AMEX filing suit

[2Bshinyandnew]

my brain hurts from trying to figure this out... so in florida, whats the bottom line.... if you owe the money, should you appear in court or not? i was told that im collection proof (disability), but not judgement proof..
thanks...

I'm collection proof as well. If one of my creditors sued me (and so far, nothing has gone to a collection attorney) I would do nothing. I would not waste my time appearing in court. I do keep careful track of what is going on, I check the clerks docket in my county each week to see if anything has been filed and i open all my mail. After seeing for myself how my husband was spoken to by the judge at a pre-trial hearing, I sure don't want to put myself in a position to have a judge start asking me questions!

A judgment is worthless if they can't collect.

I don't have any old or charged off debt (yet) that would make me the target of a JDB, so my plan of action (or inaction) is based on knowing that all my debt is still with the original creditors at this point, and I do owe it.

This is based on my experience and is just my non-lawyer opinion

[treehugger1]

Everyone needs to be very aware that every state has different rules of civil procedure and costs associated with lawsuits; both plaintiff and defendant. In my state the costs are direct. About $189.00 to answer an intitial summons, another $30 - $50 to have the answer "served" on the plaintiff's attorney, etc. Once the suit starts, there are new costs associeated with the defendant filing their own motions of discovery.


On the other hand, should a plaintiff get a judgment in my state and issue a writ of garnishment for a bank account, the writ is only good for teh single moment the bank receives it. It is not ongoing.

The writ is only good for 90 days toward wage garnishment beginnign the day the employer receives the writ.

Every state has its own statutes attempting to make everything a fair playing field.

I noticed that even oru federal courts have discrepencies in their local rules.

If you choose to fight, don't do it blindly, and understand the repurcussions of providing an answer. These vary significantly from state-to-state.

[CompTweaker]

Wow, someone finally with some experience, knowledge, and opinions from my side of view...THANK YOU SO MUCH Bell for chiming in. Like you, I didnt find it difficult at all to learn about the process of fighting a lawsuit in my state. I was unemployed at the time, so I had plenty of time to acclimate myself. I read some posts on that web site I provided earlier, read my local RCP's (rules of civil procedure), read (and still reading as time allows) 2 NOLO books on fighting debt collectors and representing yourself in court. It was actually a process Ive enjoyed learning. Maybe some people arent into that, and thats fine for them, to each his/her own. But I took the attitude that I wasnt going down w/o a fight. And after prevailing in 2 cases, its rather fulfilling to know that little ol' Pro Se me, took on the lawyer (regardless of how seasoned, if they cant provide proof, they dont have a case), and looking back it really was pretty simple.

Did I give up my life? No. I wasnt working at the time, and spent a few hours a day, about 5 days/week for about 2 to 3 weeks reading case law, getting up to speed on my court's RCP, and just reading about other's experiences from that site, along with taking many notes and organizing them in folders specifically for each process I needed to know. I even called my court and got some answers and tips from a judge (but thats supposed to be between him and I, LOL) That might be overkill to some, but Im an information junkie with pretty fast learning abilities, plus I was motivated by multi-thousand dollar lawsuits to "get in gear". In my state, there is no garnishment allowed, and after looking at so many debt collection cases, 98% of them end up "default, uncontested". Well the heck with that, I'm contesting! If I lost the lawsuit, I didnt care. The BK bomb is the be all end all. But like Bell and I, plus many others who have their own reasons for not wanting to file BK right away, I chose to fight and well, it does pay off FOR SOME PEOPLE.

BB, in your case, no, I wouldnt fight since you have so many debts worth so much. The costs to answer for you (and treehugger) isnt worth it if each account gets to a suit and if you ARE going to file BK. Why you're asking me to "allow" you to say anything here, i dont know. I cant control what you say. I just get tired of seeing you jump on people for wanting to fight a lawsuit, and you constantly put people down who do choose to fight it. But you're entitled to your opinion just as I'm entitled to mine.....Oh, and yes, I know about dismissal with or w/o prejudice.....got it on one, didnt on the other and it really didnt matter on both because the statute of limitations had expired, or was expiring within a few weeks of the dismissal (time which, as of now, has passed) and if anyone else attempts to sue me on those debts, I'll gladly spend 10 minutes forming my answer along with a $1000 counterclaim for trying to collect on time barred debt....and we'll see how much my 10 minutes actually costs them when they send me a settlement offer!

Well, time to take my little lovely out for a Valentines dinner and then rest from a long hard work week.
Good luck to any of you who choose to fight lawsuits. The people filing the lawsuits against you are relying on the fact that 90% of the lawsuit is intimidation to get you to pay. If its worth it to you, fight back, answer the complaint with affirmative defense, strike their little affidavit of proof as "HEARSAY" and then bury them in discovery.....send them on a paper hunt because IT IS "YOUR RIGHT" to ask for proof of any signed contract, calculation of the debt, how the amount was determined, full chain of custody proving that they have the right to collect it, proof they have the right to collect debt or operate as a business in your state.....theres more, I cant think of all of them right now, and much of it is state specific to that state's RCP's, but my point is they use laws to try to collect money from you, and you are entitled to using "THOSE SAME LAWS" to make them prove their case! I've had 2 cases dismissed, and the current one wont send even one document of proof that Ive asked for in discovery. BB and whoever else disagrees with me, Its VERY MUCH worth it TO ME to fight these lawsuits and save a BK filing for something more important that may occur down the road, (hopefully it wont, but you never know). Im done with credit and ONLY pay cash or dont buy. And for what its worth, I dont care about my credit score, and I dont care about the fact that theres a history of JDB debt collection lawsuits on the dockets in my local courts! Two out of three have lost, and the third one is well on his/her way.....THATS what I care about....not letting a lowlife JDB pay 2 CENTS on the dollar for an alleged debt and expect to make THOUSANDS off of an intimidating collection lawsuit against ME!

[2Bshinyandnew]

If you don't answer the plaintiff's interrogatories within the specified period of time he/she can motion for a summary judgment.

I just wanted to point out, Interrogatories do not become an issue unless you file an answer to a lawsuit. You will not be sent interrogatories if you do not answer a complaint.

[rockyroad]

And at what point can you plant a seed with the OC or the attorney listed on the complaint that if they proceed with a judgement, you will simply file BK and have it vacated?
Why would they waste their time and money pursuing the suit if they know your intention is to file in the near future?

[2Bshinyandnew]

And at what point can you plant a seed with the OC or the attorney listed on the complaint that if they proceed with a judgement, you will simply file BK and have it vacated?
Why would they waste their time and money pursuing the suit if they know your intention is to file in the near future?

If you wanted to contact the attorney and let him/her know your intentions on filing, IMO I don't think it will hurt. Could it help? Maybe, but probably not, unless you are calling with a case #. Even if you have retained a BK attorney it would be too easy for every defendant to call and say I'm filing BK soon/in the future and then expect the case that has already been filed and paid for by the OC to be voluntarily dismissed. If I were an attorney I sure wouldn't dismiss it unless I had that case # in my hand.

The attorney we consulted (who is NOT an idiot, nor am I stupid) told us that these OC attorney's are paid to be there no matter what. He explained that a lot depends on how the attorney gets paid. If the attorney is hired by an OC as inhouse counsel, chances are he's salaried, maybe with some performance bonuses thrown in, his salary may be performance based and he has to report to his boss that he's filed X number of cases and gotten Y number of judgments. A JDB is probably getting paid whatever they can squeeze out of the defendant.

At that lovely pre-trial hearing I talked about earlier where my ex was questioned by the judge, my ex did say he wanted to explore BK to the judge. The attorney still moved for a judgment which leads me to believe that telling the attorney you are filing BK may not stop the lawsuit train once it has been filed. It may not hurt to try. I mean, I really thought once the attorney knew BK was in the cards he would just say, OK whatever, motion to dismiss. I was in lala land, unfortunately. I really did believe the attorney for the creditor would try and save his clients $$$ if we let on about the BK. Turned out not to be the case.

I see the question asked a lot on the forum and wondered myself, "do I tell my creditor I'm filing BK and will that knowledge push them to file a lawsuit or back off? The answer that I have come to is, yes, no ,and maybe, because each case is different. I don't think that ultimately telling an OC or CA you plan on filing BK can really "hurt" though, and it may help. In your situation, AMEX is the only cc/loc you have defaulted on, correct? Without a case # they will probably not respond in your favor to telling them your planning on filing BK, for the same reason they filed so quickly in the first place.

[floridian]

i just sent off for the nolo book, as i admit i am clueless about some of the debt collection rules...
i have delt with the court system all my life on my job and i have a pretty good idea of how arbitrary judges are and it varies by geographics..

its just like speeding tickets, some may prevail fighting them pro se, but most dont... many times a judge will hang it in your shorts, if he feels you are guilty and just wasting the courts time with BS....

im my area, the same judges that hear traffic and murder cases, hear civil stuff....

if im not going to held in contempt of court for not showing up, i would rather live with the summary judgement, if they cant garnish my money....

if it really starts to get scary, i could file bk and give up all my stuff that i hold dear and sit home and drink...

its ironic, that when i moved to this shitty little town years ago, i tried to close on a house and the credit bureau said i had a 10 year old judgement against me... (i had perfect credit then)..
it turned out to be some other bloke with the same name, but it was hell proving it wasnt me... maybe now if i get a judgement he can take the rap... pay backs!

[justbroke]

Here is the problem I have and I have said it every time some crack pot comes along with the mantra "don't let anyone get a judgment against you". Its not a one-size fits all answer. Thats the problem I have with it. Its it easy to take down a JDB...yes, those of use that know how to do it know that. But its not easy to take down an OC that sues you. Do you not think that Amex has all your records? Can produce all your charges and even a signed card holder agreement? Do you think a judge will give a damn if Amex can't produce the original card holder agreement if they provide the last 12 months of your charges, with your signature on them?

Nice posting and I concur. In the Bankruptcy Claims business, it's easy to prove you have a credit account when the creditor can produce several months of statements. Plenty of caselaw on that.

However, I would venture to guess that most responses to the plethora and varying questions on this site, get answered very simply and in simple generic terms. I am guilty of that at times, and I will even go so far as to add some disclaimer or put parameters around it.

This has been, actually, a great discussion on judgments, lawsuits, and fighting in court. I learned something, some new strategy, but don't think I'll be using it anytime soon. Maybe we can get you (BB2U) to post a message with the details of fighting (as you did in this thread) and make it a sticky. I'm sure more will come and ask a similar question.

[CompTweaker]

Look BB, you act like Im trying to stress out people here who already dont know what could happen to them in the case of financial matters. IM NOT! That would be you who does that:

Here if your to lazy to look it up this is what it means:
Summary judgment is awarded if the undisputed facts and the law make it clear that it would be impossible for one party to prevail if the matter were to proceed to trial. Pretty much sound like a debtor with an OC that has no defense for not paying the debt...huh?

So only a few weeks after you have been served and you filed your response to the court you can lose you case by the plaintiff filing a motion for summary judgment.

I should dig up and post the link on the attorney back east that get the defendant in court pro-se and after they admit they owe the money he asks them how they got to court that day. Most answer I drove, he then asks the judge to ask the defendant to go get his registration from his vehicle. While the defendant is out getting the registration he pulls out a pre-drafted motion to ask the judge to enter a judgment and then seize the vehicle. Once the defendant returns the judge issues a judgment against the defendant. Then the defendant presents the registration the judge and the judge determines if the defendant is the legal owner of the vehicle and then if the defendant is, he proceeds to order the seizure of the vehicle and order the defendant to turn over the keys to the plaintiffs attorney.

So two things we can take from the above story, why fight something you can't win and two, don't drive your own car to court.

and then I or someone like Bell steps in to disagree, and you freak out! If someone is stressed to the point of not wanting to do anything else other than file a BK, then hey, who am I to tread on their decision. Im not like you and dont try to force decisions on people. I am all for what anyone feels they need to do in their own particular situation, and the very last thing I want to do is add to their stress! Got that? Ok!

And boy is it just like you to resort to name calling and personally attacking people who either 1. you dont agree with, or 2. You lose an argument you know you cant win. (so here I go again, sinking down to your level) Jr. Lawyer? haha, whatever, I worked it and won regardless of how much you wish to think I dont know what Im talking about.
Crack pot? Yea, Im really starting to feel like that continuing this mindless dialogue with you. I've never stated that I won against an OC, it was a JDB. And while the OP was discussing an OC, it was carried off topic by your usual relentless rant of "Dont fight any lawsuit". Got that yet? Ok. I am specifically talking about JDB's in my case and in my posts (and made it very clear while doing so), but in the case of an OC, you do still have the right to make them prove their case, and they probably will since they probably have the records, but you never know unless you ask. You obviously dont know what "you're" (not your, since you want to hamper so much on one's intelligence, I feel you should at least know the proper grammatical difference between your and you're), talking about because your best comeback is what? motion for summary judgement? Like you had an "ah ha" moment Dude, you're the one who is delusional if that is your best argument against fighting back. Thats what the plaintiff files if the defendant DOESNT answer the complaint, or like you said, if they answer, but dont include affirmative defenses. Also, the motion for summary judgement can be filed by either the plaintiff or the defendant when one fails to prove their side of the case. And just because they ask for it, doesnt mean they automatically get it, but you wouldnt know that. You ignore the fact that THE PLAINTIFF is the one who brought the lawsuit, therefore, the plaintiff is the one necessarily required to PROVE they have the right to win their case! As the defendant, you answer the complaint, denying they have the right to judgement, and listing affirmative defenses. Here, I'll copy a list: (and this is a long list that may or may not apply according to each state's RCP's or the defendant's particular situation....I used about 8 of them after figuring out which would apply to my case and state):

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=252142

[CompTweaker]

I should dig up and post the link on the attorney back east that get the defendant in court pro-se and after they admit they owe the money he asks them how they got to court that day. Most answer I drove, he then asks the judge to ask the defendant to go get his registration from his vehicle. While the defendant is out getting the registration he pulls out a pre-drafted motion to ask the judge to enter a judgment and then seize the vehicle. Once the defendant returns the judge issues a judgment against the defendant. Then the defendant presents the registration the judge and the judge determines if the defendant is the legal owner of the vehicle and then if the defendant is, he proceeds to order the seizure of the vehicle and order the defendant to turn over the keys to the plaintiffs attorney.

So two things we can take from the above story, why fight something you can't win and two, don't drive your own car to court.

Oh what the heck, I might as well, for the sake of disclosure, attack this again, for what, the 3rd time now? Since all you can do is wash, rinse, and repeat this same ridiculous "mantra" in many different postings since you dont offer much else for argument's sake! That story of yours holds no water and can be attacked to the point where it is so full of holes, but im limiting myself to responding to your further delusional statements! In my state (and many other states), the bk exemptions also apply to judgement exemptions. That means if your state's auto exemption is $2500, and your auto is worth that or less, then that lawyer you mentioned could be laughed at. If the judge did allow him to attempt it, you remind the judge of the exemption and motion to protect that exemption! If it is worth $5000, and he "IS" allowed to do that according to that state's RCP's, then he better have the $2500 cash on hand to pay you for that exemption before he is allowed to take the car.
But really, lets get real here. In MOST states and under MOST circumstances, if you lose the lawsuit, judgement is granted first, then if an appeal isnt filed, an execution filed and granted, then a debtor's exam! And remember, the whole time this is occuring, the FDCPA is right there for the consumer's protection (which JDB's hate of course), because when they violate it, you've got a $1000 lawsuit sitting on the shelf for you to use against them.

[CompTweaker]

Maybe we can get you (BB2U) to post a message with the details of fighting (as you did in this thread) and make it a sticky. I'm sure more will come and ask a similar question.

You're asking that of someone who doesnt want to fight any lawsuits. But I agree there should be a sticky here, somewhere, if the admins want, as long as disclosure parameters, as you said, are in place. A VERY good idea. I know this is a BK forum and all, but not everyone can find the link I posted through a search engine or answers to some of their questions, even if they just want to explore their options (and Im not trying to plug that site I posted earlier, they just seem to have much information Im seeking when it comes to dealing with lawsuits).

[floridian]

ok, let me ask this question..... if you are garnish proof and the debt collector knows it, why would they go to the trouble of taking it to court???

say he gets a judgement against me and cant collect, do they think that 10 years down the road i will want to clear my credit and give them a check or what??

if they know you are going to file bk, same thing, why go after a debtor??

i think in my area, it cost about 275 bucks to file in small claims court, for say a 10,000 dollar issue...

[2Bshinyandnew]

ok, let me ask this question..... if you are garnish proof and the debt collector knows it, why would they go to the trouble of taking it to court???

say he gets a judgement against me and cant collect, do they think that 10 years down the road i will want to clear my credit and give them a check or what??

if they know you are going to file bk, same thing, why go after a debtor??

i think in my area, it cost about 275 bucks to file in small claims court, for say a 10,000 dollar issue...

Good question, Floridian. My ex has a job, makes decent $$, and I don't. Maybe that is why Chase sued him, and no one has sued me yet? Then again, I don't have a Chase account, either jointly with him or individua,l and in my neck of the woods Chase seems to sue "everyone", LOL. My ex had 2 Chase accounts, a regular Chase MC, and a Circuit City card through Chase. Just the regular Chase Bank NA (the master card) sued.

If you do a case party search in my county, Chase Bank, NA seems to file a whole bunch of complaints 2 days a month. All in small claims, under $2500. It's like a sue-mill, literally.

I owe some pretty large amounts, BOA and Citi are my biggest. Last payment to BOA was August 08, so I'm coming up on the 6 month mark. I'll let you all know!!

[2Bshinyandnew]

Nice posting and I concur. In the Bankruptcy Claims business, it's easy to prove you have a credit account when the creditor can produce several months of statements. Plenty of caselaw on that.

However, I would venture to guess that most responses to the plethora and varying questions on this site, get answered very simply and in simple generic terms. I am guilty of that at times, and I will even go so far as to add some disclaimer or put parameters around it.

This has been, actually, a great discussion on judgments, lawsuits, and fighting in court. I learned something, some new strategy, but don't think I'll be using it anytime soon. Maybe we can get you (BB2U) to post a message with the details of fighting (as you did in this thread) and make it a sticky. I'm sure more will come and ask a similar question.

I agree Justbroke, and BTW, your blog is awesome! I learn a lot from your posts, thank you.

[CompTweaker]

ok, let me ask this question..... if you are garnish proof and the debt collector knows it, why would they go to the trouble of taking it to court???

say he gets a judgement against me and cant collect, do they think that 10 years down the road i will want to clear my credit and give them a check or what??

if they know you are going to file bk, same thing, why go after a debtor??

i think in my area, it cost about 275 bucks to file in small claims court, for say a 10,000 dollar issue...

If you own property (real estate, auto, boat, etc.), they put a lien against it so that before you sell it or transfer it, the lien must be paid first. But, if you have a bunch of equity in that property, enough to satisfy the judgement, say a $20,000 boat that is paid for, and a $10,000 judgement, according to state rules, they could go after it to seize it (after they pay you for that state's exemptions, if there are any). They sell it to satisfy judgement and any money left over (if there is some) goes back to you.

Im poor, and everything I own is protected by my state's exemptions. Now if I didnt fight back and let the plaintiff get a default judgement, and he/she filed a lien on my property, (in my state a lien is good for 10 years), then they're banking on the fact that your property will gain in value, or other factors, and you cant get a home equity loan on that increased value, say 9 years down the road, until that lien is satisfied (paid off), or it expires. If the lien holder is paying attention, they can watch the value, pull your credit report to see what you owe, and once it gets over your state's exemption value, they can try to collect on the lien. But they still must consider the fact they have to PAY you the exemption amount first, then consider the costs of seizing and selling the property.

But if you're rich with many assets, you can bet the lien holder will come after you. If not, then thats when the lawyers decide those factors when considering if they should pursue you or not. Default judgements are the easiest, you're not fighting back and they love it. When you DO fight back, and MAKE them expend their time and money chasing proof, thats when they consider the fact that maybe you will file BK, or you're just not worth pursuing. They dont want to chase poor people because they know the effort will not be worth it. Now an easy default, whether you're rich or poor, they will take that any day.....its easy. But you make it hard on them by fighting back, in which you're well within your right to do so.