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Ask Terry L. Your Own Question
Terry L.
Terry L., Attorney
Category: Legal
Satisfied Customers: 2820
Experience:  Better Business Bureau. 18 Years bankruptcy experience. Member of the American Bankruptcy Institute.
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I would like to try to defend a collection with a motion to

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I would like to try to defend a collection with a motion to dismiss if I can, but I need an answer right away.

Capital One was advised that my house was in foreclosure and that I would be pursuing bankruptcy when I lost it. They told me to let them know when that was. Well... my house is still in foreclosure.

They filed suit to collect. My situation is worse now. My partner left, I'm on food stamps, my bills are behind, and I have a shut of notice on my electric. The attorneys asked me to prove my situation, which I did by sending them my bank records. They have acknowledged that I don't have the means to make a payment plan.

I don't have a job, and I own nothing. It seems like a frivolous attempt to harass me.

They want the right to collect sometime down the road when I do have money. Again, they acknowledge I don't have the means now...so this seems harassive. They say if I don't respond to the suit, they will give me a year to get back on my feet and then make a payment plan.

Do I have anything to fight them with? I'd rather not get an instant judgment against me. If I have anything to fight with, I want to try it. I know that bankruptcy in the future will wipe it out either way I go. But them getting a judgment pretty much guarantees I will have to file bankruptcy, and that's going to hurt me for years.

Any help appreciated.

Terry L. :

Hi, thanks for your question. You should hire a lawyer for specific legal advice. No attorney client relationship is created here.

Terry L. :

Inability to pay is not a defense to the lawsuit unfortunately.

Terry L. :

To fight the suit, you have to prove that the debt is not correct, or that it is paid or something else.

Terry L. :

Or that you didn't incur it.

Terry L. :

You can delay the case by making the lender prove that you owe it, but showing statements will do the trick.

Terry L. :

Once they prove the debt and win the case, they can get their judgment if they win.

Terry L. :

You would have to then show the court what income you have, what assets you have.

Terry L. :

The creditor could record a judgment lien on the home too.

Terry L. :

Why are you holding off on bankruptcy? maybe it's best to just file now, wipe your slate clean and just move forward.

Terry L. :

You can file bankruptcy to discharge the mortgage before foreclosure.

Terry L. :

many do.

Terry L. :

Did you have any questions?

Customer:

I'm living in my house because I can't afford to move to an apartment and pay rent. I want to be in the house as long as possible with my son going to school.

Customer:

I defended a credit card case before, and it got dismissed, but it was one that was sold to another party, so they couldn't prove it was sold. This one hasn't been sold, so I don't know how to defend it.

Customer:

I'm a little confused on proving the debt. "Showing statements should work". Them or me?

Terry L. :

I see.

Terry L. :

The foreclosure is delayed up to 90 days with the bankruptcy, or until they motion to modify the automatic stay.

Terry L. :

yes, proving a valid transfer is a way to get a case kicked.

Customer:

There's no sale date for the house. I'm in it for at least another year.

Terry L. :

Them

Terry L. :

you can make them prove you owe it.

Terry L. :

and that amount

Terry L. :

but, if it's the original creditor, they'll likely have quick access to the account history

Terry L. :

so, it won't be that effective.

Customer:

So I should take their deal then? And avoid the court battle

Terry L. and 4 other Legal Specialists are ready to help you