What's the best course of action?

[dina13]

Hi all, I have a question. We got summons from Capital One, and the hearing is on June 4th, in court of small claims. I let the court know that I will be there to defend my case, so that there is no default judgement against us.

We are definitely filing ch.7 bk. However, we might not get everything ready to file before June 4th. So I'm wondering what to do? Should we file an emergency petition before the hearing, in order to prevent possible judgement against us, or it doesn't really matter, since we'll file bk in less than two weeks?

What are your experiences with such situations?

[keepmine]

If you're going to file in 2 weeks, it's doubtful that a judgment creditor would have time to take any steps to satisfy the judgment.
Post bk, your lawyer can get the judgment vacated.

[dina13]

Thanks, keepmine. I know they won't have time to act, I was just wondering what's better to do to stay away from complications. Is it hard to vacate a judgement?

[DaisysMom]

A couple of years ago when I almost got foreclosed on and a hearing was set, I was also in the process of trying to work out a loan mod. My attorney filed for a 30 day extension, which was enough time to get the mod completed and the foreclosure action was dropped. Ask your attorney if he could file for a thirty day extension..that will give you plenty of time to get BK filed and into the automatic stay period. Worked for me.

And if you are filing yourself without an attorney, you can probably look up the forms you will need to file with the court to ask for the extension. I'm sure someone more knowledgeable than me can point you in the right direction.

DM

[AngelinaCat]

When you appear in court, you will neither 'admit or deny' this debt. The judge will set a time for you and the Plaintiff's attorney to meet in Arbitration. That is when the two of you are supposed to work out a payment schedule. This Arbitration meeting is usually scheduled for a date that is 20-30 days after your current court date. That time depends on the rules of your local court. If you know you will be filing within two weeks of June 4, you should be fine.

DaisyMom's idea is good, too. However, in our case, we knew we were going to be out of down on the date that was originally set for the Arbitration, and that couldn't be changed. So the judge set our Arbitration date was set for the following month. So that bought us two months of time.

[dina13]

Yes, Daisymom, I wrote email to our attorney, will see what he says.

AngelinaCat, could you tell me more how to "neither admit or deny" this debt in court? If they ask me directly "Is this your debt?" what am I to say?

[AngelinaCat]

It's like a 'not guilty' plea in criminal court. You just say "I neither admit or deny this debt." t's up to the plaintiff to prove that it is your debt with the proper paperwork, signatures and so forth.

[dina13]

Thank you, AngelinaCat. If I won't be able to postpone a hearing, I'll do what you suggested.

[dina13]

Just got a reply from my lawyer. He said that since it's a hearing for magistrates court action, it's not a big deal, and even if the hearing is held, the judgement could be avoided if bk is filed within 90 days from the time the complaint against me was filed.
I asked him if I could postpone this hearing, and he said that since I have nothing to lose, I could notify the court that I plan on filing bk in the next two weeks.

[JimKutkowski]

Just ask the magistrate for a continuance, they will normally grant one as a matter of course. If they ask for a reason then tell them, otherwise there is no need to disclose your plans.

[dina13]

Thank you, Jim. I actually did that last Friday. I didn't get a response yet, but hopefully I'll hear from them this week.

[df04527]

Much much easier to do the work now to prevent the judgement because once a judgement hits your credit report (and it can within days after) it is HExx to get that off there and cost more money. My advice is to do what you have to do to not get the judgement. i say file emerg if nothing else and bring that paperwork with you or delay.

[JimKutkowski]

Thank you, Jim. I actually did that last Friday. I didn't get a response yet, but hopefully I'll hear from them this week.

Well it was a holiday weekend. Call tomorrow after 12 and follow up. Be nice to the ladies that work for the magistrate, they tend to be real cooperative.

[dina13]

Thank you df and Jim. I will call magistrate tomorrow as you suggested, Jim.

[dina13]

I just talked to magistrate, and yes, they did postpone the case for three weeks. The letter is in the mail. It's such a relief to know that we don't have to rush out of our minds to get everything ready on time.