Update Collections Suit

[treehugger1]

The recent suit from ShitiBank:

As I posted a while ago, I was served papers suing me for an alleged debt due Shiti. I had 30 days to file an answer. I was out-of-state dealing with a family crisis so when I returned I filed a motion, notortized afidavit, and notarized declaration of "service by mail" on the plaintiff requesting an extension of time for me to review the complaint and file my answer. The plaintiff's law firm had no objections. Here in Oregon, any civil suit over $10K requires a cost to answer of $189.00, a motion, declaration, and affidavit is required, and the defendant basically fills in the court order that the judge is requested to sign. I'm learning that here the process is 90% of the battle when fighting a debt collection legal firm.The order was approved by the judge last week.

Shiti's legal firm is out-of-state (in BigBoy's Backyard.) I am still not certian whether I wll file a generally denial (except for my name,) or go with a default judgment on this alleged debt. However, I sat down today and carefully reviewed my records.

In June, I received (after several months) from the legal firm a response to my DV request. They included 12 months of alleged bills and an afidavit from some representative in Missouri. WTF? The affidavit refers several times to "this lawsuit." The person who filed the notorized affidavit signed off on all of this in mid-June. Guess what? No lawsuit had been filed against me at this time. The legal firm also made it clear that "at this time, no suit has been filed." The law firm's letter was dated mid-to-end of July. Yet, the affidavit from Shitibank speaks to "this suit." I got to thinking about this (hmmm....)

Due to another post the past day or so, I also got to wondering if the person who signed the affidavit really has any "knowledge and complete records," that she so readily swore she did. I'm thinking this is probably NOT the case.

I have until the end of October to file my answer; a general denial. Something is NOT right here in the out-of-state attorney's procedure. I looked through dozens of cases here in my county and there are nearly NO answers to summons. However, in every case involving Shiti, there are these affidavits that were produced (by an affiant?) to support the plaintiff's motion for summary judgment. No one has EVER questioned this bullshit! Since I do have a job and make a reasonable monthly salary, I think I'll be the first. What the hell.

Any case in Oregon under $50K is eligible for mandatory aribtration (seems like an oxymoron: eligible for mandatory.) I'm not sure what this means, except it does appear that if I answer the suit, there will be a hearing within 30 - 45 days where a judge explains it to us. My take from reading my state laws is that I do not have to agree and can demand a jury trial.

At this point, if I decide to demand the jury trial OF MY PEERS here in outback Oregon, I have more research to do. In particular, I am now wondering whether or not the signor of the "affidavit" in Missouri has any reasonable clue of this alleged account.

I think the attorney firm may be playing some scare tactic game that leads to default judgments. It also goes to show that the judges here probably do not read any of the crap in the case file. Otherwise, how could the judge acknowledge a lawsuit that was not even filed at the time the "affiant" signed the document? I'll guess they (Plaintiff's attorneys) have never been called on it.

I'm not sure how I depose a "witness" in my county, but I have some very interesting questions for the affiant. In particular, a jury of my peers here in my county might find such a request entertaining.

Thoughts?

[treehugger1]

Additional thoughts

I should make it clear what is bothering me about this:

1) Law firm sends me a dunning letter.
2) I respond with DV request
3) Months later, lawfirm sends me copies of 12 months of statements and affidavit from plaintiff swearing and notorized that she (affiant) has all information and records related to this account. In addition, the law firm includes a cover letter that states "No suit has been initiated at this time." However, the affidavit from Citi mentions "this lawsuit" several times.
4) A month or so later, a suit is filed against me by the law firm on behalf of Citi.
5) How does a representative of Citi speak and swear to a lawsuit that has not begun?
6) Do judges not consider the chronological flow of information before issuing a default judgment?

I'm no attorney, but something definitely seems out-of-sorts in this process.

[StartingOver08]

Treehugger, I think you are right on the mark in your thinking. One of the things to consider is: Is the Affiant that holds all the records an employee of Citi or an employee of a CA/JDB? If she is an employee of the CA/JDB how could she affirm anything? Wouldn't it be hearsay? At www.creditinfocenter.com under the forum labeled "Is there an Attorney in the House" there have been quite a few wins just based on challenging the person that affirms they are the record keeper - because usually they are not the record keeper of the OC, just the CA/JDB.

Also that business with the 'lawsuit' before it is filed seems to indicate at a miniumum that the 'record keeper' is confusing cases ()...after all, how can she refer to a suit that is not even filed?...My opinion, you are on the right track to derail this suit.

[WhatMoney]

Btw Treehugger, effective Oct. 1, 2009 the filing fees in Oregon have been raised to $197 per filing party, for actions between $10K and $50K.

DEFENDANT (also respondent, third party)--filing or appearance fee
First responding party filing appearance $197
Each additional party named in the pleading $197

Filing response to action for recovery of money or damages when the amount claimed is:
$50,000 to $149,999 $335
$150,000 to $499,999 $399
$500,000 to less than $1 million $463
$1 million or more $527
Each additional party named in the pleading $197

This is our court system's response to the September 11.5% unemployment rate [down from 12% in August] in the state.
(Oregon has the fourth-highest unemployment rate in the country.)

[treehugger1]

Whatmoney, Yeah I read the "complaint/answer" fees went up. LOL. That's what happens in a state that depends almost completely on individual income taxes for revenue. I'm still so damned curious as to whether joe-blow can represent him/herself here in my county.

What the heck? I'm insolvent. If I eventually have to file a BK 13, it would be based on disposable income and not what I owe. The debt could go from $11K to $20K. I am really toying with the idea of making the big-town attorney come here and offer his case up to a six-member jury of my peers in a county that has great disdain for all public laws, taxes, etc.

[treehugger1]

Whatmoney, Yeah I read the "complaint/answer" fees went up. LOL. That's what happens in a state that depends almost completely on individual income taxes for revenue. I'm still so damned curious as to whether joe-blow can represent him/herself here in my county.

What the heck? I'm insolvent. If I eventually have to file a BK 13, it would be based on disposable income and not what I owe. The debt could go from $11K to $20K. I am really toying with the idea of making the big-town attorney come here and offer his case up to a six-member jury of my peers in a county that has great disdain for all public laws, taxes, etc.

Starting Over, Of interest is th ewording of the affidavit by the affiant. She lists herself as an employee of some "larger" citigroup company collecting for citibank soiuth dakota. It does make me wonder if this is some LLC put together by the WA lawfirm. Maybe I should figure out how to call her and ask some very specific questions. After all, she did say she has "personal" knowledge of this alleged account.

A good friend of mine here was also has recent suits from Citi through the same out-of-state attorneys (Suttell and Ass's,) but there affiant is a different person. He believes the local circuit court judges are handing out default judgments based on these affidavits, and the judges have no clue as to what the legal recourse of a defendant might be. Could this be because the Circuit Court judges in Oregon are elected by the populous? Duh.

[Worried Mom]

Treehugger: I realize you've got a lot going on in your personal life, but I do hope that you don't just roll over and let them win by default. Even if you lose, at least make them work for it.

Definitely read the link that StartingOver left you. There is lots of information on that forum regarding those affidavits. As a matter of fact, I think there maybe something on this forum that BigBoy posted titled "It's not legal to lie". If I remember correctly, that article referenced those bogus affidavits.

As for mandatory arbitration, is that stipulated in the contract? I understand that between NAF, AAA, & JAMS, not one of them will take a debt collection credit card arbitration today. This is a fairly recent development.

[Worried Mom]

Here is the article I was looking for:

Lying Is Wrong
posted by Katie Porter
You might think that we all caught the lesson that lying is wrong somewhere between Sunday School and warnings that Santa only brings presents to good boys and girls. But an Ohio federal court recently caught a debt buyer making a a load of lies--under oath, no less. The opinion in Midland Funding v. Brent shows the underbelly of debt collection and just how far such high-volume, routinized, computerized processes have strayed from the idealized litigation model of truth-telling.

The case began when a debt buyer purchased defaulted credit card debt and filed suit against a consumer. The debt buyer's law firm used the debt buyer's "You've Got Claims" system (really, that is its name) to request an affidavit from the debt buyer to file in support of the collection case. Where do such affidavits come from? According to later testimony of the debt buyer's employee who signs 200 to 400 affidavits per day, "they just come from the printer" (again, I'm not making this up.) The court couldn't square that answer with the first paragraph of the affidavit in which the employee attests that "I make the statements herein based upon my personal knowledge." The court goes on to describe the affiant's lack of knowledge of nearly all the facts in the affidavit, noting that the affiant did not retain the attorney, was not familiar with the account, did not know the last time a payment was made, did not know if the consumer was a minor or mentally incapacitated, and did not know the outstanding balance. As an additional disability, the affidavit wasn't actually signed in the presence of a notary, making it improperly sworn. The court ruled that the use of the false, deceptive and misleading affidavit in the debt collection suit was a violation of the Fair Debt Collection Practices Act.

The law in Midland is boring. It is wrong to lie to a court, and it is wrong to lie in a debt collection. The action here is that there actually was an action. Some consumer went to the effort to put a debt buyer's affidavit to the test, leading to the conclusion that the process for generating such affidavits was sorely lacking. How many debt buyers, or default mortgage servicers, also have employees who get their affidavits "from the printer?" Or who have "personal knowledge" of consumers they have never met and of accounts they have never reviewed? Or who send affidavits "off to be notarized?" If the processes used here are typical of the industry, there could be a lot of liars out of luck.

Link: http://www.creditslips.org/creditsli...is-wrong-.html

[treehugger1]

Well that might be great if my situation was involved with a junk debt buyer, but this is not the case here. My suit is a direct suit through the original creditor. The attorney firm is serving as the legal counsel for the plaintiff, in my case. This has been confirmed. There are no FDCPA or State consumer violations involved here. There is the possibility that "evidence" for the plaintiff cannot be verified, or perhaps is fraudulent; unintended, or not.

[frogger]

Magic 8 Ball, what should we do?

Veiled threats, intimidation, and pounding the phone lines are what the big collection agencies do best. Yes, there are some suits, however the only one that I'm seeing them on in my area is the Discover card.

They will do what they do best (harass) for as long as possible before they even think about doing anything legal. That's not what they do best.....

[OhioFiler]

The signer of the affidavit presumed the affidavit was to be used as part of the filing. It's not unusual to see language addressing the suit before it's actually filed.

[All Cash]

I guess when you get to court you can tell the judge why you can't pay your bills?

[catleg]

Even if you request a jury trial the plaintiff will try and make sure this never gets in front of a jury, there is generally no reason that they shouldn't win at the summary judgment stage unless the judge is really ornery towards them.

They generally have all the paperwork down pat, they need the "certification of non-military service, and an affidavit from the custodian of records (just like porno movies) that says you owe such and such, and I can back it up if necessary.

As I've said before, if you were paying on this debt, and then just stopped, that's pretty close to an admission that you owe the money.

I think what "mandatory arbitration" means is that if you are offered a settlement by the opposing party, but turn it down and insist on trial, and you win at trial but for a lesser amount than the settlement they offered up front, then you can be assessed their additional attorney costs for pursuing the case rather than settling. Not sure if this is true in your state, just something I read somewhere.

The only good way I see to wiggle out of these cases is if the court lacks jurisdiction.

[treehugger1]

I don't think any judge here is interested in why someone can't pay their bills. I see that Discover, Citi, Chase, etc are starting to file a great many suits through their "attorney firms." With very few exceptions, most of them are leading to default judgments. If all of these folks would file an answer, the circuit court here would be backed up for months and months. In the end, the judges realize that the majority of folks could declare a BK so the details of how and why are probably not important to the judges. I do note that several suits here were closed due to BK.

In terms of mandatory arbitration, Oregon has its own laws that have nothing to do with the older national arbitration rules. They claim it keeps the court system more free to engage in other offenses. Arbitration can be appealed here. For someone committed to fighting a suit, the arbitration could be one more step in a long process before a 6-person jury ever heard a case.

Unlike BB, approximately 45 days after I received the affidavit from Citi's attorney firm, they sued. I have four options:

1) Let the default judgment occur and wage garnishment happen. The judgment would potentially be satisfied in 4-5 months, and no other garnishment could occur until the current garnishment expires in 90 days.

2) File an answer. This costs $200 and then there is a cost for filing every additional motion and/or respone to a motion. First the case would be set for a hearing to discuss arbitration. Arbitration also has a cost of several hundred dollars. The filing fees here are currently stacked against the debtor if they have solid emplyment.

3) Write the legal firm a letter proposing a settlement over several years. This can be done before the answer period expires. I can file such a letter with the clerk for inclusion in my case file. Since the case is currently open, it was suggested to me that I also include a declaration and affidavit listing my exemptions and a copy of my current salaried contract for this year. I was told to also include the statement that my student loans have officially defaulted (270+) days and my wages are subject to a 15% garnishment from the dept. of education. This process can keep a default judgment from occurring and lead to a stipulated judgment.

4) Bite the bullet and file a BK 13. I'm not prepared to go this route until I see the outcome of 1), 2), or 3) above.

[catleg]

Let me point out one benefit of getting the lawsuit filed now rather than later.
The "interest" stops running at the contract rate (29.99 or whatever) and accrues at the much lower pre/post judgment rate (6 ish probably).

Just in case a rich uncle dies or you hit the lottery and end up paying them.