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David Sokolowski’s Answers

58 total

  • We accepted settlement for a totaled car from our own Ins Co. Can we now ask for more from the Ins Co. of liable driver?

    My husband was in an accident with unclear liability. His car was totaled. Our ins. co. paid us the value of the car they determined (less deductible) under our collision coverage. We were not completely satisfied with their offer , but we were ...

    David’s Answer

    Talk to your insurance agent. Many policies have a provision in which your insurance company will try to recover your deductible from the insurer of the at-fault driver. They do this while they seek reimbursement for the amount they paid to you. If your insurance company doesn't do this, you can recover the deductible on your own. You may be able to recover a higher amount for the vehicle, but you will have the burden of proving the value you are seeking.

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  • If my bank has charged me monthly service charges for 6 months and admitted that they did so in error, any legal recourse?

    I spoke to a banking representative by telephone, who told me he couldn't refund the monthly service charges that have accrued for the past six months but that he would escalate the issue to the escalation department who would call me back tomorro...

    David’s Answer

    If the erroneous charges resulted in other damages, such as returned checks or overdraft fees, then the bank could be liable for those damages as well. Also if it is an interest-bearing account, you should ask for any interest that would have been earned on the money as if it had stayed in the account. If the only financial loss you suffered was the fees, and those fees are returned to you, then you likely wouldn't have a cause of action worth pursuing. You may be able to get a free consultation from a consumer protection attorney in your area. Check the National Association of Consumer Advocates Web site at to find one nearby.

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  • In Indiana is an Affidavit of Debt admissibly as evidence if it is not signed by an employee of the original creditor?

    I received a summons that alleges an amount of money owed for a credit card brought by someone who purchased the debt. The evidence submitted was an Affidavit of Debt that was not signed by the original creditor. Is this evidence or hearsay?

    David’s Answer

    All relevant evidence is admissible unless properly objected to. Fortunately, most debt collector affidavits have plenty in them to object to. Most of it is inadmissible hearsay. They often make references to business records but fail to include copies of those records. And, they often make statements about the original creditor that they are not qualified to make because they lack personal knowledge.

    You can file an objection and motion to strike with your answer.

    Check out the recent Indiana appellate case I've linked to,

    You may be able to find a consumer advocate in your area who will provide a free consultation by checking

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  • Are there templates available to form a letter to courts in answer to law suits?

    I was served papers for credit card debt and need to provide a letter to the court and need to know how letter should be written

    David’s Answer

    The Court isn't looking for a letter. It's looking for an Answer. In an Answer, you respond to each and every allegation in the Complaint. You can either admit, deny or say you don't know. The Answer should also include a list of any affirmative defenses or counterclaims that you might raise.

    Do not explain to the court why you didn't pay the debt. The judge doesn't care -- he/she only wants to know if the debt is valid, if the amount is correct and if the Plaintiff has a right to recover on the account.

    Never admit to anything that is outside of your personal knowledge. If the complaint says the Plaintiff is the assignee of the account from another creditor, you should not just admit this because you probably don't personally know that's the case.

    Check the National Association of Consumer Advocates Web site at to see if there is an attorney in your area who could provide a free consultation.

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  • Why is a person I don't know listed along with mine on my notice of foreclosure papers?

    I received the notice of foreclosure papers and there is an man's name along with mine listed as the defendants. I am the only person listed on my mortgage, I didn't have a co-signer or anyone else signing with me at my closing. Is it possible som...

    David’s Answer

    When the lender prepares the foreclosure, they do a title search to find anyone who may have an interest in the property. It could be someone who has a judgment lien on the property, or a former resident.

    As far as getting out of the mortgage and still avoiding foreclosure, I can't offer much help there. But you may be able to modify the loan. Call the Indiana Foreclosure Prevention Network at 1-877-GET-HOPE to be connected with a housing counselor. This is a free service.

    You should have an attorney represent you in the foreclosure. Most people who lose their homes in foreclosures lose by default because they weren't sure how to answer the summons and complaint.

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  • Can I sue if I signed a paper that stated it was a rebuilt vehicle but didn't tell me it was salvaged

    I bought a suv that I didn't know was salvaged and they didn't tell me. I looked back in the paperwork and all it says is that it is rebuilt.

    David’s Answer

    In order for a dealer to sell a rebuilt vehicle, Indiana Code 9-22-3-30 states only that a dealer "may not sell, exchange, or transfer a rebuilt vehicle without disclosing in writing to the purchaser, customer, or transferee before consummating the sale, exchange, or transfer the fact that the vehicle is a rebuilt vehicle if the dealer or other person knows or should reasonably know the vehicle is a rebuilt vehicle."

    Rebuilt vehicle titles are issued for formerly salvaged vehicles. So being "rebuilt" implies that it was once "salvaged"

    There may be other avenues for relief available, though. There may have been fraud in how the dealer represented the vehicle to you. As Mr. Burdge suggests, look at for a consumer protection attorney in your area.

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  • If credit card specifically says which state laws the agreement and account are governed by, does this include SOL as well??

    Rec'd Complaint summons from company that claims to have purchased an old credit card debt. Never heard of the company. I have responded to the complaint. They state I am indebted under the agreement or account. I never had anything with them, onl...

    David’s Answer

    In most cases, the Indiana statute of limitations is going to apply because debt buyers often cannot produce the original agreement under which you borrowed the money. They may have a few billing statements from the original creditor. Or they may try to enter into evidence a generic Credit Agreement that doesn't have your name, account number or signature on it. Object to it as hearsay and lacking foundation.

    Follow the attached link to a recent case and read it closely.
    In debt buyer cases, the most important thing to remember is that they have the burden of proving that they own the account on which on they are suing. They will try to trip you up with interrogatories, requests for admissions and a motion for summary judgment. Never forget that you have no personal knowledge as to whether the Plaintiff is the current owner of the account because you were not a direct participant in any prior assignments.

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  • I currently have a garnishment being taken out of my payroll check. Is there a form to fill out asking for an amendment?

    I found from my payroll company in Indiana as long as I make 217.50 a week then I can be garnished the rest of my check. I on average have been paying 400 a month which does not allow me meet my single mother household bills. I have been told th...

    David’s Answer

    Creditors can't necessarily garnish the rest of your check. They are allowed to garnish the lesser of: 25% of your disposable earnings, or the amount by which your weekly disposable earnings exceed 30 times the federal hourly minimum wage.

    But garnishment is not a guaranteed right for the creditor. A judge can garnish less than the amount the law allows if he believes it is too much of a hardship for the debtor. This was confirmed in a Court of Appeals judgment earlier this year. Follow the attached link to the case.

    Basically, you want to file a motion to modify the garnishment order. There isn't a specific form to use in Indiana, although individual judges all have unique preferences. You just need to state when the order was issued and why you need it modified. Indiana courts often want a memorandum of law to accompany any motion. You may be able to get some help from the Indiana Legal Services office in your area.

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  • What does an attempt to get a 'personal judgment' in a summons to foreclose mean?

    My husband and I are being sued for foreclosure on our home. The language of being sued includes this first (leading up to a judgment 'ordering that the Sherriff of this County sell, etc.'): 'A personal judgment against [myself and my husband] in...

    David’s Answer

    Every mortgage foreclosure suit has two components: an in rem action to collect against the property securing the note and an in personam action to collect against the borrower(s). The Plaintiff is pleading both in order to collect against you and your husband if the house cannot bring enough in a sale to cover the amount owed. That would be a deficiency judgment.

    Start by calling the Indiana Foreclosure Prevention Network at 877-GET-HOPE to get in touch with a housing counselor. Even if you don't want to keep the house, you may be able to work out an alternative to foreclosure, such as a short sale or a deed-in-lieu-of-foreclosure. These options would be better on your credit and enable you to borrow again sooner.

    If it does get to the point of a deficiency judgment, this would be an unsecured debt and could be discharged in a Chapter 7 bankruptcy if you qualify.

    Remember that you own the house even after a foreclosure judgment, up until the point it is sold in a sheriff sale. You are still responsible for maintenance and upkeep on the property.

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  • What are my rights if the home I am leasing is going into foreclosure.

    I am renting a home and just found out that my landlord hasn't paid their mortgage since January. I am getting letters and contacted by companies who keep up on properties for Chase, and am scared that my family is going to be locked out of our home.

    David’s Answer

    I know this is a scary times for you, so let me start by saying that you won't just get locked out of the house. You will receive some notice if another owner acquires the house through foreclosure.

    Under the federal Protecting Tenants at Foreclosure Act of 2009, you have a right to remain through the end of the lease period when the house transfers ownership. If you have a month-to-month tenancy, you should get a 90-day notice to vacate. There is an exception if the new owner intends to live in the home and not rent it, but most likely the bank will acquire the home at the sheriff sale if the foreclosure goes through.

    Since you landlord hasn't paid since January, he's probably in the early stages of foreclosure. There may not even be a foreclosure suit filed yet. Foreclosure lawsuits in Indiana usually last six months or more unless the landlord and bank agree to transfer the property to the back to the bank (deed-in-lieu-of-foreclosure).

    You have a right to participate in the court proceedings and be kept aware of its status. When the bank files its lawsuit, it will likely include "unknown tenant(s)" as a defendant. That's you. You can enter an appearance in the cause and receive all notices.

    Also understand that many banks will allow tenants to remain even after getting title, rather than allowing it to be vacant, as long as you seem to be taking good care of the property.

    Keep paying rent to the landlord until the house changes ownership, as he does still own the property.

    Finally, you may be able to find an attorney in your area who provides free consultations by checking the National Association of Consumer Advocates web site at

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