Hearing on MSJ

[Dmax]

Hello. I posted this on a different thread but was asked to start a new one, so here it goes. I have a hearing on a Motion for Summary Judgment next week. Not sure how the Plaintiff's attorney appearing by phone works in a court room. Or maybe this would be held in a conference room of sorts? Can anyone please advise as to what I can expect at these type hearings?

I had been telling the court that they hadn't even provided an account number. But this weekend's mail brought a copy of a statement from June '09. ( I stopped paying 4 different CCs in Nov '08 ). So now I really have nothing to argue against it, except maybe a technicality, which is the fact that they used an account number which was "closed in good standing / card lost or stolen" when my wallet was stolen, and then converted to a different account number when the replacement card was issued. In theory it is still the "same" account in terms of "customer" history if not "account" history. Not sure it is even worth arguing other than to buy me some time until May when the 2-yr residency to file Chp7 in FL kicks in. It could very well be that I go to this hearing only to have the judge grant them the judgment. But I certainly MUST appear, right?

As it is, I don't expect the attorney to play nice after I've contested and made him work a bit. So not sure if he'll want to set up payment plan or what not. Is that even a possibility? I'm almost tempted to contact the firm and see if we can settle prior to hearing/judgment, and maybe offer a one-time payment of 25% or a user-friendly monthly payment. If they don't want to play along because they're certain to get the judgment, should I even say "well then you're not leaving me any other choice than to file bk" type thing?

This brings me to another question. I don't own a home or any assets other than an old car with a trade-in value averaging around $1200, some cash in the bank (which I could always practically empty out before hearing date) and then my wages. Bank account levy and wage garnishment, how do they work? Is that something that would automatically go into effect that day? I live in FL as I said, but my payroll check comes from out of state. Probably should stop direct-deposit asap, huh?

Sorry for rambling on and on.
Any help would be greatly appreciated.
Thanks!

[Freddy03]

I just had a summary judgment trial (in FL) last week. The plaintiff's attorney appeared via telephone. One of the disadvantages of appearing via telephone is there are no court step settlements. If settling is what you want then I would call them prior to your court date. If you do settle make sure you get them to dismiss the case.

I can tell you this from experience (3 CC lawsuits - in FL) if they have any proof that statements were mailed to your home address or that you made any payments on the account you will lose no questions asked. FL judges seem to be very creditor friendly (at least in my experiences they have been).

In FL if you are head of household you can file an exemption so they cannot garnish your wages if you are HOH. You will have to file an affidavit at the court house.


Good Luck!

[ryan]

Bank acct levy's would not occur immediately after the judgment.

Generally, in most states, there is about a 30 day period before the judgment can be acted on by the plaintiff. In the case of bank levy they have to find the bank acct first and then send levy order. After the judgment is granted, plaintiff may also require that you fill out an Asset Disclosure Form or something similar so they can more easily locate your accts etc.

[catleg]

I wouldn't bother going to court. You will lose. Assuming this is an original creditor.

The only hope is to have some documentation of a legitimate beef with the creditor over an item purchased, identity theft, consumer ripoff, something like that.

A junk debt buyer may very well lack documentation (similar to foreclosuregate) but you have to force them into discovery and past summary judgment motions.

[Dmax]

Thanks for the replies.

I'm not Head of Household as I'm single with no dependents. It looks as if I may need to suck it up and call the firm and try to settle prior to the hearing next week. I wouldn't dare NOT showing up if the hearing is still on (Consequences?). My question is... what do I say to the attorney to get him to play along? Should I say that even though there's an error in the statement they sent me I just want to get this over with? Maybe tell him that if he doesn't want to settle or accept payment plan I'll be forced to file BK? I want to do anything possible to avoid bank account levy and/or wage garnishment. Now again, not sure how it works but my paycheck comes from out of state as my employer is out West and I work from home in FL.

I called the OC and they told me that they still own the account but it was referred to Hannah (whose name is not mentioned anywhere in this lawsuit), who "may or may not have hired a 3rd party". So I'd think the firm suing "on behalf of OC" will eventually get the correct paperwork. In my dreams I tell the judge that they have the wrong account number and show him/her a couple of Credit Reports with the correct delinquent account on them and judge dismisses the case so that the plaintiff can file again with the right info.

BK... as far as I know in FL you must have been a resident for 2-yrs prior to filing BK. For me that won't be until May. Is there a way to file NOW using Fed Exemptions instead of FL's? As I said before, I don't own a home or any assets other than an older car with a trade-in value averaging around $1200, some cash in the bank and then my wages. FL Exemptions applicable in my case (I think) would be $1k car, $1k personal, and $4k fed-wildcard (since not using FL-HOH exemption) that I could use for whatever cash at the time. Would that be correct, and how would the full Fed Exemptions change those amounts?

Finally, I've seen some threads about arbitration. Would that even be an option for me in this case? OC (Plaintiff) is FIA f/k/a BOA.

Sorry again for the lengthiness and thanks again for the help.

[doni49]

BK... as far as I know in FL you must have been a resident for 2-yrs prior to filing BK. For me that won't be until May. Is there a way to file NOW using Fed Exemptions instead of FL's?

What state did you move FROM? I'm pretty sure that even if you file now, you'll still file IN FLORIDA. But you'd use the old state's exemptions. If the old state doesn't allow non-residents to use their exemptions, then you'd use the federal exemptions. At least that's my understanding anyway.

[doni49]

Check out this link.

http://www.thebankruptcysite.org/resources/bankruptcy/exemptions/choosing-between-state-federal-exemptions

[Dmax]

I've decided to go ahead and retain a BK attorney. We had an initial consultation over the phone, during which he told me I absolutely could go ahead and file today if I wanted, and not have to wait for 2-yr res. After going over my "situation", he said mine was simple Chapter-7 case and they would guarantee outcome: Wipe out almost $50k in CC debt for $1600 tip-to-tail. No hidden or additional fees, going with me every step of the way through the end, including paperwork, 341, putting a stop to the MSJ, etc. Sounds better than trying to settle or having a judgment with possible levy/garnishment.