If you have been served with a debt collection lawsuit in Chula Vista & San Diego, CA, it is important you take immediate action to avoid missing court deadlines. At the outset of a case, a consumer is typically served with a copy of the summons and complaint. It might be your initial reaction to not respond, however, this could result in the most amount of harm. Do not assume there is nothing you can do.
Even if you do not believe you were properly served, it is in your best interest to act in order to preserve any rights and/or defenses.
If you fail to respond to a Chula Vista & San Diego, CA Debt Collection Lawsuit after you have been served, the creditor or debt collector can enter a default judgment against you. This default judgment will likely be for the entire balance they are alleging you owe. Once a creditor or debt collector enters a default judgment against you, they have the ability to either garnish your wages, put a levy on your bank account, or place a lien on your property. It is in your best interest to avoid a default judgment and prevent these collection methods from happening. It is important to note that a debt collector or creditor cannot take these collection methods without first receiving a judgment from the Court.
Here at Golden & Cardona-Loya, LLP, our Chula Vista & San Diego, CA Debt Collection Defense Attorney provide representation for consumers in all types of collection matters ranging from credit card debts to medical debts. We try these cases personally and do not employ appearance attorneys to do so. We appear at all hearings on behalf of the consumer and our representation starts at the beginning with filing an answer and ends at defending the consumer in the trial. Our Chula Vista & San Diego, CA Debt Collection Defense Attorney challenge the creditors and debt collectors at every step along the way.
Our Chula Vista & San Diego, CA Debt Collection Defense Lawyer representation challenges the validity of the debt on behalf of the consumer. We make them prove their case. We further demand that the debt collector was properly assigned the debt and has proper standing to bring the action against you.
In debt collection cases, the creditor or debt collector has the burden of proof to prove its case. Many times the alleged debt has been assigned from the original creditor to a third-party debt collector. It is the burden of proof of the debt collector that the alleged debt has been properly assigned between all parties. During discovery, our Chula Vista & San Diego, CA Debt Collection Defense Law Firm demands that this documentation be produced which in many cases is very difficult for the debt collector.
“The burden of proving an assignment falls upon the party asserting rights thereunder. In an action by an assignee to enforce an assigned right, the evidence must not only be sufficient to establish the fact of assignment when that fact is in issue, but the measure of sufficiency requires that the evidence of assignment be clear and positive to protect an obligor from any further claim by the primary obligee.” Cockerell v. Title Insurance & Trust Co. (1954) 42 Cal.2d 284, 292.
Recent case-law supports our position on the evidentiary objections we pose on debt collectors, such that a third-party debt buyer cannot lay the foundation for the business records of the original creditor. Sierra Managed Asset Plan, LLC v. Hale, 240 Cal.App.4th Supp.1 (2015); Midland Funding LLC v. Romero, 5 Cal.App.5th Supp. 1 (2016). The holdings of the above-cited cases prevent debt buyers from relying on any and all documentary evidence that it did not prepare.
Another potential defense for your case is the Statute of Limitations. Code of Civil Procedure §337 provides that an action “upon a contract, obligation or liability founded upon an instrument in writing” is subject to a four-year statute of limitations. If an action is based “upon a contract, obligation or liability not founded upon an instrument of writing,” then the limitations period is two years. (Code Civ. Proc. §339.) If the creditor or debt collector is seeking to recover under a written agreement but has no such writing sufficient to invoke the four-year limitations period, then the two-year period applies. Robin v. Smith (1955) 132 Cal.App.2d 288, 292-293. The limitations period begins to run on the date that the action accrues, that is, when there is a remedy available. Irvine v. Bossen (1944) 25 Cal.2d 652, 658.
If you believe the alleged debt they are attempting to collect from you has not been paid on in over four years, this defense may apply to you.
Absolutely! It is important to notify us if you have been harassed by creditors or debt collectors regarding the debt they are attempting to collect. At Golden & Cardona-Loya, LLP, we also practice in the field of protecting the rights of California consumers and file Complaints against creditors and debt collectors. If you feel you have been wrongfully contacted regarding the debt, this may be helpful and allow for a cross-complaint in your collection matter.
If you have been served with a collection lawsuit please call our Chula Vista & San Diego, CA Consumer Right Protection Attorney today. We provide a free consultation. We can be reached at 619-476-0030.