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LadyLawyer
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Category: Bankruptcy Law
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Experience:  Bankruptcy Law
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Default ruling due to failure to attend hearing on a debt.

Customer Question

Default ruling due to failure to attend hearing on a debt. I was ill during a hearing and am still ill. Judge asked for show cause. I am not from New York. I am still ill. I have filed bankruptcy in Virginia after the default ruling. What do I need to do now.
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  ScottyMacESQ replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

Have you included this debt / judgment in your bankruptcy? What is the current status of your bankruptcy case?

JACUSTOMER-1f9zjrzv- :

This debt was included in my personal bankruptcy which was filed on 25 Jan 2013, the date that the plantiff refused our last settlement offer. The hearing was held on 10 Jan 2013. I went to the doctor on 9 Jan 2013. I was diagnosed with chronic migraines, fibermygalia and possible cognitive problems in addition to my normal diabetes associated pain. The doctor order botox which requires pre-order, special delivery and administsration by doctor within 24 hours of receipt. I was given 31 botox injections on 14 Jan 2013.

JACUSTOMER-1f9zjrzv- :

I have not filed corporate bankruptcy due to lack of funds. The loan was also on a personal gurantee.

ScottyMacEsq :

Understood. This is really more of a bankruptcy question, so I'm going to opt out to allow a bankruptcy attorney to assist further. You do not need to respond to this, as it will lock it and keep our bankruptcy experts from being able to respond. Please be patient, and someone will get to you soon.

JACUSTOMER-1f9zjrzv- :

The bankruptcy hearing is scheduled for 26 March 2013. the showcause hearing is scheduled for 25 March 2013.

Expert:  LadyLawyer replied 1 year ago.
Hello,

Thanks for choosing Justanswer.com! I look forward to helping you with legal information today. It appears your other expert has opted out and so I am happy to finish assisting you.

Can you please tell me if you are concerned about getting the default judgment off your public record or are you just concerned about not being in contempt of court?
Customer: replied 1 year ago.

I don't understand the implifications of either. My Bankruptcy attorney is only handling my personal bankruptcy. I do not have enough funds right now to handle the business bankruptcy. I have at least one customer that has stated they intend to pay me. I don't like the default judgement on my record ( nor the bankruptcy eitherafter being in business for 17 years) but I also do not want to be held in contempt of court.


 


My personal bankruptcy attorney says the personal default has been stayed by the bankruptcy filing. He said since the companies are insolvent I should not worry. He does not represent the companies. I do not have a copy of the filing and I am the sole owner. I am worried.


 

Expert:  LadyLawyer replied 1 year ago.
Hi again,

Thank you for the additional information and I am happy to explain the implications of both.

Your bankruptcy attorney is correct that your default judgment would be stayed by the bankruptcy filing. However, the court that entered the default judgment would need to be informed that you filed for bankruptcy in order to stay the proceedings. Hopefully, your bankruptcy attorney is doing that, but you will want to make sure. Alerting the court and getting the stay will mean that there will be no more show cause hearing, so that will be taken care of right away.

That being said, you stated that the creditor's lawsuit was filed against you in NY when you live in VA. The lawsuit needed to be filed in VA where you live. The fact that it wasn't means you could have challenged the venue and had the case dismissed. However, you waived that right by not challenging the venue in the proper amount of time. I do understand that you were sick and I completely understand, but that is not a valid legal excuse for the court with regard to the challenge. However, you CAN still file a motion to vacate and set aside the default judgment based on the fact that you were sick. This will at least serve to remove the judgment from your public record. What's more, because of the bankruptcy, there would be no reason for the plaintiff to continue the case and the debt will just end up being discharged in the bankruptcy.

I do understand that having the bankruptcy on your record is not ideal, but there is no way to prevent that now that you have filed. However, I hope I have helped to answer your question about how to take care of any further proceedings in the case in NY and how to potentially get that default judgment off your record. If you have any further questions, I am very happy to keep assisting you! If not, would you kindly leave me a positive rating at this time? It is the only way that the site compensates us and it costs you nothing further to do. Thanks!
Customer: replied 1 year ago.


Thanks for your answer. I was not aware of the change of venue. Does this change of venue apply even if the contract I signed says that New York is the state where the law applies?

Expert:  LadyLawyer replied 1 year ago.
No, not if there was a signed contract with a choice of law provision stating that NY law is applicable. So that's a moot point, really. But in the meantime, the NY court simply needs to be sent proof of your bankruptcy filing and an automatic stay on the case will be imposed. This will take care of your show cause hearing. You can also talk to your attorney about filing the motion to vacate default judgment and although doing this would technically lift the stay, the case would not be presumed by the plaintiffs since there is a pending bankruptcy.
LadyLawyer, Attorney
Category: Bankruptcy Law
Satisfied Customers: 6531
Experience: Bankruptcy Law
LadyLawyer and 2 other Bankruptcy Law Specialists are ready to help you
Customer: replied 1 year ago.

My attorney is not registered for New York. Can you recommend someone who can at least respond to the show cause ?

Expert:  LadyLawyer replied 1 year ago.
Hi,

We are not permitted to recommend a particular firm, but You can find general civil litigators in NY who can file things for you here: www.martindale.com.

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