Skip to main content

Small Claims Court/Bankruptcy - Defendant in an upcoming small claims case, should I even go?

Marietta, GA |

I'm filing for chapter 7 in January; when I will have enough money to pay for an attorney. I have a small claims case coming up next month. The case is frivolous and the plaintiff is asking for 8x the amount I actually owe. That being said, should I simply not go and get a default judgement and list him as a creditor on my bankruptcy in January? Thank you for your time. I really appreciate it.

Attorney Answers 6

Posted

The problem with not filing an answer is that you are deemed to admit everything in the complaint. If you file an answer and don't show up for court, the judge could potentially give the other side a judgment for everything they ask for. Usually, you can just get rid of the judgment when you file bankruptcy by filing a motion to avoid the lien. However, there are a couple of problems with this: First, as soon as the other side gets the judgment, they can try to garnish your wages. A bankruptcy will stop a garnishment, but a wage garnishment makes it hard to come up with the money to file bankruptcy, and why let them have any money in the meantime. Second, if the other side is nutty and alleges theft or fraud, that could become a problem when you seek to have the lien avoided, as fraud is a basis for non-dischargeability in bankruptcy.

What my firm does is file answers to hold the judgement off until our clients can file. If a court date is set, we can enter into a consent order for payments on the debt until the case can be filed. This prevents garnishments and buys more time, and also avoids any language in the order or finding of fact which could cause a dischargeability issue. If the attorney you have considered hiring will not do these things for you, you may want to find one who will.

The above information is general in nature. In order to obtain more specific and legal advice upon which to base your important decisions, please contact our office directly for a free phone or in person consultation. Robert M. Gardner, Jr. Hicks, Massey & Gardner, LLP hmgrmg@yahoo.com 53 W. Candler St. Or 718 Oak St. Winder, Ga. 30680 Gainesville, Georgia (770) 307-4899 (770) 538-0555 gadebtlaw.com hicksmasseyandgardner.com serving metro Atlanta and all of Northeast Georgia Bankruptcy, Divorce, Personal Injury, Worker’s Compensation, Medical Malpractice, Adoption, Civil and Criminal Litigation

Mark as helpful

1 found this helpful

5 lawyers agree

2 comments

Asker

Posted

The case is upcoming in Cobb County. How much would it cost for your firm to start my bankruptcy before my court date next month? By doing so, wouldn't that completely dismiss the case from small claims? Thank you.

Robert M. Gardner Jr.

Robert M. Gardner Jr.

Posted

If you file bankruptcy, the case is stopped in its tracks. The cost would depend on what type of bankruptcy you were filing and the complexity of the case. Give us a call at 770-307-4899 and ask for either me or Bill Hicks so that we can go over your situation and give you a straight answer.

Posted

Once a judgment is entered by a Court, it isn't that easy to make it disappear. It is a public record and will appear on your credit report, adding a further ding to your credit score. If it is recorded, it can act as a lien against any property you own, and bankruptcy alone does not remove this lien, you must take additional steps to remove it which can be time consuming and costly. Hope this perspective helps!

Mark as helpful

4 lawyers agree

Posted

It never hurts to appear in court. One always wants to "buy time" to get a bankruptcy on file so that you are now protected from any collection activity by creditors.

That being said, you could not attend and nothing adverse may happen.

However, I would always err on the side of caution.

Please be advised that the advice to you herein does NOT establish an attorney client relationship and that our firm does NOT represent you in any Bankruptcy matter.

Mark as helpful

2 lawyers agree

Posted

Avvo Email - Rated Professionals. Expert Advice.If you are confident that
you will file a bankruptcy, then you should file an answer in the lawsuit
which will push off the judgment a month or so. Judgments don't disappear in
bankruptcy. You have to Ask the Court to strip the judgment. So, don't
neglect to answer the lawsuit with your defenses to the complaint and ask
for a hearing.

Get an attorney to help you (since you should be using an attorney for your
bankruptcy anyway - which is a complex matter).

The DiGiulio Law Firm, LLC.
Phone: 888-540-4529
Website: www.atl-law.com

The DiGiulio Law Firm, LLC. Phone: 888-540-4529 Website: www.atl-law.com Atlanta, Marietta, Lawrencevile, Duluth, Alpharetta, Buckhead The information you're reading is for general information purposes only. Nothing on this or associated pages, documents, comments, answers, or other communications should be taken as legal advice for any individual case or situation. Viewing the general information here does not constitute an attorney-client relationship. Please contact 770-309-9551 for additional questions or to schedule for your free phone consultation. If this question or answer pertains to bankruptcy, please be advised that we are a federal debt relief agency. One of our areas of practice is to help people file for bankruptcy relief and protection under the U.S. Bankruptcy Code.

Mark as helpful

1 found this helpful

3 lawyers agree

2 comments

Asker

Posted

Court date is set for the 12 of Dec in Cobb County. Anyway I can file bankruptcy now and pay an attorney in Jan? I receive a refund from being a college student.

Ashley Anne Digiulio

Ashley Anne Digiulio

Posted

Avvo Email - Rated Professionals. Expert Advice.Yes. I can help you with that. Go to http://www.chapter7pro.com and fill out the form. We will email you everything to get going. The DiGiulio Law Firm, LLC. Phone: 888-540-4529 Website: www.atl-law.com Address: 2985 Gordy Parkway Marietta, GA 30066

Posted

You really need to file a bankruptcy at least one day before the court date. Once there is a judgment, the other party can start garnishment of your pay and bank accounts and while that can be stopped by bankruptcy, that will complicate things for you.

If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you (and am not your lawyer). Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at geaatl@msn.com . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). I am happy to discuss possible representation with you. Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.

Mark as helpful

1 found this helpful

2 lawyers agree

Posted

I agree with my colleagues, but suggest that there is another way to go: many jurisdictions provide a mediation option in their small claims court, which permits you the chance to mediate and establish a payment plan that can start at some point in reasonably near future -- usually 30 of 60 days, and that can give you the time you need to fully prepare a well-considered bankruptcy. Go to the hearing, ask for mediation and get the time you need to properly consult with bankruptcy counsel.

Mark as helpful

1 found this helpful

3 lawyers agree

Lawsuits and disputes topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics