What to do?

Well, look at the obvious; I would file a response to the suit stating that "John D..." is deceased. Submit date, and copy of death certificate if available. You gave the issuer "opportunity to remedy", buy some time and let them figure it out.

 

I don't know Biz. OP might want to tread lightly here. The card was knowingly used after John D's death. Don't want to unintentionally allow yourself to be be charged with some sort of fraud.

 

jlynn,

I definitely agree with the caution, my suggestion was for the "technical" aspect of the suit only. She has some defense in that she did notify them of the error, and did try to remedy. (I hope she has copies of the notice sent!).

 

I agree with the technical aspect - but she has to be careful about the wording of an answer on the deceased's behalf. Further, unless she is the Executor or Administrator of the FIL's estate, I don't believe she has any legal standing to answer.

 

I would say let them sue John. The longer they don't realize the error, the less chance they will ever try to correct it, and a judgment against John will not affect Joann. If it ever does go to Joann's credit file, then all Joann needs to do is get a copy of the Judgment and send it to the CRA and say "I am Joann, not John."

 

If plaintiff has filed suit against the wrong entity in spite of having been clearly informed of their error, I would think that it is their problem.

Their suit cannot apply to JoAnn, and it is not the obligation of the defendant to correct their error other than to say "Not me."

Plaintiff would need to amend the suit to read aka John (and amuse the Court no end), or correct their records and file suit against JoAnn.

 

I'm not saying it is fraud, you did try to remedy the situation. I would be concerned with how any answer is worded. Then and only then could it maybe be a problem.

Allowing it to go to default is a slippery slope. They do have your social, so any judgment you let go to default could easily go to your credit report, and you will then likely find yourself with an alias under names used of "John". Maybe you can get it removed, maybe not. After all, the documentation will also have your address.

Is this the Original Creditor suing you or a Collection Agency? What level of court are they suing in? Justice Court? County?, District?

Justice Court is pretty much the same as Small Claims, (maximum claims, procedural rules, etc.), but CA's are not allowed to sue in small claims in TX.

 

When did you default on the debt? Are you or your hubby in charge of FIL's estate? Was there a will?

 

Then whomever has Power of Attorney for the mother is likely the only one that has legal standing to answer the suit. You have few choices, either the POA needs to answer and you stay out of it, let it go to default, and HOPE it doesn't ruin your credit, pay it now before a judgment is rendered. (if capable).

Justice Court and Small Claims are very similar (including the same judge usually!), CA's are not allowed in TX to file in Small Claims Court. Discovery is likely not allowed.

You also need to keep in mind, that although this appears to be a small amount of money, any aggressive collection attempts on a default judgment could involve your MIL, as TX is a community property state. This could attach to MIL's properties (if she owns any).

If it were me, I would contact the CA and see if you can work out a payment plan before judgment.

 

One of the first things that you have to determine is how you want this whole thing to turn out. From there, you can determine what your best course of action might be to achieve your goal

A number of options have been suggested. They are all reasonable.

Success in negotiation depends a lot on their attitudes and your skills. It is best to understand what you will be willing to accept (and deliver on) before you start the conversation. It is not the best idea to make an agreement that puts you back in the same place or worse a few months down the road.

As mentioned, the relatively low dollar amount may govern how willing the CA might be in pursuing a contested case. That can be part of your negotiating consideration.

BK7/13 is always an option if the circumstances are right, a difficult or maybe ill-advised option, but still an option.

If you choose to answer the suit, there is a time constraint as defined by the answer date contained in the summons. You will need to address that in your thinking, too.

 

The ease of negotiating a settlement will vary from CA to CA. I've never heard of this particular CA, but a google search was riddled with references of lawsuits they have filed.

 

The problem as I see it, (it my nothing-more than a consumer view) is this whole thing is full of landmines. CA's are not always ethical. So, even if you negotiate something with them, unless the lawsuit is stopped, then they could very easily allow it to go forward to default just as another means to protect themselves. (It happens - and they do lie about filing dismissals). You don't want to get the POA involved, but at this point, they are likely the only ones that can look out for the interests of your MIL. You have no standing to answer.

Even in a best case scenario - You 'fess up the name confusion, agree to a payment plan, and life goes on, someone still has to answer that suit, or oversee it to make sure it is dropped, and the only person that can do it is the POA. Maybe you can answer the suit in your correct name, but that's a legal matter I know nothing about.

As far as being terrified, I understand that (I tend to stink at negotiations!) you could possibly all do this via written communication, but you only have a couple of weeks to get it done...not alot of time.

 

I have a question... Is there a reason to believe, that this is in your FIL's name, or could it just be a long time mispelling of a name that COINCIDENTALLY is your FIL's name?

I'm not sure why you just can't answer this suit with a general denial, in your name, as if it is just a typo? This is Justice Court - which is pretty much a rough justice type court. This would eliminate the need to involve anyone from your FIL's family, and would buy you some time to negotiate a settlement.

Why couldn't the OP make this simple and proceed under that assumption? Need a legal beagle for that one.