Mother sued by Capital One

[BrokeIn2010]

Mom got the summons today: Appear 5/19 for trial Hosto & Buchcan (representing Capital One) vs my mother.

She talked to the Courty's Clerk today (the deputy that served her knows the family and said to go over there and see what's "really" up)

-- The house (~1/2 acre, barred from new construction due to issues with the water table, 30 yr old trailer) is exempt they can't take it. Plus they can't take a homestead where both spouses live for the bills of just one.
-- Maybe a car, if newer than 5 years and even they'd have to pay her claimed exemption for the car.
-- She might get it dismissed since she's in a DMP, is current on all her payments to the DMP (which included Crap 1), and hasn't charged in over a year.
-- Bring ALL medical bills, an exemption form, and proof that my father's job (their only income) is laying people off-- he got his notice of lay offs starting up last week, he doesn't know if he's at risk or not
-- She was advised to go to a BK lawyer and start making payments and get a "Statement of Intent to File" to bring to court.
-- The Clerk can't find where she was ever given a chance to answer the suit before the summons was issued.
-- They might not even show up, but my mother best be there.

According to the clerk, the Court in our county isn't too "creditor friendly" if they debtor was honestly trying and not just running up bills and not paying. And if Hosto did a end run with the summons and didn't give her time to answer, then they might be cooked with the Court.

timeline: Last payment Nov. 2009, Collections Feb. 2010, Court Date may 2010.

[GoingDown]

The summons comes first.

I think it is highly unlikely that she will win in court, but she could drag it out for awhile.

In the meantime, start bracing for the impact of a judgment. Get money out of checking accounts, savings accounts, etc. It will not be safe once they get a judgment against her.

Start looking into filing bankruptcy. Go see some bk attorneys right away for the initial consults.

[BrokeIn2010]

She's already got a BK attorney lined up for Tomorrow. Actually we knew she was going to have to file a BK, but she thought she had a little more time. She was trying to do a DMP to stay out of BK, but Crap 1 just played a jerk-around with the DMP (claiming that this or that form was lost or call missed). The main thing is that the house is protected (exemption, and this judge doesn't do liens) if she can't get the attorney retained in time.

As for the letter of intent: first time I heard of it. But the clerk said if she's not filed but retained an attorney she needed him to write a "letter of intent" plus have his receipts showing she's paying him.

[treehugger1]

Crap1 is pretty good at covering their bases. They are generally in it to win. I have heard of some folks finding attorneys to fend off suits in court, but I doubt this is the norm. Here is my experience:

1) Stopped making payments on four C1 cards about two years ago. Amounts owed range from $900 - $11000. All of these were charged off and went to many, many different CA's. Some went to out-of-state attorney firms. Finally I was sued on my oldest card with a balance of $2100.00. Intrestingly enough, this card was the only card that there would be a paper record of with my signature. I believe the other three cards were applied for via telephone or internet. I'm guessing that the attorney who finally sued chose to take the account that had a solid paper trail (and they did keep the original application from 17 years ago.) Or, perhaps this particular account fell in the sweet-spot range of lawsuits. I'm just theorizing here.

I would not bet that your mother would prevail in a suit with C1. The only way to know your chances is to file an answer and "see what the Plaintiff has" in the discovery phase of a trial.

The other question worth considering is whether or not the suit was filed in a small claims court or larger venue. Not sure of your state laws related to attorneys filing in small claims. Generally, in small claims there is no discovery phase. Having been through a couple of small claims suits in my local jurisdiction, acceptable evidence can be pretty sketchy on both sides.

[BrokeIn2010]

Yeah, I've told her not to go into thinking she's going to get the dismissal-- not unless she can get a bk filed in the next couple of weeks. She's looking at Chapt. 13 right now, but I'm trying to convince her that she needs to go to Chapt. 7 if she qualifies.

Dad wants a Chapt. 13 cause his sister (my aunt) has him convinced that a Chapt. 7 makes him a thief and a deadbeat and that he's failed (her words) "as a man".

My thinking: Dad's company's laying off and shutting down locations, he might not even have a job come Sept. this year. Then they're stuck trying to convert of a Chapt. 13 to a hardship discharge, trying to pay the payment out of his unemployment, or getting a dismissal that'll allow them to file Chapt. 7. Better to go "nuclear" now and save the possible work later.

[BrokeIn2010]

Attorney's got her coming back tomorrow. It's the long game, he's going to get a 90 day extension on the case. He's also, as of noon tomorrow, fielding all calls from creditors. She was in better shape than we thought, and he found some errors make on the suit. She's lookin at a Chapt. 7 sometime in Oct.

[BrokeIn2010]

Just got a call from attorney, he wants me to sign a quit-claim deed from mom to me, with her and dad holding life estates. And hold it till AFTER he's through with the Capital One case. He said it's legal, but I need to be with her tomorrow to get the process started. ~shrug~

[DYLAN150]

BrokeIn2010: So you hold the QCD and not file it? Somehow I was thinking that a person couldn't do that but if your attorney says it's ok, it must be!

[BrokeIn2010]

It's going to be filed. What he's going to do is split the deed among 4 owners-- me, wife, mom, dad-- and claim life estate for each with a buy out cost %10 higher than the state exemption. Then he's going to file it himself. As for the suit, he's going to request a dismissal (they've apparently left some info out) or a continuance (which he said will grow with less hassle)