How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Terry L. Your Own Question

Terry L.
Terry L., Attorney
Category: Legal
Satisfied Customers: 2496
Experience:  Better Business Bureau. 13 Years bankruptcy experience. Member of the Chicago Bar Association
Type Your Legal Question Here...
Terry L. is online now
A new question is answered every 9 seconds

I would like to try to defend a collection with a motion to

Customer Question

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.
Submitted: 9 months ago.
Category: Legal
Expert:  Terry L. replied 9 months ago.

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., Attorney
Category: Legal
Satisfied Customers: 2496
Experience: Better Business Bureau. 13 Years bankruptcy experience. Member of the Chicago Bar Association
Terry L. and 8 other Legal Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it. Lee Michigan
 
 
 

Meet The Experts:

 
 
 
  • Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
< Last | Next >
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    19941
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Attorney

    Satisfied Customers:

    8189
    25 years of experience helping people like you.
  • http://ww2.justanswer.com/uploads/jespoag/2008-12-17_222355_jessepic.jpg JPEsq's Avatar

    JPEsq

    Attorney

    Satisfied Customers:

    2132
    Experience as general attorney, in house counsel, SSDI, Family Law attorney, and law professor
  • http://ww2.justanswer.com/uploads/gsenmartin/2008-04-22_214950_me1.jpg Guillermo J. Senmartin, Esq.'s Avatar

    Guillermo J. Senmartin, Esq.

    Attorney

    Satisfied Customers:

    110
    7+ years of experience handling various legal matters.
  • http://ww2.justanswer.com/uploads/PA/PaulmoJD/2013-10-10_195858_JAImage.64x64.jpg Law Educator, Esq.'s Avatar

    Law Educator, Esq.

    Attorney

    Satisfied Customers:

    31621
    JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    15975
    Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.