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Ely
Ely, Counselor at Law
Category: Intellectual Property Law
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Experience:  Licensed attorney in private practice.
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Once the plaintiff get a default judgement how do they collect

Resolved Question:

Once the plaintiff get a default judgement how do they collect their money if I have none?
Submitted: 4 years ago.
Category: Intellectual Property Law
Expert:  Ely replied 4 years ago.
Hello,



My name is XXXXX XXXXX I am one of JustAnswer's legal experts. I'll be helping you resolve your matter today.



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They can't really, but they can put a lien on your titled property and garnish any accounts you do have.

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Customer: replied 4 years ago.

This was for a TM trademark lawsuit. I do own a house with my husband cant hey seize that? Also, I have a business account with about $12.00 in it My husband and I have a joint bank account and i do not work. My husbands weekly payroll checks are deposited there but he is NOT named in the lawsuit. Are you saying they would take all his money every week?? Also, is it best to close the account and just put one in my husbands name as we need to live somehow??

Expert:  Ely replied 4 years ago.
No, they cannot. They cannot take away a property. They can put a lien on it, however. They can also garnish accounts, but only 25% of any disposable income, so it's not that much, and they can do so only after a post-judgment motion in which you'd be served.You generally have three options.NEGOTIATIONContact them and explain that you have received an “x” amount of funds and that you would like to propose a settlement. Usually starting like that will get their attention.
Also you might mention that you are attempting to clear up all of your debts in order to avoid being forced to file bankruptcy. These are usually very good key phrases.
CREDIT COUNSELING / DEBT CONSOLIDATION
This is a free service offered by a non-profit that will negotiate with creditors to establish a debt management plan (DMP) for you. The DMP often includes lesser payments per month and maybe even an overall lesser debt. While many promise 50% cut, a cut of 10% to 20% is more likely.This is a good option, but your credit will reflect it, and your credit might suffer a little because of it.BANKRUPTCYWiping the slate clean and getting to keep a lot of your stuff (house, car, jewelry, thousands in cash, etc, etc – basically a LOT) is a good plan for many who just are FED UP, and it might work for you if you really feel you will never ever pay the debt off. Your credit will be down in the dumps for seven years, but then you will emerge reborn. You generally have two options available for personal bankruptcy:-Chapter 7, which basic liquidation of many assets and the quickest; and-Chapter 13, if you have a steady income, it allows non-liquidation and the Court sets up a a plan to repay all or part of what you owe.



Best of luck in your matter. I'm here if you need any more clarification or follow up information.



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Customer: replied 4 years ago.
What do you mean only 25% disposable income? Also the lawsuit papers do say according to United States Civil lawsuit i cannot file any bankruptcy in this type of matter? If I just take my name off the account will the still take my husbands money? They have just obtained their default judgement and it looks like it is going for a pre trial conference but that isn't until May 2011.
Expert:  Ely replied 4 years ago.
They will file a motion for garnishment if they win, or can, and the Judge will ask to see your income and debts for a month, and will assign garnishable 25% of any income that you have spare after paying the bills.No, that's not true - you can file bankruptcy. Just b/c it's in the petition, does not make it correct.No, now that your name was associated with it, taking it off after the fact will not reduce liability, I am afraid. :\I am sorry for not bringing good news. While the legal system tries to be inclusive of every possibility, sometimes, people are ethically wronged but no legal avenue exists for them to seek relief. I am afraid this is one of these times.



Best of luck in your matter. I'm here if you need any more clarification or follow up information.



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Customer: replied 4 years ago.

I am sorry for not bringing good news. While the legal system tries to be inclusive of every possibility, sometimes, people are ethically wronged but no legal avenue exists for them to seek relief. I am afraid this is one of these times. (I am very sorry what does this mean?)

We do not have enough money to even pay all of our bills. We are behind a month on our mortgage and all the rest of the bills. If we just close out our joint account and he just reopens a new account they can still take his money?

And why would the put that I cannot file bankruptcy with a civil procedure code which I looked up and it says you cannot file on trademark/copyright lawsuits??

Sorry, for being such a pain I just don't understand the law.

Expert:  Ely replied 4 years ago.
I meant that you are somewhat in a corner because of this.Yes, they can still garnish a new account as well.As for trademark/copyright lawsuits, then yes - it' an exception, but I did not know this was the case, so I apologize. In that case, you indeed may not file on trademark and IP cases.
Customer: replied 4 years ago.
Now I am really confused as I was told they cannot go after my husbands account if he is the only one on that account only our joint assets as he is NOT on the lawsuit. It is only my name as individual and doing business as?
Expert:  Ely replied 4 years ago.
No need to be confused. If you take all money out of the joint account and put it into a new account is his name only, they'd still be able to go after it if they show the money can be traced to the old account. And it doesn't matter if it's your name or DBA on the account - the liability is the same.
Customer: replied 4 years ago.

We were just going to close the account once his payroll is going into the new bank account which will be at a differant bank?? What I am afraid of is them freezing the account and taking all the money then we cannot even live?

Expert:  Ely replied 4 years ago.
This is a good idea. Keep the money from the closed account as cash, and then put his salary into an account with just his name on it. With no traceability from the old account to the new, they won't be able to garnish. :)

Best of luck in your matter. I'm here if you need any more clarification or follow up information.



I hope you found my answer helpful, and if so please click on the ACCEPT button. This is the only way for me to get credit for my work - when you put in your payment information, I receive no credit for my time with you unless you press ACCEPT.



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Customer: replied 4 years ago.
I received a cease and desist letter from the lawfirsm requesting I take the copyright infringed items off my website. I complied and took the items down. Next thing then serve me with papers stating I continued to sell the items which was not the truth. I did not answer the civil lawsuit as I don't havve money for an attorney. Then the law firm sends me a letter telling me if I want to settle this matter to contact them? I didn't contact them as I don't have any money. I did not know these items were copyright and just took the items down and got rid of them. I didn't want any trouble. The default deadline was yesterday..
Customer: replied 4 years ago.
When you said the liability is the same could they just look for accounts anywhere that have his name on it? My daughter has a high school checking as she is only 16 years old with my husbands name on it at the bank we will be closing down. Can they freeze her account?
Expert:  Ely replied 4 years ago.
No, they cannot freeze her account only b/c YOUR NAME is XXXXX XXXXX there.
Customer: replied 4 years ago.

So, your saying they cannot go looking into my husbands accounts? Also, I send a previous thread but you did not answer.

Expert:  Ely replied 4 years ago.
Correct, not unless you name is XXXXX XXXXX account, since it's only against you. What was the other question, I am sorry?
Customer: replied 4 years ago.
It is a couple threads above about the attorneys office that brought the suit. Should I even bother calling their office?? Many have told me not to call as I might say something that will incriminate myself. Also, why would they sue if I did take the items in question down and they kept going to my website but never looked around only on the homepage so I figured they wanted the webstie closed as I have done that also. they want something like 2 million?? Why waste their money when they won't get nothing?
Expert:  Ely replied 4 years ago.
Yes, you should, just to get negotiation started. You'd be surprised how willing they are to accommodate. Don't worry, all things discussed in negotiation cannot be brought up in court. But if they want two million, it might not go anywhere, but yes, you don't have anything to lose so do contact them.As for why would they sue still, I do not know - I am sorry - some attorneys are pretty aggressive like this.
Customer: replied 4 years ago.

How do I know they aren't going to tell the court? Also, if they already got the default what is the sense of me trying to contact them as i haven't contacted them this far? They want to know how many items I sold and they want my records? I use the cost method for income taxes so I don't keep inventory so I can't product what I sold of their items?

Expert:  Ely replied 4 years ago.
How do I know they aren't going to tell the court? You do not, but they will serve you if any dates are set for post-judgment motions.Also, if they already got the default what is the sense of me trying to contact them as i haven't contacted them this far?They still might agree to an amount less than what is in the judgment.I use the cost method for income taxes so I don't keep inventory so I can't product what I sold of their items?Afraid not.
Customer: replied 4 years ago.

They want to know how many of the items I sold when I don't know so how do I tell them?? My biggest problem is I cannot pay them anything since I don't even have enough money to pay all my bills?? so i could not even negotiate? Do I tell them I don't have any money?

Expert:  Ely replied 4 years ago.
Yes, you do. You tell them exactly this - that you do not know how many items were sold, and that you simply do not have any money, but that you'd make a token payment of something in exchange for dropping the suit.
Customer: replied 4 years ago.
Since the default judgement was entered do they still have to proceed with the pre trial conferance? That isn't until May 2011
Expert:  Ely replied 4 years ago.
No - they do not. You can double check with the court by calling them and asking for the court coordinator and making sure the case is closed.

Best of luck in your matter. I'm here if you need any more clarification or follow up information.



I hope you found my answer helpful, and if so please click on the ACCEPT button. This is the only way for me to get credit for my work - when you put in your payment information, I receive no credit for my time with you unless you press ACCEPT.



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Remember, sometimes the law under which your situation falls does not give you the outcome or the choices you wanted - please understand that this is not the attorney's fault, but the way of circumstance.



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Customer: replied 4 years ago.
No I'm sorry I think you misunderstood. If I don't contact them and can't come to a solution do they still proceed with the pre trial conference in order for the case to go forward?
Customer: replied 4 years ago.

This what I was told a few days ago by another attorney? Is this info. wrong?

 

At this point you failed to answer and you did not have good cause for not answering so you have no grounds to get the default judgment vacated. With a judgment of that much money against you the best option here would be spending your money on a bankruptcy attorney and getting that judgment extinguished in bankruptcy, which while it may not be what you want to do and it may hurt you some it will not hurt you near as much as having to pay on that judgment which you will likely never pay off in your lifetime. Do not call the law firm because they have a judgment and all they will tell you is to pay it or they will come to seize your property and bank accounts and income tax refunds to satisfy the judgment. Any jointly held property or jointly held accounts can be seized because joint tenant accounts are viewed as though both parties each own the entire asset individually. If you try to transfer any assets at this point they can be recovered because the transfer would come under the Fraudulent Transfer Act which states you cannot transfer assets to avoid judgments.

Expert:  Ely replied 4 years ago.
I agree with him on almost everything except not contacting them, since you don't lose anything by trying. While a BK may have difficulties since this is a trademark issue, in the end, it WILL be dismissed and absolved in the BK.

Best of luck in your matter. I'm here if you need any more clarification or follow up information.



I hope you found my answer helpful, and if so please click on the ACCEPT button. This is the only way for me to get credit for my work - when you put in your payment information, I receive no credit for my time with you unless you press ACCEPT.



There is no fee for follow up questions should you wish to continue in this thread.



Remember, sometimes the law under which your situation falls does not give you the outcome or the choices you wanted - please understand that this is not the attorney's fault, but the way of circumstance.



There might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.



If you feel that I went an extra step to help, a bonus would be appreciated!



You can always request me for a future legal consultation through my profile at http://www.justanswer.com/profile.aspx?PF=7286322&FID=7 If you do this, make sure to begin the question with “This Question is for Eli…”














Customer: replied 4 years ago.
He says they will seize my property, take my income taxes and totally seize our accounts?
Expert:  Ely replied 4 years ago.
Not quite. They can put liens on property, and they can garnish up to 25% of your disposable income, but that's all.

Best of luck in your matter. I'm here if you need any more clarification or follow up information.



I hope you found my answer helpful, and if so please click on the ACCEPT button. This is the only way for me to get credit for my work - when you put in your payment information, I receive no credit for my time with you unless you press ACCEPT.



There is no fee for follow up questions should you wish to continue in this thread.



Remember, sometimes the law under which your situation falls does not give you the outcome or the choices you wanted - please understand that this is not the attorney's fault, but the way of circumstance.



There might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.



If you feel that I went an extra step to help, a bonus would be appreciated!



You can always request me for a future legal consultation through my profile at http://www.justanswer.com/profile.aspx?PF=7286322&FID=7 If you do this, make sure to begin the question with “This Question is for Eli…”














Customer: replied 4 years ago.
Can they take income taxes if filed jointly? Also, we do not have any disposable income?
Expert:  Ely replied 4 years ago.
No, but they can take whatever IRS gives you back. If no disposable income, then they can't do anything.

Edited by Eli on 9/9/2010 at 5:19 PM EST
Customer: replied 4 years ago.

Why was I informed by the IRS that civil lawsuit cannot be intercepted?

Expert:  Ely replied 4 years ago.
Sorry, with all the follow ups, I got a little confused - they cannot garnish your IRS rebate check. Apologies.
Customer: replied 4 years ago.
I know I apolgize as I have asked so many questions. I just checked the federal court dockets and it looks like the default hasn't been put in yet and I tried the law firm but they are out to lunch. Am to afraid to leave a phone number to call me back
Expert:  Ely replied 4 years ago.
Don't be - lawyers are human too, they won't bite. :) May I suggest some pro bono attorneys for you? What state are you in?
Customer: replied 4 years ago.
I am in Illinois but the lawsuit is in New York? And how would that work if the judgement is supposed to be answered today? That would be greatly appreciated
Expert:  Ely replied 4 years ago.
In that case, you will have a hard time to find someone pro bono in NY since you're in Illinois.I don't understand what you mean by 'answered today.' Is it a MOTION for default judgment, or was it already granted?
Customer: replied 4 years ago.

They served me with the civil lawsuit and I did not answer. It says on the lawsuit that if I don't answer within 21 days a default judgement will be filed against me

Expert:  Ely replied 4 years ago.
Oh, so you haven't gotten a default judgment against you yet. You have to file an answer. I'll post a template:TITLE AND PARTIES (just copy of their filing)

DEFENDANT'S ORIGINAL ANSWER (centered)

NOW COMES Defendant, YOUR NAME, named Defendant in the above-entitled and numbered cause, and files this Original Answer, and shows the Court:

PARTY IDENTIFICATION INFORMATION 1. The last three digits of the driver's license number of YOUR NAME are ...... The last three digits of the social security number for YOUR NAME are .....

GENERAL DENIAL Defendant denies each and every allegation of Plaintiff's Original Petition, and demands strict proof thereof as required by rules of evidence and procedure for the State of _________.

PRAYER Defendant prays the Court, after notice and hearing or trial, enters judgment in favor of Defendant, awards Defendant the costs of court, attorney's fees, and such other and further relief as Defendant may be entitled to in law or in equity.

Respectfully submitted,

Your Signature

Your name

(NEW PAGE)

CERTIFICATE OF SERVICE (centered)

I certify that on (date filed) a true and correct copy of Defendant's Original Answer was served to the opposite party via (fax/cert mail).

Your Signature

Your name

You file a copy with the Court, and file a copy with the opposite side by cert letter (RRR) or a fax to the attorney with fax confirmation.



Best of luck in your matter. I'm here if you need any more clarification or follow up information.



I hope you found my answer helpful, and if so please click on the ACCEPT button. This is the only way for me to get credit for my work - when you put in your payment information, I receive no credit for my time with you unless you press ACCEPT.



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Remember, sometimes the law under which your situation falls does not give you the outcome or the choices you wanted - please understand that this is not the attorney's fault, but the way of circumstance.



There might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.



If you feel that I went an extra step to help, a bonus would be appreciated!



You can always request me for a future legal consultation through my profile at http://www.justanswer.com/profile.aspx?PF=7286322&FID=7 If you do this, make sure to begin the question with “This Question is for Eli…”














Customer: replied 4 years ago.

I would not be able to file on time as it was supposed to be answered yesterday? And I was also told I have to give an answer for each and every allegation?

Expert:  Ely replied 4 years ago.
A general answer is good enough, trust me. And until they actually FILE default, you're still on time, so file NOW. And don't forget to click accept :)
Customer: replied 4 years ago.
How do I file? Also if I stated and not guilty and they purchased an item from me then I am lying
Expert:  Ely replied 4 years ago.
I explained that: You file a copy with the Court, and file a copy with the opposite side by cert letter (RRR) or a fax to the attorney with fax confirmation. The citation you received has a court address to where you can send an answer.A general denial is fine - no one is going to accuse you of lying. It's standard.

Best of luck in your matter. I'm here if you need any more clarification or follow up information.



I hope you found my answer helpful, and if so please click on the ACCEPT button. This is the only way for me to get credit for my work - when you put in your payment information, I receive no credit for my time with you unless you press ACCEPT.



There is no fee for follow up questions should you wish to continue in this thread.



Remember, sometimes the law under which your situation falls does not give you the outcome or the choices you wanted - please understand that this is not the attorney's fault, but the way of circumstance.



There might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.



If you feel that I went an extra step to help, a bonus would be appreciated!



You can always request me for a future legal consultation through my profile at http://www.justanswer.com/profile.aspx?PF=7286322&FID=7 If you do this, make sure to begin the question with “This Question is for Eli…”














Customer: replied 4 years ago.
Would it be wise to call them and leave my number? Not sure if they trace the number? I know I sound crazy but I am a nervous wreck
Expert:  Ely replied 4 years ago.
If they know where you live, they have you number, it's not hard. It would be a good idea to touch base, yes. No need to apologize - I understand your position and sympathize.

Best of luck in your matter. I'm here if you need any more clarification or follow up information.



I hope you found my answer helpful, and if so please click on the ACCEPT button. This is the only way for me to get credit for my work - when you put in your payment information, I receive no credit for my time with you unless you press ACCEPT.



There is no fee for follow up questions should you wish to continue in this thread.



Remember, sometimes the law under which your situation falls does not give you the outcome or the choices you wanted - please understand that this is not the attorney's fault, but the way of circumstance.



There might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.



If you feel that I went an extra step to help, a bonus would be appreciated!



You can always request me for a future legal consultation through my profile at http://www.justanswer.com/profile.aspx?PF=7286322&FID=7 If you do this, make sure to begin the question with “This Question is for Eli…”














Customer: replied 4 years ago.

Many people have a hard time finding the number because my cell number is XXXXX under my name?

Expert:  Ely replied 4 years ago.
I can't comment on how successful they will be if they try.
Customer: replied 4 years ago.

Would this be considered a federal non tax debt?

Expert:  Ely replied 4 years ago.
In what sense, i.e. for what?
Customer: replied 4 years ago.

Cause I found this article on the irs website:

Topic 203 - Failure to Pay Child Support, Federal Non-Tax Debts, State Income Tax Obligations and Unemployment Compensation Debts

The Department of Treasury's Financial Management Service (FMS), which issues IRS tax refunds, has been authorized by Congress to conduct the Treasury Offset Program. Through this program, your refund or overpayment may be reduced by FMS and offset to pay any past-due child support, Federal agency non-tax debts, state income tax obligations or certain unemployment compensation debts owed a state (namely debts for compensation that was paid due to fraud or for contributions due to a state fund that were not paid due to fraud).

You can contact the agency with which you have a debt, to determine if your debt was submitted for a tax refund offset. You may call FMS at the number below for an agency address and phone number. If your debt was submitted for offset, FMS will take as much of your refund as is needed to pay off the debt and send it to the agency you owe. Any portion of your refund remaining after offset will be issued in a check to you or direct deposited for you.

FMS will send you a notice if an offset occurs. The notice will reflect the original refund amount, your offset amount, the agency receiving the payment, and the address and telephone number of the agency. FMS will notify the IRS of the amount taken from your refund. Contact the agency shown on the notice if you believe you do not owe the debt or you are disputing the amount taken from your refund. If a notice is not received contact FMS at XXX-XXX-XXXX or TDD XXX-XXX-XXXX. The available hours are Monday through Friday 7:30AM to 5:00PM CT. Contact the IRS only if your original refund amount shown on the FMS offset notice differs from the refund amount shown on your tax return

Expert:  Ely replied 4 years ago.
No, this does not apply.
Customer: replied 4 years ago.

Sorry for the long question but I will compensate you. In the federal civil procedures process it shows this goes to pre trial like I stated before. But, if they enter the default judgement do they still go to pre trial conference?

Expert:  Ely replied 4 years ago.
Is this a federal or state suit?
Customer: replied 4 years ago.
federal
Expert:  Ely replied 4 years ago.
If they enter default judgment, NO, the suit will end since there is no reason for a pre-trial conference once they get default judgment.

Best of luck in your matter. I'm here if you need any more clarification or follow up information.



I hope you found my answer helpful, and if so please click on the ACCEPT button. This is the only way for me to get credit for my work - when you put in your payment information, I receive no credit for my time with you unless you press ACCEPT.



There is no fee for follow up questions should you wish to continue in this thread.



Remember, sometimes the law under which your situation falls does not give you the outcome or the choices you wanted - please understand that this is not the attorney's fault, but the way of circumstance.



There might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.



If you feel that I went an extra step to help, a bonus would be appreciated!



You can always request me for a future legal consultation through my profile at http://www.justanswer.com/profile.aspx?PF=7286322&FID=7 If you do this, make sure to begin the question with “This Question is for Eli…”














Customer: replied 4 years ago.
If they get default judgement how long does it take so we can close that account? Are we notified or what happens then?
Expert:  Ely replied 4 years ago.
I don't understand what you mean by close the account?
Customer: replied 4 years ago.
Close the joint account and open a brand new account in his name only. Probably be best to go to a differant bank or could we just close it and take all the money the open at same bank with that cash? Or best to go to differant bank?
Expert:  Ely replied 4 years ago.
Different bank.
Customer: replied 4 years ago.
Ok but do you know how long it takes once they get their default judgement to freeze account?
Expert:  Ely replied 4 years ago.
Once they get judgment, it's up to them to file a post-judgment garnishment motion, and then have a quick hearing, so it would be minimum 2 weeks or so AFTER judgment for this to happen.
Customer: replied 4 years ago.
I have a business bank account with only $9.00 in it. What about that account. I closed my website down and no more money goes into there. Should I just close that account too? Don't they have to file a motion to discover what I have?
Expert:  Ely replied 4 years ago.
Yes they can file a motion, so do close that account.
Customer: replied 4 years ago.
Can I get in trouble by the court for closing my accounts down? Obviously they are going to know that I did that??
Expert:  Ely replied 4 years ago.
Not if it only has $9 in it. Please remember that this service is based on an honor system. Accepting won't prelude you from asking any questions as follow ups.
Customer: replied 4 years ago.
Yes but our joint checking wil have my husbands paycheck in there tomarrow and that will be about 900.00
Customer: replied 4 years ago.
Do you know what this means?Fraudulent Transfer Act? Someone else told me they could my husbands money under this act even if he moves the account?
Customer: replied 4 years ago.
Okay I spoke with the attorney and he stated since I do not have any records of what I sold he is going to call the infringed upon company and he warned me the settlement amount will be very large. He was very very rude and told me he will contact me within 2 days or so which will probably be next week sometime.
Expert:  Ely replied 4 years ago.
Yes, Fraudulent Transfer Act is when you move something to hide it. However, they'd have to prove you did so on purpose. Since it's so little money moved, it's not worth their time.After speaking with the attorney, DO file the answer and then call him next week, see where they stand.
Customer: replied 4 years ago.
He called back and told me 25,000 which I told him I cannot afford. He said they are proceeding forward and will file for 1 million dollars and he said they will seize all of our assets and he also said he will be able to make us sell our house and take every dime of our money. I am so scared now
Expert:  Ely replied 4 years ago.
It's his job to scare you, but it's not true - he can only do what we discussed.
Customer: replied 4 years ago.
They can't garnish his wages can they? He told me it stays for 20 years?
Expert:  Ely replied 4 years ago.
Not if it's only against you.
Customer: replied 4 years ago.

Does this makes sense from another attorney?

Yes they can seize property that is not exempted. This means items like your house are protected only up to $7500 of your equity, your car is protected only up to $1200, pensions are protected, etc. See: http://www.illinoisbankruptcy.com/exemptions.html and yes I know it says bankruptcy but the same seizure rules and exemptions apply for judgments.

Expert:  Ely replied 4 years ago.
There are a lot of if's and but's in there. They won't be able to take your house. I WOULD file BK to get the judgment absolved.
Customer: replied 4 years ago.
If I could do that I surely would but in the civil lawsuit papers it does show a united states code that no bankrupcty can disolve this issue. All I am worried about is my house. I have 2 mortgages and the house is not worth much.
Expert:  Ely replied 4 years ago.
I am sorry, but I can offer no more advice. We have discussed answering the suit, negotiation, options for debt management, asset management, and bankruptcy. I don't know what else to say.

Edited by Eli on 9/9/2010 at 8:29 PM EST
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