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Thread: Help! Lawsuit question

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    Senior Member CherryPepper's Avatar
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    Default Help! Lawsuit question

    I am being sued by a collections company for a debt they purchased. The judge sent me a records subpoena commanding me to summon the original creditor to produce documents showing what I owe. However, I can decline to do so and I am going to because as far as I know (article one section 10 of the US constitution..right?) it is unconstitutional to require a defendant to produce evidence against himself. I am going to send notice of this to the plaintiff as requested, however....

    attached is a Return of Service of Subpoena

    This confuses me. Does this mean I have to go to a notary and fill out this form then physically take it to the court?

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    Default Re: Help! Lawsuit question

    Methinks an attorney in your state, or at least a legal forum/message board, would be better than a dancer board.

    If you owe it, pay the original creditor. There is a form you send the collection agency telling em you paid the creditor with your recept and to f off

    If you don't owe it, go to court. Let a judge demand your evidence. Not the other sides attorney

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    Senior Member CherryPepper's Avatar
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    Default Re: Help! Lawsuit question

    ^I'm asking on here b/c I was hoping Melonie could give me some advice.

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    Default Re: Help! Lawsuit question

    first important question ... am I correct in assuming that this debt is large enough such that you're dealing with a state civil court as opposed to a 'small claims' court ?

    Realizing that anything I say constitutes a 'personal opinion' and NOT professional advice ...

    - obviously since this delinquent debt has already been 'sold' to the collections agency by the original creditor, you've passed the point of being able to deal / settle with the original creditor. As such, you're stuck having to deal with the collections agency.

    - you have to be a bit careful in wilfully defying a state court judge's order. Financial info subpoenas have become much more commonplace since Bernie Madoff / Enron etc. It is true that the 'plaintiff' i.e. the collections agency legally bears the burden of proof ... but you can't just 'fart off' the court order. Yes you ( or better yet your attorney ) have to prepare an official response to the court order ( even if that response consists of a refusal to deal with the original creditor ), have it notarized, and send the notarized copies to both the collections agency and the court that issued the order - prior to actually appearing in court.

    - in conjunction with this initial response, it would probably be of value in court not to come off as being 'uncooperative'. So if you wanted to include copies of your personal records in regard to this debt, the court would probably view that positively.

    However, since you haven't provided much info to go on as to whether this debt is bogus vs legitimate or big money versus HUGE money, I really don't have anything further to go on whether your best strategy would be to simply pay the full amount of the debt, attempt to negotiate a reduced settlement with the collection agency ( with particular conditions ), to stall in hopes that the collection agency will drop the lawsuit based on their costs of investigation / litigation versus the amount they hope to recover, to file for bankruptcy etc.

    ~
    Last edited by Melonie; 10-26-2011 at 02:52 PM.

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    Default Re: Help! Lawsuit question

    Quote Originally Posted by CherryPepper View Post
    The judge sent me a records subpoena commanding me to summon the original creditor to produce documents showing what I owe. However, I can decline to do so and I am going to because as far as I know (article one section 10 of the US constitution..right?) it is unconstitutional to require a defendant to produce evidence against himself. I am going to send notice of this to the plaintiff as requested, however....
    As far as you know does not go far enough.

    Sec. 10. RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.
    (Amended Nov. 5, 1918.)

    This has no application to civil ligigation.

    Should you refuse to make discovery arrangements can be made for you to sit in jail until such time as you do.
    Last edited by slowpoke; 10-27-2011 at 09:07 AM.

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    Default Re: Help! Lawsuit question

    In civil cases, the other side can certainly make you produce records. It is called discovery and is completely legal and quite common. You need to talk to a local lawyer to find out your rights. If you cannot afford a lawyer, you can go to the legal aid society and they might help. If you can afford a lawyer you're probably going to have to pay her.

    HTH
    Z

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    Senior Member CherryPepper's Avatar
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    Default Re: Help! Lawsuit question

    oops I meant Texas Constitution slow poke. -1-
    Texas Const., Art. 1, Sect. 10:
    “. . . accused shall not be compelled to give evidence against himself.”

    & the balance is valid , I just can't pay it right now. It's like almost 4k. The collections co. lawyer keeps sending me offers for settlement even still . Also, says I can call and negotiate a settlement with them. I am worried though, that if I do settle then they will still go through with the lawsuit. I guess they could and then remove the judgement after our agreement. Honestly, I don't want to get a lawyer for this. I'd rather either settle or just have the judgment. I already have judgements from 2 back IRS issues that won't be removed until our agreement is complete (offer in compromise that I did by myself successfully w/o an attorney). I have just been depressed and ignoring this stuff for so long and I should have taken care of it all asap.

    It does say in the subpoena that I can refuse in writing to provide the records. This debt is like 7 years old and I have none of the records myself, however I do feel if the plaintiff wants to obtain the records from the original creditor they can do it themselves(obviously I will do it if I am made to, but if it says I "have the right to decline" why wouldn't I?).

    Thanks Melonie your post was exactly what I was looking for.
    Last edited by CherryPepper; 10-27-2011 at 01:09 AM.

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    Default Re: Help! Lawsuit question

    ^^^ with the extra information, my personal opinion is to take Zofia's advice and consult a 'free' legal aid attorney. If this debt is 7 years old, and 'only' $4,000, the collections agency can't really afford to invest a whole lot of effort to investigate and litigate without running the risk of 'losing money'. If the court order allows you to refuse to 'assist' the collections agency in regard to obtaining documentation from the original creditor without 'penalty', under the circumstances it would be highly advantageous for you to do so.

    Forcing the creditor to devote their own time and money in order to gather the necessary original creditor documentation needed to successfully litigate a judgement against you will definitely increase the probability that the collection agency will wind up 'losing money' proceeding with the lawsuit. As such, the collection agency is likely to become much more amenable to accepting a low-ball settlement offer on your part ( perhaps $1000 ) to drop the lawsuit ( as a condition of the settlement offer you make ) and move on. Of course, you'll need to come up with the settlement cash in order to make such an offer. Or you can take your chances that the collection agency will proceed in court ( versus your 'free' legal aid attorney ) and obtain a $4000 judgement against you.

    Given your other financial 'issues', it would appear that any negative credit reporting that might result from a low-ball settlement offer and acceptance really wouldn't make a significant difference in your overall credit picture.

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    Senior Member CherryPepper's Avatar
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    Default Re: Help! Lawsuit question

    ^ Thanks Melonie.

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    Default Re: Help! Lawsuit question

    Quote Originally Posted by CherryPepper View Post
    oops I meant Texas Constitution slow poke. -1-
    Texas Const., Art. 1, Sect. 10:
    “. . . accused shall not be compelled to give evidence against himself.”

    & the balance is valid , I just can't pay it right now. It's like almost 4k. The collections co. lawyer keeps sending me offers for settlement even still . Also, says I can call and negotiate a settlement with them. I am worried though, that if I do settle then they will still go through with the lawsuit. I guess they could and then remove the judgement after our agreement. Honestly, I don't want to get a lawyer for this. I'd rather either settle or just have the judgment. I already have judgements from 2 back IRS issues that won't be removed until our agreement is complete (offer in compromise that I did by myself successfully w/o an attorney). I have just been depressed and ignoring this stuff for so long and I should have taken care of it all asap.

    It does say in the subpoena that I can refuse in writing to provide the records. This debt is like 7 years old and I have none of the records myself, however I do feel if the plaintiff wants to obtain the records from the original creditor they can do it themselves(obviously I will do it if I am made to, but if it says I "have the right to decline" why wouldn't I?).

    Thanks Melonie your post was exactly what I was looking for.
    If the debt is seven years old, it is likely barred by limitations. If in fact you do not have the documents, just tell them you don’t have them. You don’t have to go fetch something from the original creditor, only provide what is in your possession.

    I gather this is a subpoena duces tecum. If a suit has been filed, you better have an answer on file, or the plaintiff will take a default judgment.

    And if a suit is filed, you can do a request for production, and require the plaintiff to produce all the documents on which the claim is based.

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    Default Re: Help! Lawsuit question

    ^^^ the statute of limitations point is worth exploring ...

    However, in most states, when the debt was 'sold' by the original creditor to the collections agency, the statute of limitations 'clock' is typically reset.

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    Senior Member CherryPepper's Avatar
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    Default Re: Help! Lawsuit question

    ^ yes it was sold and reset.

    Slow poke I don't have an answer on file. I failed to respond, I was ignoring pretty much everything (however ignorant that is) I am finally thinking clearly. So yes there is a hearing set up under Nihil Dicit circumstances b/c I failed to respond. So there will automatically be a judgement it seems.

    I think I'm gonna just claim bankruptcy. I have many other debts as well, this is just the first one to go this far (the others aren't far behind). Blah. I am so ready to have all this behind me. The tax thing being fixed made me feel good, but now stupid b/c I was trying to avoid bankruptcy in the first place. I'm not sure why as I'm really at bottom as it is. No where to go but up...I think.

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    Default Re: Help! Lawsuit question

    You may still have time to file a general denial, and set up limitations as a defense. It sounds like they are trying to prove up an unliquidated claim.

    Check the courts file and see if a judgment has been entered. If not file a general denial. Do it now.

    (I have never heard of such a thing as a statute of limitations being restarted by the sale of a debt. Texas was founded by debtors. It always has been, and continues to be debtor friendly. Just look at our homestead and pesonal property exemptions.)

    This sounds as though it was already barred before it was sold.

    http://www.statutes.legis.state.tx.u.../htm/CP.16.htm
    Last edited by slowpoke; 10-27-2011 at 09:27 AM.

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    Default Re: Help! Lawsuit question

    I have never heard of such a thing as a statute of limitations being restarted by the sale of a debt. This sounds as though it was already barred before it was sold.
    This was another 'gift' to the banking industry !!! What probably happened was that, 5-6 years into the original debt clock, the original creditor simply decided to sell off this debt at 10-20-30 cents on the dollar to a collection agency and let them worry about actually collecting. The newly 'purchased' debt constitutes a 'different' debt from a legal standpoint, thus starting a new 7 year debt clock ticking. I am told that there are some valid legal challenges to this 'reset' of the debt clock on what amounts to the same debt in real world terms, but unless the amount in question is major the legal costs of attempting to fight this interpretation simply aren't justifiable ( which is why consumer collections typically get away with this ! ) .

    As to the pros and cons of a potential bankruptcy filing, that would depend on how much other financial 'bad news' could be disposed of via the same bankruptcy. It would also depend on whether or not the filer is able to utilize a chapter 7 'total write-off' bankruptcy because her current income falls below the local 'official poverty' level. If the total debt in question is below $10,000, or if income level is too high forcing a chapter 13 'keep paying something for the next 5 years' bankruptcy, filing for bankruptcy would probably hold more negatives than positives. But if total debt exceeds $10k, and a chapter 7 bankruptcy filing is possible, and the filer doesn't have a whole bunch of assets to preserve, that could very well be the cheapest / best way out.

    ~
    Last edited by Melonie; 10-27-2011 at 09:41 AM.

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    Default Re: Help! Lawsuit question

    Quote Originally Posted by Melonie View Post
    This was another 'gift' to the banking industry !!! What probably happened was that, 5-6 years into the original debt clock, the original creditor simply decided to sell off this debt at 10-20-30 cents on the dollar to a collection agency and let them worry about actually collecting. The newly 'purchased' debt constitutes a 'different' debt from a legal standpoint, thus starting a new 7 year debt clock ticking. I ram told that there are some valid legal challenges to this 'reset' of the debt clock on what amounts to the same debt in real world terms, but unless the amount in question is major the legal costs of attempting to fight this interpretation simply aren't justifiable ( which is why consumer collections typically get away with this ! ) ..

    I would like to see the cite to that, and know how it applies to state courts. Almost anything other than suits to recover title to land, architect errors and a few other arcane things are barred in 4 years.

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    Default Re: Help! Lawsuit question

    I'm told that it's related to an original creditor position that the 'debt contract' was signed 'under seal'.

    But yes different states have different 'clocks' ranging from 3 to 10 years ... thus my use of 7 years as an average. has a table.

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    Default Re: Help! Lawsuit question

    Quote Originally Posted by Melonie View Post
    I'm told that it's related to an original creditor position that the 'debt contract' was signed 'under seal'.

    But yes different states have different 'clocks' ranging from 3 to 10 years ... thus my use of 7 years as an average. http://www.creditinfocenter.com/rebu...itations.shtml has a table.
    Since she referenced the Texas constitution, (se my revised first response) I am operating on the theory the law of Texas applies.

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    Senior Member CherryPepper's Avatar
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    Default Re: Help! Lawsuit question

    Thanks guys I will still send in a response just in case it makes any difference. The hearing for the plaintiff to gain his judgement isn't until Dec. 5th. Also, I have been up all night (wow its 12 in the afternoon already?!) researching and it looks like I will qualify for chapter 7! ( i spent awhile taking the means test) I am going to research bankruptcy lawyers and get this going.

    RE: the selling of the debt. they are saying they are the successor-in-interest to the bank and they are acting as the original creditor and we are to go by the rules as if they are the bank I signed with. Although on my credit report it is showing up that my original bank SOLD DEBT TO COLLECTION AGENCY and then I have a new ding that shows the collection agencies name and start date of 03/2010. So that's why I thought they sold it.

    So if something is past the statue of limitations is it my job to know this and fight that? It looks like the statue of limitations in TX is 4 years, is that right?

    When does a statue of limitations start?

    sorry for bugging yall , I appreciate your help

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    Default Re: Help! Lawsuit question

    Quote Originally Posted by CherryPepper View Post

    RE: the selling of the debt. they are saying they are the successor-in-interest to the bank and they are acting as the original creditor and we are to go by the rules as if they are the bank I signed with. Although on my credit report it is showing up that my original bank SOLD DEBT TO COLLECTION AGENCY and then I have a new ding that shows the collection agencies name and start date of 03/2010. So that's why I thought they sold it.

    So if something is past the statue of limitations is it my job to know this and fight that? It looks like the statue of limitations in TX is 4 years, is that right?

    When does the statue of limitations start?

    sorry for bugging yall , I appreciate your help
    Yes, limitations is an affirmative defense and you have to plead it. I should have made this clearer earlier. If they contend the statute somehow reset, let them plead and prove it.

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    Default Re: Help! Lawsuit question

    I would just add this whole thing may be bogus.

    I had a client come in with one of these letters from an attorney once. I was working for a bank and the original amount owed was from the bank.

    Long story short this attorney was never authorized to try to collect funds for us or from the collection company we used. Some how he had gotten access to some old debt files and used it to send out letters to make money.

    DO NOT RESPOND at all until you know what is going on. The second you respond it can reset the clock on the debt, if it is real. Just because something falls off your credit report does not mean the original debtor will stop trying to collect. Research like hell before you do anything though.
    Nature knows no indecencies; man invents them. ~ Mark Twain


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    Senior Member CherryPepper's Avatar
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    Default Re: Help! Lawsuit question

    ^ So a random person can just sue me without really proving that they "own" the debt? That is fucked up and scary. I mean I think this is real but still scary and will research for sure. Thanks.

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    Default Re: Help! Lawsuit question

    I would call the court house to make sure it is real. Just because it may look like a court house document doesnt mean it is. Any lawyer knows what those look like and can re create them on a computer and a printer. Call them and say that you want to just verify a court date. If they dont have it then it isnt real.

    In the situation I had above the whole thing was bogus. He was just a shady lawyer trying to get people to pay him. He had no connection to the debt at all. It was his scam.

    Your welcome
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    Default Re: Help! Lawsuit question

    If you are filing for bankruptcy and it is real, talk to your bankruptcy attorney before doing anything. They can put a halt to alot of things because it is in processing.
    Nature knows no indecencies; man invents them. ~ Mark Twain


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    Default Re: Help! Lawsuit question

    Quote Originally Posted by Vamp View Post
    I would just add this whole thing may be bogus.

    I had a client come in with one of these letters from an attorney once. I was working for a bank and the original amount owed was from the bank.

    Long story short this attorney was never authorized to try to collect funds for us or from the collection company we used. Some how he had gotten access to some old debt files and used it to send out letters to make money.
    That sounds like a fast way to get disbarred.

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    Default Re: Help! Lawsuit question

    Although on my credit report it is showing up that my original bank SOLD DEBT TO COLLECTION AGENCY and then I have a new ding that shows the collection agencies name and start date of 03/2010. So that's why I thought they sold it.
    Your original creditor DID sell it ... probably in february of 2010 ! The blurbage from the collection agency is only asserting that they are sticking to the original 'terms' of the debt.


    So if something is past the statue of limitations is it my job to know this and fight that? It looks like the statue of limitations in TX is 4 years, is that right?
    yes, and yes apparently


    When does a statue of limitations start?
    generally, on the date when the original creditor declared your debt 'delinquent' and sent you the first official 'demand' for payment in full in the worst case. There are alternate interpretations that the 'debt clock' starts running as soon as the borrower misses their first scheduled payment, that the 'debt clock' starts running when the creditor first contacts the borrower and attempts collection / settlement etc. Much lies with the perogative of the judge who will be hearing the case.


    I would call the court house to make sure it is real. Just because it may look like a court house document doesnt mean it is. Any lawyer knows what those look like and can re create them on a computer and a printer. Call them and say that you want to just verify a court date. If they dont have it then it isnt real.
    A wonderful suggestion !

    However, if a credit report from the 'big three' states 'debt sold to collection agency XYZ' , and the lawsuit documents show collection agency XYZ as plaintiff, odds are that this isn't a scam. And if the courthouse phone call verifies the existance of a court date, then it's a certainty that this isn't a scam.

    ~
    Last edited by Melonie; 10-27-2011 at 01:16 PM.

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