Question about court date?

[Freddy03]

I had a court date for my 2nd lawsuit back awhile back. One week before court I faxed the judge a letter stating I retained a BK lawyer and was hoping to file Ch 7 soon. Well the judge was nice enough to cancel the trial and put a pending BK status on the case.

Since then I received a few calls from the plaintiff's attorney and they have now issued a request for summary judgment (I'm still not 100% sure what the difference between a summary judgment and regular judgment is). So I have court coming up for this soon.

This is in both mine and DH's name. DH recently had surgery (2 days before Christmas) and just went back to work last week. He requested the court date off but it was denied as he was out for 2 weeks with the surgery. So my question is am I going to get stuck with a default judgment if only I show up? I plan on arguing the case b/c they have not answered my request for documents so I have no clue how they have come up with a balance almost 6K higher in over a year. I have stopped receiving statements once the summons was received.

Also this is for an unsecured loan (not a credit card) does anyone know what the difference is if I get a judgment from them then if it was a credit card?

Thanks

[LadyInTheRed]

A summary judgment is made when there is no dispute as to the facts. It's a way to speed up the process without having to go through trial. It sounds like you do dispute the facts, so you and your husband should probably file a written response to the motion for summary judgement saying you dispute the amount of the debt (the danger is that the court could ask you how much you think you owe and get the creditor to agree to a lower amount and issue a judgement). I would think it would be sufficient for only you to appear at the hearing. But, I'm not certain. It may be helpful if you have your husband sign a limited power of attorney authorizing you to act on his behalf in connection with the lawsuit. After the hearing, the judge would either issue a summary judgement or deny the motion for summary judgement and possibly set a trial date. He could also delay the hearing on the motion for summary judgment if there was some reason to do that. Hopefully, somebody with experience with Florida procedures will correct me if any of this is incorrect.

I would be prepared for the judge to ask why you have not filed BK yet. But, I wouldn't tell him that you are waiting to get a tax refund so you can pay another debt. Maybe just say that your attorney has advised you to wait until a certain date.

[Freddy03]

A summary judgment is made when there is no dispute as to the facts. It's a way to speed up the process without having to go through trial. It sounds like you do dispute the facts, so you and your husband should probably file a written response to the motion for summary judgement saying you dispute the amount of the debt (the danger is that the court could ask you how much you think you owe and get the creditor to agree to a lower amount and issue a judgement). I would think it would be sufficient for only you to appear at the hearing. But, I'm not certain. It may be helpful if you have your husband sign a limited power of attorney authorizing you to act on his behalf in connection with the lawsuit. After the hearing, the judge would either issue a summary judgement or deny the motion for summary judgement and possibly set a trial date. He could also delay the hearing on the motion for summary judgment if there was some reason to do that. Hopefully, somebody with experience with Florida procedures will correct me if any of this is incorrect.

I would be prepared for the judge to ask why you have not filed BK yet. But, I wouldn't tell him that you are waiting to get a tax refund so you can pay another debt. Maybe just say that your attorney has advised you to wait until a certain date.

Thanks! I did not respond to the motion for summary judgment b/c I didn't know how to. I will tell the judge I haven't filed yet b/c I don't have all the attorney fees for BK yet (which is true - I'm using part of my refund to pay the attny).

I would love to set a trial date further out to try and not have my husband get a judgment. It's bad enough I already have one.

I'm going to work on something tomorrow to answer the summary judgment thing.

Thanks again!

[Freddy03]

I have another question -

I really want to avoid getting another judgment. If the attorney tries to work out a "court step" deal before trial can I accept it and then file BK in March? Or would that be illegal??

Thanks!

[SunshineGal]

Hi Freddy,

Did the creditor sue under Statement of Claim or Breach of Contract? Spend some time researching how to answer a complaint in FL as it pertains to your situation. Unfortunately, by faxing the judge the letter that you were planning to file for BK, you may have missed your opportunity to file an answer and assert any affirmative defense.
As for your husband, you may want to call the clerk and ask what to do. The court may allow him to appear by phone or delay the hearing. The only other suggestion I have for you is to file a motion to dismiss based on the fact they didn't attach the necessary paperwork to the complaint and have not proved the amount owed but this will only work if its true, and at best, it will only delay the judgment until the plaintiff provides the information at the hearing. The rules for FL civil law are available on the FL Bar website.

SG

[Freddy03]

Hi Freddy,

Did the creditor sue under Statement of Claim or Breach of Contract? Spend some time researching how to answer a complaint in FL as it pertains to your situation. Unfortunately, by faxing the judge the letter that you were planning to file for BK, you may have missed your opportunity to file an answer and assert any affirmative defense.
As for your husband, you may want to call the clerk and ask what to do. The court may allow him to appear by phone or delay the hearing. The only other suggestion I have for you is to file a motion to dismiss based on the fact they didn't attach the necessary paperwork to the complaint and have not proved the amount owed but this will only work if its true, and at best, it will only delay the judgment until the plaintiff provides the information at the hearing. The rules for FL civil law are available on the FL Bar website.

SG

Thanks SG - Yes I have filed my answer/affirmative deffenses/counter claim/request for documents months ago. The Plaintiff only responded to my counter claim. I submitted a counter claim b/c they sent me a summons 5 days after they received my debt validation letter. Their inital letter said I had 30 days to request validation and during this time no legal action would be taken place. Well they sued 5 days after not 30. So I still have to see how that goes.

They are suing on breech of contract. Attached to the summons was pages 1 and 3 of the signed contract by my husband and myself. I requested page 2 because it had their arbitration clause. I never received it.

I'm going to try and pull all stops at court this week. Hopefully I can get the summary judgment request dismissed and this go to trial.