Getting served with lawsuit papers is an experience that probably ranks with going to the dentist’s office as among the most frightening possible. However, being served with a lawsuit need not derail your entire life at that point. As with any other legal matter, you should always consult with an attorney in your jurisdiction to determine your rights under the law. Knowing about the process as an educated litigant, though, may help level the playing field between you and large corporations.
First, an institution that is owed money usually exhausts all their non-suit options before referring the account to their attorneys. Like any other service, lawyers cost money and institutions as a general rule control costs as much as possible. After a period of time with no success at collections, however, companies will send an account to their counsel. Lawyers usually also pursue non-suit options through their mail and phone communications before beginning the suit process, avoiding court filing fees if at all possible. When you do get served with papers, it should be through the local sheriff’s office or officer acting as constable. You should in Massachusetts receive a summons, your notice of the lawsuit; a complaint detailing the allegations of the debt owed; a uniform counsel certification by the company’s attorney and a statement of damages itemizing the amounts sought to be recovered by suit. In Massachusetts you have twenty (20) days after service of the summons to file an answer with both the court and company’s attorney. Lawyers generally respond to complaints by admitting, denying or stating inability to answer each allegation as listed. As your time is limited, seeking the advice of an attorney in your jurisdiction regarding responding to the suit or filing for bankruptcy is important.
Failure to respond to a complaint will allow the company filing suit to obtain a default judgment against you and even an answer to a complaint may lead to the company’s attorney obtaining a summary judgment against the debtor on the basis of no dispute as to material facts in the complaint. As this advice is particular to Massachusetts, and only a description of the suit process for the purposes of education, it is as always important to consult an attorney in your jurisdiction regarding your defense of a civil action or bankruptcy.
March 27th, 2009 by Administrator
The protection offered by bankruptcy is known as the automatic stay. The automatic stay takes effect immediately upon filing for bankruptcy. This legal protection prevents those owed money by someone filing for bankruptcy from taking any collections actions. Those owed money may not call, send letters to or pursue legal actions against a bankruptcy filer. Any legal actions currently pending are dismissed and the resulting post-judgment recovery methods such as attachments or garnishments obtained after the bankruptcy filing must be reversed.
The process of filing for bankruptcy is efficient using electronic filing. No longer must attorneys “rush to court” to obtain a date and time stamp. Bankruptcy petitions can be filed twenty-four hours a day from the comfort of the attorney’s office. Unfortunately, efficient modern technology has not caught up with the process of notifying creditors of a bankruptcy. While the filing fees have increased in recent years, the bankruptcy court still mails out notice of the creditors’ meeting scheduled by regular mail. Thus, there might be a lapse in time of more than a week before a creditor gets notice, during which time they may have taken one of the recovery actions described above. However, by law, these actions taken after the date of the bankruptcy filing must be reversed immediately after the receipt of notice of a bankruptcy filing. Wages garnished should by law be credited back to the wage earner and attachments on property be lifted. As always you should contact an attorney in your jurisdiction if you have questions, as each individual case is different.
March 23rd, 2009 by Administrator
The good thing about bankruptcy law is that my clients usually know they’re in financial trouble, and they proceed with relieving themselves of debt on their schedule. However, this field does have its own emergency situations. Perhaps the most prominent is a wage garnishment taking effect. A wage garnishment is a deduction from paycheck earnings, leaving only a minimal amount for debtor living expenses. Once a Bankruptcy petition is filed wage garnishment does not take effect. Of course, this rule has exceptions in the case of loans that cannot be discharged (e.g. student loans).
I recently assisted a client with a Chapter 7 Bankruptcy, who already had his pay garnished and faced the prospect of his next biweekly paycheck having a further garnishment amount deducted and being left with a minimal amount for living expenses. The good news is that this situation is exceptional mainly because of its timing. Rarely does an outstanding debt accelerate to wage garnishment without the debtor taking some preventative action.
An ordinary unsecured credit account balance begins to accrue penalties and interest and is terminated by the creditor after an extended period of time without payments received. Usually the debts are written off and sold to collection agencies. If settlement via a repayment plan is futile, the account is then passed on to law offices who make their own collection attempts before filing suit. Any debtor named as a defendant in a lawsuit needs to be served personally at their current address or by publication in the area of their last known address. Only if the defendant having been served then fails to answer can the company filing suit obtain a judgment by default. An order of judgment is required in order to obtain any attachment on a debtor’s property or garnishment of their wages. Threats to do so should be taken seriously but with the understanding that the entire process needs to take its full course.
You should speak with an attorney in your jurisdiction when an outstanding debt has gone as far as a wage garnishment threat. Filing for bankruptcy is never easy especially in cases when the individual facing bankruptcy might have other simultaneous legal issues such as divorce. The important thing is to talk to an attorney as soon as possible as wage garnishment does and will happen if proper action is not taken.
March 12th, 2009 by Administrator
What kind of debts cannot be discharged by filing for bankruptcy?
A good rule of thumb with bankruptcy law is that unless a debt is specifically excluded, it may be discharged.
The most common exclusions faced by individuals would be:
Student loans – Student loans generally come due and owing after graduation and accrue penalties and interest over time.
Support, separation and divorce obligations – Obligations ordered by a family court may not be discharged regardless of the debtor’s financial circumstances. Only a further family court order can modify such an obligation.
Wages, salaries and commissions – Wages, salaries and commissions paid to employees may not be discharged and can be recovered through suit.
Taxes and certain other debts – Taxes and certain other debts, including government medical expenses, may not be discharged and usually are subject to recovery by government withholding of monies owed until compensated for.
Claims for death or injury while intoxicated – Claims for death or injury while intoxicated may not be discharged regardless of a debtor’s financial circumstances and may be recovered by suit.
Although this list includes the most common exclusions while filing for bankruptcy, it is not all-inclusive. If you have a question about a certain debt that you may owe, you should contact a Bankruptcy attorney in your jurisdiction.
March 6th, 2009 by Administrator
How do you choose a good bankruptcy attorney?
Times are tough for many and making ends meet seems harder than ever. Cash-strapped people may find themselves needing relief from their debts. Periods of unemployment and medical expenses may also add to the difficulty in paying monies owed. Unfavorable mortgage terms combined with dropping home values often force homeowners into foreclosure.
No attorney can ever make promises beyond meeting with clients and providing representation through a bankruptcy case. The most important factors to consider while choosing an attorney are:
1) Make sure that the service provider is an attorney, as opposed to a non-attorney bankruptcy petition preparer;
2) Agrees at the start to not only prepare a petition but to enter an appearance in his name while filing and appear at your creditors’ meeting, and
3) Quotes a reasonable fee based on work necessary to be done apart from the required court filing fee.
The website for the Board of Bar Overseers in Massachusetts can confirm that an individual is in fact an attorney admitted to practice in that jurisdiction and in good standing. The Massachusetts Bar Association’s Lawyer Referral Service and local legal services offices are also good sources of bankruptcy attorneys.
A fee agreement should ensure representation as opposed to paperwork preparation. Attorneys may quote flat or hourly billing retainer amounts, but regardless of the form of fee the most important consideration is the amount of work necessary for a bankruptcy case. The Merrimack Valley Legal Services office quotes a rate of $200.00 an hour as the average for this region. Preparation of a bankruptcy petition (for a straightforward Chapter 7 case) after receipt of all required information rarely takes longer than a few hours. Your attorney should accompany you to the creditors’ meeting which is usually held one and a half months after filing on average. Thus, the retainer should take the time necessary to work on a case into account, and unusually low fees are probably too good to be true while amounts that seem larger based on these calculations are probably excessive.
March 4th, 2009 by Administrator
Attorney Sanjay Sankaran focuses on the practice of Consumer Bankruptcy law according to the U.S. Bankruptcy Code. He is admitted to practice law in the state of Massachusetts. He has over 5 years experience as an attorney, having previously worked in a general civil litigation firm before hanging his own shingle in the Summer of 2008.
Attorney Sankaran is a member of the Massachusetts Bar Association. He is the former chair of the Young Lawyers’ Division of the Massachusetts Bar Association. He is also actively involved with the South Asian Bar Association of Greater Boston.
You can learn more about his law firm and services here.
Contact information:
Physical address: 45 Merrimack Street, Suite # 330, Lowell, MA – 01852.
Phone: (978) 970 – 1555
Fax: (978) 441 – 3144
Email: sanjay @ ssanjaylawoffice.com
March 3rd, 2009 by Administrator
