Sued for Deficiency Following Repossession

My question involves collection proceedings in the State of: Virginia

I'll try to keep it short.

Car gets repossessed.

I proactively call the bank multiple times afterwards so I can find out when they sell it at Auction and if it had sold yet so I could know remaining balance and set up payment options with them.

After multiple calls spanning many weeks they tell me they will let me know when it sells and remaining balance.

I had gotten info from multiple other sources that a bank can take awhile to sell a car at auction.

I wait quite a long time to see anything in the mail from them telling me it sold and what remaining balance is.

2 years later I get letter from collection agency saying they are taking me to court to get approval for a judgement against me.

I'm shocked and feel like a victim, why didnt the bank notify me it sold? I never got anything in the mail before this court letter.

Do I have any wiggle room in court to make the bank produce proof they notified me prior to that letter?

I was more than willing to work out a payment arrangement the very same day they tell me it had sold.

Any help would be appreciated. Thanks.

maybe the bank simply was not interested in working out any payment arrangement. After all, missing scheduled payments is what you got you where you are, right?



The only right you have now is to require the bank or plaintiff if the loan has been sold proof that the amount they are suing for is valid.

You're not the victim here.

You defaulted on your loan and lost the car.

Being willing to pay is not the same as paying.

You should have gone to the bank WITH MONEY as soon as the car was repo'd and paid whatever it took to get the car back.

The bank had absolutely no obligation to work out a payment plan with you. You already defaulted on one payment plan.

The car got sold for less than the balance owed so you are being sued for the deficiency. Count on lawyers' fees being added to the amount which will drive the judgment amount into the stratosphere.

I suggest you find the money to pay the debt now, before things get a lot worse.

Or, consider bankruptcy.

The bank does not have to prove they mailed you a letter. Take your feelings and put them to one side; you're not the victim here and pretending to be one isn't going to help you one iota.

Why are you no longer prepared to negotiate? Hurt feelings?

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Quoting Dogmatique

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The bank does not have to prove they mailed you a letter. Take your feelings and put them to one side; you're not the victim here and pretending to be one isn't going to help you one iota.

Why are you no longer prepared to negotiate? Hurt feelings?

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I didn't mean for it to some across quite like how you interpreted it.

I was in a rush initially posting the topic and can add more info that I couldnt get in earlier.

I have tried contacting the collector multiple times and have asked them I am willing to setup a payment plan with them at any time. The thing I don't want to happen is, I dedicate a payment plan to them and they then actually garnish my paychecks also.

I have spoken to the collector once, she is very hard to get ahold of, she seemed very nice and like she understood my whole ordeal. She couldnt answer me directly on the question I want to ask you people.

If I set up a payment plan with them that they accept, let's say for example it's $200 a month. If the court date still happens and they get their judgement are they very likely to try to seize everything they legally can, or is it possible they will let me honor my payment plan and only resort to a garnishment at any time if I miss even 1 payment? I also faxed the attorney whom his name is the name of the collection agency, havent heard anything back yet, but I only sent it this past Monday.

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Quoting victim311

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I didn't mean for it to some across quite like how you interpreted it.

I was in a rush initially posting the topic and can add more info that I couldnt get in earlier.

I have tried contacting the collector multiple times and have asked them I am willing to setup a payment plan with them at any time. The thing I don't want to happen is, I dedicate a payment plan to them and they then actually garnish my paychecks also.

I have spoken to the collector once, she is very hard to get ahold of, she seemed very nice and like she understood my whole ordeal. She couldnt answer me directly on the question I want to ask you people.

If I set up a payment plan with them that they accept, let's say for example it's $200 a month. If the court date still happens and they get their judgement are they very likely to try to seize everything they legally can, or is it possible they will let me honor my payment plan and only resort to a garnishment at any time if I miss even 1 payment? I also faxed the attorney whom his name is the name of the collection agency, havent heard anything back yet, but I only sent it this past Monday.

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Generally IF they are willing to set up a payment plan with you they will not proceed with the court date.

You have to understand something about collection agencies.

They don't want talk.

They want money.

So, while you are trying to talk to them about your willingness to enter into a payment plan they are ignoring you and will continue to do so until they do take you to court, get a judgment and garnish your pay.

If you are willing to send them $200 per month, send them a money order for $200 right now. You don't want to send a personal check or a cashier's check because that tells them where you bank for when they get the judgment and go after your bank account as well.

Once you've sent them the first $200, scrape together the next $200 as fast as possible and send it. As long as they are getting a steady stream of money, they aren't likely to spend money on a lawsuit.

Unless, of course, $200 per month is less than 25% of your take home pay. Then they'll just file suit and get a lot more than $200 per month out of your pay.

As I wrote earlier, talking about paying is not paying. Paying is paying.

What good will it be though, if I do get garnished, then that means I cant pay rent, therefore I have nowhere to live, can't pay my current car loan, oh hey that opens the door for repossession #2 in 2 years, next step after that is I lose my job, well now it looks like noone is getting any money now, me and them. This would just start a cycle that isn't necessary.

I forgot to mention the thing for the court date already includes their attorney/court fees of over $2k, when I told them I could give them $200 today (at that time) and if they could forego those costs or going to court, once the collector passed the message to the bank they replied no, so it seems they want to go to court, minds already made up.

So they've already filed. They're not likely to quit at this point - they have no reason for doing so. Look at it from their point of view - why should they believe you? You've already let it go this far.

Don't be misled into thinking that you being out of work now means they can't collect. Judgments last an awfully long time and if you plan on being unemployed for the next 20 years, you have bigger problems.

they aren't going to give up the attorney fees. That is apparently the only reason you are wanting to pay now. I guess they are doing their job well.

sorry you are where you are but you promised to pay back the money. They are simply holding you to your promise

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Quoting Dogmatique

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So they've already filed. They're not likely to quit at this point - they have no reason for doing so. Look at it from their point of view - why should they believe you? You've already let it go this far.

Don't be misled into thinking that you being out of work now means they can't collect. Judgments last an awfully long time and if you plan on being unemployed for the next 20 years, you have bigger problems.

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I specifically stated in the OP that I did not let it go this far, I was waiting on the bank to tell me when the car sold at auction so I would know remaining balance, and then I would immediately set up payment options. It's finding out much later that they didnt tell me it had sold when they told me they would tell me it when it did. If the phone calls in 2011 actually exist somewhere, and then assuming I had some way of obtaining those calls audio, and also the frequency with which I had been contacting them, since it was explicitly stated on those calls that they would let me know when it sold and how much the balance remained was, couldnt that be leverage? I never wanted it to get this far. Some of you posters responses are acting like you are completely on their side when you can clearly understand the story I'm explaining, and what im explaining is, they wouldnt need to be taking me to court if they wouldve told me a year ago, here the car sold, here's the remaining balance, if they couldve tried to garnish me at any time, why would they wait over a year 1st? If they waited over a year, wouldnt they have tried to send something to me inbetween it selling and me getting the court letter to tell me what's up? The burden is not all completely on me, if someone owed me $, I wouldnt not send them anything for 2 years and then just decide to sue them, that makes 0 sense.

It's not leverage at all. If only because it's their word against yours. They don't have to prove a thing.

And yes, the burden is actually on you completely in this instance.

I'm getting the feeling that I'm not being understood well, or my post isnt being fully read. Banks take a risk when they sign anyone to any loan, either way they make out in the end, whether it takes the term of a loan naturally or longer if it involves a collection agency, they get interest and other $, the risk they take rewards them in the end no matter what. They should have some responsiblity to let the person that owes them $ to know what's going on with their loan, especially since the loan could have potentially been paid off if they sold car for a high amount, but because it didnt they just keep quiet and let it sit for over a year, noone has explained to me yet how this makes any sense. Also, wouldnt me knowing that my loan got $3k cheaper because my car sold be enough to warrant them to alert me to that?

I'm just not sure you're understanding the legal reality.

It doesn't have to make sense to you. The law doesn't work with "ifs". The bottom line is, you owe the money, and they'll get their money somehow.

If the judge rules and gives the collection agency the right to garnish my paychecks, is there an appeal time period where this time period has to elapse before they can start garnishing, or could it happen right away? Also, if I did want to appeal, will that cost me money to the court?

What would be the reason for the appeal?

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Quoting victim311

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If the judge rules and gives the collection agency the right to garnish my paychecks, is there an appeal time period where this time period has to elapse before they can start garnishing, or could it happen right away? Also, if I did want to appeal, will that cost me money to the court?

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Doesn't work that way so let me try to clear up the process for you.

Right now all you've gotten is a letter threatening you with a lawsuit. If you have not been served a summons and complaint, then you haven't been sued.

However, once you get served with a summons and complaint you get to go to court and defend yourself.

If you lose, the creditor gets a judgment that says you owe the money and how much you owe. The judgment will likely also list the creditor's court cost and process service fees and a post judgment interest rate.

From the date of the judgment you have a limited amount of time to file an appeal, usually 10 to 30 days. You'll have to find out what yours is. There are likely court fees to pay when you file the appeal. You might have other expenses like the cost of a transcript.

The judgment creditor is not permitted to take any action on the judgment until the appeal deadline passes. If the appeal deadline passes and you haven't filed an appeal the creditor files the garnishment papers with the court and serves them on your employer. That's usually your first notice that your wages are being garnished. There is typically a waiting period of 10 to 20 days for the employer to respond and start taking the money out of the pay. During that time your state law might give you the option of disputing the garnishment based on whatever exemptions might be available to you. Generally, however, once your employer gets served, it's a done deal and in the next pay period the employer will withhold the money and send it to the creditor or to the court for dispersal to the creditor, whichever way your state works. From then on, as long as you work there, the garnishment will continue until the debt is paid (along with all the costs) or you file bankruptcy or quit the job.

How do I determine if what I got from the collection agency is a "summons and complaint?" The thing I got states that I am being sued, lists the date, time, and location of the court appt. and says in my absence they can rule anyway, making it seem like I don't have to show up. I'm assuming I would still show up on that date and try to defend myself, or is this just collection agency plus a judge and I'm just a bystander watching a trial.

"Summons and complaint" = you're being sued, for this amount, in this court, for this reason.

If you don't turn up, they'll get what they want by default.

(To clarify - they have gone beyond a threat to sue. They've already gone ahead and filed)

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Quoting victim311

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How do I determine if what I got from the collection agency is a "summons and complaint?" The thing I got states that I am being sued, lists the date, time, and location of the court appt.

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Lawsuit papers are generally obvious that they are lawsuit papers. However, if it's not obvious, see if the named court has a case search feature on its website and look up the case number or your name or call the court and ask.

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Quoting victim311

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says in my absence they can rule anyway, making it seem like I don't have to show up.

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True, you don't have to show up if you don't mind getting a default judgment against you for whatever amount the creditor says.

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Quoting victim311

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I'm assuming I would still show up on that date and try to defend myself, or is this just collection agency plus a judge and I'm just a bystander watching a trial.

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By showing up you force the creditor to prove the debt and the amount that you owe and you get the opportunity to question the creditor about documentation of the debt and how the amount was determined.

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Quoting victim311

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How do I determine if what I got from the collection agency is a "summons and complaint?"

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Quoting victim311

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The thing I got states that I am being sued, lists the date, time, and location of the court appt. and says in my absence they can rule anyway, making it seem like I don't have to show up.

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That sounds to me like a summons and complaint. Generally speaking, the documents will describe themselves that way or, in Virginia, possilbly as a "warrant in debt" if the amount owed is within the jurisdiction of the District Court and the creditor chooses that approach over a summons and complaint. Depending on the amount of the debt, this matter could be in small claims, district court, or circuit court - read the papers you were served and let us know, as it can impact discovery and other procedural issues.

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Quoting victim311

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I'm assuming I would still show up on that date and try to defend myself, or is this just collection agency plus a judge and I'm just a bystander watching a trial.

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If you choose to default, a default judgment will be entered against you. You can only raise defenses if you properly answer the complaint, properly raise your affirmative defenses, appear in court as required, and defend against the lawsuit.

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Quoting victim311

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I wait quite a long time to see anything in the mail from them telling me it sold and what remaining balance is.

2 years later I get letter from collection agency saying they are taking me to court to get approval for a judgement against me.

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Are you stating that you did not get either notice of the sale or notice that the car had been sold? Did you move during that period?

You may be able to build a partial defense or counterclaim based on lack of notice.

See the UCC, Code of Virginia Title 9a, Part 6, including, Va. Code § 8.9A-626(c) and § 8.9A-625(c)(2) and Cappo Mgmt. V, Inc. v. Britt, 711 S.E.2d 209, 211 (Va. 2011).

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Quoting victim311

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If I set up a payment plan with them that they accept, let's say for example it's $200 a month. If the court date still happens and they get their judgement are they very likely to try to seize everything they legally can, or is it possible they will let me honor my payment plan and only resort to a garnishment at any time if I miss even 1 payment? I also faxed the attorney whom his name is the name of the collection agency, havent heard anything back yet, but I only sent it this past Monday.

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You will need to find out from them what they will do. If they have filed a lawsuit despite their negotiation with you, it sounds like they regard the negotiations as having failed. Most creditors, following the filing of a lawsuit, are going to want a consent judgment. They may (for example) stipulate to $200 per month payments, with the balance immediately due if you miss a payment. Only they can tell you what they plan to do, and what agreement they might find acceptable.

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Quoting jk

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they aren't going to give up the attorney fees. That is apparently the only reason you are wanting to pay now. I guess they are doing their job well.

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Their eligibility for attorney fees will normally depend on the terms of the loan agreement and its default provisions.

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Quoting victim311

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If the phone calls in 2011 actually exist somewhere, and then assuming I had some way of obtaining those calls audio, and also the frequency with which I had been contacting them, since it was explicitly stated on those calls that they would let me know when it sold and how much the balance remained was, couldnt that be leverage?

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Try asking them for copies of the notices that they sent to you.

Thanks for some helpful info in this last post.

I don't have too much time, but a few questions.

If this counter-defense is valid for my issue, which I believe it to be, will the bank have to prove I received the mail (if they say they sent it) by me having signed that I received it? Is a certified letter something that requires a signature?

Assuming my counter-defense based on your example is valid in my case, is it fair to ask the Judge to rule that interest accrued since the sale of the car and attorney fees would be waived, and they would deny a judgement to the creditor and then expect them to come to a payment arrangement with me?

Also, when I looked up Va. Code § 8.9A-626(c), I didn't see a (c) in the links there.

edit: I never moved, still in same place.

Virginia does allow service by first class mail; if they've followed the correct procedures it will be deemed valid service.

(Obviously first class mail does not require a signature and you can't really expect the plaintiff to prove a negative)

I didnt see it mentioned in that Britt case he linked, but was Nissan not able to prove they mailed something to Britt?

edit: How does someone prove they mailed something 1st class? They no longer have what they (said they) mailed obviously.

Also, anyone know answer to my previous question:

Assuming my counter-defense based on your example is valid in my case, is it fair to ask the Judge to rule that interest accrued since the sale of the car and attorney fees would be waived, and they would deny a judgement to the creditor and then expect them to come to a payment arrangement with me?

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Quoting victim311

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How does someone prove they mailed something 1st class?

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a copy of the signed, dated letter with your address on it is usually sufficient.

The court cannot compel the creditor to agree with a payment arrangement.

Virginia only requires a certificate of mailing to prove service by mail in debt cases. There are some other cases where the service has to be done certified/RRR (zoning cases, I remember filling out all those RRR cards when applying for my variance).

Lots of different responses here. A "copy" of a signed/dated letter can be created/forged by the bank at any time, how could that prove they mailed it? A "certificate of mailing" is what exactly? Also, what is a circumstance where they need to be done certified/rrr?

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I want some answers please to a few questions that have gone unanswered.

Assuming my counter-defense based on your example is valid in my case, is it fair to ask the Judge to rule that interest accrued since the sale of the car and attorney fees would be waived, and they would deny the right to put a judgement on me to the plaintiff?

Also, when I looked up Va. Code § 8.9A-626(c), I didn't see a (c) in the links there. Help here please.

A "copy" of a signed/dated letter can be created/forged by the bank at any time, how could that be proof that it was mailed?

A "certificate of mailing" is what exactly?

Also, what is a circumstance where they need to be done certified/rrr?

Thanks for all help.

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Quoting victim311

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Lots of different responses here. A "copy" of a signed/dated letter can be created/forged by the bank at any time, how could that prove they mailed it? A "certificate of mailing" is what exactly? Also, what is a circumstance where they need to be done certified/rrr?

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The bank and its employers tend to be considered as reliable and law-abiding. After all, they must go through a much more thorough background check than the norm.

You can ask whatever you want. The concept of "fair" is obviously something that varies.

CCCR is not relevant here since your state (or that of the bank) allows for service by regular mail. The USPS has more information on a certificate of mailing.

My specific questions under "Updated" are important to me and have yet to be answered fully.

Also, court relies on "beyond a reasonable doubt" all the time. If I can present information that creates doubt, it shouldn't matter who the plaintiff is.

Uh...no. When you're in civil court, the standard is NOT "beyond a reasonable doubt. Maybe that's where you're going wrong?

How come Mr.knowitall was the only poster in this thread to actually give me thorough answers, including showing me possible chances that the bank made some mistakes too?

I have been seeking clarification on certain things he posted but he hasn't been back in this thread.

I need to know that if my counter-defense has anything to it, since it is a Virginia law that they potentially broke, how that could affect the verdict or my ability for a counter suit.

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Quoting victim311

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How come Mr.knowitall was the only poster in this thread to actually give me thorough answers, including showing me possible chances that the bank made some mistakes too?

I have been seeking clarification on certain things he posted but he hasn't been back in this thread.

I need to know that if my counter-defense has anything to it, since it is a Virginia law that they potentially broke, how that could affect the verdict or my ability for a counter suit.

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so, how many people responding have you paid for answers? None you say? Well, unless people get paid for something, they really don't have an obligation to respond in any particular way.

as far as Mr' K, just hang around. He's always here....somewhere.....lurking in the shadows......watching......waiting.....preparing to respond when the time is right.

and have you followed his directions? Have you answered any questions he asked?

I did, only question he asked in that thread was if I got neither notice about where car was going to auction and that it had sold and if I had moved or not. I stated I got neither and I didn't move.

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You can only raise defenses if you properly answer the complaint, properly raise your affirmative defenses, appear in court as required, and defend against the lawsuit.

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How do I "answer the complaint" and properly raise my affirmative defenses?

Here's the thing.

For the most part, we cannot hold your hand during the process.

You can look to the court rules, and examples online perhaps, to find out and what to file.

One thing I CAN tell you is this:

We are unpaid volunteers here. We have lives too. We can generally only give you barebones information; sometimes that will include web links, sometimes it can explain the very basics, sometimes "You seriously need an attorney" is the only responsible advice we can give. .

Y'know?

There are guides that try to give the basics of what to do if you're sued - such as this one - but I suggest also reviewing the court rules, state and local, for the court in which the action is pending. You can also find practitioner's guides to civil procedure, likely in the county law library or in a local law school library. If you find yourself in way over your head, you may need to get help from a lawyer.

Incorrect....as per Virginia law......keeping in mind I am a Co owner of a Virginia towing/Report outfit.....that the lender WAS REQUIRED by law to provide you notification,of date of sale of collateral....if they statutorily failed to meet that requirements and subsequently liquidated the vehicle then you by law have NO exposure or liability to satisfy the deficiency.
This is an affirmative defense that should be used and provided to the court in your grounds of defense in rebuttal to the lenders bill of particulars.

See: Virginia Code

2 years to sue for judgment IS within the timeframe however if I understand you....you were never served your notice of auction...notice of deficiency....or your right to redemption documents to which you were legally entitled.

Many of the smaller credit corps./ banks/car lots here in VA prefer to just repossess and resell after obtaining the report title. Lately however we have seen a resurgence of these same organizations later deciding to try to double dip by suing for deficiency judgment.
In VA. You don't get your cake and eat it too...or what's equivalent to double jeopardy........these places buy the cars for 2000 dollars and then sell them for 6-8 while requiring that 2000 down effectively covering their costs before the car has even left the lot....any additional payments are pure profit. These outfits expect high default rates and simply recondition the car after repo and move to resell again requiring 2000 down.....I've seen dealers resell popular models 3 to 5 times.....it's a real bottom feeder type operation. They essentially hope you default....if you don't great.. They make 6-8 I and any interest ....or repo fees which can be upward of 700 dollars when the tow company is only being paid 125 to 200.
While some argue it's a free market the reality is these bottom feeders prey on those with poor credit here in a region with very poor transit options DEMAND that those who want to work MUST have an auto.

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So you will appear in General District Court-Civil Division
On your first appearance you'll only be required to notify the court that you intend to contest the Warrant in Debt or you do not.
The judge will set a return date for trial....this will be THE day
The judge will also provide you with a date on which you MUST have returned your ;Grounds of Defense" form.
The Plaintiff will file a "Bill of Particulars" by the same date.....this is the form on,which they explain why and how they believe you owe them.
The Plaintiff is required to mail one copy of the BOP to you just as YOU must mail,one copy of YOUR GOD filing to them by the date the judge directs.
Failure on either party to provide these documents to the court and the opposing party
Will result in automatic judgment entered against the offending party.

Your GOD should include your response that you were never offered an opportunity to redeem....or a notice of when and where your auto would be auctioned. Additionally you were never provided notice of deficiency.....or right to cure documents.
Write this in your Grounds of Defense then mail it as per instructed.

Let us know how that goes then we can go from there....

Disclaimer:


Again I am not an attorney and cannot give legal advice....in any event consult an attorney for accurate and factual council.

Again publiuslocal, thanks for registering and posting. A repo professional would be a great addition around here.

The problem in all of that is if the creditor did provide notice in a manner as required by law, none of it matters. While op claims to have not been given notice, so often that is really I don't remember receiving a notice or I don't know if I received a notice. If the creditor has the required proof, it doesn't matter what the op remembers

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Quoting victim311

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If the judge rules and gives the collection agency the right to garnish my paychecks, is there an appeal time period where this time period has to elapse before they can start garnishing, or could it happen right away? Also, if I did want to appeal, will that cost me money to the court?

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If you lose you can appeal within 10 says....also...and this is tough....if...if you lose you must post an appeal bond equal to whatever the judgment is in order to appeal. Personally many of us are working with state legislators to either remove this or reduce it to only a percentage of the judgment.

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Quoting jk

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The problem in all of that is if the creditor did provide notice in a manner as required by law, none of it matters. While op claims to have not been given notice, so often that is really I don't remember receiving a notice or I don't know if I received a notice. If the creditor has the required proof, it doesn't matter what the op remembers

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True....however the lender will have to prove service of process was effected properly and legally. The op seems pretty insistent he never was served ANY notice....9 out of 10
times a judge will be very cautious when defendants claim they weren't served. The lender BETTER have either the Sheriffs Affidavit of service OR a process service prepared in court. Either way this OP may have a very good case....additionally I would file a counterclaim naming the lender and the repossession agency of breach just to cya.