Received summons for lawsuit. Need help with a couple of questions.

[catleg]

Bell, I think the problem is the OP embarked on a strategy of settlement without fully appreciating the complications when not everyone plays ball. CapOne, having seen that you settled with the others, assumes you have money. It just sends a bad message to the hold out creditors.
Fight it or not, the end result with any competent attorney will be a judgment with everything that follows from it.
Whether cap one sells it to a JDB or collects itself, the same issues are involved.
Maybe courts in GA are more lenient, but up here a defendant against an OC without a legitimate defense (such as identity theft) has zero chance to prevail.

[GoingDown]

Catleg, I respectfully disagree with you. Also being from Georgia, I know that there is NO filing fee for a defendant to file an answer, file interrogatories or other motions. In Georgia we have the Writ of FiFa. The last thing the OP wants to deal with is some JDB that bought the judgement showing up at his house with a deputy especially if that JDB is local. Sure most of his personal property is exempt. Can he prove that within a ten day period?

The county courthouse has every case on computer. You can view every case against this plaintiff and find one that was written by a high priced attorney. Adjust this to your case specifics and you have your answer. Quick and easy. The answer is basically admitting that your name, address and court jurisdiction is correct... Then simply putting that you deny remaining accusation in the complaint. It's quick and easy.

I've known two people that were on the wrong end of a Writ of FiFa in Gwinnett County, Georgia. The first was over a eviction debt, the second was to satisfy a deficiency on a repossessed vehicle. On the first the property seized was his pickup truck which he used for work. He barely got all his tools off of the truck before it was loaded up on the flatbed. The second, they took personal items. Things like his computer, a couple televisions and other items from his home. All while he sat in the back of a patrol car watching.

Gwinnett County has a seized property auction the first Tuesday of every month. You would be shocked at the quantity of household goods sold there. There are flat screen televisions, jewelry, computers, tools, etc. There are cars and even real estate. All sold to the highest bidder in quick fashion.

Gwinnett County Sheriff Personal Property Levy

In addition, here in Walton County there is a small loan company that does those high interest personal loans secured by household goods that uses the Writ of FiFa and the Sheriff's Dept regularly. They go to Magistrate Court get a Default Judgement then their fun begins.

Collection of a judgement is just too easy in Georgia to roll over. Like another poster said, if you answer this summons there is a good chance that the plaintiff may not take any further action causing this to later die for lack of prosecution. They may move for a summary judgement, which you will file a simple objection to or they may send you interrogatories but I doubt the case ever makes it to a court.

Wow! That is horrible. Much worse than Arizona laws.

In that case, I would say file bankruptcy and just get it over with.

[kramerlike]

Cat and Bell, I agree with both your comments and sincerely appreciate you taking the time to offer your insight. I plan to file an answer because one of the allegations in the complaint was not true and I plan to defend that untrue statement. I'd given Cap 1 the same opportunity to settle as I did the other credit cards I settled with, but I would have had to borrow the money and the money I was able to borrow at the time was not enough for them (even though it was equal to the amounts I settled with the other credit cards). I was not willing to borrow the amount unless they agreed to the settlement offer. Yes, I regret now that I didn't file bankruptcy last year and I could have certainly used that borrowed money to hire an attorney. I will now have to borrow the money I was going to use to settle with Cap 1 to file for bankruptcy. I was always so proud of my former 841 credit score and hope that someday I'll be able to see it climb back in the 700's after my bankruptcy is discharged. I'm sure Cap 1 will get what they deserve......and that might be exactly nothing for the judgment they may win.

[Bell30656]

Catleg, quite often the companies are looking for simple default judgements. I have seen many cases where an answer is filed then nothing further happens and the case is later dismissed for lack of prosecution. A large company like a bank will pay a local attorney to file a couple hundred cases. They will get the Default Judgements the few that get answered just aren't worth their time to go after. Local attorneys cost money. Of course, that doesn't mean the debt is forgiven just that they will sell it off to someone else later.

OP keep in mind that there are other defenses as well. In Georgia the SoL is only 4 or 6 years depending on the type of debt. I still suggest a trip to the courthouse. You can pull up other cases from this same plaintiff and review the answers written by attorneys. You can then use one of them as a template for crafting your answer. Every single answer that I saw denied everything except the defendant's name, address and court jurisdiction. I followed that template.

[GoingDown]

Catleg, quite often the companies are looking for simple default judgements. I have seen many cases where an answer is filed then nothing further happens and the case is later dismissed for lack of prosecution. A large company like a bank will pay a local attorney to file a couple hundred cases. They will get the Default Judgements the few that get answered just aren't worth their time to go after. Local attorneys cost money. .

This does seem to be the case...

"Clyburn said some debt-buying companies have treated the courts as an extension of their collections offices, counting on the fact that unsophisticated consumers won’t stand up for themselves and judges — hearing no defense — will sign off on claims without realizing they’re deficient.

“They’re just playing the odds,” Clyburn said. When Marylanders do contest the lawsuits, he said, “generally these debt collectors have dismissed the cases because they know if they go to trial, then they can’t provide the necessary evidence of their claim.”

http://www.loansafe.org/a-push-for-more-proof-in-debt-collection-lawsuits#comment-96037

[Bell30656]

Just recently a person that I know was served by Bank of America on a credit card debt that hadn't had a payment in a couple of years. I went with her to the courthouse and showed her how to pull up all the previous lawsuits by that plaintiff. The very day that her case was filed there were over 250 cases filed by Bank if America against individuals.

She filed an answer with the court mailing a copy to the plaintiff. Nine months later and there has been no further action on the case. She's letting the sleeping dog lie (or dawn as we say here).

Our neighboring county is a little more high tech. They have all their cases online. It is easy to research a creditor. Punch in any company (put company name in the Last Name box) and look at the cases that they have filed. Look how those cases end. It's either dismissal because they can't serve the individual, Default Judgement or transfer to another court's jurisdiction.

Gwinnett Courts

[rta]

Hmm, I lost my post. But here we go again: I think it's a good idea to answer because it buys you time while you figure out your options. It's great that you don't pay anything in your state. Don't get intimidated if it's an OC. They still need to follow legal procedure, especially because they've dragged you into the litigation arena. They don't always have adequate proof, but they're so used to shooting fish in a barrel, getting easy defaults from defendants who don't know what to do in their defense.

I'm not a lawyer and can't give legal advice. You may want to look into a couple of forums where people share their experiences: http://www.debtorboards.com AND http://www.creditinfocenter.com/forums/.

Good luck.

[treehugger1]

I agree that it can be a good idea to answer a lawsuit when the cost of doing so is negligent. However, in many states the cost is HUGE! This is especially true in some states that require court-mandated arbitration that must be paid up front to play the game (pay-to-play.)

In my state, one can easily expend $250 - $300 just answering an initial civil summons. In addition, every motion and response here costs money. It would be very easy for a defendant to run up court costs that exceed a debt of say $2000.00.

It sounds as if all answer/interogatories/ motions/etc are free for a defendant in Georgia, so play the game. But, from what I also hear about Georgia, is that if you lose be prepared to pay heavily to the opponent for thier court costs. I'm not sure what this implies, but one can only guess.

My philosophy is, "Don't fight a summons if you can't afford to lose." This might be especially true if you can simply file a BK 7 and walk away.

[tobee43]

Hmm, I lost my post. But here we go again: I think it's a good idea to answer because it buys you time while you figure out your options. It's great that you don't pay anything in your state. Don't get intimidated if it's an OC. They still need to follow legal procedure, especially because they've dragged you into the litigation arena. They don't always have adequate proof, but they're so used to shooting fish in a barrel, getting easy defaults from defendants who don't know what to do in their defense.

I'm not a lawyer and can't give legal advice. You may want to look into a couple of forums where people share their experiences: http://www.debtorboards.com AND http://www.creditinfocenter.com/forums/.

Good luck.

rta, being born and raised in san fran when i left the bay area i thought the world was "fair'. how naive i was!!! calif court systems and nj court systems are like being on two entirely different planets. i have done work in both states and calif follows a clear fair system in most of the experiences i have had doing work there. however, nj, the courts fail to notify, and even if they do, you get there and many judges don't even give you the opportunity to speak, they just simply agree with the creditor no excuses, no fuss, gavel down and judgment granted. that's of course you even get to court or were ever even legally notified, which by the way, that's not an argument in the nj courts as well.

bottom line here after reading this thread, is i truly think it is where you are as to how to proceed. i knew, even as a paralegal answering any summons that i was going to be listing on the bk was a waste of time and effort. of course, had we not considered nor knew we would be filing, i would have handled it differently, in nj i would have hired an atty if i wanted to fight it and have them electronically file the answer or had their firms deliver the answers to the court. that would have been the only way one could be completely assured that proper notice was given the court and you have someone backing your position.

i do believe or it use to be that in nj some cases do require court-mandated arbitration, but at no costs to either party. however, when there are CC involved or banks suing you, the arbitrators are using bank employees LOL!!!!!!!!! (just kidding, although really the way i have seen them go again referring only to nj, one wouldn't be surprised).

[Bell30656]

It sounds as if all answer/interogatories/ motions/etc are free for a defendant in Georgia, so play the game. But, from what I also hear about Georgia, is that if you lose be prepared to pay heavily to the opponent for thier court costs. I'm not sure what this implies, but one can only guess.

Actually, that is the court filing costs not the attorney fees. I've looked over many civil cases at my local courthouse and the neighboring counties and the only cases I saw where attorney's fees for the plaintiff were granted were Child Support Contempt of Court cases. The truth is, I found very few cases that actually went to court and got a judgment by a creditor. I found a dang lot of them filed but they were all either Default Judgment, Summary Judgment, Dismissed or Transferred to Another Jurisdiction. I'm not sure these debt collectors actually want to go to court.

The OP should stop by his local courthouse and browse the cases by this plaintiff for himself. See if they EVER go to court. One of the reasons that I fought mine was that the JDB who was suing me had filed hundreds of cases in my county but had never been to court even once. Now with a large organization such as a bank, that may not always be the case. I was researching on Gwinnett Courts and I can't find many that went to court.

[rta]

tobee,

I am appalled at your description of the nj courts. That would certainly make BK a better option. I was able to get a fee waiver so that helps a lot. But there are cogent reasons for filing an answer to protect you/your assets/your dignity. It's always possible to decide for BK somewhere along the line.

[tobee43]

tobee,

I am appalled at your description of the nj courts.

me too rta.... me too.

[treehugger1]

Bell, Your advice to the OP about checking records at their local courthouse is solid advice.

I have spent hours in my local courthouse perusing past cases against debtors. I learned a ton. I also learned that in my county circuit court system, the "general denial" is a good answer. Many states and counties will not accept a general denial as an answer.

I also encourage the original poster to research a few cases in their local courthouse referencing the plaintiff.

[Bell30656]

Treehugger, I learned a lot in each of my trips to the county courthouse. I also figured out how those nasty Default Judgments work. I watched a single lawyer "win" a couple hundred cases in a very short matter of time. I wonder how much he made on each case...

[kramerlike]

I just came from visiting an attorney about whether I need to file for bankruptcy at this time. His total fee for filing was very reasonable, however, my spouse doesn't feel comfortable (and is questioning) why the social security income (or any income) which is received by my spouse needs to be included and made a part of my bankruptcy when my spouse's name isn't on any of my debt. Since I don't have an income, I'm assuming they have to consider my spouse's income to determine how my expenses are paid.......is that correct?

Also, I have to fill out all this paperwork for household expenses, etc. and the attorney will then assess our finances and determine what my options are. The fee for finacial analysis is $750 (whether I file for bankruptcy or not) and then if I file, the total for Chapter 7 is around $1200. Is it common for the attorney to charge $750 just for financial analysis? If I don't file, won't all this money just be spent for nothing?

I've prepared my answer to the summons myself and will be filing it with the court tomorrow. I had to bring up the topic of the answer at the end of the meeting. I asked him if I should answer the summons and he said "oh yeah, it will buy us some time." I asked him to look at the one I prepared because he didn't offer to prepare one for me. He glanced at it and said it was fine. Should I be concerned about him not mentioning or offering to prepare the answer himself? I'd like to hire a good attorney.......not someone who just wants my money and not consider what's best for my situation. I'm just trying to figure out what's common practice for a good attorney.

Thanks very much for all the comments provided on this topic........I've already learned a great deal and am feeling a great deal more comfortable with this whole process.