Expert: Michael Brotherton - 12/14/2008

Question
QUESTION: I recently filed a notice of motion to dismiss a complaint against me in special civil part, New Jersey. I had obtained a court order wherein it stated ...

"Plaintiff's counsel is to provide defendant with the request to enter default judgment and certification of proofs (which they did) which would contain information defendant is seeking as to the original loan documetns /creditor information in order to validate the debt."

I did the motion based on counsel not providing me with the original loan documents as all that was attached to the request to enter default (which was later vacated and answered as my daughter was ill at the time) The proofs attached to the certification was a print out from LVNV Funding LLC and not a copy of my contract with an account number that I could research and verify any payments or loan information.

I'm responding as they're saying the provided me enough information. I know the validation issue is foggy through reading your posts, however aren't I to be supplied with statements etc., on this? Answers to interrogatories submitted by plaintiff's counsel did not contain any statements relating to this matter and said same would be provided.

My responses to their questions were equally as vague becuase I have nothing to research.

Trial in this matter is set for January 5, 2008. I would appreciate your insights.

ANSWER: You must be specific regarding your demands for documentation. You must specifically ask for statements, etc and the judge may have to rule on it but they are required to provide documentation such as this. I dont particularly agree that this is sufficient but would rather see a printout of the account or summary of all charges and payments from the beginning, however I have yet to see them provide this in a court proceedng.

I would also ask specifically for the original application and copies of signatures on anything and everything you signed as proof of debt. You probably wont get them but these are valid requests. They most certainly have them.

The bottom line is that most of these cases are won by the plaintiff if it is in fact a valid debt. Your best efforts should go towards reducing the amount of the judgment and lowering interest.

You may also negotiate directly with the plaintiff for a settlement or payment arrangement in order to resolve this. Ask for an agreed judgment and dont be shy to ask for concessions.

---------- FOLLOW-UP ----------

QUESTION: Thank you Mr. Brotherton for your response. I have asked for statements in my interrogatories and counsel replied "will be provided if available"  

I have asked for original certified documentation, which was ordered 9/26/08 by the court to be provided. I have asked for all of the things you're referencing above as well.

Would you advise how I would go about settlement negotiations? I know they purchase these for pennies on the dollar and they sent me (in the middle of the litigation) a notice for 1/2 the amount to be paid... which, I thought was backwards but I'll bring that with me anyway that they were willing to settle for that amount... so when I go to court for trial... How does it work?

What is the procedure when I get there? I am, admittedly, nervous.

Thank you so much for your time and experience in these matters.


Answer
The procedure is pretty cut and dry in most cases and things don't always go as expected. The plaintiff will present their evidence and then you will have a chance to present yours and ask questions. You may also speak to the judge and ask for concessions.

Again, the bottom line is that the plaintiff will get their judgment. Your best bet is to ask for the concessions to reduce the debt and interest. Try to negotiate a settlement before the trial because it is easier to negotiate beforehand than to do it in court.

Their attorneys can usually tie the debtor up in knots in court. They are skilled and knowledgeable where you may not be.

Negotiate, negotiate, negotiate. It is the best solution. Don't be intimidated by them and don't give away the store. Don't make  commitments you cant keep and aim low on your proposal.

Good luck.