Stipulation of Settlement Question

[anyone99]

What is the name of your state? New York

I have a HFC loan (7K) that I defaulted on . 11/28/07 I made an agreement with them - 500 by 11/30, to stop it from going to the lawyers then 125 per week. I have been paying as agreed. On 1/28 a lawfirm sent me a Stipulation of Settlement agreement. They filed a suit against me on 1/4. The court has no record of service and the case is sitting there. I haven't signed the stiplulation. What action can they take? Should I file an answer before being served?

 

[VeronicaLodge]

what does the stipulation say? does it basically outline the agreement you guys are working under?

 

[anyone99]

It says-

Defendant agrees to pay plantiff the sum of 6,754 together with interest on 6,709 from 1/26 at the rate of 24.900% per annum as follows:

a- 500 on 2/28
b - 500 on 3/28 and continuing monthly there after.

Payments should be made to the order of (the attorneys name)

(My agreement was 125 per week, which does come to 500, but I've been making the payments payable to HFC, as per our November agreement)

(It's the next paragraphs that are a red flag to me) -

Notwithstanding this stipulation, plaintiff may proceed with the entry of judgement against defendant for the full amount sought in the complaint, together with interest, costs and dibursements, crediting defendant with any payments made hereunder. However, the sum that the defendant agreed to pay plantiff shall be accepted iin full satisfaction of the judgment if paid in accordance of the terms of this stipulation.

Plantiff agreees to withhold enforcement of the judgement to be entered as long as payments are made in accordance with the terms of this stipulation.

Upon payment by deefendant in accordance with the terms of this stipulation, plantiff will issue a satisfaction of judgement.


The way I read this, I'm handing them the paperwork to slap a judgement against me, even though I'm paying as agreed.

Should I file an answer with the court, or wait to be served? I've checked with the court and they have not filed an affidavit of service, but I'm not sure if this stipulation agreement could be considered service.

Thanks for your help

 

[seniorjudge]

File an answer immediately and ask that the court stop service of process. (It could save you a few bucks.)

And also file a certified copy of the stipulation after both y'all sign it.

 

[TigerD]

You do not want to sign that. Post judgment interest in New York is 9% you can and should negotiate that 24.9% they are trying to stick you with.

DC

 

[seniorjudge]

You do not want to sign that. Post judgment interest in New York is 9% you can and should negotiate that 24.9% they are trying to stick you with.

DC

Poster...listen to him!

 

[anyone99]

I don't want to sign that stipulation because the wording implies they have a judgement, and they don't. I don't want to give them the fuel to slap me with one.

They are also trying to modify the payment terms, and who I am paying. I've been making the payments payable to the OC, mailed to the attorney's office. The stipulation states that the payments should be made payable to the lawfirm.

I believe they are just sitting and waiting for me to miss one of my payments.

Should I file a response, or just keep paying as agreed?

Just a FYI - First month payments made money order, overnight return receipt, after that I made all payments via automatic online payments with guarenteed delivery dates.

 

[anyone99]

Should I file a response, or just keep paying as agreed?

Just a FYI - First month payments made money order, overnight return receipt, after that I made all payments via automatic online payments with guarenteed delivery dates.

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[TigerD]

File an answer to what? You haven't been served, have you?

DC

 

[anyone99]

They files with the court. I have not been served. I've checked with the court and there is no affidavit of service filed. I only figured out that they filed from the Stipulation agreement. It had a court index number on it.

I'm not sure if I should wait to be served, or go down and file an answer.

 

[seniorjudge]

File an answer.

 

[Chien]

I don’t follow this thread on several points. While I normally agree with SJ, I don’t see the point in filing a response (particularly if NY charges a fee to do it). Sooner or later, you’ll lose the litigation.

You defaulted on the loan. You know that or you would not be making payments to the OC. If you’re payments were timely, and there was no other problem, I don’t know why it would have been referred for litigation, but it was. You may understand the reasoning better and that wasn’t your question. So back to the point – they’ll prevail in court, get a judgment and it will be bigger than the numbers you’re dealing with now. Moreover, once you file, it’s highly probable that the Stipulation will go off the table.

(There’s a side issue that the NY attorneys can address: prior to being served, I would have expected a Consent to Judgment, and use of a Stipulation after service, but that’s a NY procedural thing that was curious. It wasn’t your question either; it was mine. DC came at the same point from another direction.)

Your problem is with the wording of the Stipulation. DC is right about trying to negotiate a change in the interest. Why not negotiate the language of the Stipulation? Actually, the Stip. is onerous. What you want is language that says you’re agreeing that $X is owed, and you’re going to pay $X or $Y or whatever (it’s not clear from your post) on blah, blah terms and that, in the event of a default, they have the right to enter judgment for $X, less credit for payments made to the date of default. If you make all payments as agreed, they dismiss the litigation with prejudice. Then, don’t screw up. (You may think they’re waiting for that. Actually, they don’t want to bother with you again; they just want the money. And it’s perfectly normal for the payments to go to them. They may get paid that way but, at the very least, they now have control of the litigation and have to know that payments are being made. You don’t think the OC is going to send them a monthly memo, do you? If so, think again.)

Go back and re-negotiate the language of the Stipulation. The revision is the way that it should have been drafted anyway, and you don’t have a winning hand in this deal, but you may have a lot more stress before they come out in the same place. And do it before you get served and have fewer options about responding and losing or signing the Stip. and having a judgment.

 

[Chien]

I thought about this and decided to come back and add what I hope is a clarifying P.S., if not for you then for others similarly situated.

You say that the wording that is a concern implies that they “have the fuel to slap [you with a judgment].” No it doesn’t. It gives them a judgment as soon as they file it. You make payments as promised and they stay out of your face. You default and they immediately go to involuntary enforcement mode.

A revision in the language is a very small matter for them. They file a signed Stipulation now or they file a revised Stipulation later. But the suggested revision is a very big matter for you. You fulfill your commitment, and you either walk away with no record of a judgment on your CR or you walk away with “paid judgment” on your CR. The latter will cost you in terms of future credit expense, despite having fulfilled your promise. It’s definitely a point worth discussing and, as I say, signing a revised Stipulation makes hardly any additional work for them, if you default, but a revision is important to you, if you don’t. Remember that if discussing this.

All that said, if you have a viable defense, file a response and litigate the claim. It’s just that nothing posted so far suggested that you do. If you don’t, I think that you should order your priorities and speak to them about these issues.