AMEX filing suit

[2Bshinyandnew]

In your last post you state "I consulted for BK suggested it was a waste of time to fight an original creditor in court when you are planning on filing BK anyway in the next year." That attorney is an idiot, plain and simple. Once that judgment is issued there is NOTHING that you can do to protect your bank accounts, wages and personal property EXCEPT immediately file bankruptcy.

I guess all three attorney's we consulted were idiots then.

You can take steps BEFORE you are ever sued to protect your assets. It's called Asset Protection. If you have a lot of assets to protect, you hire an attorney to help you create trusts and accounts that are protected from creditors. If you are like the rest of us, you close out your bank accounts, cash your check at Walmart and pay your bills with money orders. It works and is more reliable than going to court with individual creditors. If a creditor has the balls to get a Writ of Execution, the Florida equivalent of Georgia's Writ of Fi Fa, the ony way they can do that is if they know what I have in my house and the only way they can know that is if I show up in court and I'm forced to answer their questions.

[Bell30656]

In your last post you state "I consulted for BK suggested it was a waste of time to fight an original creditor in court when you are planning on filing BK anyway in the next year." That attorney is an idiot, plain and simple. Once that judgment is issued there is NOTHING that you can do to protect your bank accounts, wages and personal property EXCEPT immediately file bankruptcy.

To garnish the wages takes another court appearance here in Georgia but putting liens on your vehicles, actually seizing you vehicles, seizing your big screen television? No problem. Maybe in Florida collecting a judgment is difficult but not in Georgia. The deputies will come with judgment holder to your house to make sure you don't resist as the creditor carries off you television while your kids are trying to watch Barney & Friends.

The OC is in Texas where it doesn't cost anything to file an answer to a civil case. In Texas wages may be safe but why face dealing with a judgment? We aren't talking about duking it out with lawyers in court, just prolong the cases for six months or a year until you can file bankruptcy. The only way these cases are decided within 60 days is if you don't bother to answer at all. Exercise your rights, file an answer... answer their interrogatories without giving them any info, ask some interrogatories of your own... have a calendar call and ask for a jury trial.

In my humble opinion, rolling over and accepting a summary judgment is about the stupidest thing a person can do when served by a JDB or an OC. The JDB doesn't want this case to ever see a courtroom. They most likely don't have any of the documentation that they will need for a court case and will have to get it from the OC. Most of these portfolios are only sold with a spreadsheet giving the info about the debt. An OC has difficulties of their own to taking a case to court. First, they have to pay lawyers. They hate paying lawyers. Second, they know that the debtor can go file bankruptcy after they pay all the lawyers. They just use these actions to try and get someone to pay.

[2Bshinyandnew]

Who's fighting seasoned attorneys? Who's tying up tons of time? Not me. I spent very little time preparing my answer and responses. The idea is not to go into the courtroom wearing my best tie and take on an attorney. The idea is to keep a JDB or an OC from getting a judgment long enough for me to file bankruptcy.

Grasp this, I never was worried about losing the case at trial because I never intended to let the case get to the courtroom. I also wasn't going to allow a summary or default judgment to get issued. (Are you in worse shape losing a case at a civil trial or by default judgment?)

Which is worse, losing a case or a default? Neither is any worse than the other. Actually, fighting and losing against a JDB may be worse.

In my opinion, once that complaint is filed against you and you have a case posted on the clerks docket with your name to the right of the "v", it doesn't really matter the outcome. As opposed to a credit report, a court docket is public record and it stays on there, forever.

I can't believe that anyone (other than a debt collector) would suggest that a debtor just allow the judgment to be issued in default. I protected my bank accounts by NEVER allowing them to get a judgment to begin with.

I think it was 2 of the 3 attorney's (or maybe it was 3 of 3) I consulted for BK suggested it was a waste of time to fight an original creditor in court when you are planning on filing BK anyway in the next year. My ex husband managed to get a two week continuance so he could consult an attorney when he was sued by Chase, he had to take a 1/2 day off work for the pre-trial hearing. The attorney he later consulted said "well, it was a learning experience, but unless you enjoy going to court, don't bother showing up for the continued hearing, you are filing bankruptcy anyway and any judgment will be vacated."

My ex filed BK before the judgment was official, he did not show up at the rescheduled hearing and the clerk noted as much ( clerks notes say "DEF FTA DEFAULT" which means, Defendant failed to appear default). The judgment order was never issued by the judge because the suggestion of bankruptcy was filed before the judge issued the order. Chase even tried to file a motion for default AFTER the suggestion of bankruptcy was filed (guess they didn't read the docket!) and the judge filed an order telling them to back off. All this doesn't matter because it's still on the clerks docket for all to see, CHASE BANK, NA v 2BSHINYANDNEWSHUSBAND forever and ever. The reader can go into the case and try to make heads or tales of the notes, but, anyone can read and understand the title of the case.

What was really scary about our experience, and why if it is an OC suing I say stay way if you just can't pay and your filing BK? In Florida (maybe it is different in Georgia) if you file an answer and all the necessary pleadings to a money complaint, you will still be required to attend a pre-trial hearing. At that hearing, before your case is called, a court appointed mediator meets with both parties and tries to mediate the parties to a resolution. If no resolution is reached, you and the plaintiff stand in front of the judge. All the attorney for Chase had was a copy of the last cc statement, my husband tried explaining he hadn't had a chance to seek counsel, he was in the middle of a divorce (we are!), he wasn't sure if the bill was his or his soon to be ex's, blah blah blah.

The judge asked him-"sir, do you owe the money?"

ex husband - "I'm not sure your honor"

Judge - (much more stern and loud) "this is a yes or no question, do you owe the money?"

ex husband - "I'm not sure your honor but if my only two choices are yes or no, I will have to say no."

Judge - "I will allow Mr. 2bshinyandnew two weeks to seek counsel"

Attorney for Chase "your honor, I respectfully request we move for a default."

Judge - "no counsel, I will give the defendant two weeks."

NOT FUN! When he found out that he didn't have to go at all, he was like, !@#$$!!!

The attorney for Chase had 5 or 6 cases he was representing Chase on that morning alone. The OC's hire attorneys who get paid to sue, and they sue all day long. Filing an answer/affrimative defenses/counter/ etc isn't going to deter them, no matter how carefully crafted or "right" your responsive pleadings are. They have to be there anyway!


Anyway, end of my story.

Moral of my story, protect your bank accounts and wages.

[Bell30656]

Who's fighting seasoned attorneys? Who's tying up tons of time? Not me. I spent very little time preparing my answer and responses. The idea is not to go into the courtroom wearing my best tie and take on an attorney. The idea is to keep a JDB or an OC from getting a judgment long enough for me to file bankruptcy.

Grasp this, I never was worried about losing the case at trial because I never intended to let the case get to the courtroom. I also wasn't going to allow a summary or default judgment to get issued. (Are you in worse shape losing a case at a civil trial or by default judgment?)

I can't believe that anyone (other than a debt collector) would suggest that a debtor just allow the judgment to be issued in default. I protected my bank accounts by NEVER allowing them to get a judgment to begin with.

[Bell30656]

I don't care what docket it's on and what is funny is that I am on that docket as well, this JDB filed against me originally in that county for some strange reason. My point is that they cannot get your bank account, wages or other assets without a judgment.

First, very few of your creditors will actually even file suit. I had three file suit, two filed by a JDB (the same JDB) and one by a small town OC. I still have the same bank account that I've had for many years, I don't have to hide my assets from a deputy helping to serve a Writ of Fi Fa.

Read up on a Writ of Fi Fa... a neighbor of mine had a former landlord show up with a deputy, a Writ of Fi Fa, a tow truck and a couple of big dudes. They took his pickup truck, television and computer. All over a $1500 judgment from a magistrate court. He got the stuff back but only after coughing up $1500 to the former landlord.

Judgments are bad news and can be easily avoided or at least delayed long term. *Note* I am also on that same website as the Plaintiff in a case to which I was able to collect by taking it from his bank account due to a Judgment.

[2Bshinyandnew]

You roll over and let them get judgments against you if you wish but I had about three maybe four hours invested in the fight against these creditors. How fast can a JDB or OC exercise a Writ of Fi Fa in your state? In this state, pretty danged fast. I find it easier NOT to let them get a judgment to begin with. I had no fear of garnishment, bank account seizure or other collection means because they never got a judgment.

Now that I have filed those cases are dead in the water and have never been to a judgment. It takes very little effort to defend in a civil case. My idea was to keep any civil cases from ever even making it to a courtroom. I wound up with three cases pending before I filed the chapter 7 and none were even close to making the docket.

I guess that is a personal preference then. I would rather protect my bank accounts from every creditor, than defend against each and every lawsuit.

BTW, if a complaint is filed against you, it is on the docket of whatever court the action is filed against you is in. It doesn't come off. Whether the final disposition is dismissed, default, whatever it is, it will remain on there. Go to your county's court website and do a case/party search, the same search engine is used whther the case was filed in Magistrate, State or Superior Court, and it is there, regardless of disposition. Public Records, forever. For instance, here is the Gwinnett Court Homepage (I just randomly chose the first Georgia Court website that came up in my search)

http://www.gwinnettcourts.com/#home/

The homepage has a case/party search. If you were ever sued it is on the docket.

[Bell30656]

You roll over and let them get judgments against you if you wish but I had about three maybe four hours invested in the fight against these creditors. How fast can a JDB or OC exercise a Writ of Fi Fa in your state? In this state, pretty danged fast. I find it easier NOT to let them get a judgment to begin with. I had no fear of garnishment, bank account seizure or other collection means because they never got a judgment.

Now that I have filed those cases are dead in the water and have never been to a judgment. It takes very little effort to defend in a civil case. My idea was to keep any civil cases from ever even making it to a courtroom. I wound up with three cases pending before I filed the chapter 7 and none were even close to making the docket.

[2Bshinyandnew]

Treehugger after reading this thread, I'd almost believe you were really a JDB just trying to talk everyone into allowing DEFAULT JUDGMENTS. In my state, filing an answer is free. Filing a counter-suit is free. Filing interrogatories? Yep, you guessed it FREE.

You do not have to answer any interrogatories that you really don't want to. You see, you have this power to "object" to the interrogatory. That is correct, you can object. Wait until you see the JDB's responses to your interrogatories. The JDB that was suing me put this line in the beginning of their answer:

The Plaintiff objects to each and every interrogatory, admission and request for documentation on the grounds they are irrelevant, immaterial and/or protected by attorney/client privilege. One of my interrogatories asked for the name of the party that owned the debt. One asked the amount of debt owed. One asked the date that collection activity had begun on this account.

As to their interrogatories to me? Sure, they asked me my banking info, work, etc. I objected based upon the questions had nothing to do with the case at hand but rather could be discovered in post-judgment proceeding if the plaintiff prevailed.

The first lawsuit was filed Nov 2007, the second (different debt same JDB) Feb 2008. I filed the bankruptcy in Dec 2008 and up to that point neither case was even close to seeing a courtroom.
NEVER, NEVER JUST ROLL OVER FOR THESE DEBT COLLECTORS. Make them earn a judgment. Answer, object, interrogatory and otherwise make them work to even think they have a shot at anything. Then just when they think they've run the course, file bankruptcy.

Your saying that if you did nothing except protect your earnings and bank account, you can say for sure that the ultimate result probably wouldn't have been the same, without a lot whole less work and stress?

As far as objecting to interrogatories, any party to a lawsuit can object to anything at any time. That is no big secret and not exclusive to Georgia. Of course the questions a JDB asks and even an OC are going to be a ridiculous fishing expedition. Most Interrogatories are. Mosy courts have a set of standard interrogatories that are sent the first time around based on the area of law. Some of the lawsuits I worked on (Family Law) I was stunned at some of the interrogatories that were objected to, and those were always challenged by the opposing counsel and if they still failed to respond, a motion to compel was filed and the judge forced them to answer. If your case was with an OC and you owed them $15K, you don't think they will object to your refusal to answer questions? A JDB maybe, but not an OC whose date of last payment was less than a year ago.

Look, even if the filing fees to respond in a civil case are free, how much is your time worth? I would rather proactively protect myself, protect my bank accounts, protect my income with a variety of methods that protect against a garnishment, and get PAID for working. Appearing pro-se in a lawsuit is expensive! Lots of time off work, and hours banging away at the computer.

When my BK Nuke goes off, who will be rolling over? Not me. Any default judgments will be blown to kingdom come. I use less blood pressure medication and spend more time with my kids and dog. win-win, because since I plan on filing BK eventually anyway, as long as I took steps to protect my wages and bank account, all that work would have been for nothing, unless I enjoy doing this as a hobby

The OP in this thread is being sued by AMEX, the OC. The OP lives in Texas, a no-garnishment state. It's kind of a no-brainer to suggest to do nothing, except protect bank accounts because they are filing BK in a few months anyway. We got off track here when another poster started suggesting that they should fight back. Fight against what? The OP admits to owing, and is going to file BK soon? Move any vulnerable bank accounts and that is it.

WOW! Alrighty then....let's say I allow AMEX to get their default judgement?
What happens next? Empty all bank accounts?

I read this forum daily and some seem to advise against ever allowing a default judgement and to file BEFORE that occurs. Unfortunately, I cannot file for several months. If a judgement can simply be vacated when filing for BK then what I am missing here????

That is exactly why the debtor needs to be proactive before any possible judgment. A judgment creditor cannot levy empty bank accounts or garnish wages they cannot find. Can you live like that forever? Probably not, well, maybe you could but you probably don't want to. Since you plan on filing BK in the next year, you are really in the perfect position to hold them off for a few month, if you take those steps.

You are not missing anything. That is the beauty of it. All pre-BK judgments can be vacated. Maybe that is the big bankruptcy secret that prevents folks from filing? It does sound rather simple, doesn't it? It is that simple. Vacating a judgment under BK protection is the easiest pleading to file with a court. Far easier than spending hours drafting an Answer/Affirmative Defenses/Counter Petition/Request for Admissions/Interrogatories, and so on.

There are many myths about bankruptcy swirling around.

[Bell30656]

Treehugger after reading this thread, I'd almost believe you were really a JDB just trying to talk everyone into allowing DEFAULT JUDGMENTS. In my state, filing an answer is free. Filing a counter-suit is free. Filing interrogatories? Yep, you guessed it FREE.

You do not have to answer any interrogatories that you really don't want to. You see, you have this power to "object" to the interrogatory. That is correct, you can object. Wait until you see the JDB's responses to your interrogatories. The JDB that was suing me put this line in the beginning of their answer:

The Plaintiff objects to each and every interrogatory, admission and request for documentation on the grounds they are irrelevant, immaterial and/or protected by attorney/client privilege. One of my interrogatories asked for the name of the party that owned the debt. One asked the amount of debt owed. One asked the date that collection activity had begun on this account.

As to their interrogatories to me? Sure, they asked me my banking info, work, etc. I objected based upon the questions had nothing to do with the case at hand but rather could be discovered in post-judgment proceeding if the plaintiff prevailed.

The first lawsuit was filed Nov 2007, the second (different debt same JDB) Feb 2008. I filed the bankruptcy in Dec 2008 and up to that point neither case was even close to seeing a courtroom.

NEVER, NEVER JUST ROLL OVER FOR THESE DEBT COLLECTORS. Make them earn a judgment. Answer, object, interrogatory and otherwise make them work to even think they have a shot at anything. Then just when they think they've run the course, file bankruptcy.

[rockyroad]

WOW! Alrighty then....let's say I allow AMEX to get their default judgement?
What happens next? Empty all bank accounts?

I read this forum daily and some seem to advise against ever allowing a default judgement and to file BEFORE that occurs. Unfortunately, I cannot file for several months. If a judgement can simply be vacated when filing for BK then what I am missing here????

[treehugger1]

BB, Oh, how we seem to get off topic. But, I think you did an exceelent job of adressing what is know in my state as the "fraudulent transfer statute." In a nutshell, it all but states what you just put in layman's terms. If you are ignorant of any potential court proceedings against you, and the opposing party can't show that you were ever provided information to the contrary (no summons, service, etc) then you can do whatever you want with your assets. Even if there is a judgment against you, there is no conflict, if the opposing party cannot show that you were aware of the judgment.

On another note, I just received a dunning letter from a legal firm in your state attempting to collect on a big $11K national CC debt that I defaulted on a year ago. I'll wait until the end of the month and send the ever faithful DV request. They were careful to note in the letter that "no attorney has actually reviewed your file." LOL I left the letter at work so I don't have the name of the firm, but they did clearly state they were a debt collector and I immediately looked them up in the Oreogn consumer finance division (they work under the attorney general's office) and determined they were not registered to collect on debt in Oregon. I filed an online complaint with the AG's representatives. I still have to wonder why national CC's such as shiti (citi), crap1, BoA, etc would not have some oversight of how their collections work. They clearly have my address, but they continue to assign debt to firms not registered to act in this state. I am now convinced that the big OC's just assign their collections to other big national debt management firms (TSYS, etc) who have no clue how the collection regulations are related to the state of the debtor. These are the same folks who were willing to "lend" me thousands of unsecured dollars, but clearly have no idea how to go about collecting on the debt under default. Their business practices are no better than mine. LOL. If I was BoA, Citi, Cap1, etc, I'd definitetly be re-examining practices.

[treehugger1]

CT, Just because there are case precedents does not imply your local court system will agree with them. They (judge/jury) can make their own decisions based on the evidence provided to them in your individual case. You can site case law all you want, but the decision ultimately resides with the judge and/or jury in your case. If the case is ruled in favor of the plaintiff, then you can now consider an appeal under other laws. I think that many folks believe that because there is some case law precendent "out there," it immediately applies to them. It probably does, but this might only come out in some future appeal, not always likely at your local stae or federal level.

I would hope that you are on this board because you owe debt and you know you owe debt. I would hope that you are on this board to help folks deal with how to work with their situation, not avoid it. I would hope that you are not on this board to attempt to convince folks that they can truly walk away from debt, unscathed. That is impossible. While I applaud you for attempting to stall as long as possible, I would have trouble if I thought your intent was to not be accountable for debt you actually owe. This is not the case, correct? You are putting up the good fight because you have been wronged and do not owe the debt, or is this not correct?

Sh*t, I do owe folks money! I would not even entertain the option of denying this. Will I use my local court system to "buy" time? Yes. But, I have to admit that the end result will be the same. I owe money. What are my options? How much time do I have? Do I care?

In the end, BK is my "bomb." In the meantime, I'll simply play by whatever rules and use whatever devices are available to protect what I believe are in the best interests of my family and myself. Perhaps, you are doing the same.

It might be useful for you to watch your local (state and federal) court dockets and attend several civil litigation matters. That is where I learned much of the "legal issues" discussed on other boards appears to be "bullsh*t." By the way, I am in the Ninth Circuit Court of Appeals region, the most liberal (including many consumer issues) in the nation. Case laws stated on so many boards are only the cases where they favored someone's point of view. But there are probably thousands of other decisions that would be the contrapositive of the ones presented. I don't have time to look them all up, nor do I care to. I have taken the time to attend civil court cases in my area. The results don't always reflect what some folks on a few forum boards claim.

[treehugger1]

CT, Yes, under normal proceedings, someone will eventually need to provide proof. While you can request "proof" under discovery of your own, the lawsuit process does not stop just because you have not received information. In the meantime the attorney for the plaintiff can serve their own discovery requests. While you are waiting for their request, you may need to be fulfilling requests of theirs.

Bottom line in my district (Local, State, and Federal,) is that if the judge asks you, "Do you owe money to the plaintiff," you had better answer an honest yes or no, regardless of what some "laws-on-the-book's state." You can argue about the amount owed, but you cannot lie about whether or not you owe the plaintiff money. After this has been settled, you can move on to the correct amount owed, or your counter-claims. From what I've seen in my area, if the plaintiff's attorney simply provides an old billing and provides an indication that you had made payments on the account in the past, YOU ARE TOAST! You should know that my state, OREGON, is quite debtor friendly when it comes to the court system. They are not friendly if it is clear the defendant is simply attempting to forestall the inevitable. The reason is that the debtor can always declare BK and put the legal burden on the federal BK courts. The local, state, and federal civil courts here have far bigger fish to deal with. I would hazzard a guess that this is the case in most states and federal regions, regardless of what others post on other boards. In addition, CA's and JDB's are getting much smarter here. They actually show up at local court hearings with their ducks all in a row. Because of this, I am seing attorney fees assigned to judgment that are far above and beyond what might have been the case if the debtor has just let things go without forcing the case to the courthouse.

I do believe that in the future, fewer local courts will entertain fraudulent attempts at "ignoring debt." They will find for the plaintiff, and the defendant can seek relief under US BK laws.

This is why I can wait out BK for years. I'll let the legal system work, drink beer, and see what happens. With the exception of 25% wage garnishment (I can/am currently survive this,) there is nothing anyone can get from me. I'm not going to spend $1000 of my resources/time to get back $0.30 on the dollar when the final bell tolls. Hell, that's what got me into this preidcament in the first place. LOL

CT, I do wish you the best of luck. It is clear that you understand the legal requirements. I would be curious to know if your local county, state, or federal court shares your interpretations and action as a consumer under the law.

[CompTweaker]

Sorry, but I have to get up for work in 5 hours, so Im out for now.....will check back in after work tomorrow.

[CompTweaker]

CompTweeker, could you please state how many lawsuits you have been the plaintiff in and how many you been the defendant? And what they were about and the result.

In addition, in regards to discovery and or interrogatories, when the lawsuit is about debt, the payment of debt (or lack there of) the questions asked of you when it comes to your finances, employment, banking etc are all fully allowed since they apply to the collection of the debt. Irregardless of if its the OC, CA or JDB that is suing, those questions are fair game in a debt/contract obligation case. The only information that might suppressed is your bank account number, but that would only be held under a protective order and not open to the general public.

Why? These questions are clearly relative to your ability or inability to repay the debt.

I have no idea why even when I post the direct text from the Nolo book on "Discovery" why you blow right past it and act as if I have no idea what I am talking about. And when 2Bshinyandnew posts a reply that rebuts what you are saying you insult them and anyone else that doesn't agree with you but yet you can't provide and substantive relevant information to prove your position.

How many times do I have to say it? They have to prove you owe the debt and that they have the right to collect it before they are legally entitled to any personal info outside of anything related to that debt account by itself.

They file the summons and complaint, and since you asked, as a defendant in 3 of those, Ive answered the complaints denying the debt, filing a motion to strike their little affidavit from someone testifying that they know the debt to be true, as "hearsay", also using affirmative defenses with my answers, 2 of them with counterclaims....then proceeded with discovery, and apparently they couldnt provide the answers to my discovery requests, and wanted to drop the lawsuit against me since they knew they didnt have proof, and they knew they had committed FDCPA violations. They said their claims would be dismissed if I agreed to dismiss mine. I did, and that was that. The other lawsuit currently going will hopefully get dismissed too, no counterclaims filed from my end, but they are about out of time answering discovery, and this is after I have granted them a request for extention of time. Its been 8 weeks now, so Im preparing my dismissal request.