How to deal with debt collectors

How to deal with debt collectors is the topic of this blog post.

The first lesson in how to deal with debt collectors is that you need to remember that you should never assume that any debt is valid or even collectible until you have both verified the debt and confirmed that the debt is still collectible.

The reality is that due to the statute of limitations debts can become unenforceable e because the creditor or the debt collector waited too long.  The law recognizes the statute of limitations as a legitimate defense because the account owner or creditor has given up the legal right to file any lawsuit against you for the debt.

Sometimes, accounts that appear legitimate are invalid or cannot be collected for other reasons. So, it important not to assume the debt collector is right. Always demand proof of the obligation to make sure this is a legitimate debt that can be lawfully collected.

You should never trust the math calculations used in arriving at the total amount that a creditor or collection agency says you owe. Calculating proper interest and penalties can be intimidating if you have never done it before but it is not impossible. If you take the time to properly calculate the interest and penalties you have a good chance of catching the creditor or collection agency lying to you regarding how much debt you really owe including any additional charges which may or may not be authorized under the contract.

Any debt collector that misrepresents a debt may be violating both federal law and state law.  If you catch a debt collector or collection agency violating your rights you can use that as leverage to settle your debt for a lower amount than you may actually owe.  Always do the math! Always!

Another important issue is that you should always demand that any debt collector or collection agency show you the contract.  In other words always make them prove it! No exceptions.  This test is simple but you will find that many times they have no documents whatsoever to prove that you owe anything.  Always demand that they produce all documents showing that you owe the debt as soon as you can, and as often as you can. Never take anything that a debt collector or collection agency tells you at face value.

Never ever assume that any documents that a debt collector or collection agency sends you as proof is really accurate. Go over any documents that they send to you with a fine tooth comb and carefully examine and calculate the amount of the debt that they claim that you owe.

Never negotiate with a debt collector or collection agency until you are completely satisfied that the debt is both valid and accurate.

A surprising number of debt collectors and collection agencies violate the law by using abusive and unlawful debt collection practices. Always take written notes when they call and keep a detailed log of all conversations and all written communications with anyone.

Keep a record of the date and time they call, what demand or threat they made with each call and how the call ended. For example, record the debt collector threats to take some action, like suing you, reporting the account to the credit reporting agencies, talking to your friends or neighbors, threatening arrest or harassing you until payment is received.

Always protect your assets and never make yourself and easy target for a debt collector or collection agency as some will overlook important consumer protection laws to get at funds in your bank accounts, or, in cases of student loans, intercept tax refunds.

Do not allow that to happen and never give a debt collector or collection agency any information regarding your bank account either by sending a check or providing them with your bank account information.  Otherwise they may try to use that information to garnish your wages and you would not be notified until after the wage garnishment started in most states.

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

View legal document packages for sale at: http://www.legaldocspro.net

Subscribe to his weekly newsletter with legal tips and tricks for California. http://www.legaldocspro.net/newsletter.htm

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

Opposition to a motion to compel for interrogatories in California

An opposition to a motion to compel for interrogatories in California is the topic of this blog post.

This blog post will discuss some common grounds for filing an opposition to a motion to compel for interrogatories in California.

Deadline to file an opposition to a motion to compel for interrogatories in California.

The opposition to a motion to compel further responses to interrogatories in California must be filed no less than nine (9) court days before the hearing and served by personal delivery or overnight mail under the provisions of Code of Civil Procedure section 1005.

Grounds for opposition to a motion to compel for interrogatories in California.

Common grounds for opposition to a motion to compel further responses to interrogatories in California include:

That the responding party has already provided adequate responses to the interrogatories;

That the Motion to Compel is essentially arguing about form over substance in that the Motion to Compel was filed merely because the moving party does not like the answers;

The specially prepared interrogatories clearly do not relate to the claim or defense of the party seeking discovery or of any other party to the action as required by Code of Civil Procedure § 2017.010

That the interrogatories are unduly burdensome and oppressive.

If the moving party did not make a reasonable and good faith effort to meet and confer before filing their motion to compel you can ask that they be sanctioned even if the court grants the motion compel.

Code of Civil Procedure § 2023.010 states in pertinent part that, “Misuses of the discovery process include, but are not limited to, the following:

(c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.

(i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.”

Code of Civil Procedure § 2023.020 states that, “ Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

Two California Courts of Appeal have stated in published decisions that sanctions may be awarded against any party that propounds abusive or frivolous interrogatories.

Sample opposition to a motion to compel for interrogatories in California for sale.

Attorneys or parties in California that would like to view a portion of a 14 page sample opposition to a motion to compel further responses to interrogatories in California containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can see below.

 

California discovery litigation document package

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

View legal document packages for sale at: http://www.legaldocspro.net

Subscribe to his weekly newsletter with legal tips and tricks for California. http://www.legaldocspro.net/newsletter.htm

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

Motion to quash a subpoena duces tecum in California

A motion to quash a subpoena duces tecum in California is the topic of this blog post.

A motion to quash a subpoena duces tecum in California is authorized by Code of Civil Procedure section 1987.1 and may be made on several grounds including but not limited to, the grounds that,

(1) The subpoena duces tecum fails to include a declaration containing a sufficient statement of materiality as required by Code of Civil Procedure section 1985(b);

(2) The subpoena duces tecum does not comply with the provisions of Code of Civil Procedure section 1985.3(d) in that it was not served in sufficient time to allow the witness to locate and produce the records or copies in that the subpoena demands production less than 20 days after the issuance and less than 15 days after service of the subpoena duces tecum, and

(3) The subpoena duces tecum contains unreasonable and oppressive demands for documents and that unless the motion to quash is granted the moving party will suffer unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

Sanctions can also be requested on a motion to quash a subpoena duces tecum in California under the provisions of Code of Civil Procedure section 1987.2(a) on the grounds that the moving party has made reasonable good faith efforts to reach an informal resolution of this matter without the need for judicial intervention but the other party has refused to meet and confer.

Code of Civil Procedure § 1987.1 states that,“(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

(b) The following persons may make a motion pursuant to subdivision (a):

(1) A party.

(2) A witness.

(3) A consumer described in Section 1985.3.

(4) An employee described in Section 1985.6.

(5) A person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that person’s exercise of free speech rights.

(c) Nothing in this section shall require any person to move to quash, modify, or condition any subpoena duces tecum of personal records of any consumer served under paragraph (1) of subdivision (b) of Section 1985.3 or employment records of any employee served under paragraph (1) of subdivision (b) of Section 1985.6.”

Code of Civil Procedure § 1987.2 states in part that,

“(a) Except as specified in subdivision (c), in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.

The California Supreme Court has stated that a declaration of materiality in support of a subpoena duces tecum must identify the desired books, papers and documents and it must clearly show that they contain competent and admissible evidence which is material to the issues to be tried. It cannot simply rely on the legal conclusion, stated in general terms, that the desired documentary evidence is relevant and material.

Code of Civil Procedure § 1985.3(d) states in pertinent part that a subpoena duces tecum for the production of personal records “shall be served in sufficient time to allow the witness a reasonable time, as provided in Section 2020.410, to locate and produce the records or copies thereof.” “Reasonable time” means the subpoena shall command compliance “on a date that is no earlier than 20 days after the issuance, or 15 days after the service, of the deposition subpoena, whichever date is later.” Code of Civil Procedure § 2020.410(c).

Before filing the motion to quash a subpoena duces tecum in California you must make a reasonable and good faith effort to meet and confer in order to avoid sanctions.

Sample motion to quash a subpoena duces tecum in California for sale.

Attorneys or parties in California that would like to view a portion of an 18 page sample motion to quash a subpoena duces tecum in California containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can see below.

 

California discovery litigation document package

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

View legal document packages for sale at: http://www.legaldocspro.net

Subscribe to his weekly newsletter with legal tips and tricks for California. http://www.legaldocspro.net/newsletter.htm

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Opposition to an order to show cause for contempt in California

An opposition to an order to show cause for contempt in California is the topic of this blog post.

If you want to file an opposition to an order to show cause for contempt in California you need to first carefully review the order to show cause and supporting affidavit to determine what grounds for opposition there are.

Deadline to file opposition to an order to show cause for contempt in California.

You must file and serve your opposition to an order to show cause for contempt in California at least nine (9) Court days before the hearing pursuant to Code of Civil Procedure section 1005.

Grounds for an opposition to an order to show cause for contempt in California.

There are several possible grounds for opposing an OSC for contempt in California such as cases where any alleged child support arrearages first became due more than three (3) years ago. The statute of limitations for contempt is three (3) years for failure to pay child support pursuant to the provisions of Code of Civil Procedure § 1218.5(b) which states in pertinent part that, “If the contempt alleged is the failure to pay child, family, or spousal support, the period of limitations for commencing a contempt action is three years from the date that the payment was due”.

And if you were truly unable to pay the child support or comply with another Court order and can prove that you were unable by a preponderance of the evidence you should not be held in contempt.

Other possible grounds could include a case where the other party is alleging that you violated a Court order other than an order to pay support. In that case any alleged violations that occurred more than two (2) years ago are barred by the statute of limitations found in Code of Civil Procedure § 1218.5(b) which states in pertinent part that, “A contempt action to enforce any other order made under the Family Code must be brought within two years “from the time that the alleged contempt occurred.”

Another possible grounds for opposition would be the fact that you are entitled to what are known as “Jackson credits” towards any alleged child support arrearages for the period of time that the minor child or children physically resided with you as you are considered to have directly discharged your support obligation to the minor children.

Your opposition should contain a declaration stating the facts that support your affirmative defenses including any exhibits that support your affirmative defenses.

Remember that the party that filed the order to show cause for contempt must prove to the Court that you are guilty of contempt beyond a reasonable doubt. However you are only required to prove your affirmative defenses by a preponderance of the evidence in order to prevail in Court.

Sample opposition to an order to show cause for contempt in California.

Attorneys or parties in California that would like to view a portion of an 11 page sample opposition to an order to show cause for contempt containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service can see below.

 

California divorce litigation document package

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

View legal document packages for sale at: http://www.legaldocspro.net

Subscribe to his weekly newsletter with legal tips and tricks for California. http://www.legaldocspro.net/newsletter.htm

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Answer to a credit card lawsuit in California

An answer to a credit card lawsuit in California is the topic of this blog post.

This blog post will discuss what should be included in an answer to a credit card lawsuit in California.

There has been much publicity lately about the “produce the note” strategy in foreclosure litigation in the United States. However, the same basic issue is involved in credit card litigation. This blog post will briefly discuss a “produce the assignment” strategy for credit card litigation in California.

The main issue discussed will be the issue of whether the collection agency or other assignee is the actual and proper assignee of the credit card company or other creditor, and thus has standing to sue.

This situation raises a very important issue in California, and presumably every other state in the United States. In California the plaintiff must be the “real party in interest” with respect to the claim sued upon. Except as otherwise provided by statute, “every action must be prosecuted in the name of the real party in interest.” See Code of Civil Procedure § 367;

The purpose of the real party in interest requirement is to assure that any judgment rendered will bar the owner of the claim sued upon from relitigating. “It is to save a defendant, against whom a judgment may be obtained, from further harassment or vexation at the hands of some other claimant to the same demand.” Giselman v. Starr (1895) 106 Cal. 651, 657; Cloud v. Northrop Grumman Corp. (1998) 67 Cal. App. 4th 995, 1003, (citing text).

Clearly if there are several alleged assignees attempting to collect on the same debt, at most only one of them is a valid assignee. And as shown previously, in California only a valid assignee can be the “real party in interest”. There cannot be more than one “real party in interest”.

And the issue of standing to sue is not waived by failing to raise it by either an answer or demurrer and can be raised at any time in a lawsuit, including for the first time on an appeal.

If a plaintiff cannot prove they have standing to sue then the lawsuit must be dismissed. When a party lacks standing to sue, the action must be dismissed, unless the complaint can be amended by substituting a party who has standing. Cloud v. Northrop Grumman Corp. (1998) 67 Cal. App. 4th 995, 1004-1011.

Any party being sued by a collection agency or other assignee should seriously consider the “produce the assignment” strategy. If as is often the case, the credit card company has “assigned” the credit card account balance owing to several different collection agencies this may result in the lawsuit either being dismissed by the plaintiff if they cannot produce an actual assignment, or result in much more favorable settlement terms being offered.

The basic “produce the assignment” strategy in brief is as follows:

The answer to the complaint should include an affirmative defense that the plaintiff is not a valid assignee, and thus lacks standing to sue. However, if the answer has already been filed this may not be critical because as previously mentioned, the issue of standing to sue can be raised at any time.

Special interrogatories and requests for production of documents should be used to force the alleged “assignee” to prove that they are in fact the “real party in interest”.

Sample answer to a credit card lawsuit in California for sale.

Attorneys or parties in California who would like to view a portion of a sample answer for California credit card litigation sold by the author can see below.

Super document collection with over 200 sample documents including a sample answer to a credit card lawsuit in California for sale.

Attorneys or parties in California that would like more information on a super litigation documents package containing a sample answer for California credit card litigation as well as over 200 other sample legal documents for California and Federal litigation selling for only $299.99 can use the link shown below.

Super litigation document package with over 200 documents

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

View legal document packages for sale at: http://www.legaldocspro.net

Subscribe to his weekly newsletter with legal tips and tricks for California. http://www.legaldocspro.net/newsletter.htm

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

California and Federal litigation

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