Need to deal with / answer summons

[airahcaz]

Received a summons on my door with FIA Card Services as plaintiff, the original creditor is Bank of America (not mentioned). I don't want a default judgment, nor allow for wage garnishment, etc.

What are my choices or next steps, respond to summons? If I'm open to settling, I suppose I'd deal with BAC, FIA, and lawyer, in that order (maybe not their lawyers at all)?

[treehugger1]

Since they have filed suit, I would guess you will need to go through the attorney office.

They might settle, or since they have already filed the suit, they may wait for judgment and then attempt to settle.

If you are hoping to have any chance at avoiding judgment, then you might want to file an answer. In the end, you will probably lose, but you might buy some time.

You might answer and then propose setlement. Depending upon your state, you might be able to work out a stipulated judgment.

Just my opinions.

[tobee43]

Received a summons on my door with FIA Card Services as plaintiff, the original creditor is Bank of America (not mentioned). I don't want a default judgment, nor allow for wage garnishment, etc.

What are my choices or next steps, respond to summons? If I'm open to settling, I suppose I'd deal with BAC, FIA, and lawyer, in that order (maybe not their lawyers at all)?

are you planning on filing bk????? if you are it will not really matter if they get a judgment because you can get it vacated after discharge....however, if not...and your state allows they may be able to garnish your wages.

personally, i would answer the summons...stall....go in front of the judge and plead for them to work with you....they most likely will in today's economic climate. it's worth a shot.

however, if your going to file and you still think they may garnish your wages...answer the summons and again stall the process until you can file...also get an atty asap so you can have them communicate in your stead.

[AngelinaCatHub]

are you planning on filing bk????? if you are it will not really matter if they get a judgment because you can get it vacated after discharge....however, if not...and your state allows they may be able to garnish your wages.

personally, i would answer the summons...stall....go in front of the judge and plead for them to work with you....they most likely will in today's economic climate. it's worth a shot.

however, if your going to file and you still think they may garnish your wages...answer the summons and again stall the process until you can file...also get an atty asap so you can have them communicate in your stead.

I could not say it better. May I add, if at all possible, avoid a Judgment. It is very bothersome. It can be set aside but would cost you a bit more. The key is, are you going to bk or are you wishing to settle and pick yourself up out of your situation. Either way is fine here, but a little info would help us help you.

How much is this debt means a lot as well. In small claims, there is traditionally a point to mediate. If over 15K, it may just be a hearing and then discovery, then trial. A big pain in the butt. Stall with valid questions as you wish proof of claim to the penny and reasons why costs have incurred. Just my two cents. 'Hub

[tobee43]

I could not say it better. May I add, if at all possible, avoid a Judgment. It is very bothersome. It can be set aside but would cost you a bit more. The key is, are you going to bk or are you wishing to settle and pick yourself up out of your situation. Either way is fine here, but a little info would help us help you.

How much is this debt means a lot as well. In small claims, there is traditionally a point to mediate. If over 15K, it may just be a hearing and then discovery, then trial. A big pain in the butt. Stall with valid questions as you wish proof of claim to the penny and reasons why costs have incurred. Just my two cents. 'Hub

personally, i do think the info is worth at least 3 cents, hub.

but OP....you need to decide what you want to do and how you want to proceed. then make the appropriate move forward.

[ryan]

Since you are not mentioning BK, I'll assume you are not presently considering that...One thing to do is check with your courthouse to see what the ANSWER & APPEARANCE FEE is. In some places its higher than you might imagine. $150 to $200 even. If you are broke, you may be able to apply for Indigent Status and get it waived. If its small claims as was mentioned, you may not be able to do 'Discovery' and eat up time that way. Some creditors love to sue in Small Claims Court because their timeline to judgment is shorter. I have found there is always opportunity to try for settlements, but once they have the judgment, they may be less flexible. You also need to think about what funds you have to work with to settle. Many creditors will settle for 50% of amount owed, but not all. (but some even less)....

I guess I agree with ToBee43, you need to decide what your realistic goal is and then move forward, but don't waste time.

[treehugger1]

The judgment will stay on your credit report for 7 years.

And yes, as Ryan noted, small claims could present a problem. Prepare to get your ass kicked if you actually owe the money and the plaintiff or their attorney shows up with your signtaure on a document. Ouch... In some states attorneys are not allowed in small claims courts. In other states, attorneys are allowed. Either way, small claims decisions are generally "Final."

A judgment can be renewed in many states. For instance, in Oregon a judgment is good for 10 years and can be renewed for an additional 10 years.

In MY OPINION, a judgment is not that bothersome. It all depends upon your state. I could easily vacate a judgment here after a BK without paying someone to do it.

Bottom line is that if you can't deal with a judgment, garnishment, etc. or you do not have the money to file an answer with solid defenses, affirmative or otherwise, then file for BK immediately and walk away.

I have been a member of this board for over 4 years. I hear a great deal about "you should always answer a summons." This depends upon your state laws and rules of civil procedure. You could live in a state where it costs $200+ dollars to file an answer and $100's to file motions for discovery, declarations, etc.

Look around this site and read carefully. You will find many folks giving advice about dealing with lawsuits, etc. But if you pay very close attention, you will see that these folks opted for BK and have no real personal experience to share; At least experience related to what might happen if you walk away and don't file for BK.

In my not-so-humble opinion, BK is always the best choice. Chapter 7 would be preferred. Do your own due diligence (homework.)

[tobee43]

The judgment will stay on your credit report for 7 years.

And yes, as Ryan noted, small claims could present a problem. Prepare to get your ass kicked if you actually owe the money and the plaintiff or their attorney shows up with your signature on a document. Ouch... In some states attorneys are not allowed in small claims courts. In other states, attorneys are allowed. Either way, small claims decisions are generally "Final."

A judgment can be renewed in many states. For instance, in Oregon a judgment is good for 10 years and can be renewed for an additional 10 years.

In MY OPINION, a judgment is not that bothersome. It all depends upon your state. I could easily vacate a judgment here after a BK without paying someone to do it.

Bottom line is that if you can't deal with a judgment, garnishment, etc. or you do not have the money to file an answer with solid defenses, affirmative or otherwise, then file for BK immediately and walk away.

I have been a member of this board for over 4 years. I hear a great deal about "you should always answer a summons." This depends upon your state laws and rules of civil procedure. You could live in a state where it costs $200+ dollars to file an answer and $13's to file motions for discovery, declarations, etc.

Look around this site and read carefully. You will find many folks giving advice about dealing with lawsuits, etc. But if you pay very close attention, you will see that these folks opted for BK and have no real personal experience to share; At least experience related to what might happen if you walk away and don't file for BK.

In my not-so-humble opinion, BK is always the best choice. Chapter 7 would be preferred. Do your own due diligence (homework.)

morning tree....

actually depending on the state and what type of judgment it is, some can stay on your record well over 20 years...as you pointed out.

in as much as answering the summons...personally, when i was served i didn't'...but i at the time knew what direction we were going. and really didn't' care much if it was granted whether it was a 7 year or a 20 year judgment...i would just file after the discharge a motion to vacate.

answering a summons for those in the "limbo" stages...i believe..and it's simply opinion, and you know what they say about those, however,....it's just a stall tactic...that's all....or it can be a way to negotiate under the "nose" of hopefully a sympathetic judge...i think there may be a FEW left but i'm not sure.

oh...and for the record...i did do a bk...but also i did have judgments that each needed to be addressed. some people actually opt to file AFTER they have judgments...and they are scary to many.

i absolutely agree with you...bk to us anyway, was by far the best choice.

[catleg]

Wait a second, something does not compute. In NJ, cases under $15k are served by regular+certified mail. Over that is regular civil court which means personal service by the county sheriff or other process server. Are you sure it was just stuck in your door? Or do you live somewhere else.

An Answer costs $15 in special civil court and $135 in regular civil court in NJ.

[tobee43]

Since you are not mentioning BK, I'll assume you are not presently considering that...One thing to do is check with your courthouse to see what the ANSWER & APPEARANCE FEE is. In some places its higher than you might imagine. $150 to $200 even. If you are broke, you may be able to apply for Indigent Status and get it waived. If its small claims as was mentioned, you may not be able to do 'Discovery' and eat up time that way. Some creditors love to sue in Small Claims Court because their timeline to judgment is shorter. I have found there is always opportunity to try for settlements, but once they have the judgment, they may be less flexible. You also need to think about what funds you have to work with to settle. Many creditors will settle for 50% of amount owed, but not all. (but some even less)....

I guess I agree with ToBee43, you need to decide what your realistic goal is and then move forward, but don't waste time.

ryan....what do you mean YOU GUESS????LOL!!!!!!!! it's ok...we can agree...actually i agree with you approx. 99.92% of the time.

[tobee43]

Wait a second, something does not compute. In NJ, cases under $15k are served by regular+certified mail. Over that is regular civil court which means personal service by the county sheriff or other process server. Are you sure it was just stuck in your door? Or do you live somewhere else.

An Answer costs $15 in special civil court and $135 in regular civil court in NJ.

interesting...and true.

[treehugger1]

Since this is a FIA suit, I would be interested in knowing if FIA is the true plaintiff. You might want to call FIA Card Services and see if they still own your account. It could be that the account was actually sold to an attorney group. I seem to be reading about an increase in suits where the plaintiff listed is not the true plaintiff. FIA (Old MBNA, BoA) seems to sell a lot of debt to JDB attorney firms.

Just curious. It only takes a phone call form a less-sophisticated consumer.

[airahcaz]

Wow, very helpful posts, to answer a few questions:

Have spoken to a BK attorney, it is not likely that I qualify for CH 7 cause of my income, so they are working the numbers for CH 13.
I'd like to avoid BK, cause of my employment at a bank, and the current environment, etc. There may not be official rules, but perception is reality, and I don't want any excuse for termination.

The debt is $42K, yes, found it in my door, but I easily could not have been aware of it, theft, wrong door, whatever, etc. It was filed Sept 15th, 35 days to respond. Zwicker and Associates sent it to me, FIA Card Services as plaintiff.

As I probably won't pursue BK, I'd love to settle - however, I have very little funds, and certainly no massive lump sum.

It is the judgment that scares me, more so the wage garnishment...

Lastly, the summons was left in my door, I am told that I was improperly served, but clearly the summons was submitted, so I really shouldn't ignore it. They will just server me again, properly, I suppose. If the attorney asks for discovery, for them to produce something with my signature, then should I avoid calling FIA and/or Bank of America to attempt to settle?

[AngelinaCatHub]

Here is how screwed up our state is:


Virtually every lawyer in Florida will tell you that the life of a money judgment (1) in this state is 20 years. (2) Extensive research reveals no judicial or scholarly opinion to the contrary; but that statement is only partially accurate. Presently there is a Florida statute that limits judgment liens to 20 years, (3) and there is a Florida statute that limits "actions" on certain judgments to 20 years and other judgments to five years. (4) There is, however, no statute or court rule that places a time limit on the execution of judgments. There are district court decisions stating that executions are limited to 20 years, but they are incorrectly decided; (5) and there is no Florida Supreme Court decision on point.

This article is an attempt to prove the proposition that under present law there is no time limit on which a judgment in Florida may be executed.

Three Options of the Holder of a Money Judgment

The holder of a money judgment (6) has three options as to how to use the judgment. The first option allows the judgment-creditor to obtain a lien against the judgment-debtor's real and personal property. We may call this the "lien option." The second option allows the judgment-creditor to create a new judgment just prior to the original judgment becoming dormant. (7) We may call this the "creation option." (8) Lastly, the third option allows the judgment-creditor to execute on the assets of the judgment-debtor in order to have the judgment satisfied. We may call this last option the "execution option."

By statute, exercise of the lien option and the creation option are specifically limited. (9) There is, however, no statutory nor rule provision specifying within what period of time the execution option must be exercised.

Continued at : http://goliath.ecnext.com/coms2/gi_0...f-a-money.html

We have no charge to answer a summons in FL. Even small claims is served by a sheriff/bailiff.

The service on the door is improper service. In FL, a civil summons is by any adult living in the same house, the actual person, the spouse, or the employer. If Federal only the actual person can accept this, no substitute and it must by by hand or into the pocket. I no of no service by mail in FL but I may be wrong. No service on Sunday and legal holidays is permitted. 'Hub

[airahcaz]

Here is how screwed up our state is:



The service on the door is improper service. In FL, a civil summons is by any adult living in the same house, the actual person, the spouse, or the employer. If Federal only the actual person can accept this, no substitute and it must by by hand or into the pocket. I no of no service by mail in FL but I may be wrong. No service on Sunday and legal holidays is permitted. 'Hub

So I can ignore till I get a judgment, then have to reopen stating I was never served, not sure what that buys me other than delaying it?