I received a court summons from Capital One for a debt I owe for $14,000. I have tried negotiating with them and the attorney's office for the last year but they will not make any payment arrangements. We are a low-income family and cannot afford an attorney. I own no property and have no assets. I do agree that the debt is mine. Should I file a response even though I am not denying the amount I owe? If they do get a default judgment how long will that be good for ?
Debt Collection Attorney
File an Answer or General Denial. If you cannot afford the filing fee, ask for a fee waiver.
In your Answer, include defenses such as Capital One's failure to make the disclosures required by the Truth in Lending Act. Pursuant to Code of Civil Procedure section 2031, demand that they produce documents.
If they get a default, they can start garnishment right away. The judgment will be good for 10 years. If you file an Answer, the case may take a year to get to trial. You will have ample opportunity to negotiate when the case is pending. Also, instead of dealing with idiot debt collectors, Capital One will have someone else handling the case on their behalf. If you require them to produce witnesses at trial, they will be very motivated to settle. Do they want to pay one of their employees to fly out from Virginia for a few days, stay in a hotel, etc., just to get a judgment against someone who is too poor to pay the court's filing fee?
In summary, file a General Denial. Ask for a Fee Waiver. As affirmative defenses, include the allegation that Cap One did not give you all of the disclosure statements required with the Truth in Lending Act.
Regards, Richard Lysle
Judgments are good for 10 years.
If you do not dispute the sum owed and you agree to having a judgment against you, you can offer to stipulate to a judgment for the sum you agree is owed. Offer them a Stipulation for Judgment with a stay of execution pending payment under a payment plan. They may say no, and in that case, offer to just stipulate to the judgment.
Either way, I would file an response to the Complaint. Filing an Answer will give you more time to negotiate a stipulated judgment or a payment plan with Capitol One's attorneys. Filing an Answer also gives you a chance to ensure that the amount requested in the judgment is in fact what you owe. Legal Aid Self-Help clinics can assist you with preparing the paperwork. http://www.lafla.org/service.php?sect=muni&sub=selfhelp
Keep in mind that once the creditor has a judgment against you, they can start means for collection. Collection costs can then be added to the amount of the judgment against you.
Chapter 7 Bankruptcy Attorney
If you do not dispute what is owed then let a default judgment be entered. Judgments are good for 10 years and then must be renewed by the creditor to be valid.
An alternative may be to file for Chapter 7 Bankruptcy. That would probably get rid of the debt and any future garnishment or levy attempts by the creditor.
If you want to discuss this give me a call