Make them take me to trial?

[jeff0633]

After preparing myself for the judgement I feel I have secured myself from these hounds. This makes me wonder, should i force them to take me to trial to prove the debt has the proper amount? The point is, I have not paid these accounts for three years, and just now one finally has filed against me. One of my credit reports states I am disabled, so these companies have seen this and I believe that's why they have not filed against me for three years. I believe this judgment is a test by these lawyers to see if they can get one through easily. I don't think they want to spend a lot of money paying a lawyer to get ready for a trial and such. I have a suspicion that they would drop it if I forced them to take me to trial, and even if they didn't, well then they get the judgement, I would be in the same situation anyway, wouldn't I? Nothing would be any different for me, would it? Everything would still be the same after the judgement came through, but i would be giving myself the chance that they don't want to have to prepare for a trial and that they may drop it if i force them too. I believe that the amount of the debt may be in error, because they tried to raise my ineterest from 29% to 31% one time when I had not even missed a payment. If I am not totally sure about the amount, shouldn't i request that they prove this amount in a trial?

Thanks for any thoughts on this.

Jeff

[HHM]

Your only faulty assumption is that amount of time and effort that is really involved in the trial for the creditor. In fact, it's not really a trial, its simply a hearing that typically takes 20 minutes to an hour. So, you are not really costing them much more to take it to judgment via a hearing. Also, having them take you to trial assumes you respond to the lawsuit in the first place and raise a defense in your answer to the complaint that can survive a summary judgment motion by the creditor. (not likely). All the evidence they need is contained in documents and affidavits, its not like they have to call any witnesses.

Just so you know, these types of case go like this.

-Creditor files a Complaint with the Court.
-Court issues a summons to the creditor.
-Creditor serves the summons on debtor
-If the debtor does not answer the summons, the creditor gets a default judgment.
-If the debtor answers, the creditor typically files a motion for summary judgment.
-The court schedules a hearing for the summary judgment motion.
-Unless their is any good faith dispute regarding a material fact of the case (which there almost never is, and the creditor can generally satisfy the court with the documents they have as to any dispute you may raise), the court will grant the summary judgment motion and issue a judgment against the debtor.

Pretty much everything is handled by a paralegal with standardized forms except the court appearances. Honestly, its not has difficult or costly as you assume.

If they take you to court, the judgment is pretty much a foregone conclusion. Then the issue become whether they can collect on the judgment...maybe not now, but judgments basically last forever (unless you file BK) and it will be on your credit report for 10 years. In addition, a judgment acts as a lien against all your real and personal property. The could raid your bank account and the burden is on you to take them to court to prove the funds in the bank account are exempt.

[jeff0633]

Well, I am sure you are right. I guess there is no sense in trying to delay the obvious. Tennessee is a little different from other states it appears. The summons never said anything about responding or anything, it just gives a court date and says it will appear before the general sessions court Feb 7th. Legal Ais said I don't do anything till then. They sent me the personal property exemption form, but I still need to get the homestead form. I took care of my SSI checks and had them sent to my mailboax. I will file chapter 7 late next year sometime, and until then, I should be as judgement proof as possible. I don't have any property and should be able to exempt everything that's important to me.

Jeff

[CATCHMEIFYOUCAN]

Hhm

If they take you to court, the judgment is pretty much a foregone conclusion. Then the issue become whether they can collect on the judgment...maybe not now, but judgments basically last forever (unless you file BK) and it will be on your credit report for 10 years. In addition, a judgment acts as a lien against all your real and personal property. The could raid your bank account and the burden is on you to take them to court to prove the funds in the bank account are exempt.

question to HHM, i dont know how to word this question, but i'll do my best. While one is in 60-90 day waiting to be discharged period, can the creditor pursue a judgment against you, or can they pursue one after discharge, or is a "cant touch me," (on my end) since im in 60-90 day discharge period? i guess, "is one judgement proof," during the 60-90 day period? sorry for the repetative wording of this question.

Catchmeifyoucan

[HHM]

First, to Catchmeifyoucan's question, once your FILE bk, all legal action against you stops. No creditor can take a judgment against while you are pending discharge because of the "automatic stay" against any action to collect a debt.

To Jeff0633 question: based on what you said, it sounds like whatever you have is similar to small claims court in other states; basically, the summons gets issued and you show up to court on the hearing date indicated in the summons. However, its not really a trial, if you have ever seen Peoples Court, it's kinda like that, but will probably last about 10 minutes.

Anyway, good luck. It sounds like you are basically judgment proof, but giving a creditor a judgment does create risks as the judgment gives the creditor a lot of power.

Why do you have to wait until late next year to file?

[jeff0633]

Well., My mom said she would be able to loan me the thousand dollars to get an attorney next year. Really, like you said, I believe I am judgement proof as good as can be. I am on disability, I only own a 12 year old trailer that my kids and I live in, it's worth probaby 4,500. My disability checks are going to start coming to my mailbox in January, that's before the hearing, so I will have nothing for them to freeze. The 5000 homestead exemption will cover the worth of my trailer, the 4000 personal property exemption will cover all my belongings. Another reason I want to wait is that my Mom and brother have been loaning me money over the last few years, just giving me a hundred or two per month, putting it in my bank account. We all try to raise my kids as a family. We are very close. I had been putting these extra dollars, sometimes as much as 300 or more per month in my other checking account. Well, I had heard that when you file BK that the trustee will require bank statements for maybe as far back as 6 months or a year. I would have no way to explain the extra hundreds sometimes going into my account other than to tell them the truth, and that would sound like a bunch of hooey, and they would think I am getting it some other way. That might cause problems and the trustee might throw my case out. I figure i will close that checking account and wait for a year and then file, leaving that checking account in the past. Can you tell me how long back would a trustee want to know about old checking accoints? If I used to have a checking account that was closed 6 months prior to filing bankruptcy, would they still want statements from that 6 month old account? I may have to wait a year or more. Wouldn't there be a simple question like, "List all checking or savings accounts you have or have had in the previous year"? I figure if i wait a full year after the account is closed that it will be far enough in the past that the trustee won't ask about it. It was dumb for me to do because my Mom and brother would have just givin me cash had i wanted them too. Sometimes they did and I would just put it in the bank. So, I would take my Social Security money from my Direct deposit account and put it in the other checking account, and then alos put money from my mom and brother in the same account. So the trustee would see more money going into my account than I could have made by just my Social Security, sometimes hundreds a month more. So, I figured I need to close that account and let it go away for a year before I file BK7.

Thanks for so much help.

Jeff

[Spartan]

I will let other far more knowledgeable members to chime in with advice. But I think if you can explain the truthful situation about your families chipping in to help raise your kids, like getting a notarized affidavit from them substantiating that, the trustees will accept that. It isn't like your situation is that farfetched. It would be different if you are raking in thousands of dollars each month from unaccounted sources. A few hundred dollars for the children, is reasonable.

[CindyLou]

from reading your previous posts, it appear that you will still be under the median income. Plus, money situations change. If the money "stops" coming then it stops. It would be the same as losing a job or getting demotion. Your income, for the purposes of BK is determined by averaging the last 6 months of income and the multiplying by 12. If anyone loans you money or gives u a gift in the future, it would probably be best to accept it in cash or money order vs. putting it in your account just to be safe. There will be no problem with disclosing your previous gifts and the fact that they have stopped or that you cannot count of this every month.

[no_it_all]

<snip> No creditor can take a judgment against while you are pending discharge because of the "automatic stay" against any action to collect a debt.

Any action? My car was repo'd while pending discharge. No motion to lift automatic stay was ever filed, and once the thirty day <automatic stay> was up, they came and grabbed it.

[HHM]

Any action? My car was repo'd while pending discharge. No motion to lift automatic stay was ever filed, and once the thirty day <automatic stay> was up, they came and grabbed it.

That's right, under the new law, there is an automatic 30 day expiration of the automatic stay on secured debt if the payments are dilinquent or if your in a state that requires you to state your intentions.