I’ve Been Sued in California!

30 Apr

Often, when a person is considering filing Bankruptcy, it is because a creditor has (or is about to) sue. While many creditors, such as banks that are owed credit card debt, will wait until a substantial bill has developed, some will file a lawsuit for as little as $3,000.

Frequently, such creditors use contract attorneys to handle these collections. The lawsuits in California use form complaints that only require the checking of boxes on pre-printed forms. Rarerely are the Complaints verified. In other words, the Complaints filed are not sworn as being true, under penalty of perjury.

The contract attorneys file lawsuits by the tens, naming defendants who are often poor and unable to mount much of a defense. These attorneys rely on ignorance and fear on the part of the defendants to file lawsuits and then, after 30 days without any response, file a request with the court for a default judgment.

Armed with the judgment, the creditors then do what they are best at … enforcing their judgment by garnishing the wages of the defendant.

Often these defendants have already sought the counsel of a bankruptcy attorney. They are in the process of providing all the information needed to file their chapter 7 or 13 petitions. Many have been making periodic payments to pay the attorney’s fees in order to file their case.

But when a lawsuit is filed, the debtor has only 30 days to file an Answer in California (and most states). If left un-answered, a judgment is quickly sought (by default) which almost immediately leads to garnishment of wages of a person or family unable to sustain itself with the loss of income to the judgment creditor.

To protect yourself from having a default judgment entered against you, it is important to respond to the Complaint within 30 days (in California) of being served with the Summons and Complaint.

Good new is there is help. The Sacramento County Law Library (and other counties around the state) have published information about how to respond to the Complaint. In many cases, the Complaint is unverified (meaning not sworn under penalty of perjury) which means you can complete and submit a General Denial. This must be filed with the court within 30 days of your being served. Only one other form is needed – a Proof of Service showing that a copy of your Answer has been filed with the court.

So, for people in Sacramento County, see Responding to a Lawsuit. This web page will give you direction how to proceed to protect yourself. Other counties in the state might have their own self-help web sites and services. Even if you county does not, use the Sacramento one because it provides links to forms used throughout the state.

For a General Denial, refer to Section 2 of the instructions. You will be provided with a link to the form to prepare (it’s really simple) and file with the court. Then don’t forget to also fill out a Proof of Service showing that a copy of the Answer has been mailed to the creditor’s attorney. You’ll need someone other than yourself who is over 19 and not a party to the lawsuit to sign the Proof of Service and mail it to the the creditor’s attorney.

 

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