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

Asked almost 2 years ago - 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)

  1. Robert M. Gardner Jr.

    Contributor Level 18

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    Answered . 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... more
  2. Ashley Anne Digiulio

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    Answered . 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,... more
  3. Glen Edward Ashman

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    Answered . 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... more
  4. Dorothy G Bunce

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    Answered . 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!

  5. David Lloyd Merrill

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    Answered . 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.

  6. Joseph Wrobel

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    Answered . 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... more

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