Author Topic: Creditor atty files for asset hearing then cancels, twice Scare tactic?  (Read 775 times)

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Catalina_

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I was not sure under which forum to post this. A debt buyer/collection service sued me and filed a default judgment in 2010 here in Calif.

I believe their attorney (whose office address is the same as the collection service) is engaged in collection abuse as well as charging several illegal fees to my judgment.  One of the things he has done is schedule a debtor asset hearing, have me served, and then canceling for no reason. This last week he canceled two days before the hearing and I was not notified by mail until the day after the hearing was to take place. So of course I showed up.

This adds several charges on to the amount of the judgment, even though the attorney canceled. There are other unexplained charges on the memorandums of credits, but I am just beginning to look into those.

In addition to the fees piling up, I believe this is a scare tactic because a summons is served each time, which is pretty disturbing. Then there is anticipating this unpleasant hearing. It is very stressful.
 
In all fairness, the instances of scheduling and canceling the debtors assets hearings are years apart but I believe this is something this attorney does regularly. In my brief (so far) research, I found case (same collection agency, same attorney) where the asset hearing was scheduled and canceled by the attorney. I think he has no intention of attending the hearings.

Does this sound like illegal fee charging and/or FDCPA violation for scare tactics?

trueq

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Probably laziness more than anything.
My free speech is not legal advice.  If you need legal advice, you need to talk to a lawyer.

Litigation Defense record
Arbitration record:   9 wins * 0 loses
Court Record:         2 wins * 2 judgments (1 of the 2 judgments has been vacated, other judgment upheld on appeal, marked "satisfied", because I wrote a check.)

The one bank that beat me in court, I now have a $2200 limit credit card from them again.
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Flyingifr

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If it happens too frequently I would be before the Judge with a complaint of Abuse of Process and I would be filing a complaint with the Bar Association Ethics Committee.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Debtors Exams are the perfect place for us Senior Citizens to show off our recently acquired Alzheimers.

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kevinmanheim

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If it happens too frequently I would be before the Judge with a complaint of Abuse of Process and I would be filing a complaint with the Bar Association Ethics Committee.
This.

In my opinion, cancelling twice is enough to file a complaint. It's ridiculous for the attorney to waste your time in this manner -- at least without contacting you and offering an apology or explanation.

They are trying to wear you down and intimidate you. I would file suit for a FDCPA violation, compel discovery of their other records and see if you can find a pattern of similar activities. Doing so may cause them to wipe out the debt entirely.

Leverage. Use it.

Catalina_

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Fabulous! Thank you Flyingifr and kevinmanheim!

This is what I wanted to hear. I was not sure if the attorney's action constituted abuse of process and/or FDCRA violation. I believe I does and wanted to hear it from some knowledgeable people. Now I have and I will move forward with action.

Bruno the JDB Killer

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CODE OF CIVIL PROCEDURE
SECTION 708.110-708.205


I suggest you read the statute before you try to enforce it. They can subject you to this every 120 days. The word "cancel" does not appear in the statute. The procedure is fairly complex, you should study it to determine if they did anything wrong before you take action. I've never heard of a case under the FDCPA for cancelling a debtor's exam, nor any action taken by the bar association.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Flyingifr

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CODE OF CIVIL PROCEDURE
SECTION 708.110-708.205


I suggest you read the statute before you try to enforce it. They can subject you to this every 120 days. The word "cancel" does not appear in the statute. The procedure is fairly complex, you should study it to determine if they did anything wrong before you take action. I've never heard of a case under the FDCPA for cancelling a debtor's exam, nor any action taken by the bar association.

Continuous and repetitive debtors exams, including the continuous and repetitive scheduling, cancelling and postponing of them in order to punish, harass or otherwise cause emotional, physical or financial harm are Abuse of Process.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Debtors Exams are the perfect place for us Senior Citizens to show off our recently acquired Alzheimers.

Founder of the Credit Terrorist Training Camp (Debtorboards)

Clydesmom66

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Continuous and repetitive debtors exams, including the continuous and repetitive scheduling, cancelling and postponing of them in order to punish, harass or otherwise cause emotional, physical or financial harm are Abuse of Process.

Good luck convincing a court of that.  The law clearly allows a debtors exam every 120 days.  While many would consider that repetitive if the attorney actually hauled the OP into court 3-4 times per year it is LEGAL.  According to the OP the attorney only scheduled two and they were years apart even though they were cancelled.  The chances of any court finding that "repetitive and continuous" when it was only 2 and years apart is ZERO.  Same as they won't find 2 of them of being used to cause harm or to inflict emotional distress.  ZERO chance they find it an intent to cause financial harm since they actually have a judgment.  They are allowed to collect on it.
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

CleaningUp

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The attorney may have pulled a credit report and found the OP to be basically indigent.

I would agree with Clydesdale on this one; the law is pretty clear.  And since the subpoena for a credit exams and the cancellations occurred years apart, it would be tough to convince a judge that the judgment creditor is being harassed.

The attorney sort-of gets himself off the hook through the sending of the letter, even though the OP received it after the hearing.  The efficacy of that letter would hinge in the date that it was posted and the definition of "a reasonable amount of time" for the posted letter to be delivered.  There is also the question of where the OP receives his mail...If it is a postal box or a commercial mail drop where he only picks up his mail once a week or once a month, then his argument of the timing of the cancellation begins to start loosing water fast.

The OP would have a much stronger case if the calls for the exam and the cancellations were just a couple of weeks apart, and there were more than just two summons.


Flyingifr

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Good luck convincing a court of that.  The law clearly allows a debtors exam every 120 days.  While many would consider that repetitive if the attorney actually hauled the OP into court 3-4 times per year it is LEGAL.  According to the OP the attorney only scheduled two and they were years apart even though they were cancelled.  The chances of any court finding that "repetitive and continuous" when it was only 2 and years apart is ZERO.  Same as they won't find 2 of them of being used to cause harm or to inflict emotional distress.  ZERO chance they find it an intent to cause financial harm since they actually have a judgment.  They are allowed to collect on it.

My thinking on this is that what the attorney is pulling is just the beginning and the tip of the iceberg.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Debtors Exams are the perfect place for us Senior Citizens to show off our recently acquired Alzheimers.

Founder of the Credit Terrorist Training Camp (Debtorboards)

Clydesmom66

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My thinking on this is that what the attorney is pulling is just the beginning and the tip of the iceberg.

You cannot sue over what "MIGHT" happen or the attorney is planning.  Only for what he does that violates the law. 

How nefarious can it be if he only filed 2 debtors exams in the past seven years and they were years apart?

If the guy really is a debt collection mill the odds are higher that he files hundreds of these things monthly and only when reminded by the court of the date realizes there is a conflict and cancels. 

Again, I don't see you getting any lawsuit for harassment to stick over 2 exams filed years apart.
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

kevinmanheim

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Re: Creditor atty files for asset hearing then cancels, twice Scare tactic?
« Reply #11 on: August 02, 2017 11:08:31 AM »
If the attorney doesn't think it is worth their time to follow through with the exam, it's a good indication the attorney isn't making a lot of money on the account.

A FDCPA case filed against the attorney for abusive collection tactics might be enough to get the creditor to the settlement table, resulting in a $0 settlement to avoid defending against the valid FDCPA claim just filed against them.

Your opponent's goal is to keep you awake at night worrying about the debtor's exam. They already know you are broke, so the actual exam is a waste of time. They are just hoping you will panic and borrow money from someone to pay off the judgment.

Turn the tables on them. Let them stay awake at night worrying about a federal court case filed against them, the possibility of their business practices being exposed in a deposition, the possibility of their liability insurance premiums going up, etc.

Leverage. Use it.

 

Bruno the JDB Killer

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Re: Creditor atty files for asset hearing then cancels, twice Scare tactic?
« Reply #12 on: August 02, 2017 11:53:53 AM »
I don't see any basis here for an FDCPA suit. Legally following a statutory process twice in 7 years is not harassment. I bet he couldn't find one lawyer who would take the case. Even if he did have a violation, it goes against the collector, not the holder of the judgment. No leverage there.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

kevinmanheim

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Re: Creditor atty files for asset hearing then cancels, twice Scare tactic?
« Reply #13 on: August 03, 2017 09:11:28 AM »
I don't see any basis here for an FDCPA suit. Legally following a statutory process twice in 7 years is not harassment. I bet he couldn't find one lawyer who would take the case. Even if he did have a violation, it goes against the collector, not the holder of the judgment. No leverage there.
Agency, vicarious liability, respondeat superior.

Look for a pattern effected by the agent on the principal's behalf, and for the benefit of the principal.
I bet the OP isn't the only defendant to be subjected to these harassing and abusive debt collection tactics.

On information and belief, the OP can allege the agent systematically and routinely abuses the legal process for the benefit of their client.   

Bruno the JDB Killer

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Re: Creditor atty files for asset hearing then cancels, twice Scare tactic?
« Reply #14 on: August 03, 2017 11:46:04 AM »
How is he supposed to prove a pattern of acts against others, which will be inadmissible anyway? Again, two exams in seven years is not harassment, especially when the statute makes no mention at all of cancellation.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.