Questions about being "Summoned" on Capt. 1 suit

[TNDebtor]

I was served a Civil Summons by a bondsman yesterday that says Nathan & Nathan are suing me on behalf of Capital One four breach of contract. I called the county clerk and she said that I was better off filing my answer in writing than I would be appearing in court and if she was me, she wouldn't waste the time. She said either way they're going to get a judgement against me and that the only hearing I "had" to be at was the follow up hearing that sets the payments or garnishment.

I've a couple of questions:

-- If I don't appear is that contempt of court? Will they come on my job and arrest me for failure to appear?

-- I, my husband, and my kids live with his (my husband) family, but they never signed or co-signed any of our debt will they come after my husband's family next?

-- The clerk said that I needed proof that I attempt to settle the matter out of court attached to my answer. I tried to call Nathan and Nathan and all they did was hang up, would any certified letters I sent them count as proof? And will help me if I did try to settle out of court?

[DesdemonaB]

Hi TN

I am 99% sure but in a civil case if you do not appear they just request a default judgment be entered, I think it's a subpoena that = contempt of court and arrest.

They can not "come after" the family for $$ owed; but if you have a joint bank account they can request a writ of garnishment on that account and the family could have that account frozen. Unless your name is on the deed/title of the house you share they can NOT request a lien be entered against the house.

I believe any certified letter with signature could be proof as your attempt to settle. But that's up to the judge, I also believe that if you try to settle and walk in to court with settlement and keep your end of the agreement could go a long way in court.

Good luck.

[TNDebtor]

I've been all over the paperwork, it's a civil summons, date 12-9-11, and all it says about not showing up is that failure to appear "May" lead to a default judgement and that I'm entitled to $10K in personal exemptions that must be filed and amended before judgement has been finalized by the court but no info on how long that would take.

I've talked to a couple of attorneys and basically they're saying "What's the point of being their? You're filing for bankruptcy in March so why do the extra work?"

[DesdemonaB]

TN

IMHO pretending that it wouldn't happen makes the matter worst. To say what's the point is not looking at the big picture, I was sued and a judgment was award to Cap1 and it was a default judgment. Once that judgment was award by the court the law firm request a writ of garnishment on my bank account, wages and state income tax refund (only in the state of MI so don't worry) within 3 weeks of the judgment all the same time. Judgment awarded in mid-Aug, by early October my employer recieved the writ the first garnishment was the last paycheck in Oct.

If you default are you still allowed the 10K exemptions?

Answer, ask for personal exemptions, drag it out, then file. If you default you may lose the exemptions and open yourself to garnishment before you are able to file. 90 days is more then enough time for the plaintff to request garnishments. IMHO.

Good Luck

[lillymarlene]

Hi TNDebtor, welcome. Is it possible that you could appear just to try to delay the proceedings, until after you've filed? It might be more difficult and expensive to get a judgement removed later.

Good luck.

[treehugger1]

I was also sued by C1 in my local district. They got the default judgment, and garnished my wages until the matter was settled. I can afford 25% wage garnishment, but most folks cannot.

Providing an answer may slow the process down a bit.

[mountanddo]

I was also sued by C1 in my local district. They got the default judgment, and garnished my wages until the matter was settled. I can afford 25% wage garnishment, but most folks cannot.

Providing an answer may slow the process down a bit.

Did they seize your bank account too? I'm in the position right now where Cap One served me on August 29th. In MN they can seize your bank account 45 days after the summons which was up on 10/13. How long do you think it takes them to actually do that? Hopefully I'll be filed soon but I haven't been sent the paperwork yet to sign and then it takes about 2 weeks for them to file after they get it back from me.

[GoingDown]

I was served a Civil Summons by a bondsman yesterday that says Nathan & Nathan are suing me on behalf of Capital One four breach of contract. I called the county clerk and she said that I was better off filing my answer in writing than I would be appearing in court and if she was me, she wouldn't waste the time. She said either way they're going to get a judgement against me and that the only hearing I "had" to be at was the follow up hearing that sets the payments or garnishment.

I've a couple of questions:

-- If I don't appear is that contempt of court? Will they come on my job and arrest me for failure to appear?


NO! Being sued over a debt is a civil matter, not a criminal matter! If you do not appear, they will get a default judgment against you, and then maybe garnish your wages or seize your checking account.

What is so sad about this post is that there is so much fear out there about going to jail over debts. The debt collectors have done a very good job of scaring the public about this issue and lying about it.

Please read the "stickies" above this thread for more information about this topic.



-- I, my husband, and my kids live with his (my husband) family, but they never signed or co-signed any of our debt will they come after my husband's family next?

NO! They will not come after anyone else but the debtors. Your (his) family is NOT responsible for your (his) debt.



-- The clerk said that I needed proof that I attempt to settle the matter out of court attached to my answer. I tried to call Nathan and Nathan and all they did was hang up, would any certified letters I sent them count as proof? And will help me if I did try to settle out of court?

The clerk is mistaken about this. You can file an answer without trying to settle. What it shows is how biased the court system is against pro se filers.

[TNDebtor]

Spent all morning on the phone with attorneys: The general sentiment is along the lines of they'll take the case, but just put me into a payment agreement and get a no contest judgement or "so they garnish you, if you're going to file anyway don't worry about it"

Spent a hour with the GS-Court Clerk at the court house getting forms and asking questions and she was about as helpful as a brick to the head. Informing that she really wasn't sure how the paper work had to be completed cause she "pays her bills and never had to deal with a collector before". Even if I don't show up I'm looking at nearly $200 in filing/processing fees, not to mention lost time from my job; more fees if I do.

[GoingDown]

Rather than spending money fighting this lost cause of a lawsuit, you should go see a few bankruptcy attorneys and get ready to file bankruptcy and be done with this.

[TNDebtor]

We are filing, but we're not able till after Feb. 2012 due to a past Ch. 7.

[TNDebtor]

Quick update: Me and hubby got down the previous bankruptcy info and it looks like we might be able to file sooner than we thought. Jan 5, 2012 is our "anniversary" date and the hearing for the post-judgement payment agreement (according to the clerk) is on Jan. 6, 2012. Hubby wants to fill out the BK matrix and have it with us when we appear on the 6th and inform the judge that we're going straight up the street to the BK trustee and filing the same day. Problem with that is that we'd have to file without an attorney that way-- we were going to use our 2011 return as the final payment to the attorney.

Hubby also wants to take my paycheck off of direct-deposit till after all this is settled; partly cause of the suit, partly cause of the $20 a month in bank fees (acct. fee, debit card fee, bill pay fee, check/direct-deposit processing fees).

[jacko]

I was sued by Crap One's MN debt law firm. I received a judgment and they tried to seize my closed checking accounts. However, they issued a garnishment levy with my part-time employer. They only received less then $20 over a 2 yr period. I became pro active when I knew a judgement was on the horizon.

Did they seize your bank account too? I'm in the position right now where Cap One served me on August 29th. In MN they can seize your bank account 45 days after the summons which was up on 10/13. How long do you think it takes them to actually do that? Hopefully I'll be filed soon but I haven't been sent the paperwork yet to sign and then it takes about 2 weeks for them to file after they get it back from me.

[TNDebtor]

Being going over the "packet" that the clerk gave me yesterday of financial information that I have to give to the court before the Capital One hearing on 12-9 (deadline is 11/10). On it says list all debts, that's self explanatory. But under personal property exemptions I can't figure this one out: I owe dell for a computer, do we list the computer as personal property and exempt out the value of the balance owed as well as well as list them under creditors. Or do we only list them as a creditor and not list the computer under personal property?

I tried asking the clerk about this in the meeting yesterday, but she said the explanation is in the form, but I can't find it.

[catleg]

It sounds like the civil procedure in your state wraps the collection of the judgment as part of the lawsuit, the assumption being that you will lose.
At least it gives you a chance to identify your exempt property.
The trick here is you want to delay until February. So in your answer you should dispute the balance and calculation of fees and interest; also you may want to make claims that merchandise you purchased with the credit card/contract was shoddy and you have made a bone fide effort to resolve the dispute with the company, etc. You want to slow things down so maybe just maybe they have to take time for a judge to review it. You don't really want to go before a judge because they are normally very biased towards creditors. But you want to raise doubt on the paperwork about the plaintiff's claim and make them go back and provide more extensive documentation.

For the exemptions you would list the net equity value of property after taking account of liens.

Here is something I found through a google search (note that these are your judgment exemptions not your bankruptcy exemptions:

In general, a debtor may claim exemption of his homestead and certain personal property from attachment and execution of a judgment, or in a bankruptcy proceeding.

A judgment debtor generally is entitled to a homestead exemption upon real property from execution, attachment, or sale under legal proceedings during his life, to the extent of of $5,000.00 in aggregate value, or $7,500.00 for joint owners, so long as the real property is occupied by the judgment debtor or both joint owners as their residence. If only one joint owner occupied the premises as his residence, the homestead exemption may not exceed $5,000.00. Upon the death of an individual who is head of a family, any such exemption shall inure to the benefit of the surviving spouse and their minor children for as long as the spouse or the minor children use such property as a principal place of residence. (26-2-301(a).)

Personal property which may be exempt from execution, seizure or attachment may include any items of his owned and possessed personal property, including money and funds on deposit with a bank or other financial institution, up to the aggregate value of four thousand dollars ($4,000). (26-2-102.) A judgment debtor is entitled to an absolute exemption of all necessary and proper wearing apparel for the actual use of himself and family and the trunks or receptacles necessary to contain same, all family portraits and pictures, and the family Bible and school books. (26-2-103(a).) Other exemptions to which a judgment debtor may be entitled may include state pension funds, retirement funds qualified under §§ 401(a), 403(a), 403(b), and 408 of the federal Internal Revenue Code of 1986, as amended, (26-2-104), accident, health, or disability insurance insuring the assured against loss by reason of accidental personal injuries, or insuring the assured against loss by reason of physical disability resulting from disease (26-2-110), social security benefits, veteran's benefits, disability, illness, or unemployment benefit (26-2-111).

Essentially what will happen is that you will be steered into a stipulated judgment where you have to make a small payment each month to keep them off your back. Then when you file BK in february that judgment is cancelled out by the BK. This is a much better way out for you than letting the court issue a judgment and have them start taking your stuff. You might just call the plaintiff's attorney and ask if you can negotiate a stipulated judgment.
It is probably a lot less stressful than dealing with all the court stuff.