Author Topic: Confession of Judgement???  (Read 3902 times)

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seven

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Confession of Judgement???
« on: November 02, 2009 05:20:22 PM »
My brother lost his job and had to break his lease for his apartment. The remainder of the lease was given to a collection agency for collection. According to my brother, They told him over the phone that he had to come in to make agreeable payment arrangements or they would sue him and interest would continue accrue. He went to their office a week later. Once he got there he said the rep presented him with a confession of judgment to sign for the amount he owed from his lease. According to my brother the lady told him that if he didn't sign the forms then and there they would sue him and add on attorney fees and court cost and interest.

My brother signed the papers and didnt get a copy of what he was signing. He never got any information in writing from the collection agency after their initial communication by phone. He was told that he could dispute the debt within 30 days. I told him to send them a dv letter immediately. After getting his dv they sent the initial collection letter with the mini miranda, but they have yet to answer the dv. My brother now lives in a state where this state is required to be licensed to collect and they are not. Considering he signed a confession of judgment does he have any options with them not being licensed to collect where he now resides? Since the collection agency is required to send him written correspondence within 5 days of their initial communication and also answer the dv before sending any other collections letters they have 2 violations. I do not think my younger brother knew what he was signing and was kind scared into it.

ghost

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Re: Confession of Judgement???
« Reply #1 on: November 02, 2009 07:58:12 PM »
Seems to me if they don't have a license they are likely violating the FDCPA by taking action they legally can't and any money paid on the confession of judgment would be actual damages. I bet this would fall under your state's deceptive trade  practices as well...

Lets do this

Flyingifr

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Re: Confession of Judgement???
« Reply #2 on: November 02, 2009 08:12:42 PM »
"As through this world you travel
You will see lots of funny men.
Some will rob you with a six-gun
And some with a fountain pen."

Woody Guthrie
"The Ballad of Pretty Boy Floyd"

Your brother just met one. By signing that Confession of Judgment he gave the CA all they want. they don't have to serve him with a summons, he has no right to contest the matter in Court. The case has already been decided against him and it's all over but for the income executions.

NEVER  NEVER  NEVER sign a Confession of Judgment. If they want a Judgment let them get it the old fashioned way - in a Court of Law, not at their desk.
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.

Morality of Debt? No one ever went to the Nether Regions for not paying a debt.

Founder of the Credit Terrorist Training Camp (Debtorboards)

Kitten

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Re: Confession of Judgement???
« Reply #3 on: November 02, 2009 08:21:14 PM »
As Flying said, he handed them the court win on the debt, but in my opinion, that judgment could be considered actual damages in an FDCPA suit against the CA, but it would be a 'he said, she said' situation if they deny misleading him about the collection suit.

decamp

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Re: Confession of Judgement???
« Reply #4 on: November 02, 2009 08:35:58 PM »
Apartment offices seem to be about as vindictive and conniving as trucking companies when you leave.

Rottweiler

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Re: Confession of Judgement???
« Reply #5 on: November 03, 2009 12:05:29 AM »
Which state is your brother living in now?

Which state did he move from?

"Confession of Judgment" is illegal in many states (i.e.:  Alaska; Pennsylvania for consumer transactions) and/or have procedural requirements that must be met for them to be valid (i.e. Michigan).  There is also the question of whether a Confession of Judgment signed in a state where it's permitted can be enforced in a state where they are not.

For example, in CT, Title 52, Sec. 52-604 states:

http://www.cga.ct.gov/2009/pub/chap928.htm#Sec52-604.htm

Quote
Sec. 52-604. Definition of foreign judgment. As used in sections 52-604 to 52-609, inclusive, "foreign judgment" means any judgment, decree or order of a court of the United States or of any other court which is entitled to full faith and credit in this state, except one obtained by default in appearance or by confession of judgment.

In such a case, full faith and credit cannot be used to enforce a confession of judgment from anywhere (they are illegal in CT).  Only a judgment obtained by a court decree is enforceable over state lines.

This may well be true in other states; he might want to contact an attorney for advice.
“This is a court of law, young man, not a court of justice."
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Flyingifr

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Re: Confession of Judgement???
« Reply #6 on: November 03, 2009 12:05:09 PM »
Rotty - you are thinking of a Cognovit Note executed at the time the loan is made. Those are illegal. Confessions of Judgment in this instance are legal.
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.

Morality of Debt? No one ever went to the Nether Regions for not paying a debt.

Founder of the Credit Terrorist Training Camp (Debtorboards)

Rottweiler

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Re: Confession of Judgement???
« Reply #7 on: November 03, 2009 03:14:17 PM »
Maybe where you are.  After all, AZ is a rather consumer-unfriendly state as you yourself admit.

I see nothing in statute in my own state (the law I cited) that would exempt such a collection device from the prohibition on enforcement. (Cognovit notes are mentioned as a separate entity in other statutes so it would have been mentioned in the cited statute if the intent was to exempt only cognovit notes.)

This is likely true in other states.

Look at the situation:  There was no suit filed, so it was not a stipulated settlement, which would be able to be made enforceable in a court of law.

We also don't have the text of the lease in front of us.  If the "Confession of Judgment" as an option was not included in the terms of the lease?  Even where such devices are unquestionably legal in both states, the lack of the terms in the lease would render the Confession unenforceable except as a voluntary payment plan.  (It could not substitute for a judgment.)

In short?  The Confession may well be fatally flawed.
“This is a court of law, young man, not a court of justice."
~ Olver Wendell Holmes

seven

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Re: Confession of Judgement???
« Reply #8 on: November 03, 2009 03:57:01 PM »
He was in Nevada and he now lives in Texas...

seven

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Re: Confession of Judgement???
« Reply #9 on: November 03, 2009 04:02:37 PM »
Maybe where you are.  After all, AZ is a rather consumer-unfriendly state as you yourself admit.

I see nothing in statute in my own state (the law I cited) that would exempt such a collection device from the prohibition on enforcement. (Cognovit notes are mentioned as a separate entity in other statutes so it would have been mentioned in the cited statute if the intent was to exempt only cognovit notes.)

This is likely true in other states.

Look at the situation:  There was no suit filed, so it was not a stipulated settlement, which would be able to be made enforceable in a court of law.

We also don't have the text of the lease in front of us.  If the "Confession of Judgment" as an option was not included in the terms of the lease?  Even where such devices are unquestionably legal in both states, the lack of the terms in the lease would render the Confession unenforceable except as a voluntary payment plan.  (It could not substitute for a judgment.)

In short?  The Confession may well be fatally flawed.


So you are saying that if the Confession of judgment was not mentioned in the lease that was signed between him and the apt complex then it could not be recorded by the courts as a judgment, but only as a payment plan between him and the collection agency...?

Rottweiler

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Re: Confession of Judgement???
« Reply #10 on: November 03, 2009 04:06:59 PM »
As far as I can tell, the contract would have to include that provision for the Confession of Judgment to be enforceable. However, I have not checked out the law for TX and Nevada and it may well be different in those states.
“This is a court of law, young man, not a court of justice."
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seven

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Re: Confession of Judgement???
« Reply #11 on: November 03, 2009 06:01:41 PM »
As far as I can tell, the contract would have to include that provision for the Confession of Judgment to be enforceable. However, I have not checked out the law for TX and Nevada and it may well be different in those states.


Where would be the best place to look up any legal information that would apply to TX and NV???

seven

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Re: Confession of Judgement???
« Reply #12 on: November 03, 2009 06:12:59 PM »
I just looked at a copy of the lease. The lease doesn't stipulate anything about a confession of judgment being enforced. The apartment managers office also gave my brother a final bill that states he has 15 days to make payment arrangements with them before they will assign it to a collection company. He made arrangements with them the day he turned his keys in in July. He was suppose to start making payments in October. They gave it to a collection agency in August.

I am reaching for anything we can use to help him out in dealing with the collection agency....any other thoughts???

Rottweiler

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Re: Confession of Judgement???
« Reply #13 on: November 05, 2009 03:32:50 AM »
I just looked at a copy of the lease. The lease doesn't stipulate anything about a confession of judgment being enforced.

He has an opening here:  Confessions of Judgment are normally stipulated as a remedy for the creditor IN THE CONTRACT (the lease here).

This web site for a law firm in PA explains better the effect of a Confession of Judgment and a necessary qualification to make it valid:

http://www.buteralaw.com/newsletters.asp?c=49&id=424

Quote
Confession of judgment" is an agreement by a party to a lease or promissory note that in the event of a default, the other party, usually a landlord or lender, may proceed to the county courthouse, declare a default and enter judgment immediately in an agreed amount.

...Lenders and landlords routinely insist upon a confession of judgment clause because it is a powerful remedy in the event of default.

Note the word "clause":  That means it must be written into the contract!

Some recent case law:

"Murray v. Ledbetter" (2006-Supreme Court of Alaska; the Confession of Judgment was filed in Nevada)

Nevada Statutes:

Chap Chapter 68:  Judgments.

http://www.leg.state.nv.us/NRS/NRS-068.html#NRS068Sec050

Quote
NRS 68.050  Judgments by confession.  Judgments upon confession may be entered up in any justice court specified in the confession.

NRS Chapter 17:

Quote
NRS 17.090  Judgment by confession for debt due or contingent liability.  A judgment by confession may be entered without action, either for money due or to become due or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this section and NRS 17.100 and 17.110.

      [1911 CPA § 307; RL § 5249; NCL § 8805]

      NRS 17.100  Written statement made by defendant; form.  A statement in writing shall be made, signed by the defendant and verified by his oath, to the following effect:

      1.  It shall authorize the entry of judgment for a specified sum.

      2.  If it be money due, or to become due, it shall state concisely the facts out of which it arose, and shall show that the sum confessed therefor is justly due, or to become due.

      3.  If it be for the purpose of securing the plaintiff against a contingent liability, it shall state concisely the facts constituting the liability, and shall show that the sum confessed therefor does not exceed the same.

      [1911 CPA § 308; RL § 5250; NCL § 8806]

      NRS 17.110  Filing of statement; endorsement by clerk; entry of judgment; judgment roll; costs.  The statement must be filed with the clerk of the court in which the judgment is to be entered. The clerk shall endorse upon it and enter in the judgment book a judgment of the court for the amount confessed, with $28 costs. The judgment and affidavit, with the judgment endorsed, thereupon become the judgment roll.

If the confession of judgment did NOT conform to Nevada law AND filed with the appropriate court?  It's invalid.

As for TX?  Unfortunately, they are legal as long as TX RCP, Rule 314, is met:

http://www.supreme.courts.state.tx.us/Rules/TRCP/RCP_all.pdf

Quote
RULE 314. CONFESSION OF JUDGMENT
Any person against whom a cause of action exists may, without process, appear in person or by attorney, and confess judgment therefor in open court as follows:

(a) A petition shall be filed and the justness of the debt or cause of action be sworn to by the person in whose favor the judgment is confessed.

(b) If the judgment is confessed by attorney, the power of attorney shall be filed and its contents be recited in the judgment.

(c) Every such judgment duly made shall operate as a release of all errors in the record thereof, but such judgment may be impeached for fraud or other equitable cause.

Note the ability to have the confession vacated for FRAUD. 

If it is judged to be valid?  TX will enforce it. BUT only if that confession of judgment complies with the above Rule.

Quote
The apartment managers office also gave my brother a final bill that states he has 15 days to make payment arrangements with them before they will assign it to a collection company. He made arrangements with them the day he turned his keys in in July. He was suppose to start making payments in October. They gave it to a collection agency in August.

So he made the arrangements...and they turned it over to a CA anyway?  Why would they need to go to a CA to collect if the document were indeed a Confession of Judgment?  All that would be needed to make it official would be to file it with a court.

Something stinks here.

He should contact the court in Nevada and find out if there is a judgment filed in his name.  Checking to see if there is any such filing in TX would also be wise.

Does he have a copy of the agreement?  What does it say?
“This is a court of law, young man, not a court of justice."
~ Olver Wendell Holmes

seven

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Re: Confession of Judgement???
« Reply #14 on: November 05, 2009 06:35:06 PM »
He made arrangements with the manager of the apt leasing office. The apt leasing office still turned it over to the collection company before he was to begin making his payments directly to them. The confession of judgment was signed with the collection agency after they contacted him regarding the debt.

The collection agency did not give him a copy of the Confession of Judgment. He was told that after he made his first payment he would get a copy of it. He was also told that he could dispute the debt within 30 days. After he told me what happened I told him to send a dv to them. He sent a dv to them before he left Nevada. They just responded to the dv with a copy of his lease with the apts; they mentioned nothing of the Confession of Judgment in their dv response.

 

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