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  1. #1
    surferboy is offline Junior Member
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    How to fight a judgement from a creditor?

    What is the name of your state? Florida

    just got summoned to go to court on 02/21/2008.

    Well I am being sued for an old JcPenny credit card. The charge off date was in 12/2006. It is a local lawyer that will be at court. The plaintiff however is GEMB/Dilliards. So I would imagine that I have a leg to stand on there since I have never had a Dillards account. Whoot!

    Once in court I should:

    1. They have to prove that this is my debt: They have to provide the original copy of the application for credit, copy of promissory note and any credit agreement....etc.

    If they cannot come up with this will the case be thrown out or will it be rescheduled?? Are there any sample pleadings that have had them thrown out so that they cannot continue to sue?
    2. I see if the plaintiff really exists and has the right to conduct business in my state and use its courts.
    3. Provide bill of sale, bulk transfer affidavit and cancelled check evidencing payment.
    4. Provide complete chain of ownership of the debt. Copies of bulk state affidavits pertaining to each transfer of the alleged debt.

    Now my question is this....I don't think that they will have all of this proof when they come to court so I imagine there will be another court date set or will it be dismissed/thrown out of court? Also is there any laws that I can reference when I request that they supply these documents? Or will the judge already know the laws and not require me to show him the statute? Or when the attorney objects do I just say "it is a fundamental part of the plaintiff's burden of proof" or it is a key factor in defendant's defense or counterclaim? Do I need to state some kind of statute??

    If they cannot come up with the original copy of the application for credit can the case be thrown out? And if so what would I use to back up my claim? Or would I just ask the judge to throw out the case. Would I have to state any kind of statute???

    Sorry for all of the questions but you guys are sooo dang knowledgeable I know that you can help me to have them just give up on it. I don't think that the creditor will keep pursuing this for a 400 dollar debt that is now 1700 because of lawyers fees and interest.

    Thank you very much for any replies. Any feedback will be very helpful.
  2. #2
    seniorjudge is offline Senior Member
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    Go to court.

    Tell the judge you want a trial.

    A trial date will be set.

    Then when you get home, file your discovery motions.
    There are two rules for success:

    (1) Never tell everything you know.
  3. #3
    Zigner is offline Senior Member
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    If you are relying on all that gobblygook (it's a technical term), then you will lose.
  4. #4
    surferboy is offline Junior Member
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    Quote Originally Posted by Zigner View Post
    If you are relying on all that gobblygook (it's a technical term), then you will lose.
    So you don't think that I have a chance? If they cannot come up with my original application for credit how could they prove that it is mine?

    Would it be better to just not show up then?

    I am head of household and make very very little. I am married and have two kids. My wife is a stay at home mom. Can they garnish my wages if I cannot afford to pay them?

    Also can they auction off items in my house? Is that common?
  5. #5
    seniorjudge is offline Senior Member
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    If you do NOT show up, then that means that you are in agreement with everything they say!
    There are two rules for success:

    (1) Never tell everything you know.
  6. #6
    surferboy is offline Junior Member
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    Quote Originally Posted by seniorjudge View Post
    If you do NOT show up, then that means that you are in agreement with everything they say!
    Then I am not going to do that. It also says if it is a default judgement that I will owe 750 in attorney's fee's. No thank you. I will show up then thank you Senior Judge.
  7. #7
    surferboy is offline Junior Member
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    Senior Judge, do you think that they could garnish my wages or auction off my stuff? Is that a common thing that they would go after?
  8. #8
    seniorjudge is offline Senior Member
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    Quote Originally Posted by surferboy View Post
    Senior Judge, do you think that they could garnish my wages or auction off my stuff? Is that a common thing that they would go after?
    Yes and yes.
    There are two rules for success:

    (1) Never tell everything you know.
  9. #9
    Zigner is offline Senior Member
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    Quote Originally Posted by surferboy View Post
    So you don't think that I have a chance?
    I didn't say that. What I'm saying is that you need to develop a REAL defense...
  10. #10
    surferboy is offline Junior Member
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    I have read on some other forums and it's my understanding that they can garnish my wages but I can file to have it cancelled is that correct?

    If I don't have a whole lot what exactly could they take? Could they take my only tv or car, or my only computer? Could they take a surfboard?

    I know this is all hypothetical right now but I just want to know what I am getting into. Thank you.
  11. #11
    surferboy is offline Junior Member
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    Quote Originally Posted by Zigner View Post
    I didn't say that. What I'm saying is that you need to develop a REAL defense...
    Do you have any examples for me to use as a guide so that I can develope a REAL defense? I want to be prepared as possible. Thank you!
    Last edited by surferboy; 02-12-2008 at 02:53 PM.
  12. #12
    seniorjudge is offline Senior Member
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    Quote Originally Posted by surferboy View Post
    Do you have any examples for me to use as a guide so that I can develope a REAL defense? I want to be prepared as possible. Thank you!
    A real defense would be this:


    Go to court.

    Tell the judge you want a trial.

    A trial date will be set.

    Then when you get home, file your discovery motions.



    (I am not sure what stuff of yours they could get trying to collect the debt.)
    There are two rules for success:

    (1) Never tell everything you know.
  13. #13
    seniorjudge is offline Senior Member
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    Quote Originally Posted by surferboy View Post
    Do you have any examples for me to use as a guide so that I can develope a REAL defense? I want to be prepared as possible. Thank you!
    Another thing you could do is get about 75% of what they claim you owe and at court, ask the lawyer if he will take that dough in complete settlement of the case.
    There are two rules for success:

    (1) Never tell everything you know.
  14. #14
    surferboy is offline Junior Member
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    Quote Originally Posted by seniorjudge View Post
    Another thing you could do is get about 75% of what they claim you owe and at court, ask the lawyer if he will take that dough in complete settlement of the case.
    Yeah I wish that I could do that but I am flat broke. Dang economy....Dang it man. Thank you Senior Judge. Once I tell them I want a trial date I will probably be back getting some more great advice Thanks everyone.

    Do you have any links for really good sample "discovery motions?" I would file all of these with the court house correct?
  15. #15
    seniorjudge is offline Senior Member
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    Quote Originally Posted by surferboy View Post
    Yeah I wish that I could do that but I am flat broke. Dang economy....Dang it man. Thank you Senior Judge. Once I tell them I want a trial date I will probably be back getting some more great advice Thanks everyone.

    Do you have any links for really good sample "discovery motions?" I would file all of these with the court house correct?
    Write a real nice and polite letter:

    "This is a discovery request. I need to know why and how you think that [defendant's name] owes [plaintiff's name] the amount of [amount]. Attach supporting documents to your answer."

    Then sign it with your complete name, all your contact info, and a statement saying, "I sent the original of this to [lawyer for plaintiff's complete address] and a copy to [complete information on court including docket number] on [date]."

    Send the original to the lawyer, certified mail, return receipt requested, and a copy to the court by first-class mail. Keep a copy for yourself.
    There are two rules for success:

    (1) Never tell everything you know.

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