This is a valid debt that I owe and I just passed 180 days of non-payment. I went through a divorce 6 months ago and am now paying child support. I am 37 years old, own a home, a car, have a pension, and a 457b account, but have wiped out my savings. After the child support was instated, I could barely afford to pay mortgage and utilities, much less my 3 credit cards (summing ~$26,000). I have been somewhat successful in negotiating with the other 2 accounts, but this local CU is relentless. They've been nasty from day one and refuse to even entertain a conversation on settlement.
The answer I can imagine for this summons is a 'prayer' or request for settlement or arbitration. Is this something worth shooting for or should I consider Ch 13?
First things first - have you calculated your answer date? You must, must, must make sure you get the answer date right and that you or someone on your behalf files an answer by 10:00 a.m. on the answer date. Stop reading this response and go calculate your answer date right now.
Rolling over and saying "I owe it, please settle for something less." will probably get you nowhere. For the bank and their lawyers, this is about math.
Some 90% of these lawsuits go unanswered. The bank then obtains a default judgment and moves on to the collection phase. As one of the other expounders has noted, under Texas law they probably won't be able to collect much right away due to the laws that protect certain assets. They can, however, make you sit down and answer questions about your assets under oath and provide them documents about your assets every year or so. They can record the judgment in different places and make it hard for you buy or sell items or get credit, they can garnish bank accounts. If they've been this aggressive so far and so quickly, it's easy to imagine that they will push hard on collection.
The only way to get them to the bargaining table is to make it clear, through your actions, that it is going to take them time and money to prevail in the lawsuit. You say you owe the debt, but is the amount correct? have the properly calculated the interest? have they sent you required notices about interest rates and charges? have they complied with the cardholder agreement? do they even have the original terms? or the amended terms? or proof that they sent any amended terms?
File and answer and you are now in the 10% of cases where they actually have to engage the case in order to get a judgment. Fully and carefully answer and discovery requests they send you (or that are included with or embedded in the petition - watch out for requests of admissions in particular and answer in accordance with your knowledge, not your assumptions about what is "probably" true) and you are now in the 5% of cases where they actually have to read discovery responses and prepare a summary judgment motion. You'll probably get a cookie-cutter affidavit that they use for summary judgments - a close review with thoughtful, accurate objections and a solid response and you may well defeat it. Now they are looking at the cost of going to trial. At each of these junctures you are likely to be offered some kind of deal or terms - progressively better, but with a real jump when trial is on the horizon. It's math. The more it costs them to just get to the judgment phase, the more it makes sense for them to deal.
These banks look at bankruptcy as just another phase of the process, they don't really take it as a threat of leverage. You should absolutely consider it, but think of it as part of the process yourself. If you can avoid bankruptcy and get a good resolution, then you have saved that option for later down the road when you might need it due to some greater financial crisis (lost job, illness, etc.). Talk to a bankruptcy lawyer or two - some of them also handle these kinds of debt lawsuits, but ask for referrals if they don't. You need to act fast and make sure you do not miss your answer date.
I'm sorry to hear of the divorce and financial troubles, but you'll get through it. Knowing that you have options and that even getting a judgment against you is not the end of the world is often a big step in wrapping your head around the problem and moving forward.
If you fail to answer the summons, a default judgment will be entered and it will go on your credit. That's all that can happen. They can't touch your house, your car, or your pension. If you already have bad credit, who cares. All credit, good or bad, comes off after 7 years. A bankruptcy stays on for 10 years. Bankruptcy is good to save your house or car in some situations, but filing for bankruptcy over credit cards is a waste of your time and money. Tell them your broke and they're wasting their time. You don't have any money to pay them anyway so use the money to pay your child support instead. If you fall behind on child support, you can go to jail. Plus, your kids need the money more than the cc company.
Most bankruptcy attorneys offer free, or very low cost initial consultations. It would be truly foolish not to avail yourself of the benefit of a consultation with an experienced bankruptcy attorney in your area to see whether bankruptcy or other options would be your best solution.
Mark Markus has been practicing exclusively bankruptcy law in California since 1991. He is a Certified Specialist in Bankruptcy Law by the State Bar of California Board of Legal Specialization, AV-Rated by martindale.com, and A+ rated by the Better Business Bureau. His webpage is www.bklaw.com
I would consult with an attorney regarding both Chapter 7 and Chapter 13 as soon as possible. What you are doing now isn't going to work and it's time to get some help. There may be advantages with respect to Chapter 13 and your mortgages and child support that you haven't even considerred.
You should consider hiring a debt defense attorney before deciding on Bankruptcy as the only option. You said you have negotiated two other accounts so this last account is the main problem. Credit Unions often refuse to negotiate at first but if you hire an attorney (and pay them an affordable flat fee), you can likely get a better deal than if you tried to settle this case on your own. You have likely been dealing with a non-attorney collector at the credit union who is trying to get as big of a commission as possible. When you hire an attorney to fight the case, the collectors are generally out of the picture and better settlement authority is usually obtained.
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