I Really Need Advice Here

Discussion in 'Credit Talk' started by Msfedup, Nov 17, 2002.

  1. Msfedup

    Msfedup Member

    5 years ago I had sterling credit.
    I owned 3 houses, a business.
    The business was a franchise started by my husband, before I married him.
    It was not one of the better decisions that he made. When all was said and done, we lost about $350K.
    The situation goes from bad to worse.
    He leased a building for his his store, and secured it with our home.
    Because the leasing company had never provided us with heat or air conditioning we vacated the building, and went to see a lawyer .
    They sent us notices of back owed rent, we referred them to the lawyer, who wrote letter after letter about the problem, and they would not respond.
    The lawyer said it was breech of contract and not to worry about it.
    We stopped hearing from them.
    Then 4 years later we get a notice from a CA, they were trying to collect 52,000 in back rent.
    I returned to my lawyer, who had put my file in storage by this time.
    He wrote a letter to the CA stating that the claim was well past the SOL, and told them if they had any further need to contact us to do it through his office.
    Now more than 4 1/2 years later, someone tried to serve me court papers from the leasing company.
    They guy that made the serve attempt was not too smart and I told him that they would have to send them to my attorney, he said o.K. and left, but he told me who was trying to sue me first
    My thought is that they are now going after my house.
    If this is the case, and they can still try to sue me, even though they were the ones that had the breech in contract.
    We did notify them and try to get them to perform the work that was required before we left the building.
    Should I file bankruptcy? My house is ALL I have left in this world, and I couldn't even afford to fight this in court. I don't know what to do.
    Can they take my house?
    I am beyond sick over this matter now.
     
  2. fla-tan

    fla-tan Well-Known Member

    Msfedup

    If, as your attorney says, the SOL has passed, then I would just let him handle it. It is an ironclad defense. The CA can only sue and SOL trumps the suit immediately. It sounds to me as if the CA is bottum fishing and hoping to get a sucker to payup.


    fla-tan
     
  3. LKH

    LKH Well-Known Member

    I wouldn't file bk until I knew what exactly was going to happen. If they are suing you for the lease and it is past the sol, you have the perfect defense. File your answer to the lawsuit with that and the owners breach of contract as your defense. If it goes to court, you can handle that yourself with your proof. If it turns out that he gets a judgment, which I doubt, then bk would be a possibility, but not until then.
     
  4. Msfedup

    Msfedup Member

    The Guy that tried to serve me left the paperwork on my doorstep.
    It is dated Ocober 16,2002
    Today is November 17, 2002
    How can I prove that I just received This?
    I didn't sign for it.
    Also, I read that the SOL originates from the day of the origianl contract.
    In the papers the CA keeps referring to May of 1999, I don't know why.
    I first contacted the lawyer in June of 1998, and the original contract is July of 1996.
    Are these just the tactics they use to scare you?
     
  5. charlieslex

    charlieslex Well-Known Member

    According to your paperwork, when is the court date? Call the court in the morning and tell them the truth that you just found it and that you have not signed anything concerning this suit. Charlie
     
  6. Msfedup

    Msfedup Member

    Hi The paperwork is a summons.
    It was filed on October 16,2002.
    It was left on my doorstep today, November 17, 2002.
    I didn't sign anything,and it doesn't have a date to appear in court on it.
    So I am confused.
    It says I have 30 days to respond to this from the day I received it.
    How does the court know when I received this?
    I know that I can not do anything about it today, and I have to wait until tomorow it just surprised and stunned me that this is even happening to me.
    This CA is trying to scare me into paying this with a threat of court.
    I'll make sure that I contact the court and respond to this in the proper manner.
     
  7. charlieslex

    charlieslex Well-Known Member

    I think once you have contacted the court and explain the situation that part of your problem will be solved. What state do you live in? I had a summons that was stapled to my door and the Sheriff's dept forged the dates. My lawyer didn't even tell me about it until he said it to the judge. I freaked out!! I do know how you feel. Charlie
     
  8. Msfedup

    Msfedup Member

    Hi Charlie,
    First of all, I appreciate you taking the time to contact me about this.
    Ealier today I was clearly beside myself with worry.
    I live in California.
    I think this what happened.
    The leasing office tired to collect from me because I stopped paying them as they did not meet the terms of the lease.
    They billed me, I went to an atty. he wrote to them and then they just didn't respond, I do not know why.
    That was in June of 1998
    Then they ( the leasing co) turned the matter over to a collections, again, my atty wrote to them and again, no response.
    OK, so now here comes this NEW CA, and from what I am learning, they must have purchsed this collection.
    And they figured the SOL was not up since the first collections tried in May of 1999.
    But, we count this from June of 1998, and that would make it past the California SOL of 4 years.
    I guess I didn't know that CA's really work on scare tactics, especially with this amount of money.
    What do you think?
    Thanks again.
     
  9. fla-tan

    fla-tan Well-Known Member

    Msfedup

    I think that you are becoming more knowledgable with every post and that is good. You are absolutely correct. CAs work on scare tactics. Your best defense in most cases is knowledge and that is what you are acquiring here.

    Good luck to you.


    fla-tan
     
  10. charlieslex

    charlieslex Well-Known Member

    fla-tan is right as always. I bet that 99% of the time the CA's break the law in trying to get money. The thing is 99% of the people out there don't have the knowledge. I think that Congress ought to provide stiffer penalties for CA's. It's pretty stupid that everyone doesn't go around and petition people to demand stricter laws. Who wouldn't sign it. Charlie
     
  11. Msfedup

    Msfedup Member

    Thank You "fla-tan" is that Florida tan?
    I feel 100% better than I did this morning when this all started.
    It doen't make sense for them to leave a summons on my door, and have no proof that I received it.
    Maybe they forged my signiture, even better.
    Anyway, I am going to stop panicing, and call the court and my atty tomorrow.
    You know, it suddenly hit me how these CA's operate.
    If I didn't do a search for forums where people talk about this stuff I would have never known.
    Thank you all for responding to my quest for information.
    I feel empowered and less frightened.
    I am not looking forward to all the time this is going to require, but I am more determined than ever to send a message LOUD and CLEAR to this CA, and being a christian woman, I could not write down what I'd like to say!!
    Thanks
     
  12. charlieslex

    charlieslex Well-Known Member

    Do you have bad credit or just this problem? If you have bad credit THIS is the best place on the net for you, with (for the most part) the best people. I'm glad that at least you've settled down a little bit. fla tan is the mortgage/real estate expert on the board. I'm just glad you're not an Okie nut. Charlie
     
  13. Msfedup

    Msfedup Member

    Hi Charlie,
    My credit is not great.
    After losing the store,paying ALL my back taxes and taking steps in the right direction, my DH went out last year and got suckered at an MLM seminar.
    It was an obvious scam, you had to agree to sign up before leaving the seminar, and waive your 3 day cancellation rights.
    I was furious!
    I have been working VERY hard to get back my credit rating, and for what.
    But that's another story.
    We are so CLOSE to having all the bad stff be behind us, but I will NOT become a victim, I'm a fighter.
    I thought that I had taken the correct steps in handling this situtaion, and it came up again out of nowhere comes this CA.
    Talk about feeling defeated. I have worked long and hard to get past the anger that I had toward my husband, and it all comes rushing back.
    So I am determined to win this.
    I thank you all for this heklp.
    I know that I came to the right board!!
    Thanks
     
  14. cable666

    cable666 Well-Known Member

    Calm down. You have dealing with multiple issues here, so it will help you to focus on them separately.

    First, some facts:
    (a) The SOL does not prevent you from being sued. It is a defence that you the defendant uses to get a suit dismissed. Some plaintiff's will still sue, especially in real estate matters.

    (b) Yes, they can take your house, if you do nothing and let them. I doubt that they could succeed if you fight them.

    Here are the issues as I see them:
    (1) SOL. I have some questions that you need to ask your lawyer. You mention the SOL is 4 years. That is true, for a credit card debt in California. But this is a business real estate issue. You need to find out what the SOL is for this type of issue. Don't assume that you are protected only to find out what you were looking at the wrong laws.

    The SOL "clock" also starts when you breached the contract, not when you signed it. From what you wrote, it looks like to me that you are counting from the date you signed the lease.

    (2) Summons Process.
    The rules for summons processing vary from court to court. So many of your questions can't be answered here. Some courts allow a "note on the door" method. Most in California do.

    You will also find that many summons services are very unprofessional and will forge information. In your case, you might need to get an affidavit testifying about when you received the notice versus what was written on the notice.

    (3) Critical Steps.
    It is most critical that you contact the court and get time to prepare a defense. It sounds like they are trying to cram a suit through the court. If you wait, or ignore it, then they will be given a default judgement.

    I would not worry about the basis for the suit right at this moment. I would instead focus on stalling the suit, and it sounds like you have some very legit reasons to do so.

    (4) BK.
    Don't even think about that right now. That is a long way off and a worse case senario. Focus on the matter at hand first.

    (5) Null Contract.
    You said that you lawyer claims the contact was null when the landlord failed to provide the services. It doesn't mean it is actually null. It means that he can argue to have it nullified in court. It does not mean it will be, or is automatically so.

    You need to have a lawyer that is familar with commercial real estate law. There are laws on the books the govern these contracts, and the conduct of the landlords and the lease holders. Unfortunatly, the landlord breaking the law does not allow you to also.

    Keep us posted. Thanks.
     
  15. Msfedup

    Msfedup Member

    Hi,
    I actually signed the contrct in July of 1996.
    We appealed to the leasing office for over 1 year to please hook up the heat and air conditioner.
    Finally giving up in March or April of 1998.
    The leasing agency started billing me and made attempts to collect in April of 1998.
    I am not really sure when they actually turned it over to the first CA.
    According to the papers the CA says it was in May of 1999, More than 1 year later.
    As far as I know, the SOL in California for RE is 4 years.
    http://proagency.tripod.com/skp-ca-cl.html
    Isn't the SOL based on when the leasing Co asked me for the rent?
    Anyway, I am contacting the court tomorrow, and I am asking to see any paperwork that was allegedly signed by me.
    Can't I counter sue them for forgery?
    And yes, your are right, I am dealing with multiple issues.
    But I am trying to clam down, and I don't think I could have without everyone's feedback.
    I appreciate this more than words can say.
    Thanks
     
  16. breeze

    breeze Well-Known Member

    This may not even be a real summons. Call the court and find out.
     

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