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Being Sued for Breach of Contract - CA

Discussion in 'Credit, Debt and Collection' started by WMS2015, Jan 28, 2015.

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  1. WMS2015

    WMS2015 Law Topic Starter New Member

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    I am being sued for breach of contract in California by a collection agency for outstanding invoices from my divorce attorney. I had disputed my final bill of approximately $5k. After not hearing anything back from my divorce attorney for a while, I finally received a summons on December 31 (in Massachusetts, where I currently reside with my parents). I was not at home, so the Summons and Complaint were served to my sister. The date the Summons/Complaint were filed was October 16. The Notice to Plaintiffs that was enclosed with the Summons and Complaint says I should have been served within 60 days. A case management conference was scheduled in March. Obviously since I no longer live in California I would prefer to settle this in advance without going to court.



    My questions are:

    1.) Do I have 40 days to respond since I was substitute served?

    2.) Does the fact that I was not served within 60 days help my case at all if I need to go to court, and help me in any negotiations with my divorce attorney?

    3.) Can I settle directly with my divorce attorney? Or is it now in the hands of the collection agency who is suing me? If I reach a settlement with my divorce attorney, can she “call off the dogs” so to speak?



    As for why I disputed the bill in the first place, my lawyer made some major errors in calculations for the final settlement, and she also agreed to cap the fees as of a certain date, but billed me for time after that.

    Thank you in advance for your help!
     
  2. army judge

    army judge Super Moderator

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    I suggest you visit three or four MA licensed attorneys.
    The CA rules of civil procedure can be tossed, and if you want to go to court, you can direct yoru MA attorney to get the matter scheduled before a federal court in MA.
    The plaintiff would then need to travel to you.
    Most defendants use that legal tactic to strike back at these collection agency scammers.
    Your former attorney most likely has sold the debt to the debt scavenger for about 5 to 10% of the original amount in dispute.
    These debt scavengers are looking to turn a buck at YOUR expense.
    Frankly, I'd make it hard for them to do that to me.
    You weren't served, but even if you had been served, you can dispute the ability of a CA court to reach out and touch you.
    That's why I suggest you discuss the issue with a few MA attorneys.
    Of course you can settle, but its best to have someone negotiate on your behalf and get everything reduced to writing.
     
  3. Betty3

    Betty3 Super Moderator

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    I agree that the bottom line is that your best bet is to discuss this with a local attorney & see what he/she has to say.
     
  4. fredrikklaw

    fredrikklaw Moderator

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    WMS2015 . . .

    You do sound very much like you are quite eager and willing to knuckle down and get this matter resolved even from 3,000 miles away, a distance which most debtors use to evade collection. While such reasoning might work out in some instances, but I doubt it will deter an attorney from collecting on a debt due to his intimate knowledge of the law.

    Anyways, to begin with, do not obsess with the service of process anymore and concentrate instead on the main course; you are free, of course, to dispute the manner in which service was completed, which means filing and arguing a motion to quash the service of process in California. Now, the insanity of such a maneuver notwithstanding, it must be mentioned that a prevailing decision is not going to dismiss the case since plaintiff will be ordered to repeat service of process.

    So, the answer to question #2 is: No! Not one bit.

    The answer to question #1 is: Yes! Because when as replacement for personal delivery a copy of the summons is left with an adult, the Plaintiff will have to also later mail a copy if the summons and the complaint to that same address, the service of process is considered complete ten days after the mailing.

    And yes, you can negotiate directly with the attorney who might even welcome the idea as he will have more flexibility in negotiating a settlement, and, because he can take back the debt from the agency. But be certain that the agency is only the negotiator and not the owner of the debt, because if the attorney has sold the debt to the agency, then you might end up paying twice.

    So remember these three steps if you want to negotiate directly with the attorney:

    1. Ask creditor to take back the debt.
    2. Make sure creditor (really) still owns the debt.
    3. Get it, put it, print it, stencil it, but get the agreement in writing. Preferably in a letter from the attorney, although a letter from you to the creditor confirming the agreement and asking the creditor to correct any errors is better than nothing. Part of the written agreement should be an acknowledgement by the creditor that it owns the debt. Send a copy of the letter to the collector.

    And lastly, attack dogs are rendered toothless the instant the creditor takes back the debt from the agency.

    fredrtikklaw
     
    Last edited: Jan 29, 2015
  5. WMS2015

    WMS2015 Law Topic Starter New Member

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    Fredrikklaw -

    I appreciate your response. I plan on negotiating with my lawyer. How can I first make sure she still owns the debt? I tried calling the lawyer that was listed on the summons that was representing the collection agency (although she works in the same office building as my lawyer?) and she was not helpful when I asked her about the case in regards to the proof of service/date - she claimed she didn't have that information/file. (Also, no copy of the summons was ever received by mail) Is there another way to find out who owns the debt?

    As far as negotiating directly with my lawyer....would I be better off lying and saying I don't have the money rather than explaining and breaking down the certain hours she billed me for that I feel are unjustified? She billed me for hours where she was doing "research and prepping me" for my final settlement conference with information/calculations that turned out to be completely wrong... this caused her to freeze up (for lack of a better term) telling me I should just settle for what opposing counsel was offering. I ended up scrambling to make some points myself and negotiated for a larger settlement without her help. I just don't want to pay her for the hours spent doing research/prep that was done incorrectly.

    Any advice you have is appreciated.
     
  6. army judge

    army judge Super Moderator

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    If you want to make a settlement offer, think of a number that would work for you.
    Don't mention the negative stuff, just a number that you're willing to pay to wipe this away.
    Say the bill is for $10,000.
    You think $6,000 is fairer. So, you offer $6,000. Stay away from irritations, just numbers.
    You can send her a letter, ask her if she owns the debt and make your offer.

    While you're at it, check the website of the court in CA and see if the lawsuit for which someone was served is docketed.
    Then you wait.
     
  7. fredrikklaw

    fredrikklaw Moderator

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    WMS2015...

    It is never a good idea to lie, fluff the facts, or bend the truth even a smidgen in legal matters. Stick with the facts and then at least you don’t have to keep tabs on what you said to whom, and when and for what purpose. Besides, even if Plaintiff does her due diligence to discover that you really are penniless at the present time, she will plow on regardless in order to obtain a judgment and become a Judgment Creditor. She will then record an abstract of judgment which will operate as a lien against you for all purposes.

    As judgment creditor, she will take to doing a periodical skip trace plus an asset search in the hope that you are gainfully employed, or have come into inheritance, or have won the Lotto (for example), in which case she will start collection process. And Keep in mind that not only the judgment will be good for an initial 10-year period with options for at least another two 10-year renewal periods, but she is also able to come to Massachusetts and commence collection as authorized by the Constitution.

    In a nutshell; don’t lie!

    And as for who owns the debt, you need to look no further than the first page of the complaint; right under and left of the lines SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR THE COUNTY OF ***** is a box containing the names of all Plaintiffs and Defendants. If agency is listed as the Plaintiff, then THEY own the debt, and if your ex-attorney’s name appears as the Plaintiff, then the debt is still hers.

    Also just as an afterthought, instead of lying, if you really feel that strongly about being overcharged by your attorney, you can always contact State Bar of California and lodge a complaint against her requesting an audit of her billing practices, which if proven, gives you the option of a counter-claim for malicious prosecution which you may want to bring to her attention.

    fredrikklaw
     

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