Quote:
Originally Posted by Irco
by a debt collector while collecting UE benefits. I'm being sued for a debt of 4k that I stopped making payments about 1.5 years ago. I haven't had employment in about a year and currently receiving UE benefits totalling 200.00 per month. I have other 2 Credit Cards that I haven't used in 1.5 years and havent made the minimum payment that have been sent to collections. I'm still struggling to find a job and my tier 4 Extended benefits are going to run out in a couple of weeks.
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Fight to avoid the judgment which will come within approximately three months of the debt buyer filing suit. Debt collectors actually expect you not to fight and seldom can defend their lawsuits because they lack the proper assignment documents that prove they own the debt. Well over ninety-five percent of all lawsuits that debt buyers file end in "default judgments" which means the debtor failed to file an answer to their complaint with the courts. Most people who respond to junk debt buyers lawsuits have a good chance of having their cases dismissed without prejudice (means it can be refiled.)-not so if the original creditor sues you.
The
first thing you need to do is
file an answer to their Complaint within thirty calendar days with your county's Superior Court website where you can also track your case.
If you can't afford the filing fee, you can get a fee waiver. With your income you will more than qualify without much effort.
You have to
serve your answer on the junk debt buyer (via their lawyers) before you file your answer with the courts which means you simply have someone over 18 years old, not a party to the suit, drop the answer in the mail (along with a copy of the proof of service form). "Proof of Service Form-POS-030" which you can find on your courts website or here:
Browse All Forms. You attach the original of that Proof of Service to your answer and then file.
Most debt buyers here in Cali do not verify their complaints nor do they attach any documents to (a) prove they bought your debt or (b) the amount of damages claimed was accurately calculated according to the terms and conditions of a contract (which they don't have.) Note: California allows them to file without documentation but they eventually must prove their claims in the end.
They tend to claim Common Counts: Open-Book and Account-Stated Claims both of which are bogus claims. They do this because they have no contract with you and can't prove the terms and conditions of (1) the sale of your account to them by the original creditor and (2) the contract terms agreed upon between you and the original creditor. So they draw on common law to do an end run and to try and get a judgment.
In short it means they are not the original creditor; they bought your debt on the cheap (literally pennies on the dollar) without any guarantees concerning the accuracy of the amount owed to the original creditor or the collectibility of the account sold (The account bought just might be beyond the statute of limitations to even file a lawsuit).
Open-Book Account means a new account in the amount agreed to between you and the debt buyer (hard for them to prove) and Account-Stated means an agreement between you and the debt buyer that the amount to collected is accurate (again hard to prove.) They do this again because they really have no contract to enforce and use your silence to their dunning letters and intent to sue letters as admission of liability-that's why the account-stated and open book claims. However, the FDCPA 15 U.S.C section 803(c) specifically warns the courts that the consumers silence to these letters does not create a liability with the debt buyer. Actually you have no duty to dispute the debt. The debt buyer though has duty, if you dispute, to validate your debt according to the Truth In Lending Act, Section 1666 (e) within x number of days. But the debtor has no duty-period. The debt buyer though banks on your ignorance of the law to manipulate you into paying them what they claim they are owed-without usually any substantive evidence.
Anyway, you will know that the complaint is verified because somewhere on the complaint it will say so. If the complaint is unverified then you can file a general denial and to protect yourself from them trying for a summary judgment (means there are no issues that need to be resolved in court) list a couple "affirmative defenses" such as "Lack of Privity" (means they don't have a contract to prove debt ownership) and "Not the Real Party of Interest."
You can find the California Judicial form on your local superior court website or here:
Browse All Forms You can also find out how to defend yourself at this forum:
Credit and Debt Problems Forums - Powered by vBulletin. Check out the thread "Is there a lawyer in the house."
Worst case scenario they obtain a judgment and either try and attach your non-exempt income or put a lien on your property (but they can not force you to sell your home here in California if you have no equity or the equity you have is less than at least $50,000-homestead exemption). But this doesn't happen over-night. You will get a memorandum in the mail from the courts to show up for a hearing so they can find out what assets you have.
If you have non-exempt income, then they can attach only 25% of your gross. Exempt income includes UI benefits, social security, retirement, workman's comp etc. Other exempt assets include up to X dollars in your checking accounts-more if you have direct deposit of exempt income. You can also file a request to stop the judgment from being enforced if you need all of your income to exist. There is a form you fill out for that too. Check this web-site out:
Stop or Reduce Wage Garnishment.
You can exempt one car whose value is less than $2,300. Here are two sites to check out for exemptions here in Cali:
http://www.courts.ca.gov/documents/ej155.pdf; CA Codes (ccp:704.010-704.210)
If you decide to fight the lawsuit pro se (by yourself) the forum I listed above is a great source of information and posters are very helpful. Make sure you show up for all court hearings including voluntary mediation sessions if ordered. It takes almost about eight months to go to trial and most trials are bench trials. Again don't worry about the costs. A fee waiver will cover almost everything-except lawyer fees if you go that route. However, if you win the case, then you can recoup your out-of-pocket fees (like lawyer fees). Winning can also mean that the debt buyer dismisses the case without prejudice.
Long story short, if you have the time you have a fairly good chance of having the debt buyer dismiss the case, usually right before trial, because they buy your debt for literally pennies on the dollars (Your $1,500 debt cost them $15.) and they do not want to spend anything more than they have to obtain a judgment and that includes going to court where they have to bring in a custodian of records from the original creditor to testify that the debt was accurately calculated according to the terms and conditions of a contract with the original creditor.
Debt buyers (JDB) file literally thousands of cases a month throughout the United States and rarely have their judgments satisfied. They bank on you not wanting to go to trial and use the courts to strong-arm you into paying them even though they know they probably won't win if you do fight. You need to do your home-work and stay on-top of things.
Good Luck!
Carol-Lynn
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