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Barrister
Barrister, Attorney
Category: Bankruptcy Law
Satisfied Customers: 22569
Experience:  14 years practicing law. Landlord 24 years +
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We came home from a business trip to find on the front porch

Customer Question

We came home from a business trip to find on the front porch a summons but there is not a date on it for when it was served, the only dates are a month + ago and they have given my husband 30 days for a written reply. We have to leave again for another business trip out of town in the early morning and won't be back until sometime Thursday in the PM. I have the paperwork scanned and in a PDF form if needed to be looked at.
The background is: we are commissioned sales people, who get no reimbursement for expenses on the road of any kind; in 2008 sales went down so low that we were unable to keep up with expenses we put some credit cards with a legitamate service who negotiated most of the cards for settlement in the following year. In October of 2009 we added B of A plus three other cards to our settlement account. Before going to the settlement company we called B of A; told them of our hardship, how we hadn't used the card for a year, had been making minimum payments; wanted the account closed and wanted to negotiate to get a reduction in interest so our monthly payoff payments were more managable; they refused; in fact the interest went up. The balance is now over $15K with $2 - 3K of that accrued interest since we stopped making payments. We turned it over to the settlement company; to B of A (as well as all of the card companies) we sent certified/registered letters explaining our hardship, told them that they need to work with the Debt company, giving them all the pertinent contact info, acct #, etc. along with telling them we only wanted written communication, no phone calls going forward. They acknowledged receipt of our letter with a letter telling us about fraudulant companies out ther and offering negotiations through them; a month later we received a form letter from some collection firm if which we sent our letter about the Debt company and they sent the identical letter again in January; in May we received a letter from a law firm, same letter sent in June; in July another letter from a different law office/debt collector. All of these letters we answered with our info letter and forwarded their letters on to our Debt company to be aware of what was happening here. There has been no other written correspondence since July until this summons.
Our financial situation has continued to worsen since Septerber of 2009 to the point of one missed car payment and one missed house payment. They are serving collection on my husband only and he needs to know how to proceed with the response to this summons as it was filed on Oct 28th and says that we have 30-days from serving date but there is no serving date (stamped or printed on the summons)and he wasn't here to personnally receive it (no one was home & 15 pgs single stapled/no envelope was left on front porch). It says that Order to Show Cause is set for 4/21/2011 at 8:30AM, which he has to be in High Point, NC for a trade show at that time and then there is mention of The Order to Show Cause RE: Status of Default Judgment is set for 11/02/11 at 8:30AM and it was dated 11/04/2010 by a court executive officer here in Superior Court, County of San Bernardino, Rancho Cucamonga District, also stating that that there was a mailing, of which we have not received anything in the mail since July! There is a portion of the paperwork that talks about legal aid, etc available to him, but we had a friend with a simuliar situation some time back that never received a reply from their legal aid request. How do we proceed? Would it be to our advantage to file bankruptcy?
Submitted: 3 years ago.
Category: Bankruptcy Law
Expert:  Barrister replied 3 years ago.

Hello,

 

The truth of the matter is that your creditors are under no obligation to deal with any debt settlement companies and can just file suit against you for the full amount of the debt plus any legal and collection costs if they choose to.

.

Under CA Rules of Civil Procedure, the plaintiff can get proper service on a defendant through "nail and mail" whicy means that someone-not the plaintiff-must personally affix the documents to the front door and also mail the documents to the other party. The server must then sign a "proof of service" stating they have done so.

.

So you would need to contact the court to see when the "proof of service" was filed to see when your 30 days were up to file an Answer.

.

But the reality of this is that even if you file an Answer, if the debt is yours and valid, then they will eventually get a judgment against you. I don't mean to be harsh, but it doesn't matter that you tried to get a debt consolidation company to try and settle it or that you are having financial problems and can't pay it off. If you are delinquent and the debt is yours, then they can sue you and get a judgment.

.

So in this situation, if you were to file bankruptcy, it would extinguish this debt along with most others. Depending on your ages, there is an exemption for a person's home in CA from $75-$125K for equity. So if you have under the applicable amount of equity, then your home would be safe. There are various other exemptions available to you under CA law which you can look at here:

.

http://www.bankruptcyinformation.com/ca_exemp.htm

.

.

thanks

Barrister

 

 

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