William B. Esq. : Dear Customer, thank you for choosing Just Answer. The papers that were served on you are a Motion for Default Judgment. This means that the creditor has filed a lawsuit against you, and you did not file an answer to the complaint (the very first papers filed with the court in a civil lawsuit). If you do not file an answer, the creditor wins a judgment against you automatically.
William B. Esq. : You can oppose this motion by filing an answer to the motion for default judgment. To do this you must write an answer to the complaint and file it with the Court. The Court's self help desk will be the best place to go to get help with the proper form.
William B. Esq. : I would suggest that you file an answer as quickly as possible to avoid the 14 day cutoff, however, if you do miss this deadline, it is possible to ask the court for a second chance in what is called a "motion for reconsideration" however, that motion is done under judicial discretion and you may not get it depending on what the court believes your reason is.
Customer: I called the Court and they said there is no form and that if I do not know how to write the "an answer" , I need to contact an attourney
Customer: Now again , on all the papers they served me , there is , their file number but not a court number i don't think
William B. Esq. : Is there a complaint? (there should be one)
Customer: There's a ton of papers, what would the complaint be titled?
William B. Esq. : It would be with the "summons" - the very first papers you received.
Customer: Yes , there is a complaint , with their file number , but I don't think it has the court file number
William B. Esq. : The complaint will have the name of the case on it. Check to see if the name of the case matches the name of the summons (it is almost certain it does). Once you confirm that, check the summons, the summons should have the Court's Case No. on it.
Customer: It Does not have a COMPLAINT FILE NO. it does have a "Our File No. ". The very first papers say: :Cach, LLC PLAINTIFF vs. David Mickelson
William B. Esq. : On one of your documents there should be a case number. If you are unable to find it, the Court Clerk should be able to get it for you, or you may be able to find it online (some courts have a "Register of Actions" on their website).
William B. Esq. : Right now, I would recommend you focus on getting a response to the request for default judgment, as an entry of default against you will act as an enforceable judgment and you will no longer be able to contest the basis for your debt.
Customer: How do I write one? And do you think they are still will to settle if we pay them $400. a month like they once asked?
William B. Esq. : As you are still within the 14 days, you can file an "answer brief" to the motion, asking the court to set aside the entry of default (explaining why you did not file a response to the complaint, it is a good idea to attach a "proposed answer to the complaint" (a document you will file if the court grants your motion)). You can also request oral argument to make your argument to the Court. Given your timing, this is probably a good idea.
William B. Esq. : Here is a link to the rules of court for this procedure, you will need to read them carefully as you are held to the same standard as an attorney for following these rules: http://www.ndcourts.gov/Court/Rules/NDRoC/Rule3.2.htm
Customer: Would the case number XXXXX at the top of one of the many pages or somewhere else?
William B. Esq. : It should be labeled Case No. XXXXXXX (I wish I could be more specific, but it does vary from jurisdiction to jurisdiction, in my experience it is usually underneath the section reserved for the Court stamp for filing).
Customer: I can't find it...do you think they would still settle?
William B. Esq. : Settlement is always an option (even after a judgment is entered). Unfortunately I cannot give you specific legal advice through this forum, but I can tell you that once a judgment is entered the debtor has lost a significant amount of leverage, and even an opposition to a motion such as this can help with settlement. This is not intended to instruct you in one way or another, I do not know what your creditor's position is, and do not have any knowledge of your specific situation, but in general, once a judgment is entered the balance of litigation shifts significantly.
Customer: I did get the file number from the clerk of court , she says they have no forms. Will our filing a answer slow this process down...also we do not want to file for bankruptcy ever but if we would talk to a lawyer tomorrow how long does it take to get a "Stay"? We might end up having to do the bankruptcy thing.
William B. Esq. : If you want to file an answer (and your court has no "form responses" - which is common) you will need to draft your own answer to the motion, which requires you to write a statement of facts, statement of law, and legal argument as to why the default should not be entered (usually courts do not like to enter default judgments so yes, most likely filing a response will delay any judgment significantly, at least a month or two if not more depending on the court's ruling).
William B. Esq. : Depending on the amount of debt, your ability to get a payment plan together (or better yet a lump sum - borrow from friends relatives another bank etc if you have to), and your ability to pay for an attorney, you may be able to negotiate a settlement that you can afford and avoid a judgment that the other side can enforce using garnishments, levys, and other similar tactics.
Customer: Would bankruptcy take care of all of it. We owe 16,000 to one credit card, and we also have other cards we owe to. We are able to pay our mortgage , but live paycheck to paycheck. We have not used credit cards for 2 years , so we have broke our bad habit. My husband works 60 hrs a week and I work 40 hrs a week.
William B. Esq. : I would recommend that you speak with an insolvency or bankruptcy attorney. It is best to talk to one as soon as possible to plan your bankruptcy as opposed to being forced into filing one immediately. You will get far more out of your bankruptcy that way and emerge in better financial shape. It is possible in many circumstances to deal with unsecured (credit card) debt in a Chapt. 13 bankruptcy while keeping your home (secured debt) loan and servicing it through the bankruptcy plan. Not everyone qualifies for this, and it does not always work. A Chapt. 13 takes a long time (5-7 years) but it will help you to get rid of this type of debt. Speaking with an attorney in person is the best way to understand how it will affect you and your financial situation specifically, but yes, bankruptcy is a viable option for people facing a significant amount of unsecured debt.
Customer: Should we not do the answer being we basically owe what they are saying...I'm not sure but I think they may have bought our debt for pennies on the dollar?
William B. Esq. : I can't give you that kind of legal advice, I am very sorry. But if at all possible I would recommend going to speak with an attorney immediately. If you both have jobs a creditor that has a judgment can get a wage garnishment, and they can record the judgment against your home. If you are considering insolvency, I would only reiterate that it is far better to plan than be forced into it, and once a judgment is entered it is often too late to recapture that time.
Customer: Will doing the answer buy us some time?
William B. Esq. : Yes (The Court will have to hear your opposition, make a ruling, and then enter the judgment, usually courts do not like to enter default judgments so the matter will open up and the case will reopen in regular litigation, but this depends on the Court's ruling).
Customer: On average how fast will the judgement be rendered if we write an answer and how fast will the judgement be rendered if we don't write an answer?
William B. Esq. : It would depend on how backed up the Court is. If you oppose the motion and win (the case continues in litigation), you will probably have another 8-12 months before a judgment is entered one way or the other. If you oppose the motion and lose (the court enters the judgment against you anyway), it will probably take another 1.5 months. If you do nothing, judgment will probably be entered next week (14 days after the date the motion was served on you). But again, I have no experience in your specific court, and dates like this vary widely from one jurisdiction to another (and in my experience, from one courtroom to another).
Customer: How long does a stay take to go into effect?
William B. Esq. : immediately.
William B. Esq. : (We are talking about a bankruptcy stay correct?)
Customer: Yes, do you mean after we get all our paperwork together, or immediately even before the paperwork is all together?
William B. Esq. : As soon as you file your petition the Court will issue an automatic stay.
Customer: how long does it take to file a petition?
William B. Esq. : It all depends on the complexity of your case and your familiarity with the system. If you take your documents to a bankruptcy attorney and have everything available (debts, assets, income) you can probably get it put together in a couple of hours. But this assumes the attorney is not doing anything when you walk in (I wouldn't count on it), and that you have everything you need, even the best intentioned debtors usually need more information and absent an emergency, it is usually best to file a complete petition instead of a piecemeal one.
William B. Esq. : I would stress again that it is best to plan your bankruptcy rather than rush to file one, you will end up in a far better financial position than you would otherwise (even if you have to pay a little bit to a bankruptcy attorney up front).
Customer: If we pay 420 a month like they want , would they stop the lawsuit? and if they would stop the lawsuit then we could in the future declare bankruptcy if we deemed it necessary?
William B. Esq. : That is a possibility, but you would have to work out the settlement plan with them. The 420 a month is a settlement demand and they do not have to accept it at this time, that is just something the two of you would need to agree on.
Customer: So I'm just afraid it will take some time to get into see an attorney...maybe we could get in quickly...you said it is best to not have to rush...but aren't we at the 'rush stage" already?
William B. Esq. : You need to "rush" to take care of this motion. You have a very short amount of time to file an opposition to the motion to enter default. If you speak with a bankruptcy or insolvency attorney to discuss this, they may find that there is some strategy to opposing that motion as part of your larger financial picture. If you wait, you will lose that opportunity. There are lots of other reasons to speak with a bankruptcy attorney right now regarding a pending judgment against you. I have mentioned a few above, but it is a little too much detail to go into through this type of forum. Once a debt is made into a judgment debt, you lose many opportunities.
Customer: Ok, thank you!!