Small Claim/never served/debt twice as original

[MicaVlad]

Florida
Hi, i have a question for you guys, thank you very much for your help!

well this is the story:

My hubby bought a TV on best buy five years ago, he just bought his condo so money for a payment in cash was out of the question, so he got a credit card on best buy, he didn't know that the weekly payment will only pay the interest not the debt. well time goes on, and this 2300 plasma TV was never finished paid every week the statement was the same and if he was missing one payment the interest was up to 100! insane, well after 3 years making payments we just could handle them because we were heading to a foreclosure, so we stopped making payments, that was almost three years ago when we stopped them.we got a ton of mail asking for payments, every three months a new firm or company was asking us for that.

We lost the property, and on April 2011 we got "a cancel debt form". we move to Florida from Massachusetts on May 2011, and during the process of moving we used a friends address to get the mail while we were situating in fl. after a week we were settled in fl. so we changed the address on the postal office so we could get all the mail were we live.

And this is the thing: my friend as been getting a lot of mail normally just garbage mail, so we just stopped mailing it to me, and i got here mail this week, and one of them was a court date in a small claim court for the debt of the tv, (remember the one that was bought on 2006 for 2300 and we paid for over 3 years) wish now is 3600! the court date was a month ago,they used an address that we never resided! so we were not served i didnt have any idea that we were sued, and today she told me we got another blue letter, i assume is they ruled that we have to pay.

what can i do, can i appeal because i was never served?

can i pay less, for the tv (we dont even have the tv anymore)

important points:

- debt for almost the double of original price

- we just couldnt make payments

- never served

- out of the state for over 9 months

im so grateful for this site,i hope you can give me a hand in here.

thank you so much.

Best.

 

[sandyclaus]

Florida
Hi, i have a question for you guys, thank you very much for your help!

well this is the story:

My hubby bought a TV on best buy five years ago, he just bought his condo so money for a payment in cash was out of the question, so he got a credit card on best buy, he didn't know that the weekly payment will only pay the interest not the debt. well time goes on, and this 2300 plasma TV was never finished paid every week the statement was the same and if he was missing one payment the interest was up to 100! insane, well after 3 years making payments we just could handle them because we were heading to a foreclosure, so we stopped making payments, that was almost three years ago when we stopped them.we got a ton of mail asking for payments, every three months a new firm or company was asking us for that.

We lost the property, and on April 2011 we got "a cancel debt form". we move to Florida from Massachusetts on May 2011, and during the process of moving we used a friends address to get the mail while we were situating in fl. after a week we were settled in fl. so we changed the address on the postal office so we could get all the mail were we live.

And this is the thing: my friend as been getting a lot of mail normally just garbage mail, so we just stopped mailing it to me, and i got here mail this week, and one of them was a court date in a small claim court for the debt of the tv, (remember the one that was bought on 2006 for 2300 and we paid for over 3 years) wish now is 3600! the court date was a month ago,they used an address that we never resided! so we were not served i didnt have any idea that we were sued, and today she told me we got another blue letter, i assume is they ruled that we have to pay.

what can i do, can i appeal because i was never served?

can i pay less, for the tv (we dont even have the tv anymore)

important points:

- debt for almost the double of original price

- we just couldnt make payments

- never served

- out of the state for over 9 months

im so grateful for this site,i hope you can give me a hand in here.

thank you so much.

Best.

The debt very likely includes interest. It is possible that it could be double the original price, especially since you didn't realize that your payments were only paying the principal and not the interest in the first place.

The fact that you overextended your credit to the point where you couldn't keep up with the payments is not anyone's fault but your own.

You WERE served, at an address where you received mail for a long time. You'll have to speak with your friend about why they never gave you that particular piece of mail until after the actual court date. And since you were served, then if a judgment was entered against you, it is a valid judgment.

Pay the debt.

 

[MicaVlad]

thanks for you very sympathetic answer

looking online i found out that i can appeal the case.
and second i guess everyone that has lost their jobs in this country are as guilty as we are.

 

[Ohiogal]

looking online i found out that i can appeal the case.
and second i guess everyone that has lost their jobs in this country are as guilty as we are.

The answer you were given is the CORRECT answer. You CAN appeal but you don't have grounds. Why? Because you were served at your residence where you received mail. So appeal but be aware that you will lose the appeal. Looking online you found that answer? What is the LEGAL mistake that was made? And not by you?

 

[MicaVlad]

Thanks again

Hi, i contacted a lawyer in Mass. and he gave me 4 options:

1.- File for bankruptcy because i also have the foreclosure,
2.- Call the lawyers that filed the claim and try to settle the debt for less,
3.- Appeal the case, but i still owe the money, so there is no much sense in doing it.
4.- Call the lawyers and try to make monthly payments.

 

[wrongsometimes]

you can file a motion to dismiss for lack of personal jurisdiction at any time in the legal processes ...

So if you think you have a chance at winning such a motion then you can file such a motion.


Its a motion to dismiss that would need to be filed.


If you have any monies owed for losing the motion is another question.

 

[Zigner]

you can file a motion to dismiss for lack of personal jurisdiction at any time in the legal processes ...

So if you think you have a chance at winning such a motion then you can file such a motion.


Its a motion to dismiss that would need to be filed.


If you have any monies owed for losing the motion is another question.

Wrong again strikes again!

Lack of personal jurisdiction Don't mislead the poor OP (any more than she is, of course)

 

[MicaVlad]

Thanks again. really!

we lost our property, we have no other debt beside our cars that we are making payments, and they will be paid off in almost 3 years...
the only things we owe right now is our furniture, i dont think they can take that. (hopefully)

-there's any way that i could pay less for it?
-im located in Florida and the claim was filled in mass.

and ultimately, what happens if i dont pay it, the same reason because we stopped the payments we just couldn't make them.

thanks!

 

[sandyclaus]

we lost our property, we have no other debt beside our cars that we are making payments, and they will be paid off in almost 3 years...
the only things we owe right now is our furniture, i dont think they can take that. (hopefully)

-there's any way that i could pay less for it?
-im located in Florida and the claim was filled in mass.

and ultimately, what happens if i dont pay it, the same reason because we stopped the payments we just couldn't make them.

thanks!

The time to negotiate the debt was BEFORE a judgment was entered against you. After a judgment has been entered, the debt has been validated by the court and enforceable at the amount of the judgement and no less. They don't have to settle for less.

If you don't pay, then the creditor can come after you wherever you live and use any available legal methods to collect the debt. If the judgment was issued in Mass, then they could domesticate the judgment in FL where you now live. Then they could do things like garnish your wages, levy any bank accounts you have, or seize any assets (including those cars, depending on the state guidelines).

Keep in mind that once a judgment is issued, it is good for a very long time, during which your circumstances could change and they could still come after you to collect what is owed. For your reference, a judgment issued in either Massachusetts or Florida (domesticated or not) is good for 20 years. And for every year that judgment goes unpaid, the creditor can add on statutory annual interest on top of the balance - Florida allows 11% interest, and Massachusetts allows 12%.

 

[dcatz]

It’s unusual to be discussing enforcement-avoidance in any forum and, with the exception of wrongsometimes, I agree with the responses you’ve received, but . . . . This is an interesting post, because there are a lot of balls in play.

The attorney that you consulted is legally correct about options, but Ohiogal has told you why an appeal is pointless and, if you could succeed but owe the obligation, you lose on re-trial. What’s the point? BK is also procedurally correct but, if this is the only outstanding debt, it’s not enough to support BK. It will be dismissed and a filing fee wasted.

sandyclaus is also correct, but I don’t necessarily agree with the implied conclusion. You and the judgment creditor both face cost-benefit decisions, and the first is whether you want to try to settle or endure the hit on your FICO, which, unfortunately, was probably already hit hard by the foreclosure, the judgment and anything else that happened.
Besides, while in FL, you don’t have to do anything (see “domestication” infra).

Like TX and PA, FL is regarded as a “debtor-friendly” state. You haven’t posted anything about assets that would be vulnerable, and my guess is that the judgment creditor wouldn’t find it cost-effective to domesticate the judgment if it understands the problems before it for the expense involved. But let’s assume it doesn’t think about that and just automatically spends to do it whenever it finds a new location (particularly retail collection agencies are stupid that way, because they just look at numbers, not facts). If domestication is attempted, you will be notified and have the opportunity to defend (object to domestication). The defense is lack of personal jurisdiction. As noted above, you’re likely to lose, but it means the judgment creditor must produce proof of proper service, not that you appeal (actually, a motion to vacate) and have the burden of proof to disprove it. That’s an important evidentiary difference.

Now, let’s assume that you want to settle or, better yet, make the whole thing go away. Contact the judgment creditor and, keeping in mind the cost of domestication and the problem of enforcement, propose a number (and, if necessary, a monthly payment plan) that is mutually acceptable (and feasible for you). If successful, memorialize it in a Stipulation for Payments and Dismissal. The idea is that you make payment(s) to an agreed sum and the judgment creditor vacates the judgment and dismisses the case with prejudice. The agreement should be written/signed by both of you.

(Keep in mind that, if you decide to try settlement, you’ll have to disclose your location in FL. If you need more information about such stipulations, go to the Debt Collection forum and do a search under “stipulations” and user name “Chien”. My law partner got tired of repeatedly answering the same questions and quit posting.)

 

[wrongsometimes]

I doubt that any stipulated agreement would actually be met by the OP...as they say, they have no $$$ ... it would just result in more woes...

 

[dcatz]

Honestly!?

I normally don't take the time for follow-up but . . . .

1) You post a procedurally incorrect response here (it’s a defense of lack of personal jurisdiction if domestication is attempted in FL and a motion to vacate if the OP chooses to go back to MA because judgment has already been entered).

2) You choose to ignore:
“[is there] any way that i could pay less for it?”
“my guess is that the judgment creditor wouldn’t find it cost-effective to domesticate the judgment” and
“let’s assume that you want to settle or, better yet, make the whole thing go away”
“propose a number (and, if necessary, a monthly payment plan) that is mutually acceptable (and feasible for you)”

3) Your responses on the Debt Collection forum are admittedly guesses without doing the research (and the most recent is also wrong in terms of weighing “usury” vs. contractual provision for interest), and now you’re going to purport to speculate for my benefit that the OP can’t perform?

I congratulate you on choosing just about the right screen name, but may I suggest “oftenwrong” or, at least, “oftenirrelevant”. I realize that FA is about personal opinions and personal advice, but it would help OPs if you were also honest about just shooting from the hip. As for me, thanks but I don’t need the speculation; it was not my post. However, you will be interesting/fun to watch until you’re corrected often enough to go away.

 

[sandyclaus]

we lost our property, we have no other debt beside our cars that we are making payments, and they will be paid off in almost 3 years...

@dcatz, Thank you for chiming in.

Indeed, there is a question as to whether or not the creditor would even consider domesticating the judgment in FL based on the lack of assets to collect from. While OP had a home that has since been foreclosed upon, they do have cars (as in MULTIPLE vehicles) that they managed to finance and which should be paid off in the next 3 years in addition to the furniture they say they have. Debtor-friendly or not, I was able to determine that FL has a pretty low exemption on a personal vehicle (only one vehicle valued at $1,000 or less), so at least one of those vehicles can be seized and sold to satisfy this debt. It's not real property, but it's pretty darn good, I would think.

Whether or not the creditor thinks it's worth it to try to go after them based on this is anyone's guess.

 

[dcatz]

sandyclaus,

I agree with you and respect and acknowledge the accuracy of your research.

(Isn’t it h*** when we’re in a time zone that allows us to do this? I’d even publicly apologize to wrongsometimes if his/her prescience that allows a prediction that an OP who wants to try to settle shouldn’t even try because it’s a foregone conclusion that they’ll fail. In fact, if the member can tell me the winner of March Madness, I’ll pay homage. Otherwise, it’s unforgivable hubris.)

It is anyone’s guess. For the record, the reason that I don’t think it will happen goes back to my observation about cost-benefit. The OP says they are still paying on the cars and have 3 more years of payments. To seize/sell the cars, the judgment creditor must domesticate the judgment, pay the balance of the loan(s) and the cost of executing and storing the personal property, the cost of sale and recoup an excess to satisfy the judgment (on a TV?). I represent commercial creditors who get ticked enough to want to take somebody’s house, until they understand they may come out losing money in the end.

In my experience, retail creditors work on numbers (a lot of judgments and steps that someday some will pay-off). While I agree with you that it’s legally possible (and I don’t post this to encourage enforcement-avoidance because there are many other negative implications), this OP is already in a hole credit-wise. In this case, the judgment creditor has to domesticate from another state and manage a “seize and sell” or retain an attorney in FL. That would represent a recoverable cost, but it would also represent an additional expense that would need to be recovered from the sale. In the end, it’s not a good business move (maybe if the judgment was x10 or x100) and not one that I speculate would be made. But, as you say, it’s a guess.

My guess is that the judgment creditor would be receptive to a settlement proposal for the foregoing reasons. It gets paid something without incurring additional costs and it can move on to the next problem. If the debtor defaults, it can chase the remaining balance and has more asset information.

Again, it’s an educated guess, but the industry is in the business to make, not lose, money. Still, I can’t fault your conclusions.

 

[wrongsometimes]

sandyclaus,

Again, it’s an educated guess, but the industry is in the business to make, not lose, money.

This is the TV rental business -- they are different than others. My guess is that they will not sign off any any new payment plans but would be happy to just let the judgment get bigger and bigger (via interest). But given the OP fact that they could not pay the TV payment, I take this as the OP having a patch of bad luck in the economic department, that the probability of them accepting a new payment plan is zilch.

The OP can post back regarding the acceptance of any new payment plan offer & acceptance or rejection. I think we will find I'm correct on this one.

Oddly enough...the OP does not state if they returned the TV..just says "lost the property"