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Ask Dave Kennett Your Own Question

Dave Kennett
Dave Kennett, Lawyer (JD)
Category: Legal
Satisfied Customers: 27686
Experience:  25 years experience in general law, including real estate, criminal, traffic, and domestic relations
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We were served by Nelson& Kennard (Sac.) for 10,000 and change

Customer Question

We were served by Nelson& Kennard (Sac.) for 10,000 and change we owe Capital One. We have on good faith made payments, not always the required amount, whenever we could. Our jobs tanked with the economy. We chose to save our home and got behind on our cc debit. we were so desperate we took out cash advances on our cc to pay our mortgage.we went from 5.0000 to 1,800 in monthly income.We have made payments to the lawyers over the past 3 months. Now we get served.
My husband has been working steady now for 3 months, the most in over 2 years.
We have scaped together about 2,000 in savings.
Do we use this money to hire a lawyer?
Do we somehow pray, beg, borrow the 10,000 .
We are not dead beats we have always intended to pay back the $ we borrowed. The monthly cc payment was to high (400 mo.) we spoke with Capital One several times and they refused to work with us. The lawyers did the same.
I am so stressed! I want to jump out of my skin, please help us
Maria
Submitted: 1 year ago.
Category: Legal
Expert:  Dave Kennett replied 1 year ago.
Dear JACUSTOMER - I certainly understand the frustration in all of this as the credit card companies can be ruthless in their collection actions. You can't stop them from filing a suit unless you have a written forbearance agreement to make payments however most companies will work out some type of reasonable payment schedule once they have a judgment rather than chasing you around for garnishments or attachments. There's not much you can do as far as the suit except file an answer to delay the process by several weeks. If there is no legal defense to the suit then they are eventually going to obtain a judgment and hiring an attorney would be throwing money away if there is no defense to the case. What you may want to consider however, is to see if you could benefit by seeking protection in bankruptcy and get the entire debt discharged. This size of debt can take years to ever pay off as they will continue to add interest and late charges etc. and it never ends. You just keep throwing money down a black hole with nothing to show for it. So if you want to spend money on an attorney I would suggest obtaining a consultation appointment with a local bankruptcy lawyer. Generally you can protect your assets through exemptions and wipe out this and any other debt you may have. The only other option is to try to work out something with respect to a settlement with the attorney for the plaintiff in the suit. Most creditors will accept a lump sum payment to settle of around 50-60% of what is owed but if you cannot afford that then the only other settlement option would be to make payments. If you decide to go that route you should definitely get a written forbearance agreement whereby the creditor agrees not to take any collection action such as attachments or garnishments so long as the payments are made on time.
Dave Kennett, Lawyer (JD)
Category: Legal
Satisfied Customers: 27686
Experience: 25 years experience in general law, including real estate, criminal, traffic, and domestic relations
Dave Kennett and 16 other Legal Specialists are ready to help you
Customer: replied 1 year ago.
Thank you and most of what you said I get.
We are not going to file for bankrumpcy. We owe the money.
Dont we have to answer the summons?
Can we or a lawyer speak with the lawyer suing us?
Ther is so much legal mumbo jumbo that we dont understand?
Expert:  Dave Kennett replied 1 year ago.
I completely understand. There is no requirement to answer the summons but if you don't then the plaintiff will file for a judgment by default and then there will be a judgment. If you file a response the only thing you can do is deny the claim for "ant of knowledge" meaning you are not admitting to the amount being correct which would force the plaintiff to prove what is owed. You can file your own answer using the same heading as the complaint with the court name at the top and the parties and case number below. Where it says "complaint" you would put "answer". Then below that you would state "Defendant denies for want of knowledge the allegations contained in plaintiff's complaint as to the amount owed". Then you would sign it and include your address and phone number just like the attorney did in the complaint. Then make 3 or 4 copies and file everything with the clerk of court and send a copy to the other attorney. That will be protect the record from a default but not from an ultimate judgment. The court will then set the matter for a hearing or a trial. Talking to the other attorney at this point is probably useless since once they file a suit they want a judgment before they will discuss the case or a settlement. You certainly can call the attorney if you like but in order to protect the court record you need to file an answer. If you fail to file an answer then it is likely a judgment will be granted by default however it is not against the law not to file an answer.
Customer: replied 1 year ago.
Ok, so let me get this straight, what I hear is reply to the summons. I will follow what you said to write and then we wait for eith a hearing or a trial?
Why do we want that?
Im sorry but law is not an language I speak.
I dont even know what to ask.
I am attempting to get it straight in my head so I dont screw this up.
Expert:  Dave Kennett replied 1 year ago.
It's not a case of what you "want" but simply that in order to avoid having a judgment by default you have to file an answer. All it does is delay the process and give you a chance to possibly work out a settlement with the other attorney while awaiting the court to set a date. Basically it buys a little time but does not solve the problem. If you simply do nothing then the plaintiff will get their judgment and try to collect. It doesn't mean you still can't try to settle since you would be in no worse position with a regular judgment or a judgment by default. The effect is the same.
Customer: replied 1 year ago.
I m sorry ! the "want" I referred to was I was looking a head as to what would come after we filed a response.
As I said I dont know what to ask.
I reread the summons and your reponse and I starting to grasp it.
We are just committed to handling this as responsably as we can.
Are lawyers more willing to talk after we file our response? Or will delay with the filed responce, just make them mad.
Please bear with me
Expert:  Dave Kennett replied 1 year ago.
Don't worry about anyone getting "mad". You have a right to defend yourself in court and the lawyers know how to deal with it. I know you want to be responsible and if the lawyer will discuss the case then maybe you can work out a deal. The first thing they will probably ask for is a "consent" judgment meaning they will want you to allow them to take their judgment and then work out a payment plan. Obviously if you wait until they get their judgment through the normal process there would be no need for a consent judgment. All they want is the money and the easier you make it for them to collect the happier they are but there is nothing you can do to force them to agree to anything. If they want to be hard noses they can refuse any offer of settlement and go after things like wages and bank accounts. If they take that route you may want to reconsider the bankruptcy option. I can't predict what someone else is going to do in a given situation so all you can do is file your answer and wait for the court to set the case. In the meantime, if you can work out an agreement with the attorney then that may solve the problem.
Customer: replied 1 year ago.
Thank you so much for your kindness, i am completely overwhelmed.
It is embarassing and painful, it really hurts.
We are here because we chose to save our then 16yo son from a life of drugs. The only way to pay for rehab was to refi for money. Our payment went up and then our jobs dried up.
I thank god he is alive and thriving and if this the price we had to pay, so be it. Its just hard sometimes to deal with the consequences of our choices.
God love you for assisting us on this path.
I wish you and yours health and peace
Maria
Expert:  Dave Kennett replied 1 year ago.
I'm glad I could help. You are not alone in this as many folks have had similar problems in the economic downturn. I'm sure things will work out. Thanks for using our service - Dave

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