Small Claims Suit $2,500 MBNA CC

[floridamon]

What is the name of your state? FL

This is my only outstanding debt. The original Credit Card limit was $2,500 and the balance was $2,300 when I made my last payment in Oct. 2003. After late fees and it being written off it is now held by CACV OF COLORADO, LLC and they claim I owe $6,116.68, for which they filed suit against me for that amount in Dec 2006. A hearing will be held finally in Oct. 2007, CACV will attend via telephone. I have a few questions that I'm unable to figure out reading around the forums, which I have been doing extensively.

1.) I have nothing to sue for, literally. No cash, property, etc. I do have a checking and savings account but there's never more than $200 in it at any given time. Will the judge size my accounts? Beside that what in the world can/will the judge do to me in the hearing?

Thank you for your help.

 

[Some Random Guy]

They are suing you to get a judgment from the court that you owe them money. If you have no defense other than "i'm broke", you are going to lose and the creditor will get the judgment.

The judge will not seize your assets. It is up to the creditor to take that judgment and use it to freeze your bank accounts, place leins on your property and garnish your wages. This judgment wil last for years, so if you buy a car or a home or get a good job, they may come after you then.

 

[GulfBreeze]

find out who was the OC...

CACV of Colorado, LLC. which stands for Collect America Collection Vehicle, is a third party debt collector. if they filed a terms and agreement, see which state is applicable. you might get lucky and have a state that the SOL is 3 years like NH (which is 3 years whether written or oral) or make an argument that in a state where the SOL is 3 years if oral.

otherwise, it sounds like you are judgment proof...meaning they have nothing to collect or seize. FL has protections like $500 a week head of household exemption, $1,000 personal property protection, homestead protection from taking home. They can keep coming after you or years, but winning is easy, collecting isn't.

If no settlement was offered before and they want their money, make them prove it is yours. Ask for a Request for Admissions, Request for Production and Interrogatories. Take a look at all their documents and exhibits. See if there is something you can use as leverage against them to lower the amount in settlement or get this tossed. Otherwise you will have them coming after you for years with a court judgment.

You may live in FL, but sometimes the "terms" will say that the laws of another state apply and the SOL will differ. Seeing as this is a third party collector, they may or may not have all the paperwork from the OC. You will have to take a look and see what they have and use it against them.

Now that I have spoken, I am sure that the PRO-COLLECTOR people will voice their opposition and tell you that I am full of it. This is your decision and you will have to do the research. Since you have gone around the internet, you have probably read where there is a division on this subject. They will argue that they are right, and some of us argue that there are sometime ways around them. You got nothing to lose fighting them if a settlement offer is not given and they want the full amount, and you have a possible defense. The choice will be yours.

Word of warning. They will try and sound like they are 110% sure that the law is on their side. It's usually a bluff, just look into all your options before you decide.

 

[Chien]

Breeze -
Why didn't you explain that all the OP has to do to "see which state is applicable" and "take a look and see what they have" is to respond to the lawsuit and do discovery. Then, you can walk her through. She doesn't mention that she has responded yet.

Of course, I guess if she's not lucky, she falls back on the "judgment proof" defense? When you finish with self-justification, you might want to note that that's where she started.

 

[GulfBreeze]

Breeze -
Why didn't you explain that all the OP has to do to "see which state is applicable" and "take a look and see what they have" is to respond to the lawsuit and do discovery. Then, you can walk her through. She doesn't mention that she has responded yet.

Of course, I guess if she's not lucky, she falls back on the "judgment proof" defense? When you finish with self-justification, you might want to note that that's where she started.

Step one...go to all hearings. if this one in october is a pre-trial. deny it is yours. ask for proof.

which brings us to step two...this will give you the opportunity to do a discovery and get everything they have. then you will see in the terms if they have them, which state laws apply.

step three...if the sol for the state affords you the defense of expired sol, file a MTD or a MSJ.

step four....kick them to the curb if the expired sol applies and make sure the court knows it and grant a dismissal.

step five...come back here and let us know how it turns out. if you can not use the SOL defense, seek a settlement if only you can afford it, other wise, you can always protect your assets from them with a judgment proof which you will assert at a later hearing to determine what they can get.

 

[Chien]

She doesn't mention that she has responded yet.

Ok, we'll ALL assume that she has responded.

The way you lead people on, do you have some kind of quota deal with Florida courts?

 

[GulfBreeze]

Ok, we'll ALL assume that she has responded.

The way you lead people on, do you have some kind of quota deal with Florida courts?

You actually lead people into thinking you are educated in all 50 states. Florida is miles away and you are not eduated in FL laws. So your advice would be no more valid than mine...except I have more experience in FL than you do.

 

[Chien]

Florida is miles away and you are not eduated in FL laws. So your advice would be no more valid than mine...except I have more experience in FL than you do.

On the contrary, Breeze. I know mine, and I’ve now read your Rules of Civil Procedure, Judicial Administration and Small Claims several times (they’re so little, it’s hardly an effort). On the other hand, you haven’t read mine and have had to have yours interpreted for you. Remember?

Just let it drop and let the forum resume, Breeze. You made me laugh today.

I see it all the time, kids running around saying they want to grow up to be a "debt collector" (I am a Professional Debt Collector).....lol Hey, but I guess there has to be some sort of work out there for these high school dropouts.

Does your daughter want to grow up to be a debtor, like Daddy, instead?

But you are posting on the Debt Collections forum, and when you ask "What does the FDCPA have to do with it?", as you did in another thread - well, I think you should work that one out.

 

[floridamon]

Thank you for your responses.

1) Yes, I responded. Their claim that I owe on the credit card debt is valid. My contention is that it's been inflated from $2500 to $6100. - I'm not sure how to address this correctly before the judge at the hearing.

2) Another question you all might be able to answer. I think I already know the answer, but here it is anyway. The SoL in FL is 4 years. My last payment was Oct. 17, 2003. They filed suit against me in Dec 2006. I assume that once they've filed within the SoL, it doesn't matter how long it takes for the case to play out in the courts, or might there be a loophole here for me somehow?

Thank you again, from someone starting over in life seeking help to clear this one last hurdle.

 

[Chien]

I think you got as much “good natured intramural chiding” as response. Sorry about that. I also mis-read your nik as “floridamom” and referred to “she”. I also apologize, if I’m gender-incorrect. Let’s get back to you.

I’ll set this up for GulfBreeze, because he’s the FL law expert and is a funny guy. If there are remaining questions, others are likely to jump in.

My contention is that it's been inflated from $2500 to $6100.

Inflated in what way? I acknowledge that even interest at 25%APR for three years couldn’t account for the jump. Do you know how the plaintiff arrived at that? Are there late fees and attorneys’ fees included, or is that outstanding principal? Are they using a default date in or about November, 2003? Most importantly, if you responded but are not sure how to address this, how did you respond? (If you’ve responded, you can ascertain their calculations by way of discovery, but I’m wondering what you said in your Answer.)

I assume that once they've filed within the SoL, it doesn't matter how long it takes for the case to play out in the courts, or might there be a loophole here for me somehow?

There is such a thing as a “dismissal for failure to prosecute”, but it’s not available to you when the case is advancing in less than a year. The FL Rule concludes “mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute”. You say the case was filed in December, 2006, but you don’t say when you were served, which would be the relevant date for you. If FL courts are backlogged, the wait is long but not prohibitively so. Other than that, I don’t see a loophole. Perhaps GulfBreeze will.
My speculation is that you didn’t want to “stir the pot”, while the plaintiff was doing nothing but, by waiting yourself, you’ve neglected the opportunity to learn by way of discovery how they got from $2,500 to $6,100. Between that and a lack of knowledge about how you responded, it’s not really possible for anyone here to suggest how you might address that issue to the court.
Coming back to your original question, since we also don’t know the purpose of the hearing, nobody can say what the judge will do at that time. However, the conclusion previously offered is valid: at some point they will take judgment and exercise what enforcement measures are available. If that means nothing, because there is nothing to get, the judgment will sit until they think there is something. During that time, it’s reasonable to expect them to try to execute on bank accounts and on any other assets they believe they’ve found.

 

[TigerD]

Thank you for your responses.

1) Yes, I responded. Their claim that I owe on the credit card debt is valid. My contention is that it's been inflated from $2500 to $6100. - I'm not sure how to address this correctly before the judge at the hearing.

Interests, fees and court costs.

You will probably be looking at 8,000 +/- be the time it is over.

DC

 

[GulfBreeze]

the judge can not do a darn thing. they can not throw you in jail. they cannot make you pay if you don't have the money and are judgment proof. "be the time its over", the judgment might as well be 80K. can not get water from a stone.

 

[TigerD]

can not get water from a stone.

Sure you can. It just depends on how hard you squeeze it.

DC

 

[floridamon]

Again, thanks everyone for your input.

Chien: "I also mis-read your nik as _floridamom_ and referred to _she_. I also apologize, if I_m gender-incorrect. Let_s get back to you."

I'm a dude. Mon is short for my nickname. It's meaningless, really.

Chien: Inflated in what way?

Reading through the summons, their entire argument can be summed up like this.

a) The Plaintiff has purchased the debt (MBNA credit card - and nowhere in the summons do they say how much the debt was when they bought it).
b) The plaintiff has submitted the case to "binding arbitration with the National Arbitration Forum in accordance with that contract, in which the Arbitrator issued an award in favor of the Plantiff for a total of" [$6,100].
c) The Defendant owes the Plaintiff [$6100] plus interest and court costs.

Two things I should mention.

1) I never responded to any mail from this National Arbitration Forum.
2) I responded promptly to this summons in Dec. 2006, which was simply a letter written from me to the judge acknowledging I had indeed stopped paying on said MBNA credit card in Oct of 2003. I told the judge the account was a $2500 limit and it was at approximately $2300 when I stopped paying. I mentioned briefly my financial condition (I have nothing, I'm slowly rehabilitating after alcoholism, the loss of everything, etc. - which is all true). I also mentioned that a family member was willing to help me, and in the letter asked the Plaintiff (since I had to mail them a copy, too) to accept $200/month starting in March of 2007 for 5 months, totaling $1000 as a settlement (ok, sounds crazy now, but it was all I could offer them). Not knowing the first hearing wouldn't be held until Oct. 2007, I can't even offer that any longer.

Chien: Coming back to your original question, since we also don_t know the purpose of the hearing, nobody can say what the judge will do at that time.

I knew of the hearing as of a few days ago only because I check this case at the courthouse website - it doesn't describie the hearing's purpose, just day & time. Yesterday, I received a "NOTICE OF HEARING" from the Plaintiff in the mail. It says "Hearing on Plaintiff's Motion for Leave to Amend has been scheduled [such and such courthouse at time/date, etc.]. I'm not exactly sure what they want to amend. I'm puzzled that they need to have a hearing, as opposed to doing it in writing. You can tell I've never been sued, nor been to court, before.

GulfBreeze: the judge can not do a darn thing. they can not throw you in jail. they cannot make you pay if you don't have the money and are judgment proof. "be the time its over", the judgment might as well be 80K. can not get water from a stone.

Thank you very much for all your input. Your comment got me thinking...

a) If I have nothing. How do I show the judge nothing? I assume at that point the Plaintiff will jump in with what they believe I own, which is zilch.

b) I'm not really wanting to squeeze out of this on the technicality that I'm broke. I'm educated, skilled, and when I get everything in my personal life back to par, I'm capable of paying $2500...$6100...or even debtcollector`'s $8000+/-, quite easily. Perhaps there's a way I can demonstrate this to the judge and Plaintiff at the hearing, although I understand the Plaintiff wants cash NOW.

Thanks everyone, again.

 

[GulfBreeze]

Thank you for your responses.

1) Yes, I responded. Their claim that I owe on the credit card debt is valid. My contention is that it's been inflated from $2500 to $6100. - I'm not sure how to address this correctly before the judge at the hearing.

2) Another question you all might be able to answer. I think I already know the answer, but here it is anyway. The SoL in FL is 4 years. My last payment was Oct. 17, 2003. They filed suit against me in Dec 2006. I assume that once they've filed within the SoL, it doesn't matter how long it takes for the case to play out in the courts, or might there be a loophole here for me somehow?

Thank you again, from someone starting over in life seeking help to clear this one last hurdle.

Loophole? Try bomb-barding them with discovery and RFP and Interrogatories....Stay on them and maybe you can get all their evidence tossed like I did on mine if and when they fail to answer them on yours on a motion to compel. File motions after motions. Keep them busy. It worked for me...They didnt have the stamina to fight me.

See my thread on my case that I just beat these losers....lol