Disabled in TX & being sued by Capital One

[KimmiH]

What is the name of your state? TX

I am permanently disabled & have zero income other than my disability check monthly. Have no assets other than my vehicle. I received papers from a private investigator, with paperwork filed in the J.P. Court here, saying I am being sued by Capital One credit card. I have until March 17th at 10:00 am to "answer" the judge/court. I am currently trying to get an appointment with free legal aid here, but am getting concerned. Time is short to get this done & my disability doesn't allow me to move quickly OR freely.

I am told I am "judgment proof", as I have only disability income & no assets. However I want to know that for sure, not just "not reply & let them have a judgment against me". I am TRYING to do the right thing here as best I can. SO if I do not get an appointment in time with free legal aid....I need to know the best course of action.

Would it be totally wrong for me to type up a letter myself, to send to the judge/court? If I state that I am permanently disabled (attaching proof via a copy of my disability award/date), have ZERO other income & ZERO assets & send just that to the judge/court would that suffice, or be pointless or ? And if that would work, then what? Would the judge consider this at all & would he possibly dismiss the case or what?

I have received advice saying that if I do nothing, and there is a judgment which is unlikely, they can't get something from nothing so let it go & forget it. I have been told as I stated above I am "judgment proof". My point in all this, outside of clearing it up & getting it done & over with is; if I am judgment proof & there is a possibility of getting this settled the right way, then to me that is the best way to do it. Not just "forget it & assume".

Any help is much appreciated, my health is taking a hit on this one & I just feel there is a way here....just not exactly sure what "the right way" IS.

KimmiH

[Ladynred]

Would it be totally wrong for me to type up a letter myself, to send to the judge/court?

No, but it would be pointless as a mere letter is NOT a proper answer to a lawsuit. IN order to have any impact at all, you MUST answer in the proper format and within the specified time frame. You might read thru this information on how to answer a complaint:

[url]http://www.legalhelp.org/public/answering_complaint.php[/url]

Would the judge consider this at all & would he possibly dismiss the case or what?

Doubtful the case would be dismissed, they creditor will go after a summary judgment and likely get it. However, there appears to be nothing they could get from you, so it would be largely ineffective.

The RIGHT WAY is to Answer the lawsuit as noted above and file it per the instructions. If they go forward with the summary judgment, make sure you file for your exemptions, and make 100% sure that your disability money is NOT co-mingled with anything else in any bank account.

[KimmiH]

I will read about responding correctly ASAP. AND am going to continue attempting to reach legal aid first thing in the morning as well. My disability check is all I get monthly, and I take there is nothing else there but that. However another concern I have is that I am on my Mom's bank account in another town. REASON BEING there is she had Alzheimers & simply CANNOT be trusted to NOT go take all her money out & hide it somewhere, thus having nothing to live on. SO I handle all her finances where that doesn't happen. But that is HER money not MINE to take. I am very concerned that they will find that out & attempt to take a large sum from there. BUT I am the only child, and her only means of survival by what I do for her at this point. So I'm stuck there & don't know what to do on THAT. ANOTHER legal issue I am sure.

Kim

[Ladynred]

That IS a real danger, and it's a mistake people often make. The way to deal with such issues as your mother's finances is for you to have power of attorney over the account and NOT have your name on the account as joint. Ask the bank how you make that happen. With your name on it, that account is a target.

[KimmiH]

I actually have her POA already. However, would I even have TIME to change that account before they find out or something is done? Also, if one does not respond to a situation like this, simply ignoring it all & a judgment is awarded; what can the company actually do at that point? I have been told that TX is one of the states where a situation as this (debt people) can't garnish, or "attach" (not sure what "attach" means?), take your car or your house. And that the CC company being in VA & myself in TX, there isn't truly much they can do.

Kim

[BL]

If you just received a letter from Cap. one's attorney stating their intent , and they haven't already filed in Court , you should sent them all proof that your your SSA is exempt , and you have no other assets of worth .

This may stop them from filing in court and wasting money .

On the other hand if they already filed in court , still use the information below .

Make sure your SSA is identifiable as such .

Can Social Security benefits be garnished to pay a debt?

Answer
Section 207 of the Social Security Act (42 U.S.C. 407) protects Social Security benefits from assignment, levy, or garnishment. However, the law provides five exceptions:
Section 459 of the Act (42 U.S.C. 659) allows Social Security benefits to be garnished to enforce child support and/or alimony obligations;
Section 6334 (c) of the Internal Revenue Code (26 U.S.C. 6334 (c)) allows benefits to be garnished to collect unpaid Federal taxes;
Section 3402 (P) of the Internal Revenue Code allows beneficiaries to elect to have a percentage of their benefits withheld and paid to the Internal Revenue Service to satisfy their Federal income tax liability for the current year;
The Debt Collection Act of 1996 (Public Law 104-134) allows benefits to be withheld and paid to another Federal agency to pay a non-tax debt the beneficiary owes to that agency: and
The Tax Payer Relief Act of 1997 (Public Law 105-34) authorizes the Internal Revenue Service to collect overdue federal tax debts of beneficiaries by levying up to 15 percent of each monthly payment until the debt is paid.
The Social Security Administration's responsibility for protecting benefits against legal process and assignment usually ends when the beneficiary is paid. However, once paid, benefits continue to be protected under section 207 of the Act only as long as they are identifiable as Social Security benefits. This applies to money in a bank account where the only payments into the account are from direct deposit of Social Security benefits.

NOTE: Supplemental Security Income payments cannot be levied or garnished

[KimmiH]

I as served court papers by a server. Says in there "you have been sued" and it is by Capital One credit card.

I have done a lot of reading, actually I am blue in the face from doing so! I am still confused as to, can I STILL NOW try & contact the attorney who filed this & try to settle that way? To avoid going to court & work out some kind of deal? OR since this has been filed, is it too late?

Kim

[Zigner]

Originally Posted by KimmiH

I as served court papers by a server. Says in there "you have been sued" and it is by Capital One credit card.

I have done a lot of reading, actually I am blue in the face from doing so! I am still confused as to, can I STILL NOW try & contact the attorney who filed this & try to settle that way? To avoid going to court & work out some kind of deal? OR since this has been filed, is it too late?

Kim

Don't ask us...
Call the attorney and ask HIM what they want to do, based on your situation.
My guess is that they will want to proceed with the judgment. Why? Because they've already started the process. If they get a default judgment then they can sit on it until you DO have the money.
But, it can't hurt to ask...

[Ladynred]

if one does not respond to a situation like this, simply ignoring it all & a judgment is awarded; what can the company actually do at that point?

What can they do ? Once they have a judgment they will try everything they can to get your money - and that includes raiding your bank account. Even though YOU know there's only SSA money in there, they won't know that, or care, and you'll have to fight with them to get the funds returned.

I have been told that TX is one of the states where a situation as this (debt people) can't garnish, or "attach" (not sure what "attach" means?), take your car or your house.

They cannot garnish wages, and they cannot take your house (due to exemptions), however attachment - like seizing your bank account and any non-exempt assets most certainly IS allowed.

And that the CC company being in VA & myself in TX, there isn't truly much they can do.

Don't kid yourself, their location has nothing at all to do with it. They've sued in a TX court, and they can use TX laws to the fullest allowed to recover the money owed to them once they get a judgment.

can I STILL NOW try & contact the attorney who filed this & try to settle that way? To avoid going to court & work out some kind of deal?

It's not entirely too late, call the attorney and see if you can negotiate a settlement, but whatever you do, do NOT blow off court, even it the attorney says 'you don't have to show up' !

When was the last time you paid Crap1 directly on this debt ??

As for your mother's account, you need to be prepared to show that every single cent in that account is your mother's, that you contribute NOTHING to it. If they find the account with your name on it, then they WILL attack that account.

[KimmiH]

That is partially where I am confused...or just dont know what TO do, There is no "court date" per se. ONLY this paperwork saying I have to send an "answer" to them no later than March 17th at 10:00 am. But if I have to "answer" in some legal form document I know nothing about, and can't afford an attorney NOR get Legal Aid to respond....I'm screwed! I would more than happily write something MYSELF, so at to not appear I am blowing this off, but was told I shouldn't do THAT.

If I am allowed to do so, I certainly will try to call this attorney & work something out NOW, prior to any court. THAT to me would be the best. I just don't want to get screwed around by them, later claiming I didn't pay etc. I have heard they often do just that, get your money but STILL file on you.

Do you know how this normally goes (if going through courts), does one first get this "answer" to the judge/court, then it says I have 50 days to get them some stuff (give an article & number like *what is in 194.2* & I have no idea where one find out exactly WHAT that is), and then whey they later notify you of an actual court date?

Last time THEY show I paid Crap 1 was in like Jan 2005 but I really don't think that is right. Just do not remember.

Kim

[BL]

There is no "court date" per se. ONLY this paperwork saying I have to send an "answer" to them no later than March 17th at 10:00 am

Is this some sorta official looking summons and was it served on you ?

If so send an answer, first state without admitting to the debt , that your sole income is from SSA and is exempt from seizer .

Also state you have no other non exempt assets worth anything .

Include a copy of you earnings statement you received from SSA for 2008 .

Hopefully , they will stop in their tracks .

As I stated earlier , make sure your SSA funds are identifiable as such .

Set up your own direct deposit bank account from SSA only .

Do not put any other funds in there .

[Ladynred]

I GAVE you the link to the information on how to properly answer a Complaint. You CAN do it yourself and you don't have time to wait around for Legal Aid either. Follow the info on that site and draw up your answer.

The poster above me is incorrect, if you use his/her "answers" you WILL lose. Claiming your exemptions is NOT an answer to a lawsuit !

[KimmiH]

I heard various explanations on how to "answer" the court/judge when served papers. Some said it HAS to be formal, others said no. SO I just called the court & spoke with them. She said "In no way does it HAVE to be *formal*....merely write or type out your version of what is going on with this suit & bring it in before the deadline". Which is what I am going to do.

What I would suggest, because this might just be the decision of THIS court I am working with, is CALL & ASK them if it has to be formal or not.

Just an FYI for anyone wondering. I knew from looking at the page that supposedly "explained who to write an *answer*" and knew there was no way I could figure that out. I'm not ignorant by any means, but that is something I couldn't figure out on my own. Especially if the courts/judges as dead set on doing it "formal all the way".

Kimmi

[nobody]

You should really take Ladynred's advice on this as she is very knowledgeable on this subject. Your disability is not a valid defense in court. Your debt is within the SOL for Texas and they will win a judgement against you without a valid affirmative defense.

There is no such thing as "judgement proof". There are exemptions provided to you by state law - your 1 car is safe and federal law protects your SS income but as others have said you must let them know this and be able to prove it. If you ever deposit a check from your mom into your account they will take it.

You are only partially right about your home if you own one. They cannot force you to sell if you are homesteaded but they will attatch a lien and get their money if you ever sell... fyi, post judgement interest in Texas is at 18% on the judgement and 7.5% for lawyer and legal fees. Judgements can be renewed for a long time and that interest will add up quickly. Unless you NEVER plan on having any other income or non-exempt assets for the next 20 years or so you might want to get a friend who can help you understand how to formally reply to a lawsuit.

Once you have a judgement don't think there aren't plenty of collectors and lawyers who will hound you for any assets or go ahead and clean out your bank account now and make you prove in court ALL the money is exempt.

[Texas Pooh]

If you do not file an answer (which in Texas, in a small claims court, can be the informal letter you learned about from the clerk) by Monday, at 10:00 a.m. a certain number of days after you have been sued, a default will be entered against you. This is a valid, final judgment against you. The judgment can be enforced - that means the Court can issue a writ of execution gainst your bank account and your mother's bank account - which allwss the constable (without any further notice to you) to go take the bank accounts. You will then have to file a proceeding to get the money back by claiming it was wrongfully siezed. In other words, you'll have an uphill battle.

If you do file an answer, you have to file answers to disclosures (the reference to 194.2 refers to a rule of Texas civil procedure, which requires you to provide certain basic information once sued). Also, the Court will assign a court date, which will probably be a few months in the future. At the court hearing, you present any defenses you have.

If the debt is valid, and you want to avoid court, you can contact the lawyer, make the best deal you can, get it in writing, and make payments.

If the debt is not valid (either at all or in the amount), you can proceed to the court hearing.

Good luck!