should i file now or wait?

[jdphillips73]

heres my story.

my former employer is currently seeking a judgement for 38000 for "intentional breach of contract" I am a r.n. and I signed a 3 year employment contract, and I quit after 1 1/2 years. Thus the lawsuit. They have just made a motion to the court to "compel discovery" I believe their next motion will be "motion for sactions" and then the court will award them a judgement by default. I can't fight the fact that I did quit the job, so I havent been fighting it. Every lawyer I have talked to says it will be dismissed in Bk ch 7.

Since the "income lookback" is 6 months, I am trying to get my income in order.
I am currently working on getting my income under the tennessee means. I need 4 more months to complete it, as of now i am over it by about 10k

My lawyer said I could file now and he will claim that "even thou my income is high, i still pass the means tests, and he will claim that my overtime was cut. (which is exactly what i am doing right now, NO OVERTIME)

HERES MY QUESTION:
1. should i file now before they have a judgement? If I file now will it stop the proceedings in the "breach of contract" case? Even though, I make too much money according to the 6 month lookback, but I do pass the means test?

2. or should I wait until they get their judgement, at which time my income will be under the amount of the "6 month lookback".

I feel like whatever I do, these guys are gonna fight the bk ch 7 because they are a local company with a in house attorney.

Any ideas?

[MomIcantFindmy]

Do you have anything of value they can look for? Can income be garnished in your state? Those are questions I would be asking. They will have to go back to court after the judgment to seek a garnishment. If it were me I would wait out the time until your income drops and you fall squarely into a 7 on the means test. If you are pushed into filing early by a judgment your income will still be lower. Don't worry about the the local company fighting the 7, you can only control what you do. If they fight the discharge of that judgment they still have to prove to the judge why they should be allowed to proceed. It is not as easy for them as it looks.
Several attorneys in your area should be able to give you some sound advise on this. What have you found from them?

[JRScott]

The first part of the means test is the income part where you either fall below the median (and pass) or are above the medium (and fill out the rest)

Have you competed the second portion of the means test to see if you can qualify?

Waiting might be best, however up to that point if they get the judgment and your state allows garnishment they could garnish your wages and/or bank accounts.

To me that seems like a very bad contract to begin with though. I mean 38000 dollars assuming a 2000 hour work per year so 3000 for 18 months is 12.67 per hour. Did you make more than that? Seems pretty nasty. It saddens me that such contracts could be considered legal, its basically indentured servitude or slavery.

[woeisme]

I don't understand the amount they say you owe them either. Did they pay for your education or give you signing bonuses that they are trying to recover damages from?

I'd probably wait until after judgement but before they get a garnishment to file. Is there any way you can "delay" the judgement to give you even more breathing room to get to the CH 7 income? File motions that they have to repond to, etc?

[jdphillips73]

first, I was a R.N. nurse that came from the Phillipines on a visa, they paid for the plane ticket, visa costs, etc... They have bloated the 38k, i dont believe they are entitled 38k for 1 1/2 years of unfulfilled contract.... but they will get it.

I am now a legal permanent resident of u.s.

They have just filed a motion to compel me to respond to "requests for discovery" basically wanting past income tax returns, etc.. I am going to do exactly what you suggested and try to drag this out til december. I will be under the means limit in dec.
I would like to file even before they get the judgement.

Question: if i file before they get the judgement in civil court, what will happen to their ongoing claim in that court? does the bankruptcy court override it? Do they send something to the civil court?

[deafbroke]

Do what your attorney said to do. File now.


DB