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Judgement for not responding to AP

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  • Judgement for not responding to AP

    I filed last spring Ch 7. thought it all went smooth, discharged in July, I thought there were no issues.

    About 4 months ago I started getting collection notices on 9500 from a pre bk credit card. I faxed one of the letters to my attorney in January, but never heard anything back so I assumed that they handled it. Still kept getting notices, so I finally called the collection company last week and they sent me a copy of a judgement against me for the full amount because we didn't respond in time last summer to the Adversary Proceedings.

    I called my attorney and she tells me that they received that AP last year and sent me a letter asking if I wanted them to represent me in the matter. I DO NOT remember this letter, don't remember getting notice from the court or the creditor either. I kept a file of papers and it's not in there.

    Anyone have a suggestion for me? If I had the 9500 I would have paid the debt off. I don't even know why they filed the AP in the first place.

    I am SO frustrated thinking that this was behind me and now it's right in my face again. Shouldn't my attorney have done more than 1 simple letter to let me know about it?

    I am sick and want to curl up in a corner and forget this whole thing.

  • #2
    You need to go back to the attorney or find another as it sounds like YOU were not properly served with the Summons and Complaint.

    For service in an AP to be valid the Plaintiff had to send a copy of the Summons and Complaint to YOU and your attorney. Simply sending it to the attorney is not proper service. See Bankruptcy Rule 7004(b)(9) and 7004(g).

    Service is by 1st class mail to the address listed on your petition or on the Notice of Change of Address filed with the Court if applicable. You will want to pull the Certificate of Service in the AP off of the PACER system to see where, and to whom, the creditor mailed the Summons and Complaint. If it was not served upon you, you may have grounds to file a Motion to Reopen the AP and request that the default judgment be set aside for incomplete/improper service.

    If the Motion to set aside the default judgment is granted you may have grounds to seek the dismissal of the entire AP since the Complaint was not properly served within 120 days of its filing. If the Complaint is dismissed the debt will be subject to the Discharge since the filing of an AP is time sensitive. To push this issue you probably need a well seasoned attorney who understands that 523/727 Complaints not served within 120 days are stale and subject to dismissal with prejudice if the creditor is beyond the date to file such Complaints.

    Des.

    Comment


    • #3
      I really appreciate your time to help me understand and make the next step on this. I have never logged into PACER before (didn't think I needed to since things went "smoothly" and I "trusted" my attorney).

      So I requested a login and got in tonight. I look up in my court (northern Illinois) the case # on the Default Judgement that they sent me. I typed it into the case # field, but it comes up with dates from before I even filed and with names that don't match my case?

      Thanks! I also called my attorney who said they would look into anything that they could do, but at this point I don't trust them all that much.

      Comment


      • #4
        Originally posted by sadbutinneed View Post
        I really appreciate your time to help me understand and make the next step on this. I have never logged into PACER before (didn't think I needed to since things went "smoothly" and I "trusted" my attorney).

        So I requested a login and got in tonight. I look up in my court (northern Illinois) the case # on the Default Judgement that they sent me. I typed it into the case # field, but it comes up with dates from before I even filed and with names that don't match my case?

        Thanks! I also called my attorney who said they would look into anything that they could do, but at this point I don't trust them all that much.
        Hi - sorry you are having this headache. Log back into PACER and go to "Case Locator;" you will click on your district court then various fields will come up. You can search by your name in one of them (don't put in your case # because the 10-0000 is only part of your case # and you'll get a bunch of other cases. When you enter you name, be sure to put in Last, First (last name, comma, space, first name) or your name might not come up.

        I am very curious to see what you find our about the AP and I hope they did do improper service. Please update us! Also....there is a PACER sticky which is very helpful!
        Filed Ch 7 Pro Se 11-18-2010 341 Meeting 12-16-2010 Discharged 2-15-2011
        New Job 7-2011

        Comment


        • #5
          I'm with Des on this and would fight this under the "improper" service route. That would make the judgment void. I hate when this happens. Service is very important where a summary judgment is granted.

          Do you know why they received a non-dischargeable judgment in the first place? Is this particular card one you used to pay an otherwise non-dischargeable debt (like property taxes or education)? Or was it for fraud?
          Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
          Status: (Auto) Discharged and Closed! 5/10
          Visit My BKForum Blog: justbroke's Blog


          I am not an attorney. Any advice provided is not legal advice.

          Comment


          • #6
            I do not know why they filed. The judgement said "defendant has failed to answer or otherwise appear in this action in the time allowed by law". I just can't imagine that I really received the notice and didn't do anything about it? I saved everything else and not this one piece of paperwork? Doesn't make any sense to me. I am going to try PACER again today with a fresh look at the sticky since when I went back last night and looked up the name it still wasn't all that clear. I will let you know this week as I learn more about the situation. I know it wasn't fraud - I didn't use this card before filing and was making payments until about 3 months before filing.

            I am still sick.

            Comment


            • #7
              Don't be sick. It sounds like improper service, just as Des wrote. Just obtain an appointment with your attorney and go over this process.
              Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
              Status: (Auto) Discharged and Closed! 5/10
              Visit My BKForum Blog: justbroke's Blog


              I am not an attorney. Any advice provided is not legal advice.

              Comment

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