Received Summons From Collection - Need Advice - SOL?

[alexl]

What is the name of your state? FLORIDA

Hello everyone. I have been browsing the pages of this website and there is a lot of good information. I have a situation where I just received a summons to appear in court today for a "pre trial conference" for a debt with Midland Funding LLC. The debt is $2,743 with interest and fees (The credit limit was only $2000) This is a collection agency for an old Citibank Visa that I opened in 1998 and that was closed by the lender (for not paying - poor college kid at the time) and was "updated" on my credit report in 2005. When I obtained the debt I lived in Wisconsin and have since moved to Florida in 2004. I was first of all wondering if the statute of limitations would apply in this scenario. I've read that if you move to another state, the SOL can start over from that point. Is there truth to this?

Also, I am in a position where if the SOL doesn't apply, that I can offer to make a settlement on the debt. Do you recommend that I obtain a lawyer for this, or should I try and settle it on my own? Can I settle this out of court and if so, do i need a lawyer to do this? This is small claims court, would a lawyer end up costing me more $$ in the end?

I read somewhere that if a collection agency sues you that you want to file for Discovery to see how much the debt was actually obtained for, because that is really all they can try and collect on (since that is what they bought it for). Any advice anyone has to offer, would truly be appreciated. I just got served court papers today, and my pre-trial court date is April 1st (Happy April Fools Day To Me) - I should probably act fast......



Thanks In Advance,

Alex

[Chien]

Second and third paragraphs are easy. First requires more information and bears on 2 and 3.

Can I settle this out of court and if so, do i need a lawyer to do this?

You can try on your own. Part of your argument is that there are finite dollars and that money spent on a lawyer could go to them. It got harder and the price went up when you were sued. Here are negotiation suggestions from a senior member:
[url]http://forum.freeadvice.com/showthread.php?t=300276[/url]

I read somewhere that really all they can try and collect on is what they bought it for.

You didn’t read it here. It’s wrong.

I've read that if you move to another state, the SOL can start over from that point.

It can start again, if that’s what you mean by “start over from that point. The WI SOL is 6 years. You're within FL's, if they were able to use that. FL has a “borrowing statute”. You moved in 2004. When did you default? When did the WI statute start to run? If you can fight it on the basis of the SOL, do you want to try? Do you want to hire an attorney to try? You’re negotiating position may be stronger, if you also have a viable defense, but you’re a “straddler” and are on the fence. You may pay more money to try to avoid the debt (if you can) than it would take to resolve it (and you won’t know until you try and win or lose). Those are things that you have to work out.

[alexl]

Thanks Chien. I think the best solution is for me to try settle with the attorney. Here's a couple questions regarding that:

1) I read the list of how to negotiate from "debtcollector"...does this pertain to people that have already received a summons to appear in court?

2) If i settle out of court, do i still have to go to the pre trial hearing on april 1st? Should I try and negotiate with the law office before then or is that what the pre trial hearing is for?

3) How do you even start the conversation when you call....Hi, i have a debt with you guys and i have an uncle who might be willing to help me settle on this.....

4) Do i have to reply to that summons at all, or does that just tell me when I am scheduled to appear in court.....

5) If anyone has any other personal experience with settling, and would like to share any information, tips, etc...i would be very grateful and thankful.

Thanks,


Alex

[Chien]

I think the best solution is for me to try settle with the attorney.

Your choice. Personally, I think it’s the best one.

Does this pertain to people that have already received a summons to appear in court?

It pertains to anyone at any time but, as I said, the price may have gone up once they paid to file and serve. That’s one reason to determine if you might have a viable defense but, if you want resolution, don’t make threats.

If i settle out of court, do i still have to go to the pre trial hearing on april 1st? Should I try and negotiate with the law office before then or is that what the pre trial hearing is for?

Start now. If you get an agreement, get it in writing and be sure it includes assurance that you need not file or appear.

How do you even start the conversation?

Any way is fine. DC’s cues are fine. They’re interested in getting money and not doing more work. They have their rationale too. They’re not making much, even if you paid full freight. You both have the same objective – get rid of this. They have to do it on terms that satisfy the client. The less work they do, the less it costs them. The less it costs, the less they can justify accepting. It’s just business, but they don’t work for free and have to justify it for the client. No offense, but this type of practice is based on volume, and you’re almost incidental. (Come to think of it, maybe someone should have said that here years ago. Understanding might have saved a lot of wear and tear.)

Do i have to reply to that summons at all?

You do if you don’t have a written agreement, or you will suffer a default judgment. That’s why it useful to know whether you also have a viable defense. If you don’t and it will cost you money to file an Answer and/or cost you money to hire an attorney to lose, you should consider that if negotiations reach an impasse. Step back and negotiate for time rather than a reduction

[debtcollector`]

Originally Posted by Chien

No offense, but this type of practice is based on volume, and you’re almost incidental. (Come to think of it, maybe someone should have said that here years ago. Understanding might have saved a lot of wear and tear.)

I did.

That and communication is key.

DC

[alexl]

Thanks for all the info you guys. I will definately correspond to them on Monday, and keep the forum posted on the results. Much appreciated. Thanks again, and if anyone else has anything to share, I would love to hear.

Thanks,

Alex

[spieler]

You're going to be in a much better bargaining position if you simply show up in court. It's a pretrial conference. The judge will probably set a date on down the line for a trial. In the mean time you can discover things that you are asking here. the statute of limitations , proof of the debt etc.
Its going to cost you nothing in attorney fees to show up by your self. After that I'm sure some of these debt collectors here will be willing to give you advice on how to proceed.

[Chien]

1) The OP doesn’t want a trial (unless forced and with knowledge that he’ll have a viable defense, because he otherwise loses, suffer a judgment for around double what is being claimed and hurts his credit.)

2) Unless he gets the information himself, getting the information that you enumerate is called “discovery”, and he should have no expectation of getting the data voluntarily, unless someone is feeling particularly magnanimous that day. Instead, he incurs the cost for filing an Answer. (Already discussed – see above.)

3) There is no reason for the Court to set a trial date until the defendant has Answered. Kinda circular, isn’t it.

4) I think the best advice at this point is to ignore you entirely.

[alexl]

I'm going to try and negotiate before the pre-trial conference (on monday actually), but if they won't accept any settlement before then - isn't the pre-trial conference set up so that things can be resolved before having it go to trial?

In the paperwork that i received, it says "you may be ordered to mediate at the pre-trial conference. Mediation means a process whereby a netrual third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties"

Between me, their lawyer, and the mediator at the pre trial conference do they try and work with you to make a settlement or set up a payment plan or??? should I go there with a checkbook and be ready to pay? Anyone with experience on what happens?

[MeDumbGuy]

Whether the SOL has run is determined from the date of breach, not when you opened the account. You will need to research both states laws to determine whether the SOL has run. Do this quickly, then file an answer before the deadline stated in the summons runs. If the SOL has run, be sure to include an Affirmative Defense in your answer stating the SOL has run. The judge will likely consider the SOL during the pretrial hearing. The judge will most likely handle some of the preliminary issues like the SOL at the pretrial and make a quick attempt to have the parties settle the matter. You should be prepared to settle and negotiate at the pretrial hearing - so bring your checkbook. However, you are not required to settle the matter at the pretrial. As this is small claims, your discovery is limited - you will need to check the rules regarding what your entitled to - but I wouldnt bother with discovery in this situation since the facts do not seem contested. Due to the amount and since it does not seem like you have any defenses, other than the SOL which you can probably research, I would not spend the money on the attorney. Instead, save that money for use in your settlement negotiations. Also, ask about the court system in your county. Right now, Orange County, Florida is very debtor friendly. A lot of court's are so frustrated with foreclosures that they are going out of their way help debtors. In any event, resolve it before a judgment is entered. Otherwise, your credit may be trashed over a nominal amount.

[alexl]

Thanks Everyone. I received a letter from the attorney's office in the mail yesterday...

Can somebody explain what this means:

"I am enclosing for your review a Stipulation for Entry of Final Judgement Execution Witheld. As you will note, some of the terms have intentionally been left blank. Kindly contact my office upon receipt of this letter so that we may mutually agree to the terms and conditions of said stipulation"


Also:

1) How can I find out when I defaulted on my payments (breach or payments)? Do I call the original creditor or...?

2) Do i have to submit any paperwork (some kind of answer) to the court before my pre-trial conference on April 1st? Or is the summons just telling me I have to show unless I get something worked out before then otherwise its automatically a judgement?

Thanks Again,.

Alex

[Chien]

Go back to posts #3 and 4.

They just opened negotiations for you and, if you can work something out and perform on terms to which you agree, are giving you a chance to avoid a judgment.

Bear in mind the rest that was posted, contact them and see what you can work out, and post back if you don't get a resolution or have further questions.

Good luck. Hope we don't need to hear from you.

[alexl]

I've tried to contact them numerous times during the past two days without luck. I've left messages for the extension that I was supposed to contact according to the paperwork. I will try again tomorrow. The receptionist said there was only one person in that department....that's pretty ridiculous.

I thought of one question - If i cant get thru to these guys to try and settle and I have to go to the pre-trial conference, if i make a settlement at the pretrial conference, will it still be reported as a judgment on my credit report, or does a judgment get posted after you go to the official trial?

I was pumped up and ready to begin the negotiation process, but these people are not getting back to me.....kinda frustrating.


Thanks,

Alex

[Chien]

if i make a settlement at the pretrial conference, will it still be reported as a judgment on my credit report, or does a judgment get posted after you go to the official trial?

That’s kind of a trick question, although I know that you didn’t intend it to be. It’s not as much a matter of when you make the settlement as it is the terms of the settlement.

For example, I can consent to have judgment entered against me with an agreement that I pay over time and the judgment creditor doesn’t involuntarily enforce its rights unless I default on payment.

Conversely, I can consent to pay over time with an agreement that judgment can be entered against me and enforcement begins if I default on payment. (If I make all payments as promised, the case gets dismissed with prejudice, and it’s as if it never happened. In the meantime, the case is “suspended”.)

Obviously, you want the latter and creditors like the former (it saves a step or two). In terms of paperwork, it’s not a complicated difference for the attorneys or the court, and it should be as fundamental to your negotiations as the amount and timing of payments.

(Of course, you can keep negotiating until a default judgment is entered, but it doesn't appear that they want to either. It’s not a confusing difference for me but if it is for you, what’s the next question?)


Actually, I also chimed back in to say Hi to LNR. Good to see you back. Looks like you’ve been going through the forum like a tornado, and I’m the last to say welcome. I know “too busy”. Sometime you have to PM the URL of one of your site designs. I have a secret suspicion that there’s a fire-breathing dragon in every one, if only hidden in the coding, and I want to see if I’m right.

[alexl]

I finally got a hold of somebody there....they said my outstanding balance was 3701.54 with all the court costs, attorney fees, etc. I tried to work a settlement of $2000.00 and he said that all he can accept is 3150.00 because of all these other costs. I told him I would have to get back in touch. The original amount of this debt was 2,743.00 He seemed firm, saying that his client won't accept anything less. Do i keep negotiating with this guy? He seemed pretty firm on the $3150 (although im sure they have to be).