Have a creditor I believe saying I forged a check for a previous payday loan and that they "have enough evidence to proceed to court" he gave me case # I tried return call today but jzst got voice message. I am not sure what they are referring to. I DID have a couple payday loans in 2011 that were included in my chap 7 bankruptcy but until I find out who he is referring to I am cinfused. He said they will come to my home or work if need be to serve me. I am worried what could hapoen in this case? max the payday loan was $300. Can I find out if I am being suex and by who? whats the wirst that could happen to me? Thank u fir ur help.
Chapter 13 Bankruptcy Attorney
This caller is acting like a junk debt buyer that operates outside the US and is not worried about complying with debt collection laws. Their hope is to get you to agree to pay when you don't have to. If they call again, dispute the debt and get their information about how to send written correspondence. If they refuse to give it to you, then you know they are not legit.
The dialogue on this website does not constitute legal advice nor does it form any sort of attorney-client relationship.
Debt Collection Attorney
In order for a criminal case to be filed, the police (or other law enforcement) must prepare a report and submit the case to the District Attorney. The DA will decide whether or not to file. Unless you did something like forge some else's name to a check, or printed up bogus checks, it is not a criminal matter. If there were a police investigation, the cops would contact you, not a debt collector.
As far as going to court in a civil case, in which the creditor is attempting to obtain a civil money judgment, the case must be filed with the court and it must be filed by an attorney who is licensed to practice in California. A process server (who is licensed as a process server) or a Sheriff can hand you papers including a "Summons." The summons will tell you that you have 30 days to file your papers with the court. If you ignore the Summons, they can get a default judgment entered by the clerk. If you file an Answer in the civil lawsuit, the case will be set for trial. The trial date may be a year away. They would need to bring witnesses to court (an attorney cannot testify as a witness), along with some original documents. They would need to prove everything they claim. You will have an opportunity to testify.
Payday lenders rarely sue, especially if the amount is less than a couple of thousand dollars. They would need to pay the court filing fee, the process server's fee, and other expenses. They would need an attorney, who is licensed to practice law in California. This would cost more than $500, and the most that they could get would be a civil judgment allowing them to levy on non-exempt assets, if the can find any. A civil judgment is not a court order, requiring you to pay anything. If you have a large bank account, own any airplanes or yachts, own apartment buildings or shopping centers, or have luxury items such as a Ferrari, you can worry. If you rent, drive an old Toyota which is being financed, and have limited income, there is nothing that a judgment creditor can do except have you come down to the courthouse every few months to ask you whether you have any money.
Do not believe anything that a debt collector tells you, especially if it involves your legal rights. If the collector tells you that there is a deadline of 4 o'clock today to make a payment, or the "Sheriff will come to your job and Summon you to court", it is a scam. If the collector wants payment in the form of a Walmart card, moneygram or access to your bank account, it is a scam. Be careful because some of these collectors do not actually own the accounts that they claim to be collecting. Former employees of payday lenders, and hackers, sell names and information about payday borrowers on the black market.
Finally, is the collector located in California? Is the collector calling from overseas? Will the collector refuse to give you his address, street address not just a PO box?
Debt Collection Attorney
You can check the court register to see if a complaint has been filed. It is possible that a complaint has been filed, but not yet served.
Debt collectors are not allowed to make idle threats. The collector's comment that they 'have enough evidence to proceed to court" could be construed as threatening legal action, and providing a case number could be interpreted as implying that a complaint has already been filed. If neither is true, the collector may have violated the Fair Debt Collection Practices Act and the Rosenthal Act (California's equivalent to the federal law). Nor is the collector allowed to falsely imply that you have committed a crime.
It is worth noting that a debt collector is required to provide you with a written notice containing information about the debt, including:
- the amount of the debt
- the name of the creditor to whom the debt is owed
- the debt will be presumed valid unless the debt, or any portion thereof, is disputed within 30 days of receiving the notice
- if the consumer notifies the collector in writing within 30 days that the debt, or any portion thereof, is disputed, the collector will mail verification of the debt to the consumer
- if requested in writing by the consumer within 30 days of the consumer's receipt of the 1692g notice, the collector will provide the consumer with the name and address of the original creditor (if different than the current creditor).
This notice must be sent to you within five days of the collector's initial communication with you.
This response is not intended as legal advice, and does not create an attorney-client relationship. Such information is intended for general informational purposes only and should be used only as a starting point for addressing your legal issues. This posting is not a substitute for an in-person or telephone consultation with an attorney licensed to practice in your jurisdiction about your specific legal issue, and you should not rely upon such information. This posting is not confidential and is not subject to attorney-client privilege.