Should I file BK?

[Zareg]

I have a judgement against me. There are about 11 days before garnishment can begin. There is another warrant in debt that I have just received notice about. So, another 30 days plus the 21 before they can begin garnishment. I qualify for Chap. 7 but I have been hesitant to file since I am leaving the country in 3 months at the latest. I have few assets but I would like to take the 4 grand or so cash I can get with me. That was obtained by selling a truck (already) and an old car (in a couple of month). I am afraid if I file, I will lose what cash I have except for my 401k which I don't want to touch. Is there anyway to keep the cash and file? Can I buy plane tickets with it? The debts are unsecured ccs and I am thinking about bailing early to avoid some of this. Maybe leave the country in two months instead of three. I am in the death spiral and hoping to leave with some cash. I don't care about leaving the debt behind me.

[OhioFiler]

What leads you to believe they'll file a garnishment that quickly? Even ifthey do, you can file for a hearing which will delay the garnishment. Go to court and ask the judge for a delay as you are filing BK. You've bought yourself several months that way.

Then it's adios amigos!

[Zareg]

Thanks for the replies. I was thinking they would file the garnishment as soon as possible after they got the first judgement. I hadn't considered that they would wait to do it. I did get a letter from them trying to collect the debt again yesterday. The usual threats and now we have a judgement, etc. Is just telling the judge I am going to file BK all that is required? As long as it's not under oath, I don't have a problem with telling them anything that will delay them.

I was also thinking about cashing in the 401k, if there is a garnishment in place by then, can they get a piece of the distribution? I am aware of the penalties, etc., I am just thinking that someday, these people will be able to get their hands on our IRAs.

Also, I would be in the wind and gone even sooner, but I have been told discreetly by my boss that a layoff is coming, so I could use the separation pay. I believe this can be garnished if there is one in place.

[treehugger1]

Here in my local disctrict, if you don't answer a circuit court complaint (or don't request a hearing) and a judgment is entered, it takes about a day for the plaintiff to get the writ, and then another 1-2 days to serve the writ on your employer if they know where you work. This is especailly true if the plaintiff or the plaintiff's attorney is local. If from out of town, you might gain another day or two before the writ is served on your employer.

Since I am always open to garnishment, I keep the general crude rules for my area:

If small claims - 14 days to answer and deny and ask for a hearing. If you supply no answer, then I give the plaintiff another 1-2 days to get the writ. This is quite easy as it's a simple form you can get from the local stationary store. Another 1-5 days to have the writ served on the employer. So, my estimate is always to work with 16 - 20 days from service before a writ of garnishment is served on the employer. If you are paid once per month (first of the month), and you are served on the 5th or slightly later, then you probably get another month as payroll could go to processing on the 25th. If you pay your $45 and request a small claims hearing then you might get another month as the backlog can be large. My experience is that the local court clerks are quite acommodating to defendants when you ask for choice in the hearing date.

If circuit court (non-small claims)-30 days to answer the summons. If you default and are paid once per month then you probably won't see the garnishment until the end of the next month from which you were served. I have no experience in the non-small claims area, but the only real timeline is the difference between your time to answer; 30 days versus the 14 days for small claims. If you answer, then you can get more time; however, the answer to a circuit court suit costs about $200.00.

The thing about writs in some states such as mine is that they don't need to be approved by the court once the judgment is in effect. Any member of the BAR can have a writ served on an employer as long as they include a copy of the judgment.

While it may be true that some firms will wait a bit before serving a writ, if they know you have a job and they know where you work, then wages are pretty easy to get to. They are much easier to go after then a bank garnishment here, because a bank garnishment is only good for the day it was served on the bank (in Oregon, anyway.) Pretty big risk for a plaintiff to take, unless they know you have money in an account and they know the dates the money is in the account.

The above scenarios differ by state.

[OhioFiler]

Woah, since when does going in front of a judge and telling him you plan to file BK generate any type of a delay? A judge is not going to delay anything unless you have BK case number and at that point the stay goes into effect. Matter of fact someone else on this board tried that and this is what happened to them;

Long story short, I went to a pre-trial/mediation appearance (because of a creditor filing lawsuit for payment). I told the Judge I needed more time, as I am filing bankruptcy and I can't afford making payments to them because I am loosing money every month as it is. He pretty much said, "Nope, most people say they are going to file but never file for bankruptcy."

http://www.bkforum.com/showthread.php?t=34978

In addition depending on you local CRP if they have your employer information they can ask for the garnishment order right after they get the judgment in the same hearing or with the summary judgment motion all in one shot.

Anything can be delayed. Even if the judge rejects your motion you have the right to an appeal. Most small claims referees would honor the defendant's motion for a stay.

You use one anecdotal case to dispute this. I respectfully disagree with your position.