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**WhatMoney** · 05-08-2008, 09:49 PM

When I looked up the case number, there are 17 other cases re: various creditors with the same number, all of them say the same thing although there are a few variables.

No idea why the same case number for 17 defendents.

They are suing you because you have not yet filed BK. Your BK attorney isn't part of this case until you file, in which case he should get this dismissed for you, assuming they don't somehow get a default judgement first.

Looks like the summons was issued but not yet served on you, or it would give the date summons was returned.

CRC 3.740(E) is "Effect of failure to serve within required time", just a hearing in case they don't serve you within the 180 day limit after filing.

A call from your BK attorney might get these creeps to dismiss the case, but since you haven't filed yet, they probably didn't believe your lawyers' info.

Since you DV'd both the creditor and law firm with no response (I assume within 30 days of first notices), they are violating FDCPA laws by suing you before the DV. However they will use the defense that they could not reply to your DV request because you sent a cease and desist letter. Better just hurry up and file to kill this action.

**WhatMoney** · 05-09-2008, 12:03 PM

Partially correct, a DV does prevent a lawsuit if the CA, CA attorney was DV'd to start with. If the lawsuit is from someone you have not DV'd then they may proceed. They are required after the summons and complaint to within 5 days give you your 30 day right to dispute the debt.

Nothing "partially correct" about my answer. She said she did DV both the CA and the CA attorney, neither replied, and the attorney sued her. That violates the FDCPA. She did not get sued by someone she never DV'd, so why would I add that condition?

Also it is incorrect about they can not contact you because of a C&D, it is specifically spelled out they may contact you one last time on a full blown C&D to tell you their intentions.

I said they would use the C&D as a defense or excuse for not sending her a DV. This is standard procedure for many CA's, and most judges will accept that defense if it ever came to a Federal FDCPA suit. Of course it almost never does. The final reply to a C&D is normally to inform the debtor they have closed the case, or they are now taking legal action against you. They are not required to DV you after a C&D, anymore than they are required to DV you without a C&D letter.

This is why it is best to use a limited C&D so they can still send you mail.

It is best to not send a C&D letter at all if you are sending a DV. In fact this is a major mistake which results in what happened to the OP. There is also no legal precedent for a "limited C&D", it's either all or nothing. If a creditor decides to agree to your limited C&D it is only their choice to do so.

A DV letter sent within the 30 day time frame will stop all collection activities from the CA, including a lawsuit, until the DV is sent. That will stop the phone calls and letters. With a C&D, you gain nothing except now the CA has another excuse to not DV you before suing. Sure it is a violation to sue, but just what are you going to do about it? Hire an attorney to file suit against them in Federal court? Unlikely - and they know it.

**epiphany** · 05-09-2008, 01:06 PM

Thanks. I was confused about the hearing for them and didn't realize that they had 180 days to serve.

I am not sweating this because I am filing next week. I will make damn sure they are included. Got my stimulous today and the last payment to my attorney goes out today.

You know when I originally retained my attorney, I told him about the C & D and he told me he was not a big fan of it, but didn't elaborate. Now I see why. I do have another question about that:

I sent the C & D to the original collection agency, not to this law firm. (it was a limited C & D just for the record. ) When they refused to talk to me , I cited this fact and they told me it didn't matter. Is that correct?

Now I am glad that was the only C & D I sent. I was just so panicked (and uneducated) at the time. The call to relative frightened me. Since then, I found it much easier just to pick up the phone and talk to the collection agencies.

Thanks for your help guys!

ep

**WhatMoney** · 05-09-2008, 02:59 PM

I sent the C & D to the original collection agency, not to this law firm. (it was a limited C & D just for the record. ) When they refused to talk to me , I cited this fact and they told me it didn't matter. Is that correct?

Probably yes. You C&D'ed the CA, who hired the attorney to go after you. Since the attorney's client is the CA, if the CA has a C&D letter from you then the attorney they hired has to leave you alone too.

Of course if the CA is one of a family of CA's like the Sherman groups' 20 or so businesses, they just pass your file to another CA in their family and start all over again. So they can get around any C&D or DV request this way and keep pestering you. One guy sent C&D letters to all the companies owned by Sherman, which sort of stopped them. C&D letters are best for JDB's trying to collect on out-of-statue debt or BK discharged debt, where they have no legal recourse.

**HHM** · 05-09-2008, 03:29 PM

1. Have you, or have you not, filed for BK?

The problem is...the failure to comply with the Validation request is NOT a defense to liability on the debt. At most, you have a counter claim for violation of FDCPA, but that is about it. So, even if this law firm has violated the FDCPA, you cannot dismiss the case on those grounds. All you can do is delay...i.e. allege a violation of FDCPA, and request removal of the case to federal court, blah blah blah..

Also, I agree with WhatMoney, a C&D is of limited use...if you are concerned about 3rd party contacts, what you really need to do (even though many debtors don't want to) is supply the creditor with "current" contact information.

Also, the FDCPA is only useful if you are in a position to actually bring a case for FDCPA violations, if you are not, then all this is moot.

**epiphany** · 05-09-2008, 04:22 PM

Originally posted by WhatMoney View Post

Probably yes. You C&D'ed the CA, who hired the attorney to go after you. Since the attorney's client is the CA, if the CA has a C&D letter from you then the attorney they hired has to leave you alone too.

Of course if the CA is one of a family of CA's like the Sherman groups' 20 or so businesses, they just pass your file to another CA in their family and start all over again. So they can get around any C&D or DV request this way and keep pestering you. One guy sent C&D letters to all the companies owned by Sherman, which sort of stopped them. C&D letters are best for JDB's trying to collect on out-of-statue debt or BK discharged debt, where they have no legal recourse.

Thanks. The original creditor still owns this debt so thought that it was not the CA who contracted the lawyer, but could be wrong.

**epiphany** · 05-09-2008, 04:29 PM

Originally posted by HHM View Post

1. Have you, or have you not, filed for BK?

The problem is...the failure to comply with the Validation request is NOT a defense to liability on the debt. At most, you have a counter claim for violation of FDCPA, but that is about it. So, even if this law firm has violated the FDCPA, you cannot dismiss the case on those grounds. All you can do is delay...i.e. allege a violation of FDCPA, and request removal of the case to federal court, blah blah blah..

Also, I agree with WhatMoney, and C&D is of limited use...if you are concerned about 3rd party contacts, what you really need to do (even though many debtors don't want to) is supply the creditor with "current" contact information.

Also, the FDCPA is only useful if you are in a position to actually bring a case for FDCPA violations, if you are not, then all this is moot.

Yeah, live and learn. Fortunately this is the only creditor I sent one to before realizing that it was easier to actually talk to them and let them know they had the current contact information.

I have not filed. I mailed the last payment to the attorney about an hour ago and I am getting the paperwork to him Monday, so am hoping for next week. I'll speak to my attorney on Monday too. I'm not stressed because I am so close the point is moot. However, if I had been served when they filed, or if they had filed a bit sooner than they did, I would have indeed been very panicky. I got lucky.

ep

**EveryDayAdam** · 05-09-2008, 07:12 PM

Even if it were sooner, it would take them about a month to serve you, and another month after that for your hearing...Then after you have a judgement, you have 30 days to pay voluntarily before they can then START proceedings on garnishment. Then they file motions, and it's another month before they can get a writ...

So...4 months minimum from being sued before you have to worry about a garnishment hitting.

**epiphany** · 05-09-2008, 07:18 PM

Originally posted by EveryDayAdam View Post

Even if it were sooner, it would take them about a month to serve you, and another month after that for your hearing...Then after you have a judgement, you have 30 days to pay voluntarily before they can then START proceedings on garnishment. Then they file motions, and it's another month before they can get a writ...

So...4 months minimum from being sued before you have to worry about a garnishment hitting.

Thanks, breathing even easier.

ep

**tay666** · 05-10-2008, 05:47 AM

Originally posted by EveryDayAdam View Post

Even if it were sooner, it would take them about a month to serve you, and another month after that for your hearing...Then after you have a judgement, you have 30 days to pay voluntarily before they can then START proceedings on garnishment. Then they file motions, and it's another month before they can get a writ...

So...4 months minimum from being sued before you have to worry about a garnishment hitting.

Are you sure about that?
We currently have a summons that we need to answer this week.
(coincidentally also from HSBC)
We will probably be filing BK in the next few weeks.
I have one last lawyer I am calling to set up a consultation with this week.
IF it actually takes that long, we should be filed long before they actually can collect anything (just in case I screw up in my response to the summons)

**treehugger1** · 05-10-2008, 12:24 PM

Don't be so sure that it will take XXXX days to get a garnishment. In Oregon, once the debtor defaults the creditor/CA can go down to the local courthouse and immediately file for judgment (can take only a few minutes,) then hire one of their process servers to deliver a writ of garnishment to your employer (a day or two) and as long as the writ makes it to the employer a couple of days in advance of payday, your paycheck is garnished.

In my opinion, if the creditor/CA who sued you (and has a judgment against you) is local wage, garnishment can occur quickly.

I'm not so sure how this works when you live in the netherlands, and the suing attorney is far removed from your location. I'm guessing that the sueing legal firm will weigh their costs of continuing to pursue a judgment "far away," vs sending (selling?) the judgment to a more local attorney. I don't even know if one can "sell" a judgment to another party, but one should consider all possible actions against them.

The other issue is what particular kind of court you were sued, and potentially defaulted in, Justice, Disctrict, Circuit, etc. Some courts have backlogs of writs awaiting signatures, and other courts can simply apply some court clerk signature. I don't know all the details here in my state, but never assume that garnishment can be a slow process if the creditor or CA has immediate access to your local courts.

The one true way to SYA (Save your A**) is to probably file for BK as soon as possible. JMHO

Giggle, I have a daughter who communicates in acronyms due to the modern techno generation, so I just learned SYA!

**tay666** · 05-10-2008, 01:19 PM

Originally posted by treehugger1 View Post

Don't be so sure that it will take XXXX days to get a garnishment. In Oregon, once the debtor defaults the creditor/CA can go down to the local courthouse and immediately file for judgment (can take only a few minutes,) then hire one of their process servers to deliver a writ of garnishment to your employer (a day or two) and as long as the writ makes it to the employer a couple of days in advance of payday, your paycheck is garnished.

In my opinion, if the creditor/CA who sued you (and has a judgment against you) is local wage, garnishment can occur quickly.

I think you are getting ahead of the game a little Treehugger.
They can't garnish until they have a judgement.
The summons I mentioned was from a law firm about 150 miles away.
They are representing Atlantic Credit ( a junk debt buyer)
The summons is for my local municipal court.
I still have another week to file my answer.
Then I am sure there will be some kind of hearing, if the creditor even shows up or follows through after I have answered.
Then there would be a judgement against me.
After that, I don't know how long it takes to process a garnishment in Ohio.
I don't even know if we have process servers around here. Usually, from what I have heard, it is the sherrifs deparment that does stuff like that.

I just realized that my employer only does payroll changes once a month.
(the owner's daughter does the payroll changes and such, and she only comes in form North Carolina once a month.)
If you want to change your tax withholding, you have to wait. Until she comes in to make the change.
That is also when our 401K contributions get sent in as well.
So, I am thinking it could be as much as 6 weeks even if they do get the garnishment. If it happens right after she has done payroll, it will be another month. And then 2 more weeks until I get paid.

**EveryDayAdam** · 05-10-2008, 02:42 PM

in almost all states, once you have a judgement, there is a period of time that you are given to pay the judgement. If, after you don't pay within that time, then the person holding the judgement can start to file motions for garnishment. Every state is different in how soon you can get stuff done, but if your state allows for a period for you to pay judgements voluntarily, then (in most cases), they have to wait for that time to pass before they can collect.

The only time I could see them being able to get around that time, is if you didn't show up for your hearing and got a default judgement.

In Oregon, once the debtor defaults the creditor/CA can go down to the local courthouse and immediately file for judgment (can take only a few minutes,) then hire one of their process servers to deliver a writ of garnishment to your employer (a day or two) and as long as the writ makes it to the employer a couple of days in advance of payday, your paycheck is garnished.

I'm not so sure about this. This would seem to violate the constitutional right to due process. I don't see how any one could get a judgement against you without you having the ability to defend yourself in court. Otherwise I could just go down to the courthouse and claim all these people owed me money...hit all the banks in the area, and make some easy money and skip town before anybody was the wiser.

**treehugger1** · 05-10-2008, 05:49 PM

By default judgment, I meant that if a debtor fails to appear in court or answer a summons (small claims or circuit in my county,) the creditor/CA can request a judgment be entered and this judgment can be acted upon immediately. I'm sure that every state is different. Having spoken to colleagues where I work that had garnishments, the time was very short from when the default judgment was entered to when the sheriff's office delivered a writ of garnishment to our employer (the garnishee.)

I am in complete agreement that if you answer a summons or small claim, then the process stalls for a while. As mentioned in other posts on this site, I discovered in our local small claims, a debtor should always check "deny the claim" and you are automatically referred to a mediation hearing. This is not clear on the small claims answer form. I got this information from the court clerk. She has been great as I work through the "what ifs" of my own financial quagmire. I keep a list of small claims "answer" costs in a file on my computer, so I can weigh the cost/benefit of answering or not answering. LOL

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