What is consent to judgment?

[shoopy]

I've been looking at a Chapter 7 for a couple of years now, and promised myself that when the fist subpoena arrived I would file. Well, about 2 weeks ago it did arrive, from Portfolio Recovery Associates, regarding a past due Discover bill.

The following Monday, I called the attorney that I decided on, made a down payment and faxed him a copy of the subpoena. I was told that they would file an answer, or contact either the court, or plaintiffs attorney (I didn't quite understand what was going on), and get me 90 days to gather my Chapter 7 stuff. OK, fine.

Today I called my attorneys office, and his secretary told me that (apparently) we had entered into a consent to judgement, giving me the aforementioned 90 days in which to get my chapter 7 stuff together.

Not being a legal type, I Googled consent to judgment, and all that I found was, that it's an agreement to pay some amount to a creditor, over some period of time. Really, or am I misunderstanding what's going on?

Thanks for any input.

[shoopy]

Rather than muddle up the original question with editing, I am posting some additional info as a separate post.

I just checked my email, and my attorneys secretary apparently send me a copy of their answer to the complaint which I received. The answer is the standard "neither admitted or denied" replies.

Nowhere is 'consent to judgment' mentioned. Leaving me more confused than before. If the complaint has been answered, where is this 'consent to judgment' coming from? I don't want to start constantly haranguing his office office with stupid questions right out of the gate, but I would feel better if I knew how these things proceed.

[keepmine]

Prehaps the secretarty just misspoke.

Your lawyer works for you and anything you don't understand, you need to question him until you feel comfortable. Since there is some confusion, a request for clarification isn't out of line.

[LadyInTheRed]

A consent judgment is one that the judge enters when the parties to a lawsuit settle. Your attorney should not agree to a settlement and let a judgment be entered without discussing it with you. Hopefully, the secretary misspoke. I'd call her and clear it up. Better yet, call the attorney. It's his job and ethical duty to keep you informed of the progress of your case.

ETA: It may be that your attorney signed a consent to judgment on your behalf that is only to be filed in the event you do not file BK within 90 days. But, he shouldn't do that without your consent.

[AngelinaCat]

You need to talk to your attorney as soon as you can and get a clear understanding of what is going on. Do not sign your name to anything that you do not understand.

[shoopy]

I received a letter from my attorney, including a copy of a consent order for judgement, signed by him, not me. Apparently the creditor in question has agreed not to take any collection action until June 30, as I get my stuff in order to file Chapter 7.

Is this some sort of ploy to gain filing time? It sounds counter productive to me.

To me it sounds weird to actually file an answer to the complaint only to enter into a consent agreement a few days later, especially since I'm collection proof anyway.

After filing Chapter 7 is it more difficult (is it going to cost me more money) to get the judgement undone?

I have sent my attorney an email, but was hoping to get some input from some outside folks that have an opinion on this particular action.

Argggh.

[bcohen]

If you are facing a civil suit, and need to buy time before you can file for bankruptcy protection, then a consent to judgment is the last thing you would want! Far from buying time, it will actually speed up the time at which the creditor can begin garnishing your wages and bank accounts! What you should have done is to file an answer to the summons and complaint, which must be in the proper format, and must raise whatever affirmative defenses and other defenses which you wish to use.

The easiest way to get the necessary information without having to pay an attorney is to go to your county's online court records (or if they don't have such records online then go to the courthouse and use a computer there) and look for other cases filed by this plaintiff. Write down the case number of cases in which an answer was filed. Then have the clerk make copies of the case files for those cases, so you can use the documents as a template for your own answer, motions, and discovery requests. (This will likely cost at least $100, because the copying fee is typically 50 cents per page, so be prepared for this; it is money well spent.)

After preparing a suitable answer to the complaint, you would need to file it with the court (which costs another $50 or more in court fees, depending on where you live) and send a copy Certified Mail Return Receipt Requested to the plaintiff's attorney. This must be done before the deadline or else the creditor will win a default judgment, and will then proceed to garnishing your wages and bank accounts within 30 days or less!

Once you have served the plaintiff with your answer, you will likely receive a discovery packet from them. Make sure to prepare your own discovery requests, as this will definitely buy you more time and run up the plaintiff's legal expenses, and may make them back off if they realize you are going to win. While I am not going to post the exact questions I asked here, it goes without saying that I served the plaintiff with interrogatories and requests for admission, as well as request for production of documents. When answering the plaintiff's interrogatories and requests for admission, make sure to answer truthfully (i.e. do not say anything which is blatantly false) but do not admit to anything which the plaintiff must prove to the court!

Since the plaintiff is a junk debt buyer--and not Discover Bank itself--you should be able to attack the "evidence" which they will present in response to your request for production of documents, and as exhibits to support the motion for summary judgment which will likely follow. Specifically, the will attempt to provide an "affidavit" from one of their own employees attesting that they are the lawful owner of the account, and that the amount being sought is true and correct. They may also provide a photocopy of the final billing statement before the account charged off. You would then file a response to the motion for summary judgment, attacking this "evidence" and again asserting whatever other defenses you might have (such as statute of limitations).

By now, at least 3 to 4 months will have gone by, and the plaintiff still won't have their judgment. In my case, I was sued by Discover Bank itself, so I fully expected to lose, and I did. However, in exchange for spending about $300 on copying fees, court costs, and Certified Mail fees, I succeeded in delaying the judgment for 4 months which allowed me to spend down my non-exempt funds and file for bankruptcy protection, so all was not lost! I also ran up the plaintiff's legal expenses to almost $1500, which were added to the judgment, which I never paid!

[shoopy]

That's kind of what I was thinking. The thing is, previously, my attorney sent me a copy of his answer to the complaint including requesting discovery info etc.

Now I'm wondering how we got from answering the complaint to a consent to judgement that I wasn't even consulted about. I'm still waiting for my lawyer to answer my email, but I'm worried about his rationale for this seeming incongruity.

I'm not too concerned--yet, as I am un collectable, but still wondering what the heck he is thinking, and if I should just write off my deposit to him, and look for another attorney.

[shoopy]

Huh. Well, at least I know my attorney doesn't leave his work at the office, as he just responded to my email (or he's a forum member, and saw my post).

Anyway, his response was "The consent judgment was entered into so that the matter does not go to trial and the creditor gives you 90 days without collection". Does that sound reasonable?

[bcohen]

Anyway, his response was "The consent judgment was entered into so that the matter does not go to trial and the creditor gives you 90 days without collection". Does that sound reasonable?

No. That's a B.S. answer. The judgment, once granted, takes effect immediately. The only way a creditor with an enforceable judgment will refrain from garnishing your wages and bank accounts (if they can locate them) is if you have a payment agreement and are making the payments. So unless it is your plan to send this creditor hundreds of dollars each month to stave off garnishment, I suggest you tell your attorney to change course ASAP. Also, I cannot believe that an attorney who is supposedly representing your interests would agree to such a thing without your express written permission.

[shoopy]

No. That's a B.S. answer. The judgment, once granted, takes effect immediately. The only way a creditor with an enforceable judgment will refrain from garnishing your wages and bank accounts (if they can locate them) is if you have a payment agreement and are making the payments. So unless it is your plan to send this creditor hundreds of dollars each month to stave off garnishment, I suggest you tell your attorney to change course ASAP. Also, I cannot believe that an attorney who is supposedly representing your interests would agree to such a thing without your express written permission.

In fairness, the consent order does say "it is hereby ordered and adjudged that no post-judgement collection actions will commence until 90 days from entry of this order". It just seems to be an odd way to go about it, because as you said, you gained several months without getting close to having a judgement.

I'm kind of new at this so maybe I'm just making too much out of a (semi) common practice.

[LadyInTheRed]

Does delaying collection until 90 days after entry of the judgment give you time to file BK? If so, it is not really a problem. But, I still don't think he should have finalized a settlement without your authorization.

[shoopy]

Does delaying collection until 90 days after entry of the judgment give you time to file BK? If so, it is not really a problem. But, I still don't think he should have finalized a settlement without your authorization.

It should be plenty of time. I was wondering if i should be miffed too, by his apparent action without my authorization, but started thinking that maybe it was a common practice.

My income is solely from disability, and the rest of my "assets" are excluded from collection by state law, so there isn't anything for them to garnish, levy or attach. I'm almost wondering why I'm bothering with the BK at this point. Oh well, onward.