30
Sep 2010Leslie beats a warrant in debt
Posted by Robert Weed / in Before Bankruptcy, warrant in debt / 48 comments
How Leslie Beat a Warrant In Debt
Leslie, not her real name, came to see me two months ago about filing for bankruptcy.
It was clear, after we looked at her forms and talked it over, bankruptcy would work for her. Â It would take a couple months, though, to gather up everything we needed for her bankruptcy to go right through.
But, she had a warrant in debt scheduled for the following week.  If she just ignored it, she was likely to get garnished.  (We didn’t want that.)  So, I told her to go to court, and follow the instructions at my warrant in debt blog.
Leslie went to the courthouse (in the picture) on the “return date” and asked the judge for a trial.  In Virginia, the trial is usually set six or eight weeks later–depending on the county and the judge.
Leslie’s warrant in debt hearing was in the Prince William County Courthouse.
She knew to ask for a bill of particulars, and the creditor asked for her grounds of defense. Â The bill of particulars under Virginia law is how the creditor plans show the amount of the debt and why there is a debt.
Leslie was in luck–because her creditor was Asset Acceptance, a debt buyer. Â Debt buyers often cannot prove what the debt is about or what the amount of the debt really is. Â Asset Acceptance proof must have been really weak in Leslie’s case, because they filed nothing at all as their bill of particulars.
So, for her grounds of defense, Leslie wrote to the court and to Asset Acceptance, that they never filed their bill of particulars. Â Also, for good measure, she also listed statute of limitations in her grounds of defense.
(The statute of limitations sets a deadline to sue you after you’ve stopped paying debt. Â Wait too long, and the creditor is out of luck.)
We expected that would mean Leslie would win at the trial, but she won sooner.
Asset Acceptance wrote to the judge and said they were dropping the warrant in debt case. Â Under Virginia law, that’s called a non suit.
Is Leslie home free?  Not quite.  In Virginia law–not like most states–after a non suit, the creditor could come back and try again.  But, we’ll have the bankruptcy filed before that.  (This debt with Asset Acceptance was only a small part of her problem.)
Because of her good work, she now has plenty of time to get ready to file for bankruptcy, without having to worry about getting garnished.
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Robert Weed has helped fifteen thousand people file bankruptcy in Northern Virginia. Robert Weed is a frequent panelist and speaker at the meetings of the National Association of Consumer Bankruptcy Attorneys. He is one of Northern Virginia’s most experienced personal bankruptcy lawyers. As an expert on changing consumer bankruptcy laws, Robert Weed has been interviewed on local and national TV and quoted in newspapers across the country.
Maria Remulla
i am in a debt management with a law firm for almost a year now, and today I received a Warrant in debt from one of my creditors..can that be possible? what will I do? please advise..many thanks
Robert Weed
Possible? I’m afraid it’s inevitable.
It looks like your “debt management with a law firm” is one of those internet debt negotiation scams. You pay a monthly negotiation fee, and set up a savings account with money to settle the debts.
Usually they settle your smallest credit card, and you think, “This is really working.” But there’s never enough money saved to settle the big credit cards, because you are paying so much every month to the “law firm.”
That goes on until the big credit cards send you court papers. Then you realize you’ve been scammed.
I hope that’s not what happened to you, but that’s what it sounds like.
The job of lawyers is to get the law on your side. For most people, bankruptcy is a law that you can get on your side. That’s what bankruptcy lawyers, like me, do.
This “law firm” that does this debt management? There’s no debt management law they are using. They are not doing anything you can’t do yourself. What are they doing? They are NOT paying your credit cards. You can do that on your own, a lot cheaper. Of course you’d get sued.
When you hire a “law firm” to not pay your credit cards, you get the same thing. You get sued.
Sorry.
What should you do now? You need to talk to a bankruptcy lawyer.
Tommy
I have a WID and both times the lawer has ask for a nonsuit, can they do this a third time or is the case over?
Sincerely
Tommy
Robert Weed
Under Virginia law, when they’ve done it twice, the case is over. You win!
Mary
I was served a warrant in debit threw regular mail and noticed that i am being sued in the wrong county, it is a neighboring county but NOT the county I live in. Is this legal?
Robert Weed
The FDCPA talks about being sued in the wrong “judicial district.” Here in Northern Virginia, where I am, all the counties are their own judicial district, except the Loudoun and Fauquier are together. In the rest of the state, lots of the small counties are together.
Here’s a map. http://www.courts.state.va.us/courts/maps/home.html.
Annie
Mr Weed, the advice on your website is very useful. I received a warrant-in-debt for an unsecured debt that I could not pay. I went to the court and asked for a trial and Bill of Particulars. However, I just realized that I missed the date for filing my Grounds of Defense. I am prepared to pay the full amount owed (inc. their attorney fees) before the trial date (in less than 3 weeks!) but I don’t know if I that means I will avoid the judgement or not, since I missed the Grounds of Defense date.
Robert Weed
We’d hope you could count on their lawyers to be honest about it. But the sure way would take to stpes. First, pay it in full through the lawyers. Second go to the court date and say, “I paid it in full.”
Annie
Thank you, sir. So if I did that, then would a judgement show up on my record or not? (to recap the scenario: I missed the Grouds of Defense date but paid in full before the trial date)
Also, what if I settled the account for less than the total balance (and they agreed to it in writing) — could a judgement be issued then?
Robert Weed
A judgment won’t show up on your credit if there’s no judgment. And there won’t be a judgment if you can go to court and show that you’ve paid.
Annie
Ahh, but does that mean paid only the principal, the principal + interest, or all that plus their court and attorney fees?
Annie
…in other words, is it an automatic judgement if not paid in full… even if I arrange as such with their attorney in advance?
Tracy Crabtree
My MOTHER just served me with a WID for $11,000.00 – I have been paying her $300 per month but due to three hospitalizations since June 2011, I have been trying to pay medical bills and so have only been paying her $50 per month just until I can get the other bills out of the way. She is financially sound and has no financial hardship. Can I beat this?
Robert Weed
Tracy: I have no idea what your mother will say to the judge, or what the judge will think of that. You can almost surely beat it by filing bankruptcy–which would probably get the other bills out of the way, too.
Erin
I have to go to court this week and I missed my grounds of defense deadline – the clerk so far isn’t giving me a continuance. Thing is, the SOL is past and I certainly have evidence of them demanding a good-faith payment to halt legal proceedings in 2010 while they “researched and sent me the back-up”. I (stupidly) did that and of course, no back-up ever came and I see now that they did that one month before the VA SOL. I want to tell the judge this, as well as the fact that their BOP came so late I didn’t have it in time to use for my GoD. Is this even worth it or will the judge issue in their favor bc of the deadline I missed?
Robert Weed
Erin:
I don’t know. Have you filed your grounds of defense now? Are you later on the grounds of defense than they were on their BOP?? Did your grounds of defense say their BOP was late?
You gotta give it your best shot.
Matt
Mr. Weed:
How long is the statute of limitations for credit cards in the state of Virginia?
Thank you,
Matt
Gaby
I went to court with my Grounds of Defense against the Plaintiff’s BOP. The lawyer brought a “witness”. But I objected and the judge did allow the witness to speak and asked them several questions. And in the end the judge non-suited the Plaintiff. This is my first time so I may have missed something but at first I thought it was dismissed. I asked the judge about my original SOL that will expire on Feb and he said the plaintiff can re-file and make sure I mention that it was non-suited but he did mention about a new lawyer. Anyway my question is what is the difference between dismissed and non-suit because I didn’t here the lawyer voluntarily non-suited and as I was looking at Virginia Code § 8.01-229(E)(3) It said something about “voluntary non-suit” and that they can refile within 6 mos. And in Sub 1 it says “the time such action is pending shall not be computed as part of the period within which such action may be brought, and another action may be brought within the remaining period. ” In sub1 does it also apply to non-suit or just “Dismissed with Prejudice?” Does this toll my SOL? And therefore gave them another 6 mos? Can the voluntary non-suit while in the court? Thank you so much.
Robert Weed
Gaby:
They can take a non-suit up through when the judge actually rules. I guess they did. However long this case was open–until today–is added to the statute of limitations, but not more than 6 months. At least that’s the way I read it. I’m mainly a bankruptcy lawyer.
Gaby
So non-suit is a tactic that some debt lawyers use. What is the difference of Dismiss without prejudice and non-suit in VA? In Virginia Code § 8.01-229(E)(1) Were they talking about Dismissed without Prejudice? And that this also tolls the SOL from the time they filed the warrant in debt up to the time it was done, end of 2012to end of Jan 2013 (which is basically also 6 mos) I just want to make sure that I didn’t get jiffed because I got non-suit and not dismissal. Because if it was also tolled for dismissal then it wouldn’t make a diff since they are both 6 mos? Thank you so much!
Gaby
So non-suit is a tactic that some debt lawyers use. What is the difference of Dismiss without prejudice and non-suit in VA? In Virginia Code § 8.01-229(E)(1) Were they talking about Dismissed without Prejudice? And that this also tolls the SOL from the time they filed the warrant in debt up to the time it was done, end of 2012to end of Jan 2013 (which is basically also 6 mos) therefore adds the 6 mos to the remaining time in the SOL or does it just mean, as if it had never happened, and that the only time left is the remaining time in the SOL? I just want to make sure that I didn’t get jiffed because I got non-suit and not dismissal (because my SOL ends in Jan/Feb 2013). Because if it was also tolled for dismissal and the “the remaining period” (VA 8.01 229(E)(1)) is 6 mos (while Warrant in Debt is pending) + 0 SOL then it wouldn’t make a diff BUT IF it means just the remaining period in the SOL then that was the JDB’s tactic to give them another 6 mos. THank you so much!
Mr. P
I have successfully dealt with a junk debt buyer and they non-suited after I submitted my GoD. They have come back against me (as I suspected) and served me a Warrant in Debt which I went to court and again contested. The JDB was supposed to have their Bill of Particulars in by Sept 19th and I have no received a copy; my GoD is due on 10/03 so I have a bit of time.
What do I do with regard to GoD since I have not received a copy? My intention is to contact the court on my next day off (this upcoming Wednesday, 9/25, to see if the plaintiff has even filed with the Court as directed. Plus this will give me a time to see if plaintiff ever sends me anything and to see the cancellation date on the postage (they use an in house meter).
Oddly, I received two EXACT copies of a letter from them dated 9/17th and postmarked 9/20 about me needing to send them the GoD by the due date (along with postage paid letters). The standard form letter informed me that they will send the BOP by the due date.
What is the best way to handle this situation?
Since the JDB has already non-suited once (I’m in Virginia) can they do this to me again?
Thank you for any help or advice you might recommend.
Robert Weed
Mr. P:
I’d for sure file my grounds of defense even if you don’t get the bill of particulars. My first grounds of defense would be that you did NOT receive the bill of particulars. I’d also say you never had an account with the junk debt buyer. And repeat everything you used last time when you did see the particulars.
They only get one non-suit in Virginia. If they drop this one again you are home free. Good luck.
Mr. P
Thank you for your prompt reply. Oh, I will be sure to file my GoD – I have a real issue with the smarmy way these Junk Debt Buyers treat people and the weak supporting evidence they have for their claim of buying an alleged debt. I’ve made it a personal quest for myself to challenge each and every Warrant in Debt and I am now fast coming up on the three year statute of limitations on many of these debts starting in February 2014. When I was younger I was screwed by my own ignorance by JDB’s and I owe them a good fight now. And the more I read about these fools the more I see you cannot even trust them when they make an “agreement” with you on a payment plan.
I’ll keep you posted – will go to Clerk of Court on Wednesday to see if they even filed with the Court – I have a feeling they didn’t and are banking on me not filing a GoD so that they can have another chance.
Mr. P
As I expected, I visited the Clerk of Courts today and plaintiff did not file their Bill of Particulars. Filled out my GoD and sent it off today indicating that Plaintiff has not complied with court order to file BoP by court due date; had not sent me a copy; has no evidence of standing to sue; has no witnesses or list of witnesses to call and should be barred from introducing that or other evidence; has already had one non-suit filed less than 7 days prior to other court date. Those are the highlights of my GoD.
Robert Weed
Mr P>
Good job!
Mr. P
Well, what do you know – Plaintiff’s Bill of Particulars arrives in regular mail with a date stamp of 9/24 on it – due date was 9/19. I sent my Grounds of Defense in by 1 pm today prior to the mail arriving. What do I do now that the BoP has now arrived albeit late? Plaintiff has a letter inside that is dated 9/18 but the post mark on the outside of the envelope which I am keeping like gold, clearly states 9/24.
Thank you for hearing me out.
Robert Weed
Mr. P:
It depends on the judge. You certainly should argue vigorously that they are too late. But be ready with your fallback arguments–still no proof that they have standing to sue, all that.
Good luck–let us know how it comes out.
Mr. P
i will sit down this weekend and go through their BoP point by point as if I was writing a GoD just as I have the other time – their materials are even less supportive of their claim than the first time around with no affidavits of any kind. I will be prepared for a fall back position as you state. Since the lateness of the BoP is not one or two days, I doubt the judge will look kindly on a lawyer that is nearly a week late filing.
Mr P.
Well, here we are on the eve of the court case tomorrow and I get home from work and in the mailbox is a letter from the opposing attorney requesting the court dismiss the case with prejudice (yes, I looked several times). I figure the junk debt buyer has already sold this account to someone else so there is no reason for this case to continue.
The SOL for this debt and all of my others is fast approaching in Feb 2014 so I know I’ll be fighting dragons for a while more.
It is a shame that the original creditors were so unwilling to work out a payment schedule when I was unemployed – I tried and was told no repeatedly. So instead of getting paid slowly, they didn’t get paid at all since I could barely pay for rent and electricity.
I’ll keep you posted if anything else occurs with this.
Robert Weed
Mr. P:
Thanks for giving us that great report!
Jen
Help! My husband has a warrant in debt case tomorrow (9/24) and he cannot appear in court because of his job. Asset Acceptance is claiming that he owes this phony debt. He wants to deny this account and wants a trial. Can his wife appear for him? He has a signed letter denying the warrant in debt and requests a bill of particulars and is ready to complete a grounds of defense. Can his wife appear for him and bring his signed documents? There is no money to hire a lawyer and need help ASAP! Thanks!!!
P.S. We called the clerk of court and she said we have a 50/50 chance that the judge will allow me (the wife) to appear for him. What do you think???????
Robert Weed
Jen:
I think the clerk is right. They are not supposed to allow you, but usually they will.
Mrs. H
Good afternoon, I am hoping you can assist me. I received a WID from an attorney representing a junk debt buyer (Midland Funding). I am not certain that I owe this much money or that they are entitled to collect it from me so I asked for a Bill of Particulars at the first court date. The Bill of Particulars came in with 3 Exhibits: A) a couple of credit card statements (I guess they picked the most recent ones). B) Notice of change in terms –however, this is only a sample letter of a change in terms letter, not addressed to me or containing my account information. C) Bill of Sale by and between Equable Ascent Financial LLC and Midland Funding LLC (once again this does not contain any account information or specifics pertaining to me, just a generic letter) followed by and Affidavit of Sale of Accounts by Debt Seller (also does not contain account specifics).
My issue with the credit card statement exhibit is that I am not certain I ever charged that much, does Midland have to prove that I made all of those charges?
My issue with the next two exhibits is that they do not identify my specific account (I feel that any other company could provide the same exact “evidence” and be able to sue me for this same exact debt). Also the Affidavit Sale speaks of Equable Ascent Financial who bought charged accounts “from Chase Bank USA, N.A. on or around 1/11/2010”, but the payment due date listed on the first statement shown isn’t until 1/16/2010 (seems fishy).
I am not sure if you can assist me with this, however, I appreciate in advance any help you can offer. My Grounds of Defense is due 10/4/2013.
Thank you.
Robert Weed
Mrs. H:
I’ve shared everything I know.
Robert Weed
Last month, the Maryland Court of Appeals upheld trial court decisions favoring debt buyers Midland and Portfolio. The Court of Appeals said that in small claims court in Maryland, the rules of evidence don’t apply.
That was supposed to help ordinary citizens defend themselves, but–oops–in these cases it allows the debt buyers to win without having a witness testify that they debt buyer really owns the debt.
I’m in Virginia, so I’m just an interested observer on this Maryland decision. But it’s a sad thing.
http://www.mdcourts.gov/opinions/coa/2014/64a13.pdf
derek
Thank you for the most informative site. I received a warrant in debt for a medical bill. However the warrant in debt was issued 10 days after my medical bill’s statute of Limitations. I plan on writing to the plaintiff’s attorney that they have filed after the statute of limitations, but I’m wondering if they file a non-suit it’ll give them another opportunity to file suit even if the statute of limitations passed originally. Thank you.
Robert Weed
Derek:
If the statute of limitations has passed, then it passed. The non suit doesn’t get them more time if they were already SOL.
Lynn
I received a warrant in debt in Sept from law firm representing Capital One. 1st court date was Nov. I asked for a trial due to amount owed is incorrect by at least $1700. They provided bill of particulars (which included statements of 2-3 years and signature on original contract from CA 1994) and I a grounds of defense (bank statements to prove payments and Cap One statements to prove some payments not credited.) 2nd court date in Jan. It was continued to give Cap One time to adjust amount due. 3rd court date in Mar with Cap One witness to discuss discrepancy. Settlement was discussed but no confirmation received since. When I called law firm, they knew nothing of the settlement proposal with Cap One witness. When trying to contact Cap One, they won’t talk and refer me back to law firm, who laughed at me and will not negotiate. 4th court date is May. If I hadn’t provided my info and met deadlines, I would have lost and judgement would have been automatic. How long does the plaintiff get to prove their case? Can I ask to dismiss at some point? or what are my options?
Robert Weed
Lynn:
Welcome to Virginia. I’ve been a Virignian most of my life, did one year of law school at UVa–and needed two years to recover from that. University of Maryland gave me a second shot and I did very well, being older and wiser.
Came back to Virginia. I can tell you that the District Court of Maryland seems more concerned aobut due process than the General District Courts in Virginia. Or at least they were back in the early 1980’s–I have no idea now.
None of that is an answer to your question. Sorry, I don’t have an answer.
Mike
Thank you for a very informative site. My Q: I received (via regular mail in Henrico, VA) a WID court appearance located in another county in two weeks. No sherifs notice or certified notice. Is this a legal way of notifying me? I’m leaving town in a few days and won’t be back by the court date. Thanks!
Robert Weed
Mike:
Mailed service is NOT sufficient–but how do you KNOW the sheriff or someone didn’t bring it to your door and it somehow got lost in the snow or something. You are NOT safe, especially in Virginia, to rely on the claim that no one came to your door.
Mrs.B
This situation is rather ridiculous but here it is: My friend received a WID via first-class mail, nothing g taped to the door. I thought for sure that would be in his favor but in Virginia, apparently not! His previous landlord is suing him for $3k on the court docket the debt type is listed as ITEMS. What does this mean? Is it money or is she wanting items?
He lived there for 9.5yrs. She never gave rent receipts and he would have to chase her down to give her the rent. When he moved she called the local pawn businesses slandering his name saying he stole a wood stove and wanted to know if he had brought it in. The stove was NEVER at the house. She also called his new landlord and claimed he had stolen her checkbook out of HER house and wrote bad checks, which he did not do.
He has repeatedly asked her to fix things around the house (e.g. windows need replaced, water leaking under house, tub faucet broken and leaking, well pump out, etc..) She never came to fix these things and it destroyed the house. Now that he has moved, she wants to sue him. He doesn’t have much proof at all of telling her the things needed fixing but does have a final text to her about her not fixing thing over those 9.5 yrs. Does she have a case? What does he need to do?
P.s. The county is: Mecklenburg County
Robert Weed
Mrs B:
He needs a lawyer.
Nanny
I was given a WOD 2 days ago, I can’t make the court date, I am unemployed, and not sure what to do.
Robert Weed
Nanny:
You need to talk to a bankrutpcy lawyer who offers free consultations.
Nancy Wiser
I received warrant for dedt . It’s not mine . Apartment I moved out of in August . They are claiming I owe for a light post I hit with uhaul. I had two choices pay it or court . I didn’t hit light so not paying . I don’t know how to prepare for court . I have receipt showing no amount in damages. I moved out one weekend gave keys following weekend . The light was laying on the ground. I think since handed in keys that Sunday. They are assuming it was me. And if I didn’t call asking when will I receive my security deposit . What would of happened ? Their story changed from pictures & witnesses to a witness . That witness could be the one who hit light post.It’s the principle , Why should I pay if I didn’t do it .
Robert Weed
Are you still in Virginia? You need to go to court on the return date and ask for a trial.