I just got sued for a debt. What should I do?

lawsuit 2If a creditor files a lawsuit against you for a debt you do owe them then you can fight the case and try to win in court.  Chances are though that the creditor can prove that you owe them so you will have a tough time winning.  It is possible that the creditor cannot prove that you owe the debt but these creditors are usually not stupid.  (I wrote about this before in a previous blog here).

They will most likely produce in court some sort of proof that you indeed owe this particular debt.  They will have copies of your original contract you signed for a credit card for instance and some sort of monthly tabulation for the charges.  If that is the case then it is hard to argue that you do not owe the debts.

You can try to stall the case for a certain amount of time and ask for a trial date which will stall it further.  The creditor though will then often file a motion for summary judgment based upon their evidence.  They will use this motion try to get a quick judgment so they can begin collecting the debt from you.

If you have evidence that warrants a trial then you can get one possibly but if they have sufficient proof of your owing them then you are likely to lose at trial.  If you win then you are off the hook but if you lose then the creditor will begin to collect the debt from you.

At some point before the trial you will want to consider making payments to them or take the other way out which is bankruptcy.  Bankruptcy will stop this lawsuit and wipe out not only this debt but bankruptcy sign 2also all of your other debts.  Bankruptcy is an excellent lawsuit destroyer.  Bankruptcy will usually cost less than hiring an attorney to fight the suit and if you fight it yourself and lose then you will still probably owe the creditor for the debt and their attorney fees and costs.

I recommend consulting a bankruptcy attorney before you start the process to see if you qualify for bankruptcy and to see if bankruptcy makes sense for you.  It is possible that you have too much income or too many assets to file or you may have too few debts to justify a bankruptcy.

_

I am a San Diego bankruptcy attorney.  For further questions please visit my websites at www.farquharlaw.com or www.freshstartsandiego.com.  Or call my office for a free consultation or for any other advice about bankruptcy or debt at (619) 702-5015. Call now for free credit report and analysis!

For a free e-book on “13 things to do to prepare for your bankruptcy filing” please e-mail me at farquharesq@yahoo.com.

Lawsuit photo courtesy of thinboyfatter.  Bankruptcy sign courtesy of wes gaddy.

Advertisements

Be aware of the bankruptcy warning signs in your own life!

warningThere are many warning signs that can appear in person’s financial life that can signal that a person is insolvent and in need of warning 4declaring bankruptcy.  If you can recognize these signs then it is possible for you to prepare to file for bankruptcy.  A timely bankruptcy filing can avoid the pitfalls of irreversible financial mistakes.  I often discover that my clients have made these mistakes prior to coming to see me.

I wanted to warn people in this blog so they could consider bankruptcy when the financial danger first appears so they can avoid the mistakes that come with the failure to recognize the warning signs of an impending bankruptcy.  If these signs appear you may be in a situation where bankruptcy makes more sense than continuing with a charade or outright lie that you are “someday” going to pay your debts.

Many people continue with this denial for years and years and some make many financial mistakes because of it.  Some will cash in their retirement funds or sell other property to raise cash in an attempt to pay down their debts.   Retirement funds and many other types of property are exempt in bankruptcy.  It is always a mistake to cash in retirement funds or many other types of property that are exempt in a bankruptcy.   You can keep these assets in a bankruptcy and still get rid of your debts.

Some people will struggle along for long periods paying partial payments to creditors which will often cover only interest on their debts.   This only results in them their spending endless amounts of money which could have been saved had they only admitted to themselves that bankruptcy made sense.  Some will even borrow some money from friends and relatives in an attempt to pay down the debt.  This money is completely wasted and probably lost forever if these people eventually do file a bankruptcy.

1) The first warning sign is when you are paying interest only on credit card or other debts.  If you cannot pay down the debt itself but you are paying interest only then that is a sign of trouble ahead.  Interest rates will rise and just like our government you will eventually reach a point where your interest on your debts takes up a huge share of your income so that you cannot cover your basic monthly expenses for living.   This is an unsustainable situation and one which signals that bankruptcy make s a lot of sense for you.

2) Unemployment or underemployment.  If you have debts that you could afford to pay on when you high paying job but then you lose that job (or you get a job which pays far less) then you may be headed for bankruptcy.  Some will believe that they can magically still pay these debts even though they now need their now reduced income to continue to pay their monthly expenses.

3) When your expenses exceed your income each month before you pay your debts.  If you have no money left over after you pay your current monthly bills to pay past debt payments then it is probably time to consider bankruptcy.

4)  If you have had a vehicle repossessed and you have been hit with a large deficiency balance because of it then you may need a bankruptcy.  Some of my clients have multiple cars repossessed and they thus have multiple deficiency balances that can add up to tens of thousands of dollars.  If they cannot afford to keep up with payments on the vehicles prior to repossession then they will probably not have enough income to pay off the deficiency balance on the old car and somehow secure a new car to drive.

5) Another sign is if you suffered some outrageously high medical debt that is unpayable.  Many of my clients are uninsured or underinsured.  This works for some unless there is a need for an expensive medical procedure.  It is not long before the collectors are calling you to pay tens or even hundreds of thousands of dollars in medical bills.  They will demand that you repay just like any collector and you may not have the income to do it.

6) Then there is the constant steady unabated calls from creditors that you cannot pay so you do not answer your phone.  And this leads me to the all important  psychological  effects of long-term debt upon people.  The constant harassing calls and the knowledge that there is a debt out there that you have no way of paying is a tremendous psychological burden to people.  Bankruptcy lifts this burden, eliminates the debt and the terrible unending stress that goes with it.

7) Some people have multiple court judgments against them for unpaid bills.  These judgments could be for credit cards, deficiency judgments, unpaid medical bills, or debts of any kind for which a creditor has sued you and obtained a court judgment against you.  That creditor can now garnish your wages, seize your property, or demand you come into court for a debtor’s exam.  These “exams” will allow creditors to pry into your finances no matter how much you wish to keep them private.  These are to be avoided at all costs.

8) You may already have garnishments taking 25% of your income.  You now are operating with a reduced income and each creditor is standing in line to get his 25%.  You could pay this virtually forever if you owe enough money to creditors.  Bankruptcy will stop the garnishments, return your income level to what it should be, and banish the debts forever.

All of these are signs that bankruptcy probably would make sense for you and you should get some advice from a bankruptcy attorney.  If you have several of these warning signs (and even if you have only one) then bankruptcy is an option to consider.  There is a little bit of a miracle in bankruptcy.  It can wipe out your debts and free you from your debt burdens.  It is the only way I know of but we don’t need another because it works so well.  So think about if you have any of these signs and if you do then consider bankruptcy.

I am a San Diego bankruptcy attorney.  For further questions please visit my websites at www.farquharlaw.com or www.freshstartsandiego.com.  Or call my office for a free consultation or for any other advice about bankruptcy or debt at (619) 702-5015. Call now for free credit report and analysis!

For a free e-book on “13 things to do to prepare for your bankruptcy filing” please e-mail me at farquharesq@yahoo.com.

Warning sign courtesy of Free Grunge Textures.  Danger sign courtesy of Atomicjeep.

Has a creditor threatened you with jail if you don’t pay them? FDCPA says this is illegal!

Has a creditor threatened you with jail for non-payment of a monetary debt?  This is most probably illegal according to the Fair Debt Collection Practices Act (FDCPA).  Collectors often harass and threaten debtors with all sorts of things that they have no right to threaten.  They will often threaten jailing you if you don’t pay today!  A person just contacted me with this problem and the client was threatened by a creditor to have police show up at their work and arrest them if they did not pay today!  And this creditor did not even file a lawsuit yet!

This is clearly illegal!  With no lawsuit filed there is no judgment and with no judgment no legal right to collect on this debt.  This creditor would have to first obtain this judgment which would give them the right to collect but in California there is no going to jail for owing strictly monetary debts.  And to threaten that police will show up at someone’s work and arrest them when they cannot is a violation of FDCPA section 807(4).

In that section it clearly states that an implication that non-payment will result in arrest or imprisonment unless that action is legal and intended by the party is a violation of this law.  In my client’s case there is no arresting or jailing someone for owning monetary debts so this threat was a violation of the law.  If my client could prove it then we could win damages against this collector.  I told this person to tell the collector that they were recording the call next time and see how fast he hangs up.

Section 807(5) restates this and says that any threat to take any action that is not legal or intended is a violation of the FDCPA.  So this collector violated this section too.  My question is can we get this guy to say this clearly into the microphone so we can replay it for the judge?

So don’t take any crap off of these creditors.  I hate to hear these stories and I answer these e-mails immediately.  We live in a great country where we pride ourselves in our freedom but if these collectors can violate the law with impunity then it threatens all of us.

In a previous blog I discussed how these collectors by far receive the greatest number of complaints to the Federal Trade Commission.  They routinely harass, threaten, bother and annoy people and they are now routinely violating the law I believe.  So know your rights and don’t allow them to bamboozle you.

I am an attorney who practices bankruptcy law in California.  For more information please visit my websites at www.farquharlaw.com or www.freshstartsandiego.com .  Or call my office for a free consultation at (619) 702-5015.  Call now for free credit report and analysis! 

If you or someone you know needs to file bankruptcy please get my FREE E-BOOK; 13 THINGS YOU SHOULD DO TO PREPARE FOR YOUR BANKRUPTCY FILING” by e-mailing me at: farquharesq@yahoo.com.

Don’t put you head in the sand- your creditors will not stop hounding you until you pay them or file bankruptcy!

Many of my clients have debts that are very old.  Collection agents have long since been brought in and my clients are being called on the phone sometimes 20 times a day to pay these debts.  It’s especially vexing if you have a number of these collectors each trying to call you numerous times a day.  Most people in this position have long since stopped answering the phone.

Creditor harassment can really affect your life.  It makes you constantly uptight, nervous and upset.   You know in the back of your mind that something must be done about these debts.  Many people can get seriously depressed about their debt.  This can lead to all sorts of bad consequences.  If this is you or someone you know then read this.

The point of all this is why live this way when it is totally unnecessary?  There is an alternative to this and it is filing bankruptcy.  By the time these collectors are calling you this often on this many debts its clear that you cannot pay them.  Its time to get your head out of the sand and admit the reality that is staring you in the face.

These collectors will not stop pursuing you and they will call, fax, e-mail, and send you letters continuously until something is done about the debt.  If they can’t get ahold of you for an extended period then they will usually file a lawsuit against you in state court.  This filing goes on your credit report and should be avoided if possible.

Once these creditors get a judgment against you in state court they will use all available attempts to collect on that judgment like garnishing your wages, seizing you bank accounts, putting a lien on your real estate, or getting you into court for a debtor’s exam.  If you miss the debtor’s exam they can issue a warrant for your arrest.

I know this because one of my clients got one of these debtor’s exam notices recently.  In his case we were able to file his bankruptcy the night before he was due in court and that stopped the whole collection process.   The point is though that all of these things are bad for you and they can only cause you trouble or loss of money, probably both.

The good news is that filing bankruptcy stops all of this whether you have been sued or not.  Please stop trying to avoid the reality of the debts.  Don’t be the ostrich!  Bankruptcy, debt relief, happiness and freedom are only a phone call away!

I am a bankruptcy attorney practicing in San Diego.  For further help please visit my website at www.farquharlaw.com.