I'm being sued by Bank of America/Gamache & Myers - what do I do?!

[cspa522]

Got home today and had THE letter. I called them to give them my attorney's information, but was informed that because we haven't filed yet, we've just put her on retainer (we're filing in November) it doesn't matter, we're going to be sued.

What does this mean?! Is this going to interfere with us filing Chapter 13? I called my attorney and left her a voice mail, since it's now after hours.

Please help. I'm freaking out.

Thanks!!

[daytona]

You will be fine...for starters, you have XX number of days to respond, before any judgement would be grated....secondly a simple answer of the suit wil delay further proceedings until well after you file. Once you file it will be all moot anyway.

[cspa522]

It's just so...wow. I'm being sued. I'm not even sure how I'm feeling. Panic? Stress? Fear? Lord.

I called Gamache & Myers and said we're waiting on a case number (didn't want to tell them we haven't officially filed yet and won't be for 6 more weeks), and gave them my attorney's information. So...hopefully that puts it off long enough.

Is there any chance I'll have to go to court for this, either before or after we file? Thanks for the quick response!

[ccsjoe]

I would venture to guess that, since you're filing in November you'll be fine. Just make sure to respond to "THE LETTER" close to the end of the response period, send your response via CMRRR (Certified Mail Return Receipt Requested) and as daytona indicated that should delay proceedings enough that when they do sue it'll be too late. Even when they do sue, there is still a period of time that they must allot you (30 days I think) to provide a response before obtaining a default judgement.

[cspa522]

I would venture to guess that, since you're filing in November you'll be fine. Just make sure to respond to "THE LETTER" close to the end of the response period, send your response via CMRRR (Certified Mail Return Receipt Requested) and as daytona indicated that should delay proceedings enough that when they do sue it'll be too late. Even when they do sue, there is still a period of time that they must allot you (30 days I think) to provide a response before obtaining a default judgement.

I already called them and gave them my information - does that mean anything bad for me?

[ccsjoe]

That's ok, it could prompt them to try and do something sooner, but they will likely do nothing or call your attorney to confirm the existance of an attorney client relationship and to try and get an idea of when you're filing. Most likely, they'll stand down once they verify you're serious about filing in 6 weeks.

[cspa522]

That's ok, it could prompt them to try and do something sooner, but they will likely do nothing or call your attorney to confirm the existance of an attorney client relationship and to try and get an idea of when you're filing. Most likely, they'll stand down once they verify you're serious about filing in 6 weeks.

Bless you all. I was totally panicking. We ARE serious about filing. We can't put our attorney's fees into the plan, so we're just saving for those and then we're filing. If I could do it sooner without breaking the bank, I would!!

[daytona]

People and business's get sued all the time...it NOT a big deal because you already have a plan and an "out"! Even if they got a default judgement the BK would wipe it out anyway. (it usually cast 200-300 extra for your attorney to do this as it's a seperate filing) In any case a judgement in ~6weeks is HIGHLY unlikely...they just don't usually move that fast. You don't have to go to court unless ordered to appear by the court.

[cspa522]

I've been emailing back and forth with my attorney all morning. We have not been served, we do not have a court date, and our case isn't even listed on Missouri's Case Net listings at the moment. She advised me that we'll need to file before we're ordered to appear in court, but I explained that we can't file until we have saved enough for her fees. (as we can't include them in the plan)

We are filing in 7 weeks, approximately, sooner if we can swing it. She explained that we can retain her services to fight this until we can file, but that it will push back when we can file even longer because of the money owed to her (as it's a separate fee for her to represent us in this matter vs. the bankruptcy).

So...do I just hold out and hope that Gamache & Myers don't get to me in the next 7 weeks and we can file before then?

[enginegirl]

I filed 13 because the "Law" firm that purchased my debit from AmEx served me papers (at 11:30PM on a Sunday night during a tropical storm!!!). The next day I consulted with my lawyer regarding filing, sent the court a reply to the summons via registered mail within the time frame allotted (this letter was not produced by my BK lawyer but from a friend who is an attorney and was from me and not a lawyer so I avoided an additional fee, I can send you a copy if you would like) and I filed chap 13 on the 29th day after that (so about 45days after being served). The filing prevents the suer (or should I say sewer due to their dirty tricks) from proceeding any further (aka a stay). The extra 45 days allowed me to get all my papers etc organized.

and I know this is all very stressful, but it is really a lot easier than people make it out to be....

[cspa522]

I filed 13 because the "Law" firm that purchased my debit from AmEx served me papers (at 11:30PM on a Sunday night during a tropical storm!!!). The next day I consulted with my lawyer regarding filing, sent the court a reply to the summons via registered mail within the time frame allotted (this letter was not produced by my BK lawyer but from a friend who is an attorney and was from me and not a lawyer so I avoided an additional fee, I can send you a copy if you would like) and I filed chap 13 on the 29th day after that (so about 45days after being served). The filing prevents the suer (or should I say sewer due to their dirty tricks) from proceeding any further (aka a stay). The extra 45 days allowed me to get all my papers etc organized. and I know this is all very stressful, but it is really a lot easier than people make it out to be....

Thanks. I guess I'm just nervous because I've never had this happen before. We haven't paid on our credit cards in 18 months (since we were with a debt settlement place - big mistake) so of COURSE they choose now, 6 weeks to filing, to sue me. I'm hoping we get out of this without a problem, that they don't do anything about it until after we've filed and it's too late. We haven't been served yet, I guess now I'm just waiting for that to happen.

Does anyone know - can I be served at my place of business? I'd really like to avoid that since we haven't made our filing bankruptcy a known thing.

Enginegirl - I'd love a copy of that letter, thanks. My email is [email protected].

[enginegirl]

Honestly , I had the threatening we're gonna sue you calls too!! It is a scare tactic, just keep checking to see if they have filed paperwork in the court system (and you should have time between now and then!) as far as where they can serve you... the answer is anywhere and anytime they can find you, so as inconvenient and scary as it was to be woken out o a dead sleep on a sunday night I am glad it was not at work.... letter will be sent shortly

[enginegirl]

Here the letter sent for anyone who needs.. basically a letter of a extension.... just remember I am NOT an attorney, but this letter did keep the sewers (suers) at bay for extra time I needed

IN THE CIRCUIT COURT OF THE XXX JUDICIAL CIRCUIT
IN AND FOR XXX COUNTY, STATE


The SEWER's name (ie BOA or Amex) CASE NO your case number

Plaintiff
v.

YOUR NAME
Defendant(s)
____________________________________________/

MOTION FOR EXTENSION OF TIME TO
RESPOND TO PLAINTIFF’S COMPLAINT

COMES NOW, the Defendant, YOUR NAME, and files this Motion for Extension of Time to Respond to Plaintiff’s Complaint served upon her and states as follows:
1. In order to prepare an adequate response in this matter, the Defendant request a thirty (30) day extension of time in which to respond to the Plaintiff’s Complaint.
2. This is the first Motion for Extension of Time requested by me in which to respond to Plaintiff’s Complaint.
3. This motion is not made for the purposes of delaying this matter.
WHEREFORE, I request an Order a granting a thirty (30) day extension of time in which to respond to Plaintiff’s Complaint.




YOUR NAME

[cspa522]

So how do I file a continuance?

I have yet to be served, but expect this at any time. I think they tried to come by my house yesterday, but I wasn't home. Anyway, I found my case online, and I'm scheduled to appear in court on November 5th. We are filing on November 11th and that's as early as I can afford to do so. I already moved it up 10 days from when I originally planned to.

How do you file a continuance and what's involved? Will they accept that we're filing for bankrtupcy 6 days later or will that not be a good reason?

Thanks!

[enginegirl]

Once you are served you should have 21 days depending on state to either respond or file an extension. You can use the response above and it will give you 30 more days... so lets assume they serve you today 5 Oct, send above letter via certified, return receipt on the 23rd Oct, you will have 30 more days to file, which will take you to 19 Nov... you will NOT have to appear in court on 5th Nov as you have requested a continuance with above letter.... once you file a stay will be issued and all parties will be notified.....
I am not a lawyer but this was my experience (june 2010). my time frame is below
Summons issued 5/28/10 (by AMEX)
I was served 6/7/10
I mailed answer 6/25/10
I filed 7/19/10 and stay was then issued.....
1st 341 8/17 continued due to scheduling conflict
2nd 341 meeting Sept 17th
confirmation hearing is 10/6 (fingers crossed for tomorrow!)

good luck to you and your family... it really is not as bad as it seems just be honest and realistic with your lawyer and with yourself