AMEX filing suit

[Bell30656]

This is one of those cases where you don't have to be present to lose. However, be sure to check your state's statutes on everything. Once the plaintiff has prevailed and has a default judgment against you he/she can then have a hearing called an Aid of Execution (in Florida) where the plaintiff can ask you questions about what you own, under oath. Failure to show up at this hearing may be contempt of court in your state.

Keep in mind that Florida exemptions from judgment are as follows:

• A persons homestead (read limitations)
• Wages of the head of household
• Personal property up to a $1,000
• Life insurance proceeds
• Disability benefits

However, these exemptions aren't automatic. You have to take steps to protect your assets once a judgment is ordered. If the plaintiff feels he/she knows where enough of your assets are and doesn't want you to know that he/she will be trying to seize them, they may also try an Ex Parte Aid of Execution.

[floridian]

so, if i am garnish proof, cant i just ignore the lawsuit and let them have a summary judgement?... or is it one of those deals where you are compelled to appear or be in contempt?

[mand15]

i'm a newbie and just came across this. i too was served on 2 separate occasions with 2 amex accts. this happened right after i started initiating a short sale on my property. i plan on filing a ch 7 when the ssale goes thru, but i had to fight it if we had any chance to ssale the property.

the timing stinks. if only i would have been served 1 week prior, i wouldn't have agreed to the ssale. but now i'm stuck. my attorney says he's confident he can put them off for 60 days. i'm giving the ssale until end of april to go through. if not, i'm renegging on the sales contract. it's subject to bank approval of the short sale but i'm not going to risk not being able to file the ch 7 and get rid of these judgments once and for all.

amex is relentless. missed a payment and then spiked by rate to 29.99%, wouldn't work with me and sent to coll agencies. coll agency was told to speak to my attorney, sold to another coll agency and they started calling my parents who i put on a auth users back in the 90's. they are ruthless and degrading like most collection agencies.

[Bell30656]

I know exactly what a summary judgment is. The plaintiff's law firm moved for one in one of the cases and I defended against it very well. I filed the appropriate objection, including citations and the motion was denied. I have absolutely no judgments against me even though I had three suits filed against me one of which was over a year before I filed the BK.

Here's a nice little piece of info for you: The counter-claim survives the bankruptcy. That is right, I am now in a possibility of actually winning money with no potential to lose any. My bankruptcy attorney tells me that in his experience with this particular law firm that the plaintiff is using on both cases, that I will be receiving a check from them shortly after discharge for about a $100 on each case. This check will have terms right on the back of it accepting the settlement, etc, etc.

Why would the plaintiff pay? Several reasons but most importantly the plaintiff will have to pay his lawyers more than a $100 per hour to take the case to court. I actually have a pretty good case for violations of GA Code and FDCPA with regard to statute of limitations. If the plaintiff lost, they would have to pay $1000 damages (set by statute), court costs and my legal fees (if any). If the plaintiff won? They'd still have to pay their own lawyers fees.

And who's afraid of the big bad judge or plaintiff's lawyer? Do they want to "ream" me in court? Bring it on. As I said, these cases have yet to see a courtroom and never will. Now that the bankruptcy has been filed, the plaintiff knows he can't collect and is now between a costly rock and a hard place.

[2Bshinyandnew]

I guess each person will have to do what his or her heart/brain leads them to do. I had three suits filed against me. None of the three EVER went to court. That is right. All that malarkey about getting your butt stomped by a seasoned lawyer really only applies if the case gets into a courtroom.

Maybe your court system isn't overcrowded, but ours here is. Cases were served against me November 2007 and February 2008 in superior court and one filed July 2008 in magistrate court, not served until November of 2008 (I'm not home much). I filed bankruptcy in December 2008. As of the bankruptcy date not a single one of these cases had been heard.

If you want to call me a Junior Lawyer or whatever, go ahead but I certainly managed to avoid having to worry about wage garnishments, bank levies or other property seizures. No Judgment = No Collection! In addition, I get to know that I cost the Plaintiff money in legal fees and filing fees when they got nothing to show for this.

Some states may charge for filing an answer to a lawsuit. That would be the only reason that I wouldn't be fighting any civil proceeding filed against me. I don't have to hide my assets, keep my money in a mattress and cash my checks at WalMart. I can title my cars and my mobile home in my own name and I don't have to work under an alias.

In Florida, and I suspect other states as well, if you chose to respond to a lawsuit in any fashion, either by filing an answer/affrm. def./counter/etc.etc, or you show up at the PRE-trial hearing to try and talk your way into a continuance, it is going to be in a courtroom, in front of a judge. A defendant to a small claims lawsuit must attend a PRE-TRIAL HEARING. Prior to the hearing, at the courthouse, You must attend mandatory mediation. If a settlement is not reached after this lovely mediation, at that very same PRE trial hearing both parties get up in front of the judge.

That is the time I hear about most pro-se'ers getting reamed, either by a judge, as happened to that unfortunately fella in the above linked post from the chapter 7 forum, or a lawyer representing the creditor. Unless you go in with some experience, you are a sitting duck, and you cannot avoid going to court. The only way to avoid going to court in Florida if you are being sued in small claims court (less than $5000) is to not respond to the lawsuit. If you are planning a BK in Florida in the next 6 months, why would you put yourself in that position, with an OC, unless it was a case of identity theft or some other reason you truly didn't owe the debt

How can you avoid the "malarky" if you MUST appear at a pre-trial hearing if you respond to a lawsuit in any fashion? It would be nice to be able to avoid the malarky, by filing an answer/affrm. def./counter/etc.etc but I don't see how. Is Florida unique to this process?

[Bell30656]

I guess each person will have to do what his or her heart/brain leads them to do. I had three suits filed against me. None of the three EVER went to court. That is right. All that malarkey about getting your butt stomped by a seasoned lawyer really only applies if the case gets into a courtroom.

Maybe your court system isn't overcrowded, but ours here is. Cases were served against me November 2007 and February 2008 in superior court and one filed July 2008 in magistrate court, not served until November of 2008 (I'm not home much). I filed bankruptcy in December 2008. As of the bankruptcy date not a single one of these cases had been heard.

If you want to call me a Junior Lawyer or whatever, go ahead but I certainly managed to avoid having to worry about wage garnishments, bank levies or other property seizures. No Judgment = No Collection! In addition, I get to know that I cost the Plaintiff money in legal fees and filing fees when they got nothing to show for this.

Some states may charge for filing an answer to a lawsuit. That would be the only reason that I wouldn't be fighting any civil proceeding filed against me. I don't have to hide my assets, keep my money in a mattress and cash my checks at WalMart. I can title my cars and my mobile home in my own name and I don't have to work under an alias.

[2Bshinyandnew]

OK, I know I'm stirring up the pot here, but this post today on the Chapter 7 board shows what can happen to the average person if they show up in court. Lets hope this poor guy doesn't get reamed even more by this apparently debtor-unfriendly judge:

http://www.bkforum.com/showthread.php?t=34978

The judgment will be vacated after he files for CH 7 and gets his discharge, but, what a waste of time for him, not to mention the stress!

[floridian]

plan B... i could alway find an illegal alien to marry me... it would keep my disposable income in the chap 7 category and i could count the motorcycle as a vehicle... then get divorced when its over.... ok, im just kidding!!

[debtmonster]

A while back, I read an article related to some formula used by some creditors and probably CA's related to risk involved pursuing business debt. I'm guessing there is also a score related to consumers.

For me:

12+ charged off accounts
several judgments (not all being reported to the CRAs) (public records)
several collection accounts
a couple dozen or so closed accounts
a few open accounts
dozens of derrogatories

My current credit report looks like the aftermath of a major battle. The bodies are everywhere. The survivors have wounds (30 - 90 day lates.)

I have to believe that anyone pulling my reports sees that I am virtually on the edge of falling into a BK. I still have plenty of time to wait things out.

You and I should have a competition!! I just got party #63 to add onto my bankruptcy list. This time it's a law office for my mortgage that's ready to go into foreclosure! Woo hooooooo!!

I have 28 pages of crap to fill out for my Ch. 7. This is going to take forever to answer all of these weird questions.

I have lots of old debt that fell off the credit report and lots of new debt and repo's and stuff. I want to blow out the old debt because I don't want zombie debt. I had a repo in 1996. I called the bank and they said it's still active. I don't want them selling that thing to multiple CA's... so I need to burn this bridge with a Ch. 7 once and for all.

[StartingOver08]

On a CH7 your attorney is now bound to have to agree the reaffirmation of a debt is in his clients best interest. Most attorneys will not allow themselves to be put in this position. Generally the courts and your attorney will rarely agree that any upside-down vehicle, RV or boat is in your best interest to reaffirm. That is why a 'ride-through' is generally OK with the courts and the attorney since you are no longer liable for the debt. But for the most part credit unions are the worst and rarely cooperative in a ride-through. They have an "all or nothing" attitude. I think that came out right.

BBU, maybe it is the times now or the fact that every CU is different - but I was able to reaffirm one of my cars financed thru a CU and drop the cc and the HELOC/2nd mtg. We even wrote the removal of the cross collateralization right in the agreement and for my protection we wrote in that the title would be turned over to me immediately after payment in full. The CU signed off on it. So really don't assume the CU's won't work with you because they are getting hit hard in this market. Maybe the "all or nothing" attitude is slowly being replaced by common sense!

[ready2puke]

That was my thought also. I thought Chap 13 is when you have assets you want to protect and keep

[floridian]

I dread the day I see my name to the right of the "v" on the clerks docket

that reminds me of when i got divorced in north carolina... the criminal docket and the divorces are called at the same time... ill never forget the looks i got while waiting to be called...

[floridian]

i thought about getting a family member to put it in their name, as i could wait quite a while to file, but im in this alone and i dont want to involve anyone else... i really doubt if anyone would help me out anyhow...

[catleg]

at the moment, my greatest fears are losing the motorcycle and being forced into a chap13 due to excess disposable income...originally i was going to walk away from my home, but that plan went south... im current on my mortgage...

if im forced into a 13, wont the trustee strip me to the bone, so that i couldnt afford the bike anyway?

i was originally going to file this month, but everything is on hold for the moment...

the lawyer said that if im forced into a 13, i could pay on it for a couple of months and then quit... im not sure of the reasoning... wouldnt that put me back at square one and turn the dogs loose on me? im dont understand...

Have you thought about selling the motorcycle to someone you trust, deal with the cash in whatever way makes sense, then do chapter 7 and buy the cycle back afterwards? Oh wait nevermind, I think I misread the story here, I thought one was owned free and clear. Still, could you sell it and buy it back, the same or an equivalent bike?

[2Bshinyandnew]

at the moment, my greatest fears are losing the motorcycle and being forced into a chap13 due to excess disposable income...originally i was going to walk away from my home, but that plan went south... im current on my mortgage...

if im forced into a 13, wont the trustee strip me to the bone, so that i couldnt afford the bike anyway?

i was originally going to file this month, but everything is on hold for the moment...

the lawyer said that if im forced into a 13, i could pay on it for a couple of months and then quit... im not sure of the reasoning... wouldnt that put me back at square one and turn the dogs loose on me? im dont understand...

I don't know too much about 13's except what I have read here, which is it sounds like you will be accountable for every penny.

I'm in a holding pattern myself, so I understand that feeling of not knowing what is going to happen. Like you, I'm collection proof, so I'm "ok" waiting it out for now. It is nerve wracking though. Even though I know I'm collection proof, and for me a judgment isn't worth the paper (or cyberspace) it takes up, I dread the day I see my name to the right of the "v" on the clerks docket