Being sued by OC! Please help!!!

[Sharona]

Hello All my Friends at Sui Juris!

I am Sharona, a member of the Sui Juris community since last July. Some of you are already familiar with me, to others I will be "new." To all I say Hello! and Thank You for your help in advance!

Background: My husband lost his job last year and hasn't had an income since last August. We have been supporting our family on my part-time income only (we have two little babies so I cannot work full time).

We managed to pay our debts through November, but December, January, and now February have not been paid...

TODAY we received a Complaint filed in the Small Claims Dept of the Circuit Court from American General Financial Services. It was filed on 2/14/07 the exact date the account became 61 days overdue (not even 90 days past due!).

I have never heard of such a thing!

My husband just got on with the local union and has received one day's pay so far. We were planning on getting caught up on our debts as soon as the money started rolling in, but now it's too late for this particular debt!

I am very familiar with fighting off 3rd party debt collectors, but this suit is being brought by the ORIGINAL CREDITOR!

Do any of you have any suggestions on how to fight this off?

This was not a credit card "loan." It was a "secured consumer loan" at 29.99% interest (a good reason to eliminate this debt, IMHO).

They did not hire an attorney debt collector. They just filled out a pre-printed small claims form and had a notary sign it.

I have only 14 days to return the attached election form. I am going to choose Option #4, which is "DENY Plaintiff's Claim and Demand a Jury Trial."

This will force the Plaintiff to file a formal complaint in Circuit Court. If they don't, then this complaint (and possibly the debt if they don't sell it) goes away!

They most likely will file a formal complaint, as the amount they state that is owed is a little over $3K.

Should I begin the VOD/dispute process, even though they are the original creditor? I had always thought one had to wait for it to go to collections first. . .

Do any of you have any ideas on how to fight off an Original Creditor?

Any and all help will be most appreciated!!!

-- Sharona (the erstwhile Siren)

[charlesa6]

Why do you change your name from Siren to Sharona?
American General finance before doesn't care much about litigation, they just charge it off as a bad debt, but now they mean business, they are in economics crisis too. They will find all means to collect the debt now. Dealing with American General Finance, they don't wait any longer than 90 days before proceeding to file the complaint with the court now. You should be getting letter of delinquent from them before they file the complaint.
Do you receive any delinquent letter from them with that 60 days?
Do you respond to their delinquent letter in timely fashion?
Answer the complaint like any other summon, they have to proof their claim upon relief can be granted. You can demand for jury trial if you want but you have to convince the jury why they can't collect the debt from you at this time.
It don't matter whether original creditor or not. You have to stated do your administrative process before the first appearance. You have to give them 30 days to respond to your letter.

Find similar rule like this in your state you live in if you want to challenge the jurisdiction.

OBJECTIONS TO JURISDICTION OVER PERSON

This section was formerly designated as "Special Appearance." If service is improper, the defendant must file a motion to quash service of process before filing any other pleading, except for a motion for extension of time. Unless the facts that constitute the basis for the objection are apparent from the papers on file, the motion must be supported by an affidavit. This motion is made only to object to jurisdiction over the person. CAUTION: If defendant argues the case at all, defendant has submitted to the court’s jurisdiction! The defendant should insist on a ruling on the jurisdictional issue. If the ruling is denied, defendant may walk out and appeal or proceed with case. If granted, the defendant should leave! 735 ILCS 5/2-301; Illinois Supreme Court Rule 191.

Appearance {Sup. Ct. Rule 181}

Written appearances shall be filed within 30 days after service, unless the summons requires appearance on a specified day. Appearances are served as a regular pleading [see below]. If the Defendant is required to file a written Answer to the Complaint, then the Answer must be filed within a specified period which is determined by the type of case. The Defendant's Answer may be due as early as the date for the filing of the Appearance, or it may be due 10 days after the deadline for filing the Appearance, or it may be due by a date set by the judge. Note: In small claims actions and forcible entry and detainer actions (evictions), the Defendant is not required to file a written Answer once they have filed their Appearance, unless the Court directs otherwise.

ANSWER

Defendant should admit or deny or state "insufficient knowledge to either admit or deny" for each statement in the complaint. If defendant states that he or she has insufficient knowledge, defendant must attach an affidavit as to the truth of the statement. 735 ILCS 5/2-610

[masterduke]

This is alittle off topic but still involves American General. I had a friend that worked for them in Rolla Rolla, Mo.. They promoted him to manager and moved him to their office in Joplin, Mo. which happened to be the largest AM General office in the state. Upon his arrival he soon discovered that the former managers had employed an assortment of methods of making their quota's on creating new business/loans by having such things as; No Turn Down Tuedays! Meaning every person who came in on a Tues regardless of their credit history, would obtain whatever size loan they requested often done with false ID's even!!! LOL So on the books it looked like they were booming(which they wern't)! They would roll over pastdue accounts and stuff even more money into the deadbeats accounts. Make loans on non-existant collateral(autos, boats, riding lawnmowers, Things that the customer didn't even own lol). The real, full amount that was lost with these creative loan practices were written off and nobody went to jail! My friend believes that these practices have continued at many American General offices around the country??? He had the un-enviable job of cleaning up the mess that had been left behind by this activity. This story happened about 3 years ago, so its still pretty recent. He went on to do mortage re-fi's(different company) in Orange County Ca. and made even more $$$$$$$
The people that work at AM General(depending on who the manager is) usually have to make approximately 30 collection calls per week

[charlesa6]

Yep!! You get it. That's what they do.

[Sharona]

Originally Posted by charlesa6

Do you respond to their delinquent letter in timely fashion?
Answer the complaint like any other summon, they have to proof their claim upon relief can be granted. You can demand for jury trial if you want but you have to convince the jury why they can't collect the debt from you at this time.
It don't matter whether original creditor or not. You have to stated do your administrative process before the first appearance. You have to give them 30 days to respond to your letter.

The only notice was a "we have tried to reach you; please call us. If your pmt has missed us in the mail, we apologize for the inconvenience."

The manager at AGF in the meantime came to our home three times!!! I was flabbergasted! He came I guess because we were not answering their phone calls. I do not answer phone calls from creditors, I refuse to be bullied/harrassed when I have no money to send anyway. Now when I have money to send, I will talk to them no problem.

Even though he came 3 times to the door, he never did get through to talk to hubby, since he was never home. He left his biz card, which we never called back. Why call back when there is no money to send? The same day hubby got his first union paycheck (for 1 day's pay only) is the same day they filed their small claim at the courthouse; however, it was not delivered until yesterday.

Does anyone here think "Accepted for Value," or "Refusal for Cause" would work? I do not know how either of these processes work.

We do not have a UCC-1 financing statement, nor have we common law copyrighted our all caps TRADE NAME either. Not too confident this method works anyway...

As far as I can tell the summons was properly served (the street address was misspelled on the paperwork; however, it was delivered directly to my husband's hands.)

The reason I am thinking of responding with Item #4 Deny and Request Jury Trial is not that I want a trial by jury so much as it is the only method which forces Am Gen Fin to go back and hire an actual atty to write up a formal Complaint. If they don't do this, the small claim would go away.

If they do write up a formal complaint, it would at least buy me some time to do the VOD process and hopefully get them into admin default before the trial...

-- Sharona

[Sharona]

What kinds of things should I demand in the VOD to the original creditor? I would think it would need to be a little different from one to a 3rd party debt collector.

I am thinking of the following:

1) Demand to see accounting records/ledger which shows an actual loan was given (not just "origination" of new bogus fiat money).

2) Demand to see both front and back of alleged ORIGINAL (not a certified copy) loan application to ascertain whether or not it was defaced/converted to a promissory note after being signed.

3) Demand to see both front and back of alleged ORIGINAL cancelled check to prove it also was not defaced after endorsement.

4) Demand certified copies of ALL LOAN DO***ENTS to ascertain whether or not a "loan" was promissed. If so, did they actually give the promissed loan, or did they use accounting hocus-pocus to originate new money into existence?

5) Demand to see ORIGINAL contract which meets all elements of a contract according to contract law (Counter-signature, due consideration, meeting of minds, offer and acceptance, and etc.).

There is some very interesting information regarding unlawful banking practices in the attached do***ent. Tell me if you think I can use these to my advantage, not just in an ANSWER to Complaint, but in the actual VOD/admin default process.

THANKS AGAIN!

-- Sharona

[Sharona]

Is there a law that states the debt must be at least 90 days past due before a lawsuit can be filed? This is really ridiculous!!!

It was only 61 days from the missed due date (December 15th) when they filed in small claims court (February 14th)!

Can I bring this up as an affirmative defense somehow?

[joseph sugarman]

Sharona, It is impossible to answer any of your questions about the law since you do not inform us what state you are in. Does the lending company have an office in the same state as you? If not does your state recognize actions started in your state's courts by a foreign corporation which is not registered to do business in your state? In the meantime, send them only $5.00 as a good faith gesture, and send them $5.00next month, and so on. It should buy you some time to research other solutions. If nothing else the company will have to do paperwork with the court to keep amending the complaint. Joseph Sugarman, design@dream-home.com

[Sharona]

Originally Posted by joseph sugarman

Sharona, It is impossible to answer any of your questions about the law since you do not inform us what state you are in. Does the lending company have an office in the same state as you? If not does your state recognize actions started in your state's courts by a foreign corporation which is not registered to do business in your state? In the meantime, send them only $5.00 as a good faith gesture, and send them $5.00next month, and so on. It should buy you some time to research other solutions. If nothing else the company will have to do paperwork with the court to keep amending the complaint. Joseph Sugarman, design@dream-home.com

Sorry, I did not realize it was a necessary disclosure. I'm in Oregon...

Yes, they have an office here in town. That is why the manager keeps knocking on our residence in person! Very shocking and unexpected, although he did not get a chance to talk to my husband (alleged debt is in his sole name) on any occasion...

I don't personally think they would accept a $5 payment or amend their paperwork with the court even if they did. In fact, the paperwork is very vague, as the wording of the complaint (a one-page fill-in-the-blanks form) is somewhat incomplete.

This is what it reads:

"Plaintiff seeks judgment against the above named defendant for a claim that arose on the XXth day of July, 2006, in the sum of $3,XXX.00 which is still owing for (briefly describe reason for claim): Default of a consumer loan. We request __________________ plus prejudgment interest* in the sum of $2XX.00, post-judgment interest* at 29.99% per annum, filing fees, and service expenses. (*Interest is computed at the statutory rate of 9% per annum, unles another rate is evidenced by contract, a copy of which must be attached to this claim.)

I have indicated the items that the plaintiff wrote in on the form in BOLD.

I notice several problems here already. First, the Defendant's street address is misspelled by one letter. This may be no big deal, esp as the lawsuit was handed to him personally at the door of our home. Yesterday.

Other problems:

It states that the claim arose on xxth day of July, 2006. This is actually the date that the "alleged loan" was originated! We were never late on a single payment until the December 15th payment. Prior to that, they had called and offered to "re-write the loan, extend the period, etc" so that we could "skip" the December payment because of the holiday if we wanted.

We were going to do that, then they said to come down and sign the paperwork and when we found out that it would be a BRAND NEW CONTRACT, we decided not to do it.

Secondly, I believe the amount they are requesting is more than the amount which we had outstanding; but maybe not at the rate of 29.99%!

Lastly, they are demanding 29.99% post-judgment interest, yet there is NO ATTACHED copy of a contract supporting this claim, NO EVIDENCE whatsoever! Don't these things have to be supported with a copy of a contract? In any event, the directions on the form read that "interest will be at the statutory rate of 9% per annum unless another rate is evidenced by contract, a copy of which must be attached to this claim."

I am wondering if another valid defense is: "plaintiff has failed to state a claim for which relief can be granted."

Anyway, the more I review this thing, the more I am convinced that I need to DENY and request a jury trial... That way the plaintiff is forced to move this matter out of small claims court and into Circuit Court. They will also need to hire an attorney (usually an expensive proposition) to write a formal complaint up (not this fill-in form). That should buy me the time necessary to do the VOD/admin default process...

Will this case they opened in small claims work to be my "Evidence Repository File" for the Administrative Default?

-- Sharona

[masterduke]

Sounds like 'sloppy' work by the plaintiff? The mistakes concerning the default date vs. the initial loan creation date may be something to attack since it would seem that interest rate amount would be different. It also seems to make them look like they have 'waited' the 90 days to iniatate the suit? That would be fraudulent? Just how accurate are their bookkeeping practices? Coupled with that story I posted earlier and this branch manager showing up at your house. This is highly irregular 'corporate behaviour'. Sounds like this manager is in some kind of jam and is scrambling to save his job? Poor accountring perhaps? You need discovery to determine the truth in all of this. They are not conducting their business in a professional manner. My friend(the ex AM General manager) said he used to throw away stacks of delinguent accounts as he just did not have the time to ever pursue them and would concentrate on the 'lowest hanging fruit' in this area(easiest targets).