Crap 1 debtor exam

[treehugger1]

Why should someone be prepared to file for BK if a notice of a debtor exam is served on them? During the last suit against me by Citi, I could see this coming after I failed to answer. What I did was immediately file a notarized declaration of exemptions and assets with the court. I mailed a copy of all I could think of to the plaintiff's attorney. As far as I can tell, everything involved with this suit has now ground to a halt; judgment or no judgment. It seems to me that the plaintiff's attorney did the right thing and stopped wasting time on this suit. The court clerk wasn't happy that I was filing a declaration of exemptions prior to a motion of request from the plaintiff. I did it anyway, and they HAD to include it in my case file (they have no choice under my state law.) My declaration now shows on my statewide court system electronic information system. It even has my "official" local court seal stamped on the original copy on file. If I receive another request for such info from others, I'll send them a first class letter as a reply telling them the civil suit case number, and they can go look it up themselves. I've learned that my local judges can be quite liberal when it comes to pro per situations.

[DeadManCrawling]

Hey, welcome to the forum. I will try to help, but you need to research more, as well.

1. In some states, merely attempting to serve notice is good enough. It does not matter whether it was certified, mailed, sent FedEx, advertised in the paper or yodeled in the town square. Debtor is screwed.

2. This is mostly an empty threat, designed to frighten people. The judgment is NOT discharged in BK. None are, ever. However, the judgment IS rendered ineffective by BK. Sometimes it takes an extra motion or action by the clerk of the court to vacate the judgment. So, in legal terms, the debt becomes a judgment, which is NOT discharged, but cannot be collected and can be vacated (removed) in a separate action following the BK discharge. In this circumstance, BK is the only way to get rid of the judgment. Anyone who has proceeded as far as a Debtor's Exam had better, if they are smart, be ready to file BK.

Not answering, and NOT filing BK can result in jail time. That is somewhat rare, but not unheard of, and a risk not worth taking. Get the wrong judge at the county level and you could be residing in the local jail.

Hope that helps a little.

[GotNoMoney]

I have read this whole thread with much interest but I have a couple questions I hope someone can answer.

1. The OP states it mailed to him via USPS and I don't think he said it was sent certified. Since a lot of people have said you "must" respond to this or a judge can issue a bench warrant who is to say you received it if it was sent First Class Mail only? Since it was not served upon him or he did not sign for it (certified mail) what proof does anyone have he received it? What if (since I use a PO Box) I didn't get my mail for a month (and sometimes I don't) or I am traveling and this is sent to me and I have no idea it was sent. I am lost as to how you can have a legal proceeding against you without proper notice or the other party providing proof it was mailed. I think of all the people that move and leave no address and unless the person writes return to sender you never got it. Or what if (and this is not that far fetched) the law firm that mailed this really never sent it out? Is this something that is only state dependent? Some wacky law in one state? Or does this apply all over? It makes no sense to me that you can have a legal document sent First Class Mail and the sender has no proof it was received. If I missed the part that this was served or sent certified please ignore the above.

2. I am lost as to how not answering creates an affirmative answer and that by wording a question that states "this debt is not chargeable in BK" then makes it so. Since you never responded can someone point me to where I can read or learn how a non-response to the whole document (not just that one question) then makes the whole document a legal and binding. I just want to know where a law says that by not answering this I now state all of it to be true. And like posted in here, a question that clearly is not true how can that them be true by not answering. As pointed out what if it said I owed them one million dollars for a $2000 debt. Based on what I am reading if by not answering that the debt is dischargeable it then becomes non-dischargeable on what grounds? Doesn't a federal judge have the authority to overturn any lower courts ruling? Thus a BK judge can still discharge the debt?

[treehugger1]

Pure compliment

[catleg]

I can't tell whether I've been complimented or insulted.

En garde, monsieur!

[treehugger1]

[catleg]

Really just as long as you send it back, the ball is back in their court.
If you just scribble nonsense in crayon all that will happen is they'll try to compel you to answer, possibly by threatening arrest. But they're already threatening arrest if you don't answer.

So the trick is to put something down that looks like a sincere effort to comply but without giving them anything.

You know, my handwriting is really poor, I doubt they can even read the VIN number I put down, is that a '4' or a 'Y'. Get it?

[jacko]

I should answer them. What are the chances they will seize my vehicle? My state auto exemption is $4200. I looked at KBB for the value of my auto. Fair condition is $4375 and good condition is $5100. If I were to sell it privately, I would use the Fair condition value. After I mail my response out, I will be out of state for 6-8 weeks with my car.

Also, I will be keeping my checking regardless. I like my bank and I would have to provide another debtor exam in the future. I only deposit at up to $300 at a time and drain with bill pay to pay the utilities etc. I don't write out checks anymore since it takes a week to clear.

My deposits are exempt I believe since they fall under the poverty guidelines.

An admission relates to a "fact" which may be in dispute between the parties of the case.

What you are talking about is not a relevant "fact" upon which a state court can apply "law" to reach a conclusion ("judgment").

The admissions are only made for the case in question, you can't be summoned with "I admit to killing Jimmy Hoffa" and subsequently be arrested for murder whether or not you answer.

The worst that can happen is "imprisonment" (I put in quotes because it is normally a special kind of arrest and imprisonment, at least here in NJ) for not answering. So answer and do your best to give them nothing.

Federal supremacy and the automatic stay are powerful tools that override state court actions.

I have many lawsuits pending against me/my wife and literally *not a peep* from them since filing for BK.

[catleg]

There is some pretty clear case law which states that opposing attorneys, once notified of the bankruptcy case being filed by you, cannot claim "we didn't know" and must take positive action to avoid violating the stay. I put all of the creditors attorneys on my BK matrix so that would be covered. The automatic stay is extremely powerful.

[DeadManCrawling]

Yes,

BK, which is federal, stops them in their tracks. When things have progressed far enough that you are faacing a debtor exam, it is probably time to get the BK filed.

We filed ours today, ahead of our exam, which was scheduled for Dec 14. We will watch to see if they dismiss, and will appear to tell them we filed BK if it is still on the schedule.

Good luck with yours, whatever route you take.

[catleg]

An admission relates to a "fact" which may be in dispute between the parties of the case.

What you are talking about is not a relevant "fact" upon which a state court can apply "law" to reach a conclusion ("judgment").

The admissions are only made for the case in question, you can't be summoned with "I admit to killing Jimmy Hoffa" and subsequently be arrested for murder whether or not you answer.

The worst that can happen is "imprisonment" (I put in quotes because it is normally a special kind of arrest and imprisonment, at least here in NJ) for not answering. So answer and do your best to give them nothing.

Federal supremacy and the automatic stay are powerful tools that override state court actions.

I have many lawsuits pending against me/my wife and literally *not a peep* from them since filing for BK.

[pcn]

Are you kidding?

I wouldn't make it easy for them.

I wouldn't answer anything.

If you're judgment proof there is nothing they can do but huff and puff and bluff you into paying them.

Judgement proof and collection proof are different terms. I'd expect a "mentor" to know that before throwing them around too loosley.

[GoingDown]

cat,

not answering this one is different, because he will be "Admitting that this debt is not dischargeable in BK". Ever. I am not sure how it all works, but we have the same issue with Cap One, a request for admissions, and debtor exam, scheduled in Dec. Our attorney was extremely firm on this. We MUST answer or get filed before that date. Otherwise the underlying debt can not be discharged. Ever.

Maybe it varies by district, or even judge, but it's not a chance we are going to take.

The gist is this: Somewhere on that form, if it is the same we received from Cap One, is this sentence:

"I admit that this debt is not and will not be dischargeable in bankruptcy."

Or something similar. Our attorney says this is the worst possible outcome for these types of things.

I sincerely doubt that simply ignoring something will be the same thing as saying the debt is yours forever and ever and never bankruptable. Besides, they can make you give up your right to file bankruptcy against this debt. Bankruptcy is a right. They don't have the power to take that right away from you.

[GoingDown]

So, I should answer their questions? Currently collection proof and in foreclosure.

Are you kidding?

I wouldn't make it easy for them.

I wouldn't answer anything.

If you're judgment proof there is nothing they can do but huff and puff and bluff you into paying them.

[speedbump69]

In my area all local banks provide a notary free even without an account..