What happens if I can't appear in small claims court in MA for credit card debt? Continuance not granted, told company I'd pay.
7 attorney answers
It is true that the attorney is not required to give you a continuance but I think you have good cause to request one. I would call the clerk's office and explain the situation and see if the clerk can be of assistance. You might have to go to court and file the motion.
If this is the first court appearance in the small claims case, then your failure to appear will likely result in a default judgment in favor of the debt collection agency. If you fail to pay the amount after the default judgment, they can then initiate further legal actions to enforce their judgment and seek payment from you. It could be beneficial to consult an attorney regarding representing you for the small claims action so he or she can appear on your behalf and explain your efforts to pay the debt. Filing for bankruptcy will pause this proceeding (automatic stay), and ultimately discharge the debt and court action.
It seems that the attorney's office is being very unreasonable, as you have tried to reschedule the date for a legitimate cause, and even attempted to make a payment on the account. Did you communicate either of these attempts in writing? If not, I would do that immediately. Have you hired bankruptcy counsel? If not, I would get started on finding your bankruptcy attorney so that they can advise you on the best way to proceed based on your specific circumstances. Regardless of whether you have filed your bankruptcy as of the date of the small claims action, the bankruptcy should resolve their claim against you. I would not make a payment to them without talking to an experienced bankruptcy attorney in your area first. Best of luck, and congratulations on your upcoming nuptials!
Since your Court hearing is 4/18/14 and you have said that you cannot appear, you should do 1 of 2 things: 1) Hire an attorney to represent you before the Court date, or 2) go to the Court house, find the Clerk's Office and speak to the small claims clerk about filing paperwork to formally request a continuance of the hearing to a date you can appear to defend yourself. If you make a payment which the Creditor has not agreed to accept as settlement, that will not make the case go away, and if you don't appear on the assigned Court date for hearing you will be found in default and a default judgment will issue. Once a default judgment enters against you may be prohibited forever from disputing the amount owed. And eventually the Court may issue a Capias or Warrant to compel you to appear to determine how much you can afford to pay in monthly installments.
If you miss the first court hearing, which is known as the magistrate trial, they will be granted a default Judgment. The court will issue a copy of the Judgment with a date that you MUST pay the Judgment amount by and a Payment Review Date. You can hire an attorney to appear on your behalf, but you should use that money to pay off the creditor. Remember, paying this creditor may put you in a hardship, but it is only temporary and you can close that chapter of your life.
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A "capias" will issue for your arrest, most likely, if you don't show up.
More important than that though, from what you described, this debt collector misled you and that may well have violated state and federal fair debt collection laws, and it may well entitle you to up to $1000 in damages plus attorneys fees.
I would be very interested to learn more about the specifics of what this debt collector/law firm actually said and did, because they should have told you (if not to contact the court directly) that they can't provide you with advice.
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If you do not appear, a judgment will be entered against you. Warrants are sometimes issued for failure to comply with a court order. I've not heard of this happening in a situation where the defendant did not show up for the day of their small claims court hearing on the merits of the case, but I have heard of it happening when the defendant failed to show up for the debtor's examination. A local attorney can opine on the issue of whether someone can appear in your place, but I think it's doubtful.
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