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A layperson is often at a disadvantage when defending against a debt collection suit filed by an attorney. The debtor as a defendant does not know the "rules of the game" and sometimes takes the advice or direction of court staff (who by the way should not be giving legal advice but often do.)
Talking to clients who have appeared to defend in small claim collection suits in this area (Northern Virginia, suburban Maryland and DC), I am surprised that many will meekly follow court staff instructions to come back to court on another date -- when the collector's attorney fails to show up or is late! This failing is a perfect opportunity to have the case thrown out!
You have a right to ask the court to proceed on the case. Tell the clerk that you are present and ready for the case to be called. When the case is called, proceed to the podium and ask the court to have the case "dismissed with prejudice." That very important qualifier -- "with prejudice" -- means that you are asking the court to dismiss forever.
The plaintiff can ask the court to re-instate the case later, but, for most judges, he will have to have a very good excuse, for example unavoidable illness that came on suddenly, and he will need to ask for that reinstatement very soon after the dismissal, in most cases, within 30 days.
Remember: It's the plaintiff's case. He brought it. Not you. You're present and ready to go forward. If he's not there, the law is very willing to treat him harshly.
It's a simple technique, and a very valuable one, to get rid of a lawsuit.
If you need more advice, call our law firm. We're ready to help.
Deciding whether to file for bankruptcy with your spouse or to go it alone isn’t a simple choice.
You know you can file for bankruptcy alone. And if you live in a community property state, you know your spouse gets some of the benefits of bankruptcy without filing.
But that doesn’t help you decide if you should file together or not. It’s a lot more complicated that that.
Will Your Household Benefit Financially?
A marital household is a single economic unit – at least, it should be. Money comes into the household and it combined, then expenses are paid from that pool of income.
When you file for bankruptcy without your spouse, you’re eliminating your debt problems – but only yours. Unless you live in a community property state such as California and are dealing solely with joint debts, you’re still going to need to pay your spouse’s debts after your case is over.
Is your spouse debt-free? If so, there’s no financial benefit to including him or her in the filing.
If, however, your household is still going to be saddled with significant debt afterwards then maybe it’s a good idea to “kill two birds with one stone” by wiping out all of your debts at once. Otherwise, you’re going to have to spend more of your household income on debt repayment.
Do You Need Your Spouse’s Credit?
After you file for bankruptcy, your credit will take awhile to improve.
If your spouse has excellent credit, filing for bankruptcy alone will keep you in the credit game in spite of your discharge.
That means you’ll qualify for new credit – including a car loan and mortgage – more quickly than would otherwise be possible.
Of course, this is secondary to the issue of your spouse’s debt situation. If your household is going to be left with significant debt that will drain your pockets each month then good credit may not be enough. Better to bite the bullet and get rid of the debt altogether before contemplating that new house.
How’s Your Marriage?
If your marriage is good and you live in a community property state such as California, filing for bankruptcy without your spouse may protect you from your creditors.
Remember, though, that the community discharge protections end when the marriage is over. Divorce or death of the filing spouse terminates the community discharge, and collections will continue.
Filing Separately To Hedge Your Bet
If you’re looking to stop a foreclosure, filing for bankruptcy offers a quick and simple way to accomplish that – the automatic stay. The foreclosure has to stop once your case is filed, and you can use the court-ordered repayment plan to bring the arrears current.
If, however, the repayment plan falls through then you may end up getting your case dismissed (thrown out of court). Filing again may not offer you the same automatic stay protections.
Your spouse, however, can file a new bankruptcy case and get the full benefit of the automatic stay – even if your solo bankruptcy case didn’t work out.
No Easy Answers Without Deep Analysis
Part of my job as a bankruptcy lawyer – in fact, part of any good lawyer’s job – is to ask questions that will help make the decision easier.
It’s not a quick analysis, but you’re dealing with your financial future. Getting the wrong answer could cost you a lot of money, stability, and difficulties.
Reasons To File Bankruptcy People hesitate to file bankruptcy for a variety of reasons. The first is the name bankruptcy has a negative connotation which has been around for centuries. The truth is bankruptcy was put in place to help people who are struggling financially. Bankruptcy is not a scarlet letter that someone has to+ Read MoreThe post Why Do People Hesitate To File Bankruptcy? appeared first on David M. Siegel.
Once you file for bankruptcy, there are two things that automatically occur: the automatic stay springs into effect to prevent your creditors from collecting, and the bankruptcy estate is created. The bankruptcy estate defines the nature of your assets by the date and time that you filed for bankruptcy. Money earned immediately before filing for bankruptcy is considered property of the estate, while money earned after filing your petition is not a part of the estate.The post Understanding the Bankruptcy Estate appeared first on Tucson Bankruptcy Attorney.
Once you file for bankruptcy, there are two things that automatically occur: the automatic stay springs into effect to prevent your creditors from collecting, and the bankruptcy estate is created. The bankruptcy estate defines the nature of your assets by the date and time that you filed for bankruptcy. Money earned immediately before filing for bankruptcy is considered property of the estate, while money earned after filing your petition is not a part of the estate.
Star of reality television series “Dances Moms” emerges from bankruptcy, but many had no idea it was filed in the first place. Abby Lee Miller, 47, just completed her bankruptcy case after running into financial troubles that almost cost her to lose her home and dance studio in Pennsylvania. Thanks to the success of the [...]
If you’re looking to save a home from foreclosure, chapter 13 will help you provided you file your bankruptcy case before a Sheriff sale has taken place. Chapter 13 will allow for you to pay back your mortgage arrearages over a three to five-year period. You also have to make your regular mortgage payment each+ Read MoreThe post My Sheriff Sale Date Has Passed. Will Chapter 13 Bankruptcy Help Me? appeared first on David M. Siegel.
Our Walworth Bankruptcy Attorney has heard time and again from clients that they are afraid to file bankruptcy for fear of losing their retirement funds, such as their IRA. Firstly, we would like you to know that in most cases, your IRA and other retirement funds will be protected. The current Wisconsin bankruptcy code allows you to protect your IRA. Other retirement plans garner the same protection.
Can a Walworth Bankruptcy Attorney Interpret Bankruptcy Exemptions for Me?
Of course we can! The Wisconsin Bankruptcy Code states the following in regards to IRAs and other retirement savings:
“Wis. Stat. Ann. 815.18 (1)(j)
(j) Retirement benefits.
1. Assets held or amounts payable under any retirement, pension, disability, death benefit, stock bonus, profit sharing plan, annuity, individual retirement account, individual retirement annuity, Keogh, 401-K or similar plan or contract providing benefits by reason of age, illness, disability, death or length of service and payments made to the debtor therefrom.
2. The plan or contract must meet one of the following requirements:
a. The plan or contract complies with the provisions of the internal revenue code.
b. The employer created the plan or contract for the exclusive benefit of the employer, if self-employed, or of some or all of the employees, or their dependents or beneficiaries and that plan or contract requires the employer or employees or both to make contributions for the purpose of distributing to the employer, if self-employed, the employees, or their dependents or beneficiaries, the earnings or the principal or both of a trust, annuity, insurance or other benefit created under the plan or contract and makes it impossible, at any time prior to the satisfaction of all liabilities with respect to beneficiaries under a trust created by the plan or contract, for any part of the principal or income of the trust to be used for or diverted to purposes other than for the exclusive benefit of those beneficiaries.”
The Wisconsin Bankruptcy Code recognizes that your IRA and other retirement funds have a designated purpose. Therefore, they are exempt from being seized in a Walworth bankruptcy. As stated above, although rare, there are some exemptions. If you have concerns about your IRA or other retirement savings when filing bankruptcy, contact our Walworth Bankruptcy Attorney to discuss your situation.
Experienced Walworth Bankruptcy Attorney
Our Walworth Bankruptcy Attorney is experienced in Wisconsin Bankruptcy Code. Our bankruptcy experience in situations like yours is valuable. If you are considering a Walworth bankruptcy and you have money invested in retirement funds, you can almost always rest assured that you will not lose those savings. However, make sure you hire an experienced Walworth Bankruptcy Attorney who knows the law and how to handle your particular situation. Please contact us regarding your Walworth Bankruptcy at 262-725-0175 or send us an email via our bankruptcy contact page.
*The content and material on this web page is for informational purposes only and does not constitute legal advice.
The problem with credit repair is that, too often, it’s illegal.
It’s tempting to think you can control what the world knows about you. Just delete the bad stuff, keep the good stuff, and move on.
At least, that’s what the credit repair industry says to the world.
As a consumer protection lawyer who does a fair amount of credit report correction for people, it drives me nuts.
Which is precisely why the truth needs to come out. As in, right now.
Rights You DO Have Under Credit Reporting Laws
Your credit report is governed by the Fair Credit Reporting Act. There are various state laws as well, but this federal law is the basis for all of them.
The Fair Credit Reporting Act promotes the accuracy, fairness, and privacy of information in the files of consumer reporting agencies. In order to accomplish these goals, you have the following rights:
- you have the right to know what’s on your credit report. You can get a copy of your report under certain circumstances, and can also get one report free of charge from all three major credit reporting agencies once per year by going to www.AnnualCreditReport.com;
- you have the right to dispute incomplete or inaccurate information and to have that dispute investigated by the credit reporting agency;
- you have the right to have inaccurate, incomplete, or unverifiable information deleted from your credit report once you dispute it;
- you have the right to have a credit report not report outdated information; and
- you have the right for your credit report to be disclosed only in limited situations.
Related:
- Text Of Fair Credit Reporting Act
- How To Get Your Credit Report
- What Information Is On Your Credit Report
- How To Dispute Errors On Your Credit Report
Rights You Do NOT Have Under The Credit Reporting Laws
As the old song goes, you can’t always get what you want. So, too, with your credit reports.
For example:
- You do not have the right to delete information from your credit report that is accurate but you don’t like;
- You do not have the right to dispute items on your credit report if you do not have a good faith belief that the item is incorrect;
- You do not have the right to prevent an entity with a permissible purpose under the law from obtaining a copy of your credit report.
- You do not have the right to say anything on your credit report that is untrue.
Related:
How The Great Credit Repair Scam Works
Credit repair companies make their money by promising you something you can’t legally get – a credit report clear of negative information that happens to be true.
One of the reasons why they charge so much money is that the assure you that they have an “inside line” and know “secrets” that are somehow otherwise unavailable.
In reality, all they do is send repeated disputes to the credit reporting agencies in the hopes that eventually the negative notations will disappear. Or that the agencies will delete them temporarily, which allows the credit repair company to show you a clear credit report.
Makes them look like magic. Sadly, magic is nothing more than sleight-of-hand.
Exercise Your Rights But Don’t Fall For The Scam
You can spend your money and fall for a credit repair scam, but that will leave you broke and frustrated.
Instead, review your credit reports and ensure that they’re correct. If not, dispute the inaccuracies and follow up.
Remember that time heals all negative credit report notations.
What happens when a bank cannot produce a copy of their credit card agreement during a lawsuit for an unpaid account balance? Well, that was exactly the situation when CitiBank sued Teresa Cooper in the Superior Court of Vermont, and that case typifies the current status of credit card lawsuits nationwide. Banks cannot seem to produce a copy of their contracts when litigating unpaid accounts.
What CitiBank was able to provide the court was a copy of the monthly billing statements mailed to its customer and the bank sought to recover a summary judgment on the legal theory of Account Stated. In short, the account was stated month to month via the billing statements, no objections were made by the borrower, so the balance must be true.
Amazingly, credit card companies have tremendous difficulties producing a copy of the written contract. This is because the contract is not contained in one document but is a result of several documents, perhaps dozens or hundreds of documents, generated during the time the account exists that must be read together to come up with the terms of the agreement.
Oh, what a tangled web we weave. When first we practice to deceive!
In an effort to generate higher profits, banks created flexible contract documents that could be amended or supplemented at any time by simply mailing a notice of changes to interest rates, late fees, over-limit fees, cash advance fees, credit score fees, etc. So, to figure out what the bank should have charged in any one month, dozens or perhaps hundreds of documents must be reviewed to determine what terms applied from one month to the next. Of course, the problem is that the banks have failed to create a single depository of all these documents unique to each customer, and the banks themselves struggle to produce the full set of contract documents, let alone to explain how the contacts actually operate in a court of law.
Well, not really a big deal, right? I mean, you were mailed a statement of the then current contract terms and you didn’t object, so what’s all the fuss?
At least in the State of Vermont, this is a big fuss. The court stated that in none of their prior cases had they applied the doctrine of Account Stated to a distantly located bank or other financial institution where no personal relationship existed. The classic example of a running account is between a farmer and the local supply store, but that hardly resembles the modern relationship between a distant bank and its borrowers. The court found that the borrower did not, unlike the farmer and his supplier, agree to the amount of the debt.
“Even if there are situation in which this position (failing to contest the accuracy of a bill) may have merit, it is without merit in credit card transactions because it is based on the assumption that the recipient, upon review of an invoice, can readily determine whether this is an amount he or she owes . . .This assumption does not hold true with credit card agreements and transactions. Credit card statements often contain multiple interest rates, interest rates which fluctuate from billing period to billing period, and a myriad of other kinds of fees and penalties.”
The court further stated that “[w]hile the credit cardholder, looking at the statement, can see the amount of the charges that were imposed, he or she is unlikely to know whether the charges are consistent with the writings governing the cardholders obligations . . . [T]he Court does not agree that Ms. Cooper’s silence was tantamount to assent to the accuracy of the monthly statements.”
The Court does not agree that Ms. Cooper's silence was tantamount to assent"
In the absence of providing the court with a complete copy of the credit card contract, the court denied all interest and finance charges and limited recovery to the principal borrowed minus the payments made on the account.
The Vermont court nailed the issue: Silence is not assent. Failure to protest the accuracy of a credit card statement is not the same thing as agreement to the charges. Consumers are simply not able to measure the accuracy of the monthly finance charges. Without producing the credit card agreement banks should never recover more that the principal amount borrowed.
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