. Unless you're naïve enough to GIVE the collector your bank info, it would likely cost them more than it's worth to attempt to get a court order (they don't even know for sure they'd get - it's up to the judge) and that's assuming they first successfully won a judgement (by default or otherwise).

I guess in a nutshell I'm saying... It's ENTIRELY possible you could die by getting struck by lightning, but I just don't recommend worrying the rest of your life about that happening.

... as it VERY likely Won't!

ScottGem · Feb 9, 2007, 11:46 AM

You just aren't getting, my friend. You have given a lot of good advice here, but this time you are off base.

I totally agree with you, as I have in other threads, that collectors employ some very unscrupulous methods to collect on a debt. That's one major reason I'm not in that business anymore. I agree that very often the collector has purchased the debt as a speculation and their legal ability to collect the debt can be questioned.

But I think you do a disservice by giving people a false hope when you demphasize the possibility of getting assets attached. It happens everyday. There are several threads here from people who have had it happen to them.

nikkitoney61 · Feb 9, 2007, 02:07 PM

One last comment, I just spoke with these so called legal experts at Smith, Debnam, Wyche Saintsing & something. They claim I didn't anwer their demand in August 2006. They said they do not have to prove anything to me. We are past that point. They are now saying they will settle for a 700.00 good faith payment & monthly payments of 275.00? They also said to make the money order or check payable to MBNA American Bank. I though if a cc company charged off an account, that they were no longer trying to collect this debt. Now I am really confused!

ScottGem · Feb 9, 2007, 02:16 PM

MBNA American Bank no longer exists. They merged with Bank Of America about a year ago. I suspect that the collectors just set up an account under that name to make it appear more legitimate.

They can't get a judgement against you unless you don't show up in court. If they are claiming you have 10 days, then either they are lying or there is a court date. You have a right to defend yourself. There are many threads here with instructions about what to do.

If they do take you to court they will have to provide proof of the debt. And that means the original contract. They are probably trying to intimidate you to either pay or not show up in court. So they can get a default judgement without providing proof.

bretb · Feb 9, 2007, 02:28 PM

Originally Posted by nikkitoney61

One last comment, I just spoke with these so called legal experts at Smith, Debnam, Wyche Saintsing & something. They claim I didnt anwer their demand in August 2006. They said they do not have to prove anything to me. We are past that point. They are now saying they will settle for a 700.00 good faith payment & monthly payments of 275.00? They also said to make the money order or check payable to MBNA American Bank. I though if a cc company charged off an account, that they were no longer trying to collect this debt. Now I am really confused!

They claim you didn't answer "their" demand? Are they perhaps meaning you didn't file an 'answer' to a court filed 'complaint' that they filed? (in which case you may have a default judgement against you already... It does NOT sound like that is the case from what you've stated.

You may try to check with the local court to see if you do have any judgements against you. Have you lived at your current address for a long time? Sometimes if people have moved, court papers get sent to an old address, in which case, if you were not notified, you can file a request with the court to repeal the default judgement if you never received notification that you were being sued.

Also, make sure you don't give them any additional information or evidence that the debt they're contacting you about is yours. Remember, most of the time these guys don't have the evidence they need to prove ANYTHING in court, make sure you're careful not to strengthen their case. If all goes well, you can simply file an answer once they sue you and they'll drop the suit immediately because they cannot get a default judgement at that point (unless it proceed to trial and you don't show up).

nikkitoney61 · Feb 9, 2007, 03:36 PM

Thanks everyone for all your useful information. I will let you know what happens.

bretb · Feb 9, 2007, 08:17 PM

Nikki,

Let's also keep this in order though as well.

FIRST: they have to sue you
SECOND: they have to show up in court and WIN to obtain a judgement (costly and time consuming) - Does NOT (I repeat) NOT happen MOST of the time. I was sued twice (once for $9,000, and once for $28,000) and NEITHER time did the plaintiff show in court or fight once I filed docs with the court stating that I will fight this in court and asking the court to throw out the lawsuit).
THIRD: "IF" they win (yes, I said "IF"), they will have a judgement, but cannot use a judgement to seize any accounts. I'd bet that, unless given to them by the debtor, 99% of the time, these scavengers don't have 10% of the docs they'd need to PROVE anything in court and therefore would NOT win in such a case, anyway.
FOURTH: More attorney's fees to have court docs filed to request a judge to issue court order allowing bank accounts seized.
FIVE: "IF" judge allows this (yes, again, I said "IF"), they will have court order
SIXTH: they must determine what bank you have an account at and other specific information that may not be readily available (unless you offer it to them). Actually, most of this information would have to be in the court order anyway, as the judge orders a "specific" bank to perform a "specific" action, such as "freeze account until it can be reviewed by the court" or some other specific court ordered instruction that MUST be on the document BEFORE the court will issue it.

ScottGem · Feb 9, 2007, 08:52 PM

Originally Posted by bretb

Nikki,

Let's also keep this in order though as well.

FIRST: they have to sue you
SECOND: they have to show up in court and WIN to obtain a judgement (costly and time consuming) - Does NOT (I repeat) NOT happen MOST of the time. I was sued twice (once for $9,000, and once for $28,000) and NEITHER time did the plaintiff show in court or fight once I filed docs with the court stating that I will fight this in court and asking the court to throw out the lawsuit).
THIRD: "IF" they win (yes, I said "IF"), they will have a judgement, but cannot use a judgement to seize any accounts. I'd bet that, unless given to them by the debtor, 99% of the time, these scavengers don't have 10% of the docs they'd need to PROVE anything in court and therefore would NOT win in such a case, anyway.
FOURTH: More attorney's fees to have court docs filed to request a judge to issue court order allowing bank accounts seized.
FIVE: "IF" judge allows this (yes, again, I said "IF"), they will have court order
SIXTH: they must determine what bank you have an account at and other specific information that may not be readily available (unless you offer it to them). Actually, most of this information would have to be in the court order anyway, as the judge orders a "specific" bank to perform a "specific" action, such as "freeze account until it can be reviewed by the court" or some other specific court ordered instruction that MUST be on the document BEFORE the court will issue it.

This info is NOT accurate. First step is correct. The Second step is generally correct, though they will try to get a default judgement to avoid your showing they don't have the documentation. The third step is partially incorrect. With the judgement they can and WILL seize assets they find. However, I do agree that often, they will not be able provide the docs to win if you contest it. The sixth step is actually the 4th step. But its not as hard as bret tries to paint it. The judge CAN require that you tell them what assets you have. In the 4th step, bret doesn't understand that these people have atty's on salary. It doesn't cost them any more. In the 5th step, once they obtain the judgement, garnishment orders are a rubber stamp.