Creditor Lawsuits and Judgments

[frmrdwn]

I wanted to add something to this, since I'm constantly doing research... I have read from several sources that once the judgment is entered, the debtor can be issued an informational subpoena in which he/she is required by law to give the court information on assets (such as 'unknown' bank accounts, cash, property, etc.) which makes seizure by creditors a seemingly simple process.

So, as far as the thread goes, doesn't this mean that once a lawsuit is initiated, a debtor should get on the ball with their bankruptcy? It would seem that this subpoena would make it virtually impossible for someone to play any games to make the judgment uncollectible without risking jail time.

These are just my thoughts on the issue. My first default was at the beginning of July. I haven't answered the continuous calls from the creditors, but have answered the letters to the extent that I cannot afford what they are asking (buying time with a 40 cent stamp). My instincts are telling me that once a lawsuit is initiated, that's the right time for a consult. Either way, a lawyer or a creditor will know what my assets are (nothing spectacular), and I would greatly prefer a lawyer over a creditor if you know what I mean.

Summary: A few uneducated readers might be under the false impression that it is hard for creditors to execute their judgment.

Here is one such find:

"INFORMATION SUBPOENA
If you do not know where the judgement debtor has a savings or checking account, what personal property the debtor owns, or where the debtor works, you may obtain an information subpoena from the Office of the Special Civil Part Clerk. An information subpoena is a court paper containing questions about the debtor's assets.

You may serve an original and one copy of an information subpoena upon the debtor either personally or by registered and certified mail, return receipt requested, and simultaneously by regular mail. You also must provide a postage paid, addressed envelope with the information subpoena. The debtor must answer and return the information subpoena within 14 days from the date on which it was served. An information subpoena cannot be served more than once in a six month period without approval of the court. If the debtor does not answer the information subpoena, he or she is subject to contempt sanctions enforceable by the court."

And the PDF below is a sample:

http://www.judiciary.state.nj.us/rules/app11l.pdf

Many, many questions, such as, where do you work, how much do you make, list all checking and savings accounts, amount of personal property, housing & mortgage information, AND a request for information on all other judgments (hence another creditor can gain access).

I think the last thing anyone wants to see is something like this show up in the mail.

Just because the creditor has access to your bank doesn't mean you must deposit paychecks into it knowing they may seize the entire deposit, does it? I mean, if they garnish your paycheck through work, so be it. There goes 25%. It's not illegal to cash what's left of a paycheck somewhere else is it? Do creditors get in line and wait their turn to garnish?
Sounds like a silly question, but if I know creditors have my account info, I don't have to keep money in the bank just because there's a judgement telling me to list all my account(s), do I?

I'm not talking about hiding thousands and thousands of dollars. Only using my mo. paycheck to live.

Asking because some of my creditors are VERY aggressive (Lowes for one) and I haven't even been 60 days delinquent yet.

[catleg]

I have drilled down on the NJ information subpoenas, and it is not quite as bad as it looks. This is from an appellate court ruling.
http://lawlibrary.rutgers.edu/decisi...92-02.opn.html

But delivery of mail to defendant's last known address does not guarantee that defendant actually received the mailings or had actual notice of them. In recognition of this possibility, the rules include a critical safeguard: "If the notice of motion and order for arrest were served on the judgment-debtor by mail, the warrant may be executed only at the address to which they were sent." R. 6:7-2(g) (emphasis added). The warrant must contain that limiting provision, ibid.; Appendix XI-Q, thus informing the court officer directed to serve the warrant of the restriction. The proposed arrest warrant submitted by plaintiff contained the limitation. This is nearly a failsafe provision. If defendant does not live at the address, it is practically certain he will not be arrested. We say "nearly" failsafe and "practically certain" because it is possible to conjure up scenarios in which a debtor did not live at the address when the mail was delivered, but is there when the arrest warrant is executed. Perhaps he was just visiting that day. Such unlikely possibilities do not defeat the due process requirement that the means devised to provide notice are "reasonably calculated" to accomplish it. We likewise conclude that any possibility that a debtor did not receive or become aware of notices delivered to the residence in which he or she does live does not defeat the "reasonably calculated" requirement.
The rule providing for execution of the arrest warrant contains additional important safeguards. It may be executed only between 7:30 a.m. and 3:00 p.m. on days when court is in session; the debtor must be brought directly before a Superior Court judge; the debtor shall be furnished with a blank form of the questions on the information subpoena; and upon answering the questions, the debtor shall be immediately released. R. 6:7-2(g). Thus the deprivation of liberty will be minimal in duration and limited in scope. The debtor will not be placed in a holding cell or jail. He or she will not be "processed" as are traditional arrestees by fingerprinting, photographing and the like. Upon answering the questions, the person may leave. Although this is an arrest, and indeed a temporary deprivation of liberty, it is designed to be a minimally intrusive means of compelling compliance with court orders.

I'm wondering if I can just wait till they get to my house and then just run outside and hop the back fence into the neighbors yard and make a getaway.

[Pizza]

I wanted to add something to this, since I'm constantly doing research... I have read from several sources that once the judgment is entered, the debtor can be issued an informational subpoena in which he/she is required by law to give the court information on assets (such as 'unknown' bank accounts, cash, property, etc.) which makes seizure by creditors a seemingly simple process.

So, as far as the thread goes, doesn't this mean that once a lawsuit is initiated, a debtor should get on the ball with their bankruptcy? It would seem that this subpoena would make it virtually impossible for someone to play any games to make the judgment uncollectible without risking jail time.

These are just my thoughts on the issue. My first default was at the beginning of July. I haven't answered the continuous calls from the creditors, but have answered the letters to the extent that I cannot afford what they are asking (buying time with a 40 cent stamp). My instincts are telling me that once a lawsuit is initiated, that's the right time for a consult. Either way, a lawyer or a creditor will know what my assets are (nothing spectacular), and I would greatly prefer a lawyer over a creditor if you know what I mean.

Summary: A few uneducated readers might be under the false impression that it is hard for creditors to execute their judgment.

Here is one such find:

"INFORMATION SUBPOENA
If you do not know where the judgement debtor has a savings or checking account, what personal property the debtor owns, or where the debtor works, you may obtain an information subpoena from the Office of the Special Civil Part Clerk. An information subpoena is a court paper containing questions about the debtor's assets.

You may serve an original and one copy of an information subpoena upon the debtor either personally or by registered and certified mail, return receipt requested, and simultaneously by regular mail. You also must provide a postage paid, addressed envelope with the information subpoena. The debtor must answer and return the information subpoena within 14 days from the date on which it was served. An information subpoena cannot be served more than once in a six month period without approval of the court. If the debtor does not answer the information subpoena, he or she is subject to contempt sanctions enforceable by the court."

And the PDF below is a sample:

http://www.judiciary.state.nj.us/rules/app11l.pdf

Many, many questions, such as, where do you work, how much do you make, list all checking and savings accounts, amount of personal property, housing & mortgage information, AND a request for information on all other judgments (hence another creditor can gain access).

I think the last thing anyone wants to see is something like this show up in the mail.

[junjun]

You can always try, but you will be fighting an uphill battle to negotiate with a creditor that has a judgment.

I'm hoping we can..I'm actually on hold with them now..I've checked my county court and the case file I've entered in doesn't come up..I hope this is a good sign(Crossing Fingers)..

[junjun]

HMM, I posted this comment on the CHPT 13 section..Can you give me some advice? I'm really lost..


My wife and I are in the process of filing Chpt 13, a couple more payments and our lawyer will start the paper work..BTW I was a Chpt 7, discharged in June 2004 so that's one of the reasons why it had to be a Chpt 13.The other reason is that we want to keep our home..Just an fyi my wife has never filed BK..

Well we are thinking of not filing now we are going to try to work with our creditors and negotiate some of our debt and just try paying them off with hard work..Chpt 13 just doesn't seem like a fresh start to me if feels like you're being handcuffed (Does anyone else have that feeling)..I plan on working another job during the day to pay some of the debt.I really hope I'm doing the right thing it seems like I've been making some bad decisions lately.I have about 40-45k in debt and she has about 50-60k, credit cards are not joint accts, so I think she has an out if she decided to file bk on her own..

Now my question is would we still be able to file in the near future if we cancelled the Chpt 13 process now? (We've paid about 1400, is this refundable? ) Would it look suspicious lets say if we both decided to file for Chpt 7 in 3 years, since that's when I would be eligible to file again? We really are going to try to pay some of this debt off and see where we are at in 3 years but if things get harry would it look suspicious..Plus our ARM goes up in 2011 so I figured that if we do decide to file in the near future we can add the house, hopefully this doesn't happen but who knows (Crossing Fingers wishing Real Estate will bounce back then). Would they look back in 2008 and ask questions why I didn't go thru with the Chpt 13?

Now as far as summons go, I received 2 from Mann Bracken. Is it too late to settle once it's gone this far? Should I call Mann Bracken directly and ask to settle and set payment arrangements?


Last question. Has anyone ever used a debt management company like Consumer Credit Counseling Services? Will they still work with you if your late or defaulted on your credit cards? Ok I'm done. Thanks for your help.

[HHM]

You can always try, but you will be fighting an uphill battle to negotiate with a creditor that has a judgment.

[junjun]

I'd be curious to know why you think BK is not in your best interests when you are so deep in collection that you are being sued. BK almost ALWAYS a better, cheaper, cleaner, option for dealing with debt that you cannot pay back.

So you're saying it's too late once I get summoned?

[HHM]

Ok I've been summoned by 2 cc's, attorney is Mann Bracken..I did not appear in court, court dates were 7/29/08 and 9/29/08. I didn't appear because my wife and I thought of filing BK 13 and lawyer just said to disregard letters..Now we've come to theconclusion that filing BK is not in our best interest and that we are going to work with the CAs and try to negotiate..Now my question is, will I still be able to work a payment plan, or possibly pay the amount off from those 2 cc's eventhough they've summoned me? Or is it too late and that I should be expecting a judgement shortly? Even then is it still too late to pay off the balance once it's gotten that far?

I'd be curious to know why you think BK is not in your best interests when you are so deep in collection that you are being sued. BK almost ALWAYS a better, cheaper, cleaner, option for dealing with debt that you cannot pay back.

[HHM]

HHM

I'm assuming the date was 8/25 when the docs were forwarded to the courts- so on 9/23 (the 29th day)-- are they by law supposed to tell me when they will garnish- or don't they have to tell me? Generally - how long after the judgment can they garnish? I know on the very first thread on this subject- you said 2-3 weeks after, if they know where I work. If not, will it take longer? I am waiting until Oct 1st to file- for Ohio, WildCard and Auto exemptions go UP. Thanks.

Generally, the first time you will know about a garnishment is when you get a check for less than what you were supposed to get and then your HR/payroll person will usually give you a copy of the garnishment.

[junjun]

Ok I've been summoned by 2 cc's, attorney is Mann Bracken..I did not appear in court, court dates were 7/29/08 and 9/29/08. I didn't appear because my wife and I thought of filing BK 13 and lawyer just said to disregard letters..Now we've come to theconclusion that filing BK is not in our best interest and that we are going to work with the CAs and try to negotiate..Now my question is, will I still be able to work a payment plan, or possibly pay the amount off from those 2 cc's eventhough they've summoned me? Or is it too late and that I should be expecting a judgement shortly? Even then is it still too late to pay off the balance once it's gotten that far?

[howie789]

HHM

I'm assuming the date was 8/25 when the docs were forwarded to the courts- so on 9/23 (the 29th day)-- are they by law supposed to tell me when they will garnish- or don't they have to tell me? Generally - how long after the judgment can they garnish? I know on the very first thread on this subject- you said 2-3 weeks after, if they know where I work. If not, will it take longer? I am waiting until Oct 1st to file- for Ohio, WildCard and Auto exemptions go UP. Thanks.

[HHM]

I received some court docs, that I had to sign for via certified mail. It was prepared and submitted by the plantiff's attorney (MBNA is the plantiff). It is the "Plantiff's Motion and Application to Confirm and Enforce Arbitration Award" from my local county. Is this the "official" service of process where I am notified of getting sued (wages garnshed)- or judgment rendered. Or is this some kind of scare tactic? One of the millions of lines on the docs that I read, leading me to believe this might be a stall tactic is "Plantiff is requesting no statutory or other interest be awarded with this judgment", but I might be wrong. I see no date where I have to respond by. I didn't respond to the NAF's docs in March, and I officially "surrendered" on 5/5/08. Also whats funny- is I got three letters from BK or personal attorneys this week, stating they wanted to help me, as they read through the county database that a lawsuit was filed against me, and I had to respond in 28 days. But I don't see a date in the docs I rec'd today. I am filing BK, just a matter of when, the longer out the better. Thanks.

Your's is a slightly different situation. The creditor already won an arbitration award and yes, them sending it to you will probably constitute "good service". Basically, the creditor is asking the court to turn the arbitration award into a judgment. Most states have a streamlined process for doing this and it short circuits the need to actually sue you. You don't really need to do anything, once the 28 days are up, the court will simply issue a judgment against you. There are some other options, but they are beyond the scope of this thread.

[howie789]

Service of Process

I received some court docs, that I had to sign for via certified mail. It was prepared and submitted by the plantiff's attorney (MBNA is the plantiff). It is the "Plantiff's Motion and Application to Confirm and Enforce Arbitration Award" from my local county. Is this the "official" service of process where I am notified of getting sued (wages garnshed)- or judgment rendered. Or is this some kind of scare tactic? One of the millions of lines on the docs that I read, leading me to believe this might be a stall tactic is "Plantiff is requesting no statutory or other interest be awarded with this judgment", but I might be wrong. I see no date where I have to respond by. I didn't respond to the NAF's docs in March, and I officially "surrendered" on 5/5/08. Also whats funny- is I got three letters from BK or personal attorneys this week, stating they wanted to help me, as they read through the county database that a lawsuit was filed against me, and I had to respond in 28 days. But I don't see a date in the docs I rec'd today. I am filing BK, just a matter of when, the longer out the better. Thanks.

[treehugger1]

It only goes to show that when you think there may be a lawsuit/judgment pending, it makes good "financial" sense to check with your local courts on a regular basis. While this may seem like paranoia, one discovery can pay for the time spent.

The local court info in my county is not available online, but the court clerks are more than willing to run your name, etc into the database and see if there are any actions pending. In addition, the local court has public computers available that one can use to check status or action on their own. While you may have to drive into town to use the database, the trip once per week may be worth it!

I doubt that it is all that hard to get a judgment set aside if one can make a moderate argument that they never received notice of the original pending action. Especially, this might hold water when the plaintiff is not required to do a followup by notice of return-receipt mail. If you suspect actions against you, take the few minutes or hour each week and check your local court records.

[FreshLikeADaisy]

Yeah, I just looked it up in the Florida Rules of Civil Procedure (http://phonl.com/fl_law/rules/FRCP/frcp1080.htm) and in Florida, service can be by U.S. Mail.

But honestly, I think that creditors are using this leeway in the law to refrain from serving defendants at all. I have a friend who, knowing he has some outstanding debts that are nearing SOL, has been keeping an eye on the Clerk of Court's website locally just to make sure no one gets a default judgement without him knowing. So far, he has discovered at least two actions against him this way, neither of which he received notice for. The latest was filed in May, with a court date at the beginning of July. My friend did his monthly check of the court website, and found out in the beginning of June, some three weeks after it had been filed.

What's interesting is that this last one, he didn't bother to respond to by phone or in writing. He just showed up at court for the hearing... much to the surprise of the plaintiff's attorney, who actually had the chutzpah to ask him how he found out about the proceeding. Now, if the attorney had actually served him, the question would have been moot before it was even asked; that it *was* asked tells me very clearly that the attorney knew good-n'-damn well that my friend had not been served.

Caveat emptor, y'all.