Collection question

[albacore44]

If your MIL hasn't filed an Answer, the other side could take her default. It's strange that they're sending interrogatories when she's not even in the case, officially.

You say she cosigned 8 years ago? Then the SOL is over and they shouldn't be doing this. Her Answer should contain an affirmative defense on SOL, though I believe it has to be timely filed (there's still time, I think). And you were talking about FDCPA violations? There are attorneys who take these cases, get the JDBs to pay your MIL the penalty, and then collect attorneys fees from these JDBs as permitted by law. It couldn't hurt to talk to an attorney who handles such cases.

Dont think the SOL applies. Nephew was making payments up to 2 years ago. he stopped paying. She co-signed so she is equally responsible for the debt. And we dont care about the FDCPA. We just want them to drop the case.

[rta]

If your MIL hasn't filed an Answer, the other side could take her default. It's strange that they're sending interrogatories when she's not even in the case, officially.

You say she cosigned 8 years ago? Then the SOL is over and they shouldn't be doing this. Her Answer should contain an affirmative defense on SOL, though I believe it has to be timely filed (there's still time, I think). And you were talking about FDCPA violations? There are attorneys who take these cases, get the JDBs to pay your MIL the penalty, and then collect attorneys fees from these JDBs as permitted by law. It couldn't hurt to talk to an attorney who handles such cases.

[albacore44]

Me too. albacore44, you said your mother-in-law was served with the summons on the day you started this thread, March 7. If so, the deadline for her to file a response has already passed.

i will state this again. Case was filed against both Nephew and MIL. Nephew filed answer. MIL did not. Both received interogatories in the mail . He is answering his. We are answering ours. If it goes to court, i will have her play the 85 year old grandma with a failing memory game. she cosigned for this card 8 years ago. Hell i cant even remember what I did last year and i'm only 56.

[rta]

Just the same, if the plaintiffs haven't taken a default, MIL can still file an Answer. She just has to beat them to the punch. (hurry please)

[LadyInTheRed]

Hope you filed an Answer to the Complaint.

Me too. albacore44, you said your mother-in-law was served with the summons on the day you started this thread, March 7. If so, the deadline for her to file a response has already passed.

[rta]

I found a good thread at creditinfocenter.com which covers a lot of ground with good examples.

http://www.creditinfocenter.com/forums/there-lawyer-house/312280-up-against-cach-mandarich-violated-fdcpa-need-more-amo.html

They have lots more of this if you want to look it up. These debt collectors are sneaky and you need to stay one step ahead of their dirty tricks.

[rta]

Hope you filed an Answer to the Complaint. Responses to discovery (interrogatories, requests for admissions, requests for production) are different. You don't need to send the responses early. It's best if you send your own discovery and ask them for their evidence: the original bill of sale from the Original Creditor to the JDB, original contract, itemized statements, etc. This really needs personal research, or using an attorney.

If you want more info, try creditinfocenter.com. It's got a lot of examples from real life cases that are ongoing. There's also debtorboards.com which discusses litigation and arbitration. You can find discovery responses that you might want to use, and you can also find discovery requests that you can send this JDB.

Good luck.

[albacore44]

EXACTLY!!!! PLEASE stop dithering and file your MIL's answers, or have her file BK, period. This delaying while you and she figure out how best to answer, or NOT answer are doing your MIL a world of hurt, not help.

As my deceased MIL would bluntly put it: "either s***, or get OFF the pot!!"

Hey chill out...........and give Hub a big hug for me. i got 30 days to file the answers,by May 10th. I finished it up last night. I will probably drop it by the JDB'S office this week, the office is on the way home from work

[LadyInTheRed]

Here's the puzzlement. In my Northern California county, the filing fee for economic litigation/limited case (less than $10K) is $225, so $425 is applicable an amount over $25K. And the fee schedule is for California statewide. What's going on?

The complaint probably indicated they were suing for over $25k. Add interest, penalties, attorneys fees and costs of suit, and a $10K debt can become a $25K judgment pretty quickly.

[rta]

Here's the puzzlement. In my Northern California county, the filing fee for economic litigation/limited case (less than $10K) is $225, so $425 is applicable an amount over $25K. And the fee schedule is for California statewide. What's going on?

It doesn't have to be MIL dealing with all this, but I guess that leaves you.

I know that after filing an Answer, a defendant can immediately propound discovery on the plaintiff and demand all their paperwork. What they don't provide can be precluded from evidence at trial. When the trial date is set, send them a CCP96 asking for all their evidence that they plan to present at trial, and to name their witness(es), and lock them in on that. They will not be allowed to present anything else to surprise you.

All the papers and documents they provide are worthless as evidence UNLESS they get a CCP98 affidavit from a QUALIFIED person who will attest to the authenticity of these records. Mostly they can't because they're a JDB, not an original creditor. CCP98 also requires this qualified person to be available for subpoena 20 days before trial, and usually they are not. Then file a Motion in Limine 10 days before trial to strike down their CCP98 affidavit.

Sometimes they will try to file a motion for summary judgment and surprise you with a bunch of documents, but if you've requested these documents in your own discovery, and possibly with a bill of particulars, they won't be able to spring a surprise, although you'd have to fight the litigation.

There's probably a consumer rights attorney in your area. You might try consulting, at least. Since your MIL is already within their sights, the JDB would like nothing better than to get her default. In fact, they want you to default as it makes the job easier for them.

Best of luck.

[AngelinaCat]

If she doesn't want a default entered against her, she needs to file an answer or, if allowed, a general denial. The fact that her co-defendant filed an answer doesn't prevent a default against her.

EXACTLY!!!! PLEASE stop dithering and file your MIL's answers, or have her file BK, period. This delaying while you and she figure out how best to answer, or NOT answer are doing your MIL a world of hurt, not help.

As my deceased MIL would bluntly put it: "either s***, or get OFF the pot!!"

[LadyInTheRed]

If she doesn't want a default entered against her, she needs to file an answer or, if allowed, a general denial. The fact that her co-defendant filed an answer doesn't prevent a default against her.

[albacore44]

The nephew filed an Answer but that doesn't mean the MIL filed one. If both names had been included in the Answer, then there would have been two $425 fees. There are ways to defeat a JDB because nobody borrowed anything from them, so they have to prove standing. Please consult a consumer rights lawyer in your area, before they get the idea of getting MIL's default.

BTW, did they put MIL's name as responding party in their interrogatories? It would be strange if they did considering that she has not filed an Answer so far. JDB's use intimidation tactics (like all debt collectors) so it's good to be ahead of the game.

Best of luck.

no she did not file an answer. she lives with me. i am working it for her. yes, they sent 2 seperate sets of interrogatories to each defendant, each in their name. i am confident she is collection proof. my goal now is to shake them loose off her scent so she doesnt have to go through a long stressful drawn out court process, so in the end they finally realize they can get nothing. at 85, you dont need to deal with all this bs

[rta]

The nephew filed an Answer but that doesn't mean the MIL filed one. If both names had been included in the Answer, then there would have been two $425 fees. There are ways to defeat a JDB because nobody borrowed anything from them, so they have to prove standing. Please consult a consumer rights lawyer in your area, before they get the idea of getting MIL's default.

BTW, did they put MIL's name as responding party in their interrogatories? It would be strange if they did considering that she has not filed an Answer so far. JDB's use intimidation tactics (like all debt collectors) so it's good to be ahead of the game.

Best of luck.

[albacore44]

Just trying to follow here. Has there been an Answer filed in this case? It would seem that comes first, before defendant responds to discovery. If JDB has filed a Complaint, and there is no Answer, what's to stop them from getting a default judgment?

FWIW, this is a sample letter I got from the local legal aid office:

I am writing this letter to inform you that I am disabled/retired and you will never be able to collect on the alleged debt on which you are suing me. I have been advised of my right to file an answer in the above-referenced lawsuit, but before I do so, I am informing you that I am judgment proof. Please be advised that my sole source of income is from:

_X_ Social Security (SSA), Supplemental Security Income (SSI), or Social Security Disability Insurance (SSDI), which is exempt from debt collection under 42 USC §407
__ Public Assistance, which is exempt from debt collection under 42 USC §704.170 and Welf & IC §17409
__ Unemployment, which is exempt from debt collection under CCP §704.120
__ Worker’s Compensation, which is exempt from debt collection under CCP §704.160
__ Pension/Retirement, which is exempt from debt collection under CCP §704.115 and CCP §704.110
__ Other: __________________________________________________ __________________________

Therefore, any attempt by your firm to levy or garnish my account will be unsuccessful.

Please consider this letter notice pursuant to Czap v. Credit Bureau of Santa Clara Valley, 7 Cal. App. 3d (1970). Any attempt to levy against or garnish assets with knowledge that the assets are exempt from garnishment constitutes abuse of process for which your client and firm may be held liable.

Finally, please be aware that I am:
__ disabled
__ a senior citizen
And any further contacts will cause me unnecessary stress.

Sincerely,



There are some useful ideas here.

Good luck.

Hmmm.......food for thought. Yes, the nephew filed an answer to the complaint. The court wanted $425 (steep). he tried to get the fee waived, but it was rejected. The court allowed him to make payments of $50 a month . These discovery questions were mailed the same day the answer was filed, so the JDB was ready.