DEBT COLLECTOR'S COURT ACTION WITH DAUGHTER

[RICKY]

HI ALL,



AS I AM FERVENTLY TACKLING ALL MY OWN DEBT PROBLEMS, OVER THE WEEKEND I FIND THAT OUR DAUGHTER AND SON-IN-LAW (HEREAFTER, THE KIDS) HAVE FALLEN INTO SERIOUS PROBLEMS. I WOULD LIKE TO LAY THIS OUT FOR REPLIES ON WHERE TO START TO HELP THEM. THIS IS WHAT I READ ABOUT ON THIS FORUM ALL THE TIME.



MANY MONTHS AGO (12-24) THE KIDS STOPPED PAYMENT ON A SIGNATURE LOAN (NO COLLATERAL) WITH A BANK. MANY PHONE CALLS LATER THE BANK CHARGED OFF THE LOAN AND "WENT AWAY".



LAST WEEK THE KIDS RECEIVED A SUMMONS TO APPEAR IN THE COUNTY SUPERIOR COURT. THE PLAINTIFF IS A "FINANCIALCOMPANY", REPRESENTED BY A LEGAL FIRM, NOT THE BANK WHO ORIGINATED THE LOAN.



I. IN THE "DECLARATION OF PLAINTIFF'S COUNSEL" THE ATTORNEYS SHARE THEIR POINTS TO SUPPORT THE PLAINTIFF'S ATTACHED "MOTION FOR DEFAULT AND JUDGMENT".........



1) SUPPOSEDLY ON 6/19/04 THE KIDS WERE SERVED WITH A SUMMONS AND COMPLAINT AT THEIR HOME....THERE IS AN AFFIDAVIT FILED WITH THIS. IN THE AFFIDAVIT IT SAYS "....duly served....defendents....personally delivering....and leaving the same with : JANE DOE, believed to be The Kid (their bolding) Being a person of suitable age and discretion residing therin."



APPARENTLY THERE WAS AN EARLIER SUMMONS DELIVERED WHICH THEY HAVEN'T SEEN. IT WAS FOR AUGUST 12, OBVIOULSY TOO LATE NOW TO RESPOND. THE AFFIDAVIT APPEARS LEGIT, STATING THE UNDERSIGNED WAS DULY SWORN, AND ON OATH DEPOSING, SIGNED & NOTORIZED ON JUNE 25, 2004. IT WAS SIGNED BY D. NORRIS AND NOTARIZED BY KODY NORRIS. HOWEVER, IT IS A COPY AND THERE IS NO VISIBLE NOTARY SEAL. I KNOW MY NOTARY ALWAYS USED HIS SEAL AND THEN RUBS A PAD OVER IT TO MAKE IT STAND OUT FOR COPYING....SAME COUNTY AND STATE.



THE KIDS HAVE NOT SEEN THIS ORIGINAL SUMMONS AND COMPLAINT, THEREFORE THEY MISSED THE COURT DATE.



2) "More than 20 days have elapsed since the date of service and the defendants have failed to answer herein and are in default therefore."



OF COURSE THEY FAILED TO ANSWER...THEY DIDN'T EVEN KNOW ABOUT IT.



3) "There is justly due and owing to plaintiff in the above referenced action a sum certain as set forth in the Complaint in the amount of $$$$$$$ as of 05/10/2004, together with interest accruing thereon at the rate of 0.00% from 05/10/2004, until the date of judgment.





II. INCLUDED IN THE PACKET OF PAPERS THE KIDS RECEIVED IS AN "ORDER SETTING CASE SCHEDULE" IN WHICH THERE IS A SCHEDULE OF EVENTS AND ACTIONS TO OCCUR RELATED TO ALL THIS.

1. CONFIRMATION OF SERVICE ON 8/2/04

2. CONFIRMATION OF JOINDER OF PARTIES, CLAIMS AND DEFENSES ON 9/13/04

3. JURY DEMAND ON 9/20/04

4. OBTAIN SETTLEMENT CONF JUDGE/COMM FROM COMMISSIONERS' SERVICES (SEE PCLR 3(c) 2 (b) & 94.04 (f)) IN WEEK OF 9/27/04

5. STATUS CONFERENCE (CONTACT COURT FOR SPECIFIC DATE) IN WEEK OF 9/27/04

6. PLAINTIFF'S DISCLOSURE OF PRIMARY WITNESSES ON 10/11/04

7. DEFENDENT'S DISCLOSURE OF PRIMARY WITNESSES ON 11/01/04

8. DISCLOSURE OF REBUTTAL WITNESSES ON 11/15/04

9. DEADLINE FOR FILING MOTION TO ADJUST TRIAL DATE ON 11/29/04

10. DISCOVERY CUTTOFF ON 12/06/04

11. EXCHANGE OF WITNESS AND EXHIBIT LISTS AND DOCUMENTARY EXHIBITS ON 12/13/04

12. DEADLINE FOR HEARING DISPOSITIVE PRETRIAL MOTIONS ON 12/20/04

13. JOINT STATEMENT OF EVIDENCE ON 12/20/04

14. SETTLEMENT CONFERENCE (CONTACT COURT FOR SPECIFIC DATE) IN WEEK OF 12/27/04

15. PRETRIAL CONFERENCE (CONTACT COURT FOR SPECIFIC DATE) IN WEEK OF 1/10/05

16. TRIAL ON 1/18/05 @9:30



I HAVE NEVER BEEN TO ANYTHING BUT A TRAFFIC COURT BEFORE SO THERE IS A LOT OF LEARNING FOR ME TO DO IN THIS SECTION.







III. ALSO, ATTACHED, THERE IS A JUDGMENT SUMMARY FOR THE JUDGE TO SIGN. HOW CONVENIENT, HUH?!





IV. SO, TO SUM IT UP:

THE BANK WROTE OFF THE DEBT

THE FINANCIAL COMPANY APPARENTLY BECAME OWNER THE DEBT SOMEWHERE AROUND MAY 10, 2004

THERE IS NO VALIDATION OR VERIFICATION OF THE DEBT

THE FINANCIAL COMPANY DID NOT CONTACT THEM OTHER THAN TO GO STRAIGHT TO COURT

THE KIDS MISSED THE FIRST HEARING

THEY ARE IN DEFAULT BY SILENCE

THE FINANCIAL COMPANY IS NOW GOING FOR A JUDGMENT AGAINST THEM

THE TRIAL IS SET FOR JANUARY 18 AND I WANT TO HELP THEM PREPARE



V. I WOULD LIKE SOME HELP DEVELOPING OUR STRATEGY. HERE'S WHAT I'M THINKING SO FAR.......

1. DEMAND VERIFICATION/VALIDATION

2. PRESENT DEBT COLLECTOR'S INFORMATION FORM FOR THEM TO FILL OUT

THERE IS A LIST OF QUESTIONS IN HERE SOMEWHERE. CAN SOMEONE POINT ME TO IT?

3. SEEK FOR DISMISSAL ON GROUNDS THAT THERE WAS NO CONTRACT WITH THE FINANCIAL COMPANY

IS IT TOO LATE FOR THIS?

[gregtu]

Check their file down at the court house. Sounds like somebody purchased the debt...big no no!!!!

[RICKY]

THANKS GREGTU...



WHEN YOU SAY TO CHECK AT THE COURTHOUSE, SPECIFICALLY, WHAT DO YOU MEAN? AND CAN THIS USUALLY BE DONE BY PHONE OR MUST IT BE PERSONAL APPERANCE?



I'M PRETTY SURE THEY HAVE "PURCHASED THE DEBT" SINCE THEY APPEAR TO HAVE NO RELATION TO THE BANK THAT ORIGINATED THE LOAN & IT SHOWS THAT THE KIDS OWE SINCE MAY THIS YEAR WHILE THE ORIGINAL LOAN PAYMENTS CEASED OVER A YEAR AGO.



THANKS,

RICKY

Ricky,



Get the complaint, and look and see what court it says. It should say something like XXXXXX County, Superior Court,



Then go to that county's clerk of court, and ask to see the file for case XX-456789.



They will probably point you to a window and someone will go in the back and get the file. You can then proceed to look through it. If you want copies of anything, you will have to pay for them (Usually an exorbitant fee like $1.00 per page or side) and then you can assess what you are dealing with.



The first questions that come to my mind are these:



1. Who wrote the affidavits? If it's an attorney, you will counter with "no competent witness," since statements of counsel in brief or argument are insufficient for summary judgment" per Trinsey v. Pagliaro.



If it is not an attorney, I would immediately present an interrogatory asking how the person had personal knowledge of any debt and can they verify that alleged debt from personal knowledge. I'd grill them like a cube steak in the interrogatory, and see what they have to say for themselves.



I have more, but the wife just passed off the butter churning jar to me, and I am all shook up.



HB

[Ice]

If they have "purchased the debt" and are litigating this matter using the name of the original creditor then aren't they "perpetrating a fraud upon the court"??



Something to think about... eh?

[RICKY]

THANKS HB... .IT IS OUR COUNTY'S SUPERIOR COURT AND WE WILL GO THERE TO SEE WHAT WE CAN SEE.



NOW, IF IT IS AN ATTORNEY THAT FILED AFFIDAVITS, I DO UNDERSTAND THAT S/HE WOULD BE AN INCOMPETENT WITNESS SINCE S/HE IS AN OFFICER OF THE COURT. SO HOW DO WE COUNTER? WHAT IS THE METHOD OR PROTOCOL? DO WE FILE OUR MOTION TO DISMISS AT THAT POINT?



IF IT IS NOT AN ATTORNEY, THEN HOW DO WE PRESENT AN INTEROGATORY? IS THAT THE SAME AS A DEPOSITION?



THANKS, HB, FOR THIS AND FUTURE HELP....!

RICKY



ICE,



THE ORIGINAL CREDITOR WASN'T MENTIONED AT ALL. IF WE FOLLOW THROUGH WITH HB'S SUGGESTION OF INTERROGATORY, IT SHOULD COME OUT THAT THEY PURCHASED THE DEBT.



THANKS,

RICKY



NOW TO FOLLOW THROUGH WITH THE JERSEEE APPROACH, HOW WOULD BE THE BEST AND MOST EFFECTIVE WAY TO DEMAND CERTIFIED VERIFICATION OF THE ALLEGED DEBT? THROUGH THE COURT SYSTEM OR DIRECTLY THROUGH LETTERS TO THE ALLEGED CREDITOR?



LATER FOLKS, AND THANK YOU ALL,

RICKY

Ricky,



Watch the Cornforth Videos.

GET THEM HERE



Then, Read the book, it will give you the cites you need.



I can't remember where I got it, but it's in a folder called CS4U, so maybe someone else can chip in there.



Another thing, and I am unsure from the post, but if they are asked to appear within the next vew weeks, there may not be time for an interrogatory.



You need to check out your state's Rules of Civil Procedure and see what the time limitations are. Above, it says that the time for discovery passed? (I am editing and cannot see it now) If that is the case, They will have to take the questions to court and ask them.



Either way, they still have to prove the case if you challenge them to. Otherwise your kid's "appearance" would be useless.



You have your work cut out for you, but if you look hard enough, you can probably at the very least allege that their lack of effectively serving the kids prejudiced their ability to prepare any type of defense.



They should file an affidavit that they have NOT been served, if indeed that is the case. that should be done ASAP. Check the Rules of Civil Procedure, but in NC, the Affidavit does not have to be served on the opposing party, it can just be taken to the Courthouse and filed into the case. Take 2 copies, and get both stamped. Keep one.



Not given as legal advice. Just Friendly advice.

[Ice]

This is a court action... asking for certified verification should have been done BEFORE it got this far.

If an attorney filed the affidavit it cannot be from "first hand knowledge" -- therefore it isn't proof of claim. You will have to see the affidavit before you can even guess as to what to do next.



But don't sweat it too much. This was an unsecured loan, right? There is always the void judgment strategy to work with.

ricky,



from first-hand experience at "late" stuff, if The Kids didn't respond in a timely manner with a defense, etc., then the opposing attorney is going to simply stick with the rules of court and not really bother with real evidence (because, as we know, he can't).



i got railroaded in this manner. at the time i had no idea what i was doing, and timeliness was the winning rule for the opposing attorney. i believe this is the strategy for most cases like this (you know, slam an unsuspecting sucker with rules he/she doesn't know and couldn't have known).



if the court doesn't want to listen to you due to timeliness of filings/requests/etc., then just let the case go into judgment and run the cornforth route.



that is only my opinion. simply because i knew 'twas a losing battle as the opposing attorney would do nothing but continue to bring up timeliness and the court would always listen to him, i just let the case go and didn't bother anymore with anything (not to mention i didn't know squat at the time either).



i eventually filed for, but didn't complete, bankruptcy which halted any collection activity and enabled me to send a VoD to the opposing attorney, from whom i've heard nothing since and that was a year ago.



sorry i can't offer much more.



however, if the court will listen, then i'd attack any and all documents the opposing put in - especially affidavits as they cannot be made against original evidence and are therefore nullities. subpoena the persons who wrote the affidavits and demand the production of the original agreement (which they can't do) - failure to provide the original means there's no debt. yadayadayada...



that'd probably be how i'd go in that case...



remember, just my opinion...



jon

[seeker]

First, why isn't any one attacking the fact that due process rights were violated? If they did not receive the original summons, all actions following are void. (Ck Cornforth) If you did not receive the summons, who did? Are they violating another law by visiting the neigbors and sharving private legal matters?



Second, don't panic. This is much easier said than done. You can always file a motion to continue.



Third, is this "Declaration in Affidavit form? If not, prepare one of your own and get it notarized! (worth two witnesses in court) State plan, personal facts -- starting with we have not seen nor been presented with any evidence that ____________, has standing in this matter; violation of due process; lack of certified verification from orginal creditor and/or debt collector; there are some cites here somewhere about that -- buying an existing debt and the lack of standing to collect -- burden of proof on the Debt collector --



Good advice, get to the court house, get a complete copy of the file, follow the paper trail back and then creat one from beginning to present for yourself.



ALWAYS include an ORDER for the judge to sign when making a motion ie to Dismiss, to continue etc. Remember, the job of the attorneys is not to present facts, it is to make life easier for the judges -- to smooth the way -- if you are acting as such, you need to do so also with the ASSUMPTION that he will act on your motion accordingly.



Just the beginning, but you need to get moving!



seeker