How to answer suit for charged off credit card?

Occasionally somebody gets sued and considers filing for bankruptcy or a settlement with the creditor.

I have found that bankruptcy attorneys STINK at getting answers filed to avoid the default judgment. Besides, people usually don't have an attorney yet and the summons is totally unexpected.

MOST people simply ignore the summons, and then they discharge and in addition to the bk they have the default judgment on their credit.

That's of course a real bad move, since sometimes it's a headache getting the judgment reported as discharged. And I'm pretty sure it will lower the scores in addition to the bk filing, it certainly looks bad on the credit. It's definitely a completely unnecessary judgment.

Also, often people try to SETTLE their debts rather than file for bankruptcy. In that case, you really want to extend that answer deadline, usually you'll get at least several more weeks to the trial, if not months - as long as an answer is filed on time.

So how should one answer when there is NO dispute over the legitimacy of the debt, but you need to buy some time?

I"m in that exact situation right now and I don't know what to do. I'm being sued for ~4200$, I was served with a summons and the attorney's office agreed to extend the time for me to reply (the 30 day answer period was about to expire). The paralegal in the attorney's office told me that she hadn't even filed the notice of service with the court yet anyway so it didn't matter. I told these people that I'd be willing to set up some type of settlement payments in return for the creditor agreeing to take off some of the derogatory info on my credit reports and after making payments for 6 months, they report the account as current and never being late (the account is a voluntary vehicle repo from 12/99), about a week later I received a letter from the attorney's office stating that if I sign this letter they agree not to sue, but that was it. No mention of making any type of concessions on anything. I haven't signed anything, I can't afford an attorney, hell I can't even afford to answer the court (it'll cost almost 200$ to answer the suit!). I've got the collection agency they used on 3 violations and really want to sue them for this but I"m stuck against a wall here, I have no money, no attorney to assist me with this and I want to improve my credit but am finding it nearly impossible to get creditor's to agree to anything. I live in southern california and make ~40/year but it's so freaking expensive to live here that I have ZERO savings and can't afford to start making payments again to all these creditor's. I'm thinking I need to file for BK and get it over with but it's hard as hell to come to terms mentally with doing that. It's basically admitting that I've failed with money. It'll screw up my credit for another 10 years but then again my credit sucks now anyway. I've got an auto loan that I'm paying 22% interest on because it's so bad. If these A-HOLES that are suing me would relax and try to work with me I may be able to actually escape this without BK but I don't hold out much hope.... What should I do here, BK or no BK??? I have no freaking idea......

The fastest time-buying action is to file a motion to quash. Almost any paralegal firm will do it for you (like We The People) for between $40-$80.

Basically, you're claiming that you were improperly served. The court will hold a special hearing on the service question. It can buy you 2-4 weeks.

It seems that the best way to get the other side to negotiate or back off is by becoming empowered and hitting them back in their pocketbooks. Would it be possible to find a Naca attorney on contingency, or contact Legal Aid for help in filing Pro se? In Ufkenmil's case and many others, the CA or Debt collector lawyer are guilty of "several violations" of the FDCPA, Truth in Lending Act, or have used Unfair and Deceptive Practices. So it would seem to be relevant to file compaints with The BBB, FTC or AG... and then present those documents in order to pressure the collectors. Settlement would then be more likely. Even if, there is "NO dispute over the legitimacy of the debt", as Christine's scenario provided, finding relevant issues in order to take the legal offensive will both buy time and create leverage for negotiation.

A couple things:

It really sucks when you don't have the money to even file an answer. There ARE ways to get that fee waived, another form to fill out and the qualifacation requirements vary of course by State and Court.

It SHOULD be online, or call the court clerk and ask about it.

If you HAVE violations, a counter suit should be filed with the answer. If they're solid violations, I would say that they'd most likely settle for dismissing the suit.

Shylock, why would one file a motion stating that one was improperty serverd when it's not true? With all the answers I've gotten to my suits, that was never an issue.

A few words on NACA: It all sounds so wonderful, all these consumer advocate attorneys.

Reality check: I got several responses such as "not profitable enough" and Robert Stempler in CA wrote that my client has no jury appeal, his credit is checkerboard. That was with solid violations such as verified discharged balances + inquiry after the bk w/o permissible purpose, and a collector verifying after getting validation, + a bunch of incidental violations, oh, and TU totally ignoring disputes - we had the confirmation printout.

I'm extremely discouraged, several of those consumer advocate attorneys CHARGE to even review a case. Bybee, AZ, $150 and Feferman, NM $175. That's about the average weekly net pay for most working people in AZ and NM - it's not California.

And, many attorneys take literally MONTHS to advise whether they'll take a case.

Ufkenmill should also call the court and make sure they haven't filed anything yet, I don't trust what anyone says anymore.

I just looked at NOLO:

Summary

--------------------------------------------------------------------------------
Feeling overwhelmed by your debts? This book is exactly what you need to help you get out from under them! Step by step, Attorneys Robin Leonard and Deanne Loonin shows you how to:
prioritize debts
create a budget
negotiate with creditors
stop collector harassment
challenge wage attachments
contend with repossessions
respond to creditor lawsuits
qualify for a mortgage
rebuild credit

I'll buy that now and post what's relevant.

It's a common tactic here in California during eviction lawsuits to throw up a few stalling tactics to permit the deadbeat tenant to live at the expense of the landlord for a few more weeks at a time.

The motion to quash is the first line of defense in this matter. The tenant goes to a legal preparation service and files a motion to quash. The court serves it on the landlord and the landlord's attorney must prepare a response. A date is scheduled for the hearing on the quash motion and the tenant never shows up. Time gained 2-4 weeks.

This is just a move to GAIN TIME and COST THE OPPONENT MORE LEGAL FEES. It does nothing to ultimately beat the eventual lawsuit.

I thought we were discussing buying extra time for a person to file bankruptcy?

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Regarding attorneys, they're part of the legal racket. Anyone cannot just walk in and provide legal services to someone who needs it no matter HOW good you are at whatever niche you serve. That means you can't have joe-the-former-truck-driver-beat-27-tickets-in-14-months represent you on your traffic ticket. Why? He doesn't have the right government-mandated license to practice law.

Last time I checked getting a law license is the toughest thing imaginable - even doctors have it easier. Years of schooling, super-hard tests that no one passes on their first try and oral examinations make it near impossible for people to become lawyers.

This limits competition among lawyers. That makes the cost to hire a lawyer at LEAST $200/hr. No lawyers is going to take your case just because you're right. You have to have cash, cash and more cash.

I feel very sorry for your client. You say he has provable damages and FDCPA violations. That doesn't matter.

YOU probably have EVERY qualification required to represent him BETTER than any attorney is likely to be able to, but you are legally banned from helping him.

Just remember - government is there to 'help you' (yeah right).

I agree with almost everything you said except:

"YOU probably have EVERY qualification required to represent him BETTER than any attorney is likely to be able to, but you are legally banned from helping him."

There are two parts to being a lawyer:

1) knowing the law - regular readers here know more than most lawyers that don't specialize in FCRA/FDCPA

2) knowing the PROCEDURES.

I know nothing. Procedures vary tremendously not only by State but by Court - it's the main reason why I haven't filed my own federal suit yet.

Most of the clients/readers with attorneys have to educate their attorneys about the codes and case law.

But, I also have a client who recently settled with one of the creditors for 10K and of course almost half goes to the law firm, but he had no expenses at all.

Not all attorneys are identical, it's just that it's disappointing to see how many are only interested in cases that will get large settlements. Apparently the "reasonable attorneys fees" the FCRA and FDCPA provides for are not at all sufficient for an attorney to want to take a case.

Also, want to add here that Stempler did offer to take the case on contingency, but with no money for my client, he thought he could get the credit reporting corrected.

I guess he was going to use my client's statutory damages to apply to his legal fees. My client DID have actual damages as he has several kids he recently got car loans for (co-signed), his own car, credit cards - all at very high rates. Not to mention that he couldn't get an equityline on his house due to the low scores.

Another reality check: Wealthy people don't have a problem finding lawyers to take their cases on contingency. That's because the damages are much greater. If you're just a working joe you can't be damaged very much, so the settlements are small.

Anyway, I did order the Nolo book. Unfortunately, it wasn't available as e-book. If you're interested or looking at sources other than Nolo, be aware that the latest edition in 11/02, Amazon will ship it as soon as they receive it. It's probably worth the wait.

When they repoed did they do everything right?

Post-Repossession Notice: Under California law, the creditor must send you and any co-signers a special post repossession notice. The post repossession notice tells you about your right to reinstate the loan, and must contain nine special disclosures. You should have an attorney review the post repossession notice if you have been sued or contacted by a collection agency. If the post repossession notice was never sent, or if it does not contain all the required legal disclosures, the creditor may not collect any money from you.

Good point! Maybe Ufkenmill could start a new thread and post the detail of the violations and the repo.

Christine,

Where can I order that NOLO book?? Sounds intresting, I'd very much like to get myself a copy.

Thanks!

Tac

I split the thread and here is Ufkenmill's CALIFORNIA suit (http://bayhouse.com/credit-forum/showthread.php?threadid=1204)

Tac, nolo.com, just search for the title.

Just got the NOLO book - of course I won't have time to actually READ it for a few days. Had a quick look and I think it's well worth the $$$. Tons of great info!

And it's definitely very important to get the 11/02 edition.

They included a coupon code for free shipping:

A030 - expires 5/31/03 - good for one time use.

You can use it if you order from Nolo.com or by phone 800-728-3555