Tuesday, May 23, 2006
Account sold to debt collectors
After we sent Bally a letter threatening to sue, Bally decided to sell our account to a debt collection agency. My husband was surprised to receive a phone call from someone at Zwicker Associates telling him he had better pay up. We had assumed that since we filed our suit, Bally would realize we meant business and cut the crap. Apparently, we were wrong.
Anyway, the well-mannered individual we spoke with told me that my husband must be an idiot who couldn't read and that we should drop our court case. Good legal advice from someone who isn't even an attorney.
From this experience, I learned that you have the right to send a letter to any debt collector asking them not to contact you. Once you have done so, they can only contact you again if they decide to file suit to collect the debt. In this case, I wasn't worried because we filed our suit before our account was even sold. Whoever files first gets to pick the court, etc. The defendant must then file their claims as counter-claims in the same suit.
I have been told by the nice people at Zwicker that they await the outcome of our litigation and will not be calling us again, so that's good news. It looks like Bally has screwed them too by selling a debt that they cannot legally collect. It's good to know that Bally doesn't just stick it to the little guy.
Anyway, the well-mannered individual we spoke with told me that my husband must be an idiot who couldn't read and that we should drop our court case. Good legal advice from someone who isn't even an attorney.
From this experience, I learned that you have the right to send a letter to any debt collector asking them not to contact you. Once you have done so, they can only contact you again if they decide to file suit to collect the debt. In this case, I wasn't worried because we filed our suit before our account was even sold. Whoever files first gets to pick the court, etc. The defendant must then file their claims as counter-claims in the same suit.
I have been told by the nice people at Zwicker that they await the outcome of our litigation and will not be calling us again, so that's good news. It looks like Bally has screwed them too by selling a debt that they cannot legally collect. It's good to know that Bally doesn't just stick it to the little guy.
Filing a small claims case
We filed our small claims case in May after only 3 trips to the courthouse. To save others some time, here are my tips.
Preliminary Tip: Check to see if your state has any requirements about attempting to settle before you sue. In California, we were required to send a letter to Bally 30 days before suing offering them the chance to fix the situation. Make sure to send this letter certified so you will have records to bring to court with you.
1. Call the local small claim advisor and make sure your forms are filled in and that you are filing at the right courthouse before you go. They can also give you information on what to do at your court appearance, etc.
2. Make sure you are suing the right entity. Bally should be sued as Bally Total Fitness Holding Corporation. The address to use on the small claim form is the address of their agent for service of process in the state you are suing.
3. Get the address for service of process. All corporations have to file with the Secretary of State in order to do business in a given state. This filing will include the name and address for the agent for service of process. This is the person who needs to get a copy of your case in order to give proper notice to Bally. If you are having problems getting this information, you can email me at jessambu@hotmail.com. (Please note that I assume no responsibility for incorrect information so it is important to double check any info. This goes for info provided to you by anyone you deal with on your case.)
4. Decide what you are suing for. In our case, we were able to sue for fraud and harrassment under the CA debt collection laws. We were therefore able to request punitive damages (we asked for over $4,000-- of course, the court will decide what to award.) Remember, in order to sue in small claims court, you must be asking for at least some money. If you are only asking for a court order, you can't sue in small claims.
5. Make enough copies - 1 for you plus one for each defendant. If you are having a sheriff serve the papers on the defendant, make an extra copy because the Sheriff will need two copies (one will get sent back to you when service is complete, but it's good to have a copy on hand just in case).
6. Keep good records of everything. You'll need evidence to prove your case.
** All the information in this post is for informational purposes only. I am not an attorney and this information is not provided for the purpose of giving legal advice.
Preliminary Tip: Check to see if your state has any requirements about attempting to settle before you sue. In California, we were required to send a letter to Bally 30 days before suing offering them the chance to fix the situation. Make sure to send this letter certified so you will have records to bring to court with you.
1. Call the local small claim advisor and make sure your forms are filled in and that you are filing at the right courthouse before you go. They can also give you information on what to do at your court appearance, etc.
2. Make sure you are suing the right entity. Bally should be sued as Bally Total Fitness Holding Corporation. The address to use on the small claim form is the address of their agent for service of process in the state you are suing.
3. Get the address for service of process. All corporations have to file with the Secretary of State in order to do business in a given state. This filing will include the name and address for the agent for service of process. This is the person who needs to get a copy of your case in order to give proper notice to Bally. If you are having problems getting this information, you can email me at jessambu@hotmail.com. (Please note that I assume no responsibility for incorrect information so it is important to double check any info. This goes for info provided to you by anyone you deal with on your case.)
4. Decide what you are suing for. In our case, we were able to sue for fraud and harrassment under the CA debt collection laws. We were therefore able to request punitive damages (we asked for over $4,000-- of course, the court will decide what to award.) Remember, in order to sue in small claims court, you must be asking for at least some money. If you are only asking for a court order, you can't sue in small claims.
5. Make enough copies - 1 for you plus one for each defendant. If you are having a sheriff serve the papers on the defendant, make an extra copy because the Sheriff will need two copies (one will get sent back to you when service is complete, but it's good to have a copy on hand just in case).
6. Keep good records of everything. You'll need evidence to prove your case.
** All the information in this post is for informational purposes only. I am not an attorney and this information is not provided for the purpose of giving legal advice.
