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Need help regarding a lawsuit and delaying for bankruptcy

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  • Need help regarding a lawsuit and delaying for bankruptcy

    I’m being sued on one of my credit cards. The problem is I can’t file for bankruptcy until December—my bankruptcy lawyer said it’s best not to file until then and I will qualify for chapter 7. I already filed an answer to the lawsuit just saying I didn’t agree with the amount—I’m not sure if it’s right or wrong since I can’t get access to my online statements anymore. I also said in my answer that I elect to have arbitration per my credit card agreement. This lawsuit is coming from a lawyer from the original creditor.

    I checked with the court’s website and it shows a pretrial conference scheduled in July. I don’t know what to do. I’ve been trying to find ideas on how to delay this long enough but I’m feeling lost. Some people say to push for private arbitration and that should buy time and some say to ask for a continuance pending bankruptcy and that should buy time.

    I had a free consultation with a creditor lawyer but he makes me feel pretty hopeless. He said to try giving the judge a letter asking that this dispute be moved to private arbitration per my credit card agreement but he knows this judge and he’s strict and wants to move fast that he may just deny this. Can he do that if it’s in the credit card agreement, though?

    I’m just hoping for some feedback and if anyone had experience with this and what worked for them to try and delay until they could file for bankruptcy.
    Thanks!

  • #2
    Check with your BK attorney. Sometimes, but not always, simply notifying a creditor that you're going to file BK can slow/stop litigation. Let's say you go to court in July/August and they get a judgement. And let's say they seize your bank accounts or garnish your wages. In BK, you have a decent chance of getting those funds back, so they'll have spent money on litigation for nothing.

    I don't want to give you false hope, not every creditor acts logically, but it's worth at least chatting about with your BK attorney.
    This post does not constitute legal advice. If you use this advice instead of that of a lawyer, God help you.
    Filed CH 7: 5/11/17 341: 6/12/17 Discharge: 8/14/17

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    • #3
      You have a 100 percent chance to get garnished or seized wages back that was 90 days before you filed BK and the total amount is over 600 dollars. I had to pay back my debtor 2100 dollars when I received her demand letter. I had to send proof to the Trustee.

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      • #4
        Seriously talk to your bk attorney about a suggestion of bankruptcy letter. You may have to pay extra for it but it should stop or slow them down.

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        • #5
          Thank you all for your feedback—I really appreciate it. I was thinking about that too and forgot to mention it but after I filed the answer with the court, I sent a letter to the suing lawyer saying I retained a bankruptcy lawyer and that I intend to file for bankruptcy once all my paperwork is in order (didn't want to mention December, though) hoping they may reconsider but I haven’t heard anything from them. I was thinking they aren’t interested to hear that until I actually have a case number or maybe I did something wrong and this will cause more problems with the lawsuit? So I thought I had to stick with trying to do arbitration or find something else to delay. This is something I can ask my bankruptcy lawyer to send out as well?

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          • #6
            Having already invested the cost to prepare and file their lawsuit, why would the plaintiff back off now? Until and unless you can provide a bankruptcy case number, they are going to proceed full steam ahead. Your only hope of delaying the judgment is to file an answer to the lawsuit, making sure to raise one or more defenses. Even if you fight the good fight, serve the plaintiff with your own discovery requests, motions, etc, you are unlikely to delay the judgment by more than 3 to 4 months, which means that judgment enforcement before you can file is unavoidable.

            Your best course of action at this point is to try to make yourself as collections-proof as possible. Request your pay be given as a paper check (no direct deposit) and cash your paychecks and buy money orders to pay your rent, utilities, etc. Operate on cash only, and keep no more than what you can afford to lose in the bank.

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            • #7
              Thank you. That’s what I’m afraid of and that they’ll just keep going after me and the only thing that will stop them is actually filing for bankruptcy—but I’m stuck right now that I can’t file. My bankruptcy lawyer was saying that if it gets to be a judgement that they will most likely notify my employer to garnish my checks. I’m in Wisconsin if that makes any difference. So I’m wondering if getting a paper check instead of direct deposit will help me? I’m really worried about this and hope this can be pushed off for a while.

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              • #8
                Originally posted by bcohen View Post
                Having already invested the cost to prepare and file their lawsuit, why would the plaintiff back off now?
                Because, while they've already paid the cost of the lawsuit, they have not yet paid the costs inherent in enforcing a judgment (asset search, filing for writ of garnishment, etc.) If it becomes clear that they're not going to recoup those costs because a bankruptcy is imminent they may choose to not proceed any further. Not saying it's a certainty, but a possibility.

                This post does not constitute legal advice. If you use this advice instead of that of a lawyer, God help you.
                Filed CH 7: 5/11/17 341: 6/12/17 Discharge: 8/14/17

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                • #9
                  Originally posted by oscar65 View Post
                  So I’m wondering if getting a paper check instead of direct deposit will help me? I’m really worried about this and hope this can be pushed off for a while.
                  If they garnish your wages, getting direct deposit or paper check won't make any difference. The garnishment is served on your employer, and they're required to take the legally allowed amount out of your pay regardless of payment method.

                  A paper check would only protect you from having bank account funds seized, since you could cash it instead of depositing it. But again, if they serve garnishment on your employer that won't matter, since the garnishment amount will be taken from your check anyway.
                  This post does not constitute legal advice. If you use this advice instead of that of a lawyer, God help you.
                  Filed CH 7: 5/11/17 341: 6/12/17 Discharge: 8/14/17

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                  • #10
                    Originally posted by rjmwx81 View Post

                    If they garnish your wages, getting direct deposit or paper check won't make any difference. The garnishment is served on your employer, and they're required to take the legally allowed amount out of your pay regardless of payment method.

                    A paper check would only protect you from having bank account funds seized, since you could cash it instead of depositing it. But again, if they serve garnishment on your employer that won't matter, since the garnishment amount will be taken from your check anyway.
                    Sure, however it is much harder for a non-governmental creditor to locate a debtor's employer than to locate their bank account. Unless you have applied for credit or an apartment lease at some point in time, and given your current employer's name on the application, the judgment creditor would not be able to easily obtain that information. (If you did, then your employer would show up in your credit reports, which the judgment creditor will have access to.) When you open a bank account, the bank runs a ChexSystems report, and shows up there as an inquiry, which a judgment creditor can access, to see the name of your financial institution. With that information, they can seize all of the funds in your account, except for a very, very tiny amount which is exempt by law. (The exact amount varies by state.)

                    In any case, direct deposit would risk having all of your money taken--the situation where your wages are garnished from the employer (15% max. for a consumer creditor) and then the rest is taken from your bank account. Obtaining and cashing a paper check would prevent the judgment creditor from touching anything above and beyond what they could legally garnish from your employer, and that assumes they are even able to figure out where you work. Most likely, you will see a bank account levy long before your wages are garnished. Move your money now (into cash) while you still have the chance!

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