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Author Topic: Pretrial conference - Need some guidance!!!  (Read 13198 times)
tiaguis
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« on: September 12, 2007, 09:32:57 PM »

Hi all,
I've been reading about the subject for a few months now, but until a month ago I received a notice to appear at a pretrial conference.

It is overwhealming... so much information to go thru and understand... wow.

Here is a quick summary:
Plaintiff(s): Erin Capital Managment, LLC. assignee of Provid1an National
Bank.
Date: Nov 13
What I received:
1. Notice to appear
2. Statement of Claim - signed by local lawyer on behalf of ERIN
3. Affidabit of Debt  (mentions exhibit A, but nothing is attached).

We did have an account with providian. ON credit report appears as a CO

What I noticed:
no SOL yet.  Last payment 06/2005
statement of claim has:
wrong account number
incorrect default date: 04/24/07
Amount is high to what the credit limit was.

I'd like to guidance on how to proceed and what my options are

I am working on fixing my credit.  I am not sure I want to go to pretrial by myself... but I don't want to get a judgement either.

Looking forward to your comments
Thanks
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gulfbreeze
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« Reply #1 on: September 13, 2007, 09:43:59 AM »

Quote from: "tiaguis"

3. Affidabit of Debt  (mentions exhibit A, but nothing is attached).


Tehy did the same thing in mine. They made a claim and said it was included in Exhibit A but did not provide the exhibit. On a later date, they finally filed it. I asked at the pre-trial about it, and they said that wasn't the issue then...just a guilty or not...
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gulfbreeze
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« Reply #2 on: September 13, 2007, 10:22:09 AM »

Quote from: "tiaguis"
Hi all,
I've been reading about the subject for a few months now, but until a month ago I received a notice to appear at a pretrial conference.

It is overwhealming... so much information to go thru and understand... wow.

Here is a quick summary:
Plaintiff(s): Erin Capital Managment, LLC. assignee of Provid1an National
Bank.
Date: Nov 13
What I received:
1. Notice to appear
2. Statement of Claim - signed by local lawyer on behalf of ERIN
3. Affidabit of Debt  (mentions exhibit A, but nothing is attached).

We did have an account with providian. ON credit report appears as a CO

What I noticed:
no SOL yet.  Last payment 06/2005
statement of claim has:
wrong account number
incorrect default date: 04/24/07
Amount is high to what the credit limit was.

I'd like to guidance on how to proceed and what my options are

I am working on fixing my credit.  I am not sure I want to go to pretrial by myself... but I don't want to get a judgement either.

Looking forward to your comments
Thanks


this is my take...

Providian sold the account to ERIN, thus why they are the assignee now and they filed a case against you using the account number that they assigned it, not necessarily the original one you have with Prov.

They will have a local attorney appear at the pre-trial (and they should probably have the authority to offer a settlement then if you ask the court). Seeing as your case is not an expired SOL, I would ask for mediation if not offered at pre-trial. It has been my experience that Judges usually like an effort to resolve this without wasting court time. At the pre-trial, the judge will ask if you want to settle or want to go ahead with a trial at a later date. The amount they are claiming has the interest that has been added on since you last paid...making it past your credit limit. It didn't stop adding interest off when you stopped paying. They will also add attorney fees and court cost and more interest, so the amount they are asking is not the final judgment amount...

So...again, I would try and work out a settlement with them or just wait till pre-trial and ask for mediation. They will work out a payment plan that is acceptable to both sides.

The only other route would be if you are judgment proof. That means that even if they were to win, you have no assets that they can take and they are not allowed to garnish your wages depending on the state laws where you live. The only problem is that it will stay for a longer time and if your financial situation improves and they can attach a claim to any wages or assets, they have the right to.

Hope all works out and let us know how it works out or if we can help further. Everything I mentioned is to prepare you to what may happen and your choices....
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fraudfighter
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« Reply #3 on: September 13, 2007, 05:05:26 PM »

Quote from: "tiaguis"
Hi all,
I've been reading about the subject for a few months now, but until a month ago I received a notice to appear at a pretrial conference.

It is overwhealming... so much information to go thru and understand... wow.

Here is a quick summary:
Plaintiff(s): Erin Capital Managment, LLC. assignee of Provid1an National
Bank.
Date: Nov 13
What I received:
1. Notice to appear
2. Statement of Claim - signed by local lawyer on behalf of ERIN
3. Affidabit of Debt  (mentions exhibit A, but nothing is attached).

We did have an account with providian. ON credit report appears as a CO

What I noticed:
no SOL yet.  Last payment 06/2005
statement of claim has:
wrong account number
incorrect default date: 04/24/07
Amount is high to what the credit limit was.

I'd like to guidance on how to proceed and what my options are

I am working on fixing my credit.  I am not sure I want to go to pretrial by myself... but I don't want to get a judgement either.

Looking forward to your comments
Thanks


What does their Statement of Claim allege?
What causes of action does it allege? Breach of Contract? Open Account? Account Stated?

They do not have prima facie proof of their case at this time.
It is premature to consider mediation, since mediation means money out of your pocket.
Deny their claim at the pretrial thus forcing them to comply with the rule of law (in this case, the Florida Evidence Code).
You can argue that they have failed to state a claim at the pretrial as the document which they claim their claim is based on is not attached nor supported by testimony of a competent witness with personal knowledge.
You can argue that their affidavit is not based on personal knowledge of a member of the alleged business that created the alleged account, thus it violates the Florida Evidence Code.
They do not have proof that they are in privity with you on any agreement and argue that you have never entered into any agreement with ECM LLC.
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rubyruby27
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« Reply #4 on: September 13, 2007, 06:16:41 PM »

While your last payment was in 05 was it a full payment which brought the account current.
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tiaguis
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« Reply #5 on: September 13, 2007, 11:04:22 PM »

Thank you all for your comments / replys.  I feel lower levels of stress seeing that I have your support

Here is what the statement of claim says:
It says
Erin C...
vs
me and my wife

Statement of Claim Florida Br ID #...

Comes now, the plaintiff, E C M, LLC, assinee of Providian N B, a corporation organized and existing under the laws of the u. s. a., which is engaged in interstate commerce.   The plaintiff is the owner of the defaulted debt in issue, which is the subject matter of this action, and sues the defendant(s) name and name, which is within the jurisdiction of this court, and states the following:

1.  That the defendant(s) requested the issuance of credit from the plaintiff's predecessor in interest (the assignor named above) on or about 06/18/2002.  The credit account was under the account number ####, and that the defendant(s) defaulted by virtue of non payment.  The defualt date as a result of non payment was on or about 4/24/2007.  
2. The defaulted debt that is the damages due under the credit agreement for non payment (that is the chose in action with the predecessor in interest (assignor) and that there is still due the sum of $$$$3K, from the defendant(s) which has not been paid in full to date although due demand has been made.
3. The assignor conferred upon the defendant a monetary benefit, which as in fact accepted by the defendant, which would lead a reasonable man to believe that the defendant(s) not only accepted the benefits conferred upon same, but that under the circumstances the Defendant(s) assented to re-pay the Plaintiff's predecessor in interest and pursuant to equitable principles of unjust enrichment the Plaintiff is entitled to recovery sice the defaulted debt was assigned to name.

WHEREFORE, the plaintiff demands judment in the amount of $$$3K plus court costs, prejudgment interest and attorneys fees pursuant to contract if any and law.
Dated: 5/2007
signed by LOCAL LAWYER

Court Filling fee: $255; Sheriff Fee: $40

If you would like to settle your case please call our Toll Free number ####.
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fraudfighter
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« Reply #6 on: September 14, 2007, 12:05:32 PM »

Quote from: "tiaguis"
Thank you all for your comments / replys.  I feel lower levels of stress seeing that I have your support

Here is what the statement of claim says:
It says
Erin C...
vs
me and my wife

Statement of Claim Florida Br ID #...

Comes now, the plaintiff, E C M, LLC, assinee of Providian N B, a corporation organized and existing under the laws of the u. s. a., which is engaged in interstate commerce.   The plaintiff is the owner of the defaulted debt in issue, which is the subject matter of this action, and sues the defendant(s) name and name, which is within the jurisdiction of this court, and states the following:

1.  That the defendant(s) requested the issuance of credit from the plaintiff's predecessor in interest (the assignor named above) on or about 06/18/2002.  The credit account was under the account number ####, and that the defendant(s) defaulted by virtue of non payment.  The defualt date as a result of non payment was on or about 4/24/2007.  
2. The defaulted debt that is the damages due under the credit agreement for non payment (that is the chose in action with the predecessor in interest (assignor) and that there is still due the sum of $$$$3K, from the defendant(s) which has not been paid in full to date although due demand has been made.
3. The assignor conferred upon the defendant a monetary benefit, which as in fact accepted by the defendant, which would lead a reasonable man to believe that the defendant(s) not only accepted the benefits conferred upon same, but that under the circumstances the Defendant(s) assented to re-pay the Plaintiff's predecessor in interest and pursuant to equitable principles of unjust enrichment the Plaintiff is entitled to recovery sice the defaulted debt was assigned to name.

WHEREFORE, the plaintiff demands judment in the amount of $$$3K plus court costs, prejudgment interest and attorneys fees pursuant to contract if any and law.
Dated: 5/2007
signed by LOCAL LAWYER

Court Filling fee: $255; Sheriff Fee: $40

If you would like to settle your case please call our Toll Free number ####.


It's not based on a written instrument since they don't cite one as the basis of their claim. So the 4 year SoL applies.

Since the 4 year SoL applies, no partial payment affects the running of the limitations period. It runs from the point of the breach, which is the commencement of the delinquency.
They claim 4/24/2007 as the point of the breach.
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tiaguis
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« Reply #7 on: September 14, 2007, 01:12:44 PM »

Credit Report shows last payment as jun 2005.


So.. should I just wait to the pretrial?
Or should I submit an ANSWER?

I initially thought on offering a settlement, but I don't know if that is the route i should take.  money is tight and I do have more accounts to fix... so I need a good plan.
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fraudfighter
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« Reply #8 on: September 15, 2007, 01:13:14 AM »

Quote from: "tiaguis"
Credit Report shows last payment as jun 2005.


So.. should I just wait to the pretrial?
Or should I submit an ANSWER?

I initially thought on offering a settlement, but I don't know if that is the route i should take.  money is tight and I do have more accounts to fix... so I need a good plan.


Last Payment is not relevant on the 4 year SoL.
It's the DOFD date: date of first delinquency.
DOFD can be significantly earlier than last payment.

You can ask them what they had in mind regarding a settlement, but they will likely ask for alot.

Under the FL small claims rules, it is an expedited process, so the DEFT is supposed to have defenses and counterclaims ready 5 days before the pre-trial conference.
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tiaguis
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« Reply #9 on: September 17, 2007, 08:26:35 PM »

I was very well on time with my payments up until jun of 05, so I guess, no opportunities there.  credit report shows OK up until Jun 05.


So your take would be to put all efforts in preparing defenses and counter claims and submit them to court before the pre-trial?

Legal jargon scares me a little, should I seek some legal advice? or should I just inmerse on this forum and others and prepare it myself?

I am going to call to see what are they offering as settlement.
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rubyruby27
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« Reply #10 on: September 18, 2007, 02:57:08 PM »

If SoL is not possible, you have 2 options either try to settle, if this is an assignee that bought the account then low ball them at 20% and go from there.

If you think you can prevail that they don't have the information to prove this is your account then file answers.  If the violated the FDCPA/FCRA/FCCPA use those as counterclaims.  If you think you can prove your case of violations. you could call them and say heres the deal you withdrawal with prejudice and remove your CR I will agreee not to sue you.
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tiaguis
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« Reply #11 on: September 20, 2007, 11:00:27 PM »

I am going to call and see what I find out.

I just have a concern... settle without knowing exactly they really own the debt? should I call the OC?

If I settle, i want to be sure I get rid of that debt
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Florida Debtor
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« Reply #12 on: September 21, 2007, 06:53:34 AM »

Quote from: "tiaguis"
I am going to call and see what I find out.

I just have a concern... settle without knowing exactly they really own the debt? should I call the OC?

If I settle, i want to be sure I get rid of that debt



Yup, I would call the oc and make sure they still have records. I would also do discovery and make sure the JDB has/can get recores before settling. Also does the JDB have the right to collect in florida?
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I am not a lawyer. It would not be wise to use anything I say as legal advise. Check for yourself.
gulfbreeze
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« Reply #13 on: September 21, 2007, 10:12:04 AM »

one quick note on this case. does it say in the supplied terms and agreement what applicable state law applies. look and see what yours say.

opps...nm, i just saw that it has only been 2 years since last payment..sorry.
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tiaguis
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« Reply #14 on: September 26, 2007, 07:55:46 PM »

Thanks again,
I have a quick question:
I checked here:
http://www.flofr.com/licensing/download.htm
under
Consumer Collection Agencies and Commercial Collection Agencies

and I couldn't find
Erin Capital nor the lawyer that is representing them in Florida.

(I also looked at sunbiz.org and couldn't find ERIN registered as a company in Florida)

Does that mean that they don't have the right to collect in florida?
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