Update on my situation.....

Discussion in 'Credit Talk' started by Msfedup, Dec 7, 2002.

  1. Msfedup

    Msfedup Member

    Hi to all here this forum.
    Well I just wanted to share with you what happened with the summons.
    My husband and I consulted with several lawyers and decided to file chapter 13.
    Even though our debts are very low, at least it will stop the law suit.
    The CA may or may not try to go after us.
    If they do, we will dispute it, and as I understand it, the burden of proof is on them.
    We will then provide the court with the proof that we have, that the SOL is past, and how that we tried to resolve the entire matter with the original creditor.
    The shame is, that we were only 6 months away from being able to refinance our horrible second mortgage.
    Now we're stuck with it, and as I understand it will not be able to refinance until the 10 years is up.
    I go through periods of great relief, to crying.

    I know this will pass and that it just really stinks right now, I have to keep up my faith.
    Thanks to all that posted about my dilemma.
    There is one thing that I learned...CA are a bunch of blood suckers, who care nothing about you as people.
    They will ruin your lives without batting an eye.
    Thanks again!
     
  2. jdog0411

    jdog0411 Well-Known Member

    Well I don't know about your situation, but it seems to me that you are taking pretty drastic measures that may not be necessary. I will try to go back and search for your previous posts, but are you sure BK is your only alternative?
     
  3. Msfedup

    Msfedup Member

    From whwere I sit, I can see no way other than Bancruptcy.
    If I fight the lawsuit, I could end up having to pay the CA 52K, plus court costs.
    The problem is the SOL is up on the leasing agreement, but the leasing co continued to bill me up until 1 year after I stopped paying them.
    The CA is stating that I defaulted the loan in May 1999, but we hired a lawyer and notified the leasing company that we vaccated the building in May of 1998.
    The last time we paid them wasin April of 1998, and then we vacated the building. BTW, we left because they did not provide our space with heat or air conditioning.
    The leasing company "offically" said that we abondoned the property on May of 1999, which is the date the CA is using to say the debt is within the 4 years.
    I either have to answer or file BK.
    I have no equity in my home, no savings nothing.
    I can't see any other choice.
     
  4. whyspers

    whyspers Well-Known Member

    Why are you going with Chapter 13 versus Chapter 7? Seems to me like it would be better simply to wipe out this debt rather than repay the $52K under Chapter 13. I'm confused.....



    L
     
  5. Msfedup

    Msfedup Member

    I was served with a summons for a lawsuit. I have until December 17 to answer the suit.
    I can't afford to fight the case. I was advised that if I file chapter 13 instead of answer the suit, then the CA couldn't sue me.
    I realize they can still file a claim in BK court, they know the SOL is up, and are trying to use a different date.
    I thought that they would drop it if we filed BK, but I am begingint to wonder if I should let them sue me then file chapter 7?
    I get conflicting advice from lawyers.
    I do not have much debt, but I have 2 mortgages, and little equity.
    I own both of my cars.
    So I'm in a grey area. I do not want to skip out on what I legitimately owe, but this CA is going to sue.
    As I see it I do not have much choice.
     
  6. tnobles

    tnobles Well-Known Member

    If it is past sol, then there is your answer. It is an absolute defense.
     
  7. tnobles

    tnobles Well-Known Member

    It does not cost you anytjing to file an answer. I don't think it does anyway, if it does I am sure it is alot less than filing bk.
     
  8. whyspers

    whyspers Well-Known Member

    I'm not an attorney, but since you have little equity in your house and won't get hurt there, it sounds like Chapter 7 would be the way to go. You reaffirm your house if you want to keep it and keep one or two credit cards...wipe out everything else.

    Filing for Chapter 13 will invoke the automatic stay, but *all* of your creditors can file a proof of claim. If they do this, then that $52K (if approved) will have to be paid back along with your other creditors. I understand wanting to pay off your legitimate debts, but when I tell you that creditors won't grant you any slack because you paid them back you might reconsider. Ch. 13 or Ch. 7...it won't matter when you go to reestablish credit. Unless you have a lot of equity above your exemption, I don't understand why you decide Ch. 13 based on what you have posted.

    You mentioned that you had spoken with an attorney. Did they recommend 13 for some reason? You might want to ask them why they would recommend 13 over 7...but definately ask them so you can make an informed decision based upon information from a lawyer.

    Also...if you simply go to court and they do end up with a judgment...you can file for Ch. 7 at that time and then have your lawyer do a 522(f) motion to vacate the judgment on real property. This way, you may not even end up in bk if you don't lose.

    Good luck!

    L
     
  9. Msfedup

    Msfedup Member

    The problem is:
    I quit paying the leasing company effective May 1998.
    I hired a lawyer, he wrote to the leasing co. The leasing co di the typical crap such as writing letters to my atty saying that they have been trying to reach him on countless occassion, etc.
    Then in May of 1999 they wrote to my Atty and said that they no longer hold me to the lease as of Maty 1999 because of abandonment.
    Then all corespondance stopped until we were contacted by a CA in June of 2001.
    First he called me on the phone, and I told him that he would have to speak to my Atty.
    He told me that he was going to sue me. I told him I had no money, and his answer was " you have a house"
    Then on November 17 I was served with a law suit, that includes them asking for court costs.
    I asked my lawyer to look at it, he told me he needed 10K to answer the suit. I went to get other opinions, that ranged from you could try to fight it and see what happens, to file chapter 13.
    I really do not want to file, but I'm in a between a rock and a hard place.
    I have no money, no equity, I own my home with 2 mortgaes, I own my vehicles, but I barely make enough to make all that I do owe each month.
    I can't afford to be sued, I really do not know what I can do about this.
    I was so close to being able to start over, and now this.
    Don't get me wrong, I am not claiming to be a victim, I'm just so frustrated, and the truth be known, I'm afaid.
     
  10. bigmon

    bigmon Well-Known Member

    I've seen a lot of post here where people wished they filed Ch7 instead of 13. Even of you file a 7 you can always change it to a 13.
     
  11. PAE

    PAE Well-Known Member

    I agree with Whyspers. If you are going to file you would most likely be better off filing chapter 7 instead of chapter 13.

    BUT, I don't know that you need to file because the Statue of Limitations is an absolute defense. There is nothing that the CA can do if the debt is past the SOL and they know it, they are just trying to 'force' you to pay it to make them go away.

    Ask for a Jury trial if you can.

    I wonder if you would be able to countersue the CA.

    Do you have proof of when you vacated the premise?
     
  12. tnobles

    tnobles Well-Known Member

    I agree, wouldn't the burden of proof fall on the ca to prove when the apartment was vacated???
     
  13. JustinTJ

    JustinTJ Well-Known Member

    Your lawyer wants 10k to answer the lawsuit?

    I'd look for another lawyer.
     
  14. whyspers

    whyspers Well-Known Member

    No kidding! My boss would do it for an $800 retainer. Too bad you aren't in upstate NY. (No I'm not soliciting business for him...he's already so busy he locked a partner and another paralegal in the office last week when he left for lunch...lol. Guess his mind was on other things and he forgot they were there).


    L
     
  15. SCMomof5

    SCMomof5 Well-Known Member

    Before you file the BK, go through with answering the lawsuit. Take all your docs of no AC/heat and the date you vacated. Show the OC was in violation of the lease and that you owe nothing. Show also that the SOL has expired.
    Should you lose anyway, which I doubt, THEN file the BK. The BK will wipe out any judgement.
    Once the BK has been discharged, use USC Title 11 Chapter 5 Subchapter II Sectio 524 to have the judgment vacated.

    First, give yourself a chance to fight the bogus lawsuit. File a counterclaim for lease violations and the damages it caused. If you win, you are where you want to be without filing the BK.

    Don't fear the judgment. You are fearing that which may not happen. BK should be the option AFTER the case has been heard in court.

    I had a judgment vacated that was granted pre-BK after my BK was discharged. It is no longer on my bureau.

    We succeed through knowledge. THEY succeed through fear and intimidation! Don't be afraid. You can do this! I have been in court fighting cases that lawyers said I could not win and I won anyway! I even sued a lawyer and got a $50K settlement. Don't fear the courts. They can be your best ally!
     
  16. tracyb0313

    tracyb0313 Well-Known Member

    Wow, maybe they should retain you! You seem to know more than the cheesy lawyer that wanted $10,000! LOL That was a GREAT answer, and should provide some relief to the poster, I would think. Even I feel better about the situation now! LOL Great job!
     
  17. Msfedup

    Msfedup Member

    Hi and thanks for replying.
    I have letters to tghe original creditor,in 1998.
    I also have the 5 day quit or pay from July of 1998.
    What happened is the leasing company played dumb. When my lawyer would write to them and advise them of why we left and asked that they release us from the lease, they responded with letters that said, " we have tried on countless occasions to contact you regarding this matter, with no success" and they would send that in form of registered mail.
    This leter writing went on for 1 year, and then finally on May 10, 1999, the leasing company wrote us and said the owner of the property has chosen to terminate the lease as of the due date of abandonment and will turn this matter over to their atty to begin legal collection proceedings ( as of May 10, 1999) We left in May of 1998.
    The CA says in the summons that I defalted on May 10, 1999 and is asking for 52K in owed rent and lawyers fees.
    Additionally the rented they space 1 year after we left.
    The laywer that handled this case looked over the summons and asked us for a 10 K retainer, which we don't have.
    When we went for additional consultantions, the lawyers that we spoke to, while they were asking for less retainer, said it was not a clean cut SOL defense.
    They said that it could end up with us losing and having to pay the other sides lawyers fees.
    Maybe I'm jumping the gun, but I am so stressed out I can't see straight.
    I thought that if I filed chapter 13, it would at least protect my home (which is mortgaed to the hilt) and my family.
    I guess I'm afraid that the judge or jury will not see the 1998 date as the date the debt became delinquent, thus ruling out the SOL defense.
    I can't seem to get a straight answer from an ATTY.
    Thanks
     
  18. tnobles

    tnobles Well-Known Member

    First of all in my opinion, you're attorney is asking for a 10k retainer b/c he does not want the case. Second of all if you had an attorney sending them letters stating when and why you vacated, those should be sufficient in court.
     
  19. Msfedup

    Msfedup Member

    Thank You.
    I am a lot calmer. I guess I can always file if they win or it looks like they will win.
    I'm so filled with fear I'm not thinking.
    You are right, the SOL is up.
    They are trying to trick me into thinking the clock on the SOL started running on May 10, 1999, but it was a year earlier.
    I have to try and be strong and at least try and fight this, I could win.
    I really do not want to file BK, but I need to look at this in a different way, and where I can prepare to fight and win.
     
  20. Msfedup

    Msfedup Member

    Thank You.
    I am a lot calmer. I guess I can always file if they win or it looks like they will win.
    I'm so filled with fear I'm not thinking.
    You are right, the SOL is up.
    They are trying to trick me into thinking the clock on the SOL started running on May 10, 1999, but it was a year earlier.
    I have to try and be strong and at least try and fight this, I could win.
    I really do not want to file BK, but I need to look at this in a different way, and where I can prepare to fight and win.
     

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