Hi folks, I'm new here and in quite a tizzy. I'm really hopeful someone here can give me some advice. Citibank has filed a lawsuit against my husband for an outstanding balance of about $6500. We got behind on this card a year ago and it has been in collections til now. Citibank wants the entire balance or a settlement right now but we simply do not have thousands on hand to give them. We have, however, made payments to them over the last year totaling ~$3500 but this is still not good enough. I have read a lot of the posts here about judgements and the like and am more confused than when I started looking! First off, my husband is not denying that he owes the money--it's just a matter of how it's going to get paid. I know we need to file an Answer and Notice of Appearance. I guess my questions are as follows: 1)Should we hire a lawyer to file these as well as try to negotiate a payment settlement with the accusing lawyer, or is this a waste of money as some have indicated here (i.e., we can do this ourselves)? I do have a template of an Answer and Notice of Appearance. 2)If they refuse a payment arrangement and we go to court, is garnishment of my husband's wages inevitable? Esp if we show the judge that we have indeed been paying? The lawsuit is only against my husband since I was not on the card. We do not own any property, and even our car is under a lease agreement. I am currently on unemployment which runs out about 4 days before our baby is due next month on 4/19, so we are quite stressed about all this. Last, my husband does not want to file for bankruptcy b/c he may be granted an SBIR with which to start his own company later this year, and we think a judgement is at least easier to deal with on credit than a BK. Thanks to anyone who can help, all this is stressful to an 8&1/2 mo pregnant woman!! sIrenity
You have been making payments for a year and they are suing you? Were your payments regular? Were they always accepted? Were they paid to the OC or a collection agency and were the payments part of any agreement? This does not sound right to me.
You seem to have several conflicting thoughts here. I would definitely get my thoughts together and see an attorney. I'd want the answer to my questions before I even dreamed about hiring one to file however. I would normally suggest that you just ignore them and let them get their judgment but I'm not so sure that would be a good suggestion to follow in your case. I would think so. Here is where the rub starts to come in and one of the reasons why I think you need to see a lawyer. That is not really important since the both of you suffer the consequences. Well, not much else they can grab except his paycheck then is there? I can understand that for sure[qupte]Last, my husband does not want to file for bankruptcy b/c he may be granted an SBIR with which to start his own company later this year, and we think a judgement is at least easier to deal with on credit than a BK.[/quote]That may or may not be the case since either one can kill you in a new loan. And that's another reason I would see an attorney. I think that's about the best advice you are going to get around here unless an actual attorney pops up here and identifies himself as such. Even so, I'd still go see an attorney in your area.
Most of the payments were to a collection agency. My husband (not smartly) agreed to pay them $600/mo for six months with advance-written checks, with the stipulation that at the end Citibank would *think* about taking the account back. Four months into these payments (which kept us broke, but were in good faith) I got laid off--and pregnant. He contacted the CA and told them we could now pay them $200/mo. Of course they pushed for more and even sent us the confirmation letter that they were going to cash the $600 checks even though we told them not to--so he ended up doing a stop payment on the remaining two checks--but they accepted the $200 payments anyhow. We continued with this until December '02 at which time it was given to a local lawyer's office. At the same time in Dec '02, a friend who was renting out the basement (of the house we rent) lost his job and didn't pay us the rent. He left us $300 short so we didn't pay anything that month. With the help of family giving us some extra cash and also by negotiating our rent down by $100/mo, we resumed paying $200 in January (which was sent to the lawyer), but then couldn't pay the $200 in February b/c we had to have the ob/gyn's bill paid by the 7th mo of pregnancy or look for another dr (of course all this with the friend still in default for the rent and us kicking him out so we were strapped). So... we made up for it by paying them $400 at the beginning of this month. So in answer to your question, in the last year we have only missed two months of payment, one of which we made up for the next month. I didn't think this case made sense either since we have been paying them. All I can think is that 1) they're either trying to push us into bankruptcy so they can get their insurance payment or write off, or 2) they think we own the house we rent and can get some type of lein--someone thinks we do b/c we are constantly getting preapproved home equity loan solicitations in the mail.
I tend to think the only real factor is those two missed payments. All the rest of it they could care less about and a judge isn't all that likely to care much for sob stories either. Sorry to be so blunt by calling it a "sob story" but that's probably about the way the judge would look at it. But one never knows.
<I would normally suggest that you just ignore them and let them get their judgment but I'm not so sure that would be a good suggestion to follow in your case.> "2)If they refuse a payment arrangement and we go to court, is garnishment of my husband's wages inevitable?" <I would think so.> "Esp if we show the judge that we have indeed been paying?" <Here is where the rub starts to come in and one of the reasons why I think you need to see a lawyer.> Can you elaborate on why you don't think we should just lay down for the judgement? It sounds as if you're saying we do have a leg to stand on with all the payments that we have made. I have heard that a judge can also mandate a payment arrangement in lieu of garnishment. I've also heard that the creditor may not get any favors in this case with the judge due to the fact that we can prove we *have* been paying them--so them suing us anyway would indicate to a judge that they are acting in "bad faith." sIrenity
I find the issue of the post dated checks very interesting. I thought that soliciting a post dated check of more than 5 days is a violation of the FDCPA. What makes it worse is the fact that they evidently made a promise to not cash the checks but threatened to do so. Who is suing you the collector or the original creditor? Bill is right when he said sob stories don't carry any weight with a judge because he must make a ruling on fact not emotion but in your case there are a lot of facts that work to your advantage. I think a $600.00 per month payment is outrageous to begin with. With all of the payments you have made have you been provided a statement of account so you know the exact amount you actually owe? From here on out gather up every last shred of evidence you have, payment receipts, copies of letters from the CA, agreements, anything and everything, and try to remember what was said in phone conversations. Sounds like this CA made quite a few violations that you may be able to counter sue for. If you are not familiar with the FDCPA then read it until you know it and understand it. I don't know how much time you have left but arrange for free consultations of lawyers specializing in consumer law to look over your case. Hopefully you will find one with some piss and vinegar in his veins and he will go to bat for you. You may also want to go to your attorney generals web page and look up your states consumer protection act information. Debt collectors fall under CSPA in Ohio, but I am not sure about other states. Good luck and keep us posted!
Like I said, I'm no legal expert but I disagree with that theory entirely. I've just seen far too many cases where the arguments were perfect and the paperwork was too. Everything right on target and they still get dismissed. Why? Offf topic. That's what I think the reason is. At least that's a simplified version of it. Off point might be a better word even. Had their point been on topic for the case and issues at hand and valid I bet they would have been granted every time. I believe that if they had just not argued with the judge or the court and brought their issues in a separate case they would have won. That's just my thinking. And that's why I say don't bring your FDCPA arguments to court with you in a MSJ case.
Probably so and I would intend to agree but I think in this case the court needs to be made aware of just how "dirty" their hands are.
Re: Re: Court case filed, hire a lawyer? I wouldn't know because I have not been directly involved to know. That is something the original poster and her attorney will have to determine. This CA however seems to like to work with intimidation tactics to extort payment (moreso than your average run of the mill sleaze). A $600.00 per month payment sounds reasonable? Sounds like the abuses are many....but of course it's up to the person involved to make that decision...I'm just still at a loss as to what they seek to gain from garnishment considering the percentage they receive is going to be minimal. Maybe a garnishment wouldn't be so bad considering it will get the matter out of the hands of this loanshark.
I'm curious--you said you paid them $600/month? Under Ohio garnishment law, creditors may only garnish up to 25% of ones net (the amount left after deductions) pay. Note: this 25% maximum garnishment applies to 1 creditor or 100 creditors. How painful would a 25% garnishment be?
Yes it was $600/mo for 4 months and it was painful. It looked good on paper budget but left us broke. And 25% of my husband's net income per month would be extremely painful now at about $592/mo, especially considering that with my unemployment we lost $700/mo income, in addition to losing another $300/mo with the friend who defaulted on the rent. So since the time we paid them $600/mo, we've lost $1000 in income. I don't know how on earth we'd pay it... add my loss of unemployment soon and we would be on the street. Well maybe not that bad, but we'd be living in the ghetto and now I'd be default on my credit cards. I guess at that point we'd be looking at BK. My husband just told me that indeed they demanded post-dated checks--they would not take his promise to pay, and that if he could not pay the $600/mo they would have to "refer the debt to legal counsel." Out of curiosity, who would the countersuit be against--the original creditor? Because they are the ones suing. sIrenity
If that were me I would now be counter suing Citi and the CA for violations of the FDCPA. See what they do then!! Tac
I'll try to address this more tomorrow but Sirenity is right in that when someone indicates that a payment plan is acceptable by accepting those terms, they have, by their own behavior, entered into a contract. Contracts are entered into by word or BY DEED. Let's be focusing in this direction, and Tac's idea of asserting an FDCPA complaint. Also, if a little pregnant girl stands crying in front of a judge, especially when she has tried valiently to pay in good faith, yes the judge will be susceptible to her "sob story".
Re: Re: Court case filed, hire a lawyer? Best answer yet. You originally owed ? and have paid 600x 9 plus 200x 2? Amost $6000? You are willing to continue making payments and they still want to file suit? I think a good lawyer/negotiator could call and have a straight talk with them. You have very limited time for your answer so be investigating how you can or should answer that immediately. It could be they are using the filed suit for negotiating pressure.
I see talk of countersuits again. I think countersuits are absolutely the dumbest thing somebody can do if the countersuit is about violations of FDCPA or FCRA by either the creditor or his attorney. Such countersuits are off topic for the subject before the court and will most likely get dismissed. I say file such countersuits as original suits and leave countersuits for arguments that are more on topic whatever that might turn out to be.
So we could argue that we are technically in a repayment plan? Because we are still sending them a check and they are still cashing them, even though they are suing. People have advised us to continue doing what we have been doing up to now. The attorney's letter to us and this month's payment to them crossed in the mail, but you better believe they cashed it. sIrenity
