Expert: Creditwrench - 7/8/2008

Question
I was served court papers from a collection agency that is suing me for an old Chase Credit card I had. The last payment that was made on this card was March of 2005. On my credit report it shows this as being charged off and then right below it there is a creditor that is listed. The amount on credit report shows $5644.00 but when I spoke to the creditor yesterday they are saying they want $7990.00. They are claiming that they are going to set a garnishment for $750.00 against me a month. If that is the case I would not be able to afford to work because that is my day care money. I am lost and don't know how to handle this. I want to make it right I just don't want to get hit with all these fee's and the collection agency is impossible to work with and rude. Please let me know how you think I should handle this? I live in CA.

Thank you,

Natalie

Answer
You must be making about $3000 a month in order for them to take $750 of it via garnishment. Quite frankly I don't understand how someone can live in California and only be making $3000 a month with the living expenses what they are out there. Of course, if you are making more than that then they can take more if they want to. They can get up to 25% of your pay.

So you got served with court papers meaning you are going to have to respond to the summons within the time allowed. If I were in your situation I would prepare a graduated denial, a certificate of mailing, interrogatories, admissions and demand for production of documents. I would file the graduated denial with the court and send a copy to the plaintiff's attorney along with the demand for interrogatories, admissions and demand for production of documents and the certificate of mailing. I would send them certified mail return receipt requested.

I would also have kept a careful record of any and all phone calls, letters or other communications from both the debt collector and the attorney and if they had violated any provisions of FDCPA I would sign up for the Pacer Court System on line and I would request a civil cover sheet and a copy of the local rules of procedure from the Clek of the court at the Federal Court house and start preparing my federal case against them.

If the lawyer had not contacted me in any manner except the summons I would look to see if the summons or the complaint had the full Miranda advisory anywhere on it and if not then I would expect them to have a letter in my hands within 5 days. If they failed to do any of that then I would use that as an additional cause of action against them.

I would also check to see whether or not there were any affidavits included with the summons and complaint and if not then i would go to the clerk of the court and ask to see all the paperwork in the case file. I'd want to be sure there were no surprises in the file such as an affidavit or whatever.

If there was an affidavit of some kind I would check to see what state and county the notary was from and I would call up the Secretary of State for that state and see if the notary was registered with the Secretary of State. Sometimes they are not.
I would also check to see if the plaintiff had offices in the town where the notary lives and works. If not then I would know that I was being hoodwinked into thinking that there really was someone who was actually qualified to be an affiant but in reality was not. If there was no documentation or affidavits in the case file I would then prepare a motion to dismiss for failure to state a claim upon which relief can be granted, a notice of hearing on my motion, an order of the court, another certificate of mailing and back to the courthouse I would go to file my motion and get a hearing date set.

And of course, that would just be the start of the battle.

Now then, do you want to learn how to do those things quickly and easily or do you want to just roll over, maybe spend a couple of thousand or more to file bankruptcy or just do nothing and take your whipping? You tell me what you want to do.

Bill Bauer
405-684-9297
405-227-9423

RECOMMENDED READING
http://www.shrinkmylink.com/hhlqson FDCPA EXPERT
www.creditwrench.com/howjudgmentswork.html
www.creditwrench.com/18questions.html
http://shrinkmylink.com/kmlqson
www.creditwrench.com/objections.html
www.creditwrench.com/howcreditwrenchworks.html
http://www.shrinkmylink.com/bnlqson List of community property states

LISTEN TO THESE CREDITWRENCH STUDENTS CHAT ON OUR FRIDAY NIGHT CONFERENCE CALLS.

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http://shrinkmylink.com/xsjqson

Statute of Limitations for all states
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How to set up your hard drive for creditwrench files. Makes them easy to find.
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If you live within driving distance of Oklahoma City you can also come to our monthly meeting of the Oklahoma City Chapter of Jurisdictionary meetings. They are held on the 2nd Thursday of each month at Coit's Root Beer Stand which is located on the corner of SW 24th & Western Ave in Oklahoma City. The meetings start promptly at 7:00 P.M. and last for 2 hours. Attendees usually arrive about half an hour early so they can enjoy a good meal at Coit's Root Beer Stand. The meetings are free and open to the public and we can discuss your problems as well if you like.

We are going to start holding mock trials so that you can learn some court room procedures.