CREDITWRENCH
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Wednesday, November 07, 2007
Summons from Eskanos and Adler
Name: Lynn

Subject: Summons from Eskanos and Adler

Question: QUESTION: Hello,

A process server just arrived at my house, and served me with papers that have someone else's name on them. She asked for me, so I am assuming she gave me the wrong papers.
The complaint is filed against me, by Capital One. I am confused though. I pulled my credit report several months ago, and it states the account has been "charged off." Can a company sue me when the account has already been charged off. The lawyer that is named is Eskanos and Adler, a known collection agency. Is this legal? Also, what is my situation with not even been served the correct paperwork?
I was just married, and my husband knows about my past credit faux pas, and I want to get this right. Can they attach his accounts?
Thank you.
ANSWER: It does sound logical that she gave you the wrong set of papers. I doubt that the server will even realize the mistake and would claim you were served properly. You might be able to cause a bit of embarrassment over the mistake but I doubt it would be worth doing. I'd be more inclined to just go to the clerk of the court and hand in the paperwork you received and say you are not that person and if the address is wrong too also say you don't live at that address and let them sort it out. Then I'd ask the clerk of the court to see my public record and find the judgment, pull the file and get copies of the papers you were supposed to have received in the first place. There may be some law or other in your state that would let you escape the summons temporarily but the plaintiff would just correct the mistake and do it over again. So let's move on. Charge off is an internal bookkeeping mechanism. Here is how it works. The banks have to keep a certain percentage of their capital in a reserve or escrow type of account by law. They can't use money from that account to make loans or for operating expenses. But when an account goes bad they can "charge it off" to that reserve account and take out that amount of money and put it back into their regular lending account. Every payment somebody makes puts a small amount of money into the account and every loan that goes bad reduces it by the amount of that loan. It has nothing to do with whether or not you owe the money so yes, they can sue you when the account has already been charged off. So now you have been sued by a known junk debt buyer and yes, that is legal provided they do it correctly. Whether they do it correctly usually makes no difference to the courts who grant them judgments without question as to legality or much of anything else. It is a paper mill and getting the judgment usually takes about 5 minutes or so of the court's time if that. It usually don't take much longer no matter how much you argue or what kind of defense you offer. The only question before the court in most cases is whether you owe the debt or not unless you can offer material evidence proving your innocence or non-responsibility for the debt. That's why it is much better to use my methods which teach you to spot their violations of law and take them to federal court where the only question before the court is whether they broke the law, how they broke the law and how often they broke the law. If you have them cold on several violations they are often more than willing to just forgive the debt and get it off your credit reports rather than having to explain to a federal judge why they broke the law and getting rapped for it. So how can a 3rd party debt collector just forgive the debt and forget about collecting it? They can do that if they bought the debt from the original creditor and the original creditor no longer has any right title or interest in the debt. That may or may not be true in your case but it is in a high percentage of debt related cases. Esakanos and Adler is not only a known collection agency but a known junk debt buyer who pays pennies on the dollar for debts then brings suit in the name of the original creditor even though that original creditor has no interest in the case whatever. And of course, if you want to use that to your advantage you must find out whether the plaintiff in your case is a true party of first interest in the case or not. Most local courts could care less about that but federal courts do care about such things if your argument is properly presented. Now then, on to your last question. Can they attach your husband's accounts? First of all, in order to more accurately answer your question I would need to know specifically what kind of accounts you are talking about and what state you live in. If you live in a community property state then yes, they probably can. So tell me what state you live in and what accounts you are talking about and I can give you better answers. Another factor might be whether your name is also on those accounts. If it is then maybe they can try to go after them. If you would like to check to see if yours is a community property state you can find out at http://www.creditwrench.com/communitypropertystates.html

---------- FOLLOW-UP ----------

QUESTION: Hello,
Thank you so much for your response.

I will go down and get the paperwork for myself, and return the other paperwork, no problem.

I live in California, community prop state. My husband and I have only been married for 3 weeks. He owns the house, and has his own checking and savings. My name is not on anything. I maintain my own checking. I have been unemployed since May 2007, and my unemployment is about to run out. I also owe the IRS $50,000 in back taxes and currently have an installment agreement with them. Until I am able to get a job and pay 1/2 of the mortgage, I pay my husband rent. That has been our agreement.

That is our financial situation in a nutshell.

I have a few questions about the state vs. federal.

1. How do I respond to the summons?

2. Do I go to court and just let the judgement happen?

3. In the meantime, should I file a federal suit?

4. How will this effect my husbands finances?

Thank you so much for your help.

Answer: In my opinion, the best way to respond to the summons is by motion for demand for more definitive statements. Do you just let the judgment happen? I sure would not advise you to do that. And as to filing a federal suit, you can do that but you must have solid causes of action to prevail. They must have violated one or more federal laws and the more they have violated the better. How will the judgment affect your husband's finances? In community property states he can be forced to pitch in and help pay for the debt.
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