Getting Sued!!!!!! (debt collector)

[SM_in_FL]

Hi Soc!!!!
I have some questions that have nothing to do with family law but with debt collections and legal proceedings thereof. ok, here's the background: Hubby was served today ( 1/10/04) with a civil suit from a debt collector we'll call joe's asking for a judgement in their favor for the amount of 1226.33. This includes interests but does not include court costs. filing fees and attorney fees. The motion was filed on December 30th, 2003. However, we received a letter from joe's dated Jan 2nd, 2004 (after they filed) offering a settlement of 800 due jan 31st, 2004. This letter also goes on to offer different settlement amounts for later dates such as settlement amt 861.66 if payment received by feb 28, 2004 and also a settlement amt of 923.21 if payment is received by march 31, 2004. So basically it seems like they shouldn't have filed this complaint until after March 31st. Anyway, our court date is Jan 23,2004. this will be a pre-trial hearing. Soooo...............here are my questions:

1) Can't the fact that they filed this before sending this letter be used against them? Like a frivolous complaint or something????

2) Being that we're married isn't it considered a marital debt even though he was the only one named on the complaint and was the only one on the account? if so would i be able to speak with/for him being that we are married and honestly, his english sucks?

3) We also have other outstanding debts due to my accident, totalling about 10k plus the care of 4 kids and the fact that he's the sole provider because i'm temporarily incapacitated and his custody suit. Can this be of any use to us in our defense?

4) we have no personal property that they can try to get liens against, so what other options do they have should they win?

5) Do we file a response or just show on the court date and respond then?

6) Any other advice or suggestions would be great!!!!!

Thanks, Soc!!!!
SM

[SM_in_FL]

Sorry Soc, just one more thing:
Joes purchased the account in May 2002 and they didn't file a complaint until dec 2003.
1) isn't there a statute of limitation as to the time that they have to file this type of thing? i thought i read a year in Florida Statutes CH. 95, but would rather not assume.
Thanks again, Soc!!
SM

[socrateaser]

>1) Can't the fact that they filed this before sending this
>letter be used against them? Like a frivolous complaint or
>something?

A plaintiff has a general duty to mitigate damages prior to filing suit, i.e., he/she must attempt to prevent further losses and recover whatever may be possible, or the court will not allow consequential/special damages for those injuries caused by a breach that flow naturally from the breach and were reasonably forseeable at the time that the breach occurred.

If the collection agency or creditor made a demand for payment at sometime prior to filing suit, that would be sufficient. This could be no more than a bill stating the amount owed and the payment date due.

>2) Being that we're married isn't it considered a marital debt
>even though he was the only one named on the complaint and was
>the only one on the account? if so would i be able to speak
>with/for him being that we are married and honestly, his
>english sucks?

Depends on the law of the state where the contract was made. Complicated. I need to know what the property or service is, and whether it was purchased during the marriage, and what state the law suit is in, and under what state law the contract was entered into, i.e., purchased in a different state, or under a contract stating that interpretation shall be under the laws of the state of ____., etc.

>3) We also have other outstanding debts due to my accident,
>totalling about 10k plus the care of 4 kids and the fact that
>he's the sole provider because i'm temporarily incapacitated
>and his custody suit. Can this be of any use to us in our
>defense?

Nope. It can be used at a judgment debtor hearing after you lose as justification for the court finding that you do not have sufficient funds to pay the debt, but you don't want this to get that far.

>
>4) we have no personal property that they can try to get liens
>against, so what other options do they have should they win?

No personal property...how about REAL property? Do you own your own home and have equity in it?

If not, then they can only garnish his wages, which is a pain in the butt, but it can be done.

>5) Do we file a response or just show on the court date and
>respond then?

I assume that this is small claims. If so, generally, you must demand a hearing or the court will issue a default judgment against you for the amount requested in the complaint, plus a small extra statutory charge for fees and costs.

>6) Any other advice or suggestions would be great!!!!!

Well, I don't know how much you owe or if there are other outstanding debts that have not come to fruition yet, but if you have no assets or income, and you don't care about your credit rating, then they can't get blood from a stone. You could also file for Chapter 7 bankruptcy protection and that would prevent all of your creditors from ever collecting anything (with some exceptions that are not relevant here). If your credit rating is already awful and you have no assets or income, then this would give you a fresh start.

However, sometimes, you can tell the various creditors that you are insolvant, and that, unless they are willing to negotiate a settlement with you, that you will file for bankruptcy and they will get nothing. So, this is what I would do. Decide on an amount that you are willing to pay, or payment that you are willing to make, and then write the collection agency and tell them that they can take it or leave it, and leaving it, will result in them getting nothing from the bankruptcy trustee.

If you're offer is even remotely reasonable, the agency will probably bite ($500 would be a good offer -- $100 per month for 5 months).

As for your other $10K debt, you could arrange a similar approach. The hospital/doctors will take what they can get, assuming that they have no alternative because of your insolvancy.