AMEX filing suit

[floridian]

i wouldnt know, they are my kids...

[Bell30656]

I've heard that cats taste like chicken...

[floridian]

on the lighter side, everything that i own that is worth anything is financed... ive seen better looking furniture at the land fill... i just hope they dont classify my cats as livestock and seize them...

[Bell30656]

I like your form of legal advice better. Just don't show up for court and allow the plaintiff to get a default judgment then take whatever action he/she wishes.

I've seen a Writ of Fi Fa executed due to a judgment from a previous broken lease. They took this individuals truck and several household items including a television and computer. Did he protest they weren't his? I don't know. However, the items left with the former landlord and the sheriff. He did get them back but not without paying the judgment. Now, I didn't hear about this Writ being served but rather I was there. I watched his truck get loaded on a rollback and saw the deputy keeping him off to the side while the former landlord and his goons carried the items out of the house. This was in front of the entire neighborhood with his wife and children standing there.

Without spending one dime or hiring a lawyer, I managed to hold off three civil suits long enough for me to get everything together to file bankruptcy. Two cases were in superior court (one served 13 mos before I filed the other served 10 mos before filing) the other in magistrate court.

[2Bshinyandnew]

BigBoy2U, I don't care how you slice it... I know that rolling over whenever someone files against you is an idiot move within Georgia. In Florida, maybe that is a great plan but with the Writ of Fi Fa alive and well here, there is no way I would EVER allow anyone to get a judgment against me without having sworn in a jury and spent some money. How do you deal with the Aid of Execution hearing after a plaintiff gets a judgment against you? When they ask where your paycheck goes, what do you say? When they ask about your vehicles, property, big screen television, etc., do you lie? Sell them all to your cousin for a dollar? Do you just not show up for the hearing? So you are praying the creditor goes through the expense of getting a judgment but then doesn't bother to serve you for the Debtor Exam? Great plan...

If you are planning a BK anyway, and being that this is a Bankruptcy Forum so its safe to say most of the posters here are at least contemplating BK, than any property you have is either going to be liquidated eventually for the BK estate, or is exempt. No one needs to lie??? I don't understand...in Georgia, isn't any property that would be exempt in BK also exempt from collection? Unless you are hiding something to begin with, why would someone planning to file BK have to fear a debtors exam?

[2Bshinyandnew]

Here is the whole deal on your Writ of Fi Fa that you throw around as if its something that is special to.. you...have you really read it, all of it? Do you really understand what it means?

<snip for brevity>

sounds like a write of execution to me, too. Here is what it looks like:

http://www.waltoncountyga.org/MagCt/documents/fifa_000.pdf

if you scroll half way down, on the right side is an area to list and describe, to wit the items the writ includes as follows:

Therefore, YOU ARE COMMANDED, that
of Superior Court is hereby directed to cancel it of record this: of the goods and chattels, lands and tenements
of said Defendant(s), and ESPECIALLY/ONLY of the following
This _______ day of _____________________ 20 _______.
Described property, to wit:
______________________________________
______________________________________
______________________________________
______________________________________


The GA Writ of fi fa is similar really to any writ of execution, it gives the judgment creditor rights to levy the debtors property and have the sheriff aid in executing the writ. BUT, the property to be taken must be clearly identified as belonging to the debtor on the writ before execution. Identifying assets and proving proof of ownership is not all that easy.

This, from 'Lectric Law Library

http://www.lectlaw.com/def/f112.htm

The sheriff cannot break the outer door of a house for the purpose of executing a fieri facias; nor can a window be broken for this purpose. He may however, enter the house if it be open and, being once lawfully entered, he may break open an inner door or chest to seize the goods of the defendant, even without any request to open them. Although the sheriff is authorized to enter the house of the party to search for goods, he cannot enter that of a stranger for that purpose without being guilty of a trespass, unless the defendant's goods are actually in the house.

So, we know that the personal property to be levied must first be identified, and proof of ownership must be ascertained.

Plus, if the sheriff comes knocking on your door, he cannot come in unless you let him! The Sheriff can not bust in your house without your permission and take the TV while your kids are watching Barney (an example given earlier of what a writ of fi fa can do), UNLESS, the creditor knew you had the TV, you were the true owner of the TV, and you let the sheriff in.

I did a bit of searching and there was a good deal of anecdotal stuff posted by people about their difficulty in executing a writ of fi fa, things like "I have a writ of fi fa but when the Sheriff and I went to collect, the debtor said they didn't own what we went to collect, what do I do now?" Internet posts such as that are not really proof positive of anything, but, I read enough of those to convince me that a writ of fi fa is not some sort of magical free pass for a creditor to bust in your house and go shopping with the Sheriff.

My point, is that one person's personal experience in a specific state with very different circumstances is not, IMO a very good reason to advise a poster who is being sued by AMEX and is planning on filing BK in the near future to:

This is your opportunity. File your answer citing every affirmative defense you can find whether it has merit or not. Then send your first interrogatories and ask for everything you can think of whether it pertains to the lawsuit or not. (I wouldn't count on them answering it.) Of course, this is all stall tactics. I was sued by a JDB in Superior Court (talk about overkill) who filed in Nov 2007 and then filed a second lawsuit (different debt) Feb 2008... Neither one of them ever got close to actually going to court. I filed bankruptcy in December 2008.

Getting to the judgment isn't an easy task.

[CompTweaker]

i wish it wasnt true, but there are some seriously self-rightious citizens here... you arent even supposed to move here, unless you are kin....

i dont go to their church etc, so they would love to throw stones... you can go to the sheriffs website and see most of their rap sheets and photos, but thats ok....

its kind of spooky to move right now anyway, with all that going on in the realestate scene.. so, for the time being, ill just take my lumps.. ive got a bunch of pets and when you are renting, you never know when the situation could go south...at least i own this place and i have a fenced in yard, so i can do what i want...

i moved here from the tampa are a bunch of years ago with my job and have been trying to leave ever since... i was even going to give up my home in a bk, just to be able to leave, but it didnt work out.. part of the plan, was that i would be living in another area when i filed...

they say their is a reason for everything, but i fail to see the one that keeps me here... i could have gotton out of prison for murder in less time than ive lived here... kahrma, i guess..

Back when I was debating filing and how to deal with other's reactions to it, I was worried. But, for some reason, as time went by, I just accepted it and actually brought it up to some close friends and co-workers and found out they had also filed bk in their life. It was a pleasant surprise to me to realize that hey, they've been there. But I guess the whole thing just boiled down to me not caring what anyone thought of me based on my financial life. If its that important to them that they cant accept it, or want to make fun of it, then thanks for showing your true colors......its been nice knowing ya.

Hang in there Floridian, at least you still have some friends here at the forum

[CompTweaker]

BigBoy2U, I don't care how you slice it... I know that rolling over whenever someone files against you is an idiot move within Georgia. In Florida, maybe that is a great plan but with the Writ of Fi Fa alive and well here, there is no way I would EVER allow anyone to get a judgment against me without having sworn in a jury and spent some money. How do you deal with the Aid of Execution hearing after a plaintiff gets a judgment against you? When they ask where your paycheck goes, what do you say? When they ask about your vehicles, property, big screen television, etc., do you lie? Sell them all to your cousin for a dollar? Do you just not show up for the hearing? So you are praying the creditor goes through the expense of getting a judgment but then doesn't bother to serve you for the Debtor Exam? Great plan...

Yep, you're right! Now maybe a magical ignore button will drop down and you will be lucky enough to no longer be responded to by him, lol....hmm, wish I could find that button.

[floridian]

Maybe the folks you have coffee with won't be as judgmental as you fear??

i wish it wasnt true, but there are some seriously self-rightious citizens here... you arent even supposed to move here, unless you are kin....

i dont go to their church etc, so they would love to throw stones... you can go to the sheriffs website and see most of their rap sheets and photos, but thats ok....

its kind of spooky to move right now anyway, with all that going on in the realestate scene.. so, for the time being, ill just take my lumps.. ive got a bunch of pets and when you are renting, you never know when the situation could go south...at least i own this place and i have a fenced in yard, so i can do what i want...

i moved here from the tampa are a bunch of years ago with my job and have been trying to leave ever since... i was even going to give up my home in a bk, just to be able to leave, but it didnt work out.. part of the plan, was that i would be living in another area when i filed...

they say their is a reason for everything, but i fail to see the one that keeps me here... i could have gotton out of prison for murder in less time than ive lived here... kahrma, i guess..

[2Bshinyandnew]

now, i am seriously bummed out!!!
i couldnt sleep last night, thinking about getting sued in a small town and all that goes with it....
just when i thought that i could avoid losing my meager lifestyle by taking a few non-collectable judgements, i realize that my health will probably suffer from the stress....

it looks like bk may be the only answer.... going to small claims court with all the people that i drink coffee with at the restaurant, would be some real punishment... gawd, i hate living in a small town...

My next door neighbor got a nice call from GC Services (bill collector) last month. I didn't know my neighbor all that well, but I was pretty embarrassed at first, but it turns out she's had her own share of financial woes and her sister is going through a similar situation as I am...I think GC Services may have unwittingly started a friendship that may not have otherwise happened .

Maybe the folks you have coffee with won't be as judgmental as you fear??

[floridian]

now, i am seriously bummed out!!!
i couldnt sleep last night, thinking about getting sued in a small town and all that goes with it....
just when i thought that i could avoid losing my meager lifestyle by taking a few non-collectable judgements, i realize that my health will probably suffer from the stress....

it looks like bk may be the only answer.... going to small claims court with all the people that i drink coffee with at the restaurant, would be some real punishment... gawd, i hate living in a small town...

[Bell30656]

You bet, I filed Chapter 7 with two actively engaged lawsuits. The trustee has already relinquished any interest in either suit. The value of the counter suits was only $1,000 each. My lawyer asked the trustee to exempt it and the trustee at the 341 agreed that the settlement value was indeed much lower and thus had no interest in it. So, I do in fact control the settlement of the claims. So there will be no delay in the closing of my BK. That is why I paid a lawyer to handle all this good stuff. All three lawsuits are clearly listed in the chapter 7 petition with the two counter suits. Each state has different exemptions some even include an outright "Wildcard" exemption.

BigBoy2U, I don't care how you slice it... I know that rolling over whenever someone files against you is an idiot move within Georgia. In Florida, maybe that is a great plan but with the Writ of Fi Fa alive and well here, there is no way I would EVER allow anyone to get a judgment against me without having sworn in a jury and spent some money. How do you deal with the Aid of Execution hearing after a plaintiff gets a judgment against you? When they ask where your paycheck goes, what do you say? When they ask about your vehicles, property, big screen television, etc., do you lie? Sell them all to your cousin for a dollar? Do you just not show up for the hearing? So you are praying the creditor goes through the expense of getting a judgment but then doesn't bother to serve you for the Debtor Exam? Great plan...

[floridian]

thanks for the info...

just when i think it cant get any more embarrassing, i find out that a former girl-friends son is a process server....
doh!

[2Bshinyandnew]

so, if i am garnish proof, cant i just ignore the lawsuit and let them have a summary judgement?...

Yes...BUT, see below for the difference between a default judgment and summary judgment. If you no-show you will have a default judgment filed against you.

or is it one of those deals where you are compelled to appear or be in contempt?

No. The only way you can be compelled to appear is if the defendant started the litigation ball rolling, by filing an answer. I believe even if you file an answer, you can still no-show at the pre-trial hearing and it will be just like you never filed an answer at all and you will get a default judgment anyway.

Default judgment-

At trial, a decision awarded to the plaintiff when a defendant fails to contest the case. To appeal a default judgment, a defendant must first file a motion in the court that issued it to have the default vacated (set aside).

http://www.nolo.com/definition.cfm/T...5DC6B/alpha/D/

summary judgment -

A final decision by a judge that resolves a lawsuit in favor of one of the parties. A motion for summary judgment is made after discovery is completed but before the case goes to trial. The party making the motion marshals all the evidence in its favor, compares it to the other side's evidence, and argues that a reasonable jury looking at the same evidence could only decide the case one way--for the moving party. If the judge agrees, then a trial would be unnecessary and the judge enters judgment for the moving party.

http://www.nolo.com/definition.cfm/T...C6054/alpha/S/

Different states have different processes and call their pleadings different things, but the above legal concepts are pretty much universal.

Post judgment interrogs and debtor exam are different animals entirely. Also, the courts frown on ex parte anything, and the liklihood of that happening is almost nil unless you are hiding something and your creditor knows it. Most collection proof people, like you, are not hiding things.

[floridian]

my wages are disability... the bad part is, that one of my friends wife is in charge of the civil clerks office... embarrassing to say the least...