motion for summary judgement

[carmena1]

What is the name of your state? Texas

i am writing this on behalf of my parents. my dad and mom got a letter on friday, motion for summary judgement, for a credit card bill. not sure how long ago, they filed for bankrupcy and this bill was included in the bankrupcy but for some reason, at the last minute, it was taken out...this is all quote from my dad. anyways, since it was left out of the bankrupcy, my parents tried to settle the card on their own, but my dad said that he started to pay the monthly payments and then the credit card company stopped sending bills and my parents stopped paying for whatever reason. my dad thought the company had forgotten since it has bee such a long time ago.

now they got this letter on friday. the amount owed is $3200. my parents have a court date on june 4th to plead their case. my dad is going to say that 1) this bill should have been in the bankrupcy papers to begin with and 2) that they did try to settle with company at some point.

my dad's question is this--if the judge rules against him, what are the consequences? how will the judgment be enforced? can they take their house away? (it's paid for) take a car away? garnish their wages? take $$$ from bank accounts? garnish SS payments?

any advice is helpful.

 

[moburkes]

How long ago was the BK discharged? Was it a Ch7 or 13?

 

[carmena1]

this was about 7 years ago and it was chapter 13

 

[Kanchazi]

The Statute of limitations for enforcing this kind of debt in Texas is 4 years. If you have not made any payments in four years they cannot get a judgment against you. File with the court right away that it is past the SOL. You must use it as a defense.

 

[carmena1]

how do my parents file at the court? do they wait until june 4th when they show up to court? where can i find this in writting so i can make copies for my dad?

thanks for all of this.

 

[TigerD]

If your parent filed bankruptcy and this deb was included in their BK the first call they need to make is to their attorney.

 

[moburkes]

If your parent filed bankruptcy and this deb was included in their BK the first call they need to make is to their attorney.

This is the problem:

this bill was included in the bankrupcy but for some reason, at the last minute, it was taken out

The other problem is that they have been making payments, which resets the SOL.

 

[Ladynred]

My question is .. HOW was it supposedly 'taken out' ?? You don't take debts OUT of bankruptcy - unless they decided to reaffirm the debt, which would exclude it from their Discharge. A reaffirmation means they would have had to actually sign an agreement and file it with the bankruptcy court at that time.

It is CRITICAL that they pull their bankruptcy papers ASAP and found out EXACTLY what did happen with this debt in the bankruptcy. If they don't have copies of their BK papers, they need to contact their BK attorney anyway, and he/she may have archived old cases.

As for the expiration of the statute of limitations - it doesn't stop them from suing, but it IS an affirmative defense to get the case tossed out. But, as stated, if the last payment they made was less than 4 years ago, they could be stuck - but ONLY if the debt was NOT discharged.

how will the judgment be enforced?

Any way they can. TX is pretty debtor-friendly though.

can they take their house away? (it's paid for)

No. TX has a 100% homestead exemption.

take a car away?

No. Tx allows you to exempt 1 car for each licensed driver in the household.

garnish their wages?

Not for debt like this !

take $$$ from bank accounts?

Yes, and it is a prime target.

garnish SS payments?

No. SS is 100% exempt. However, if the SS funds are sitting in a bank account, they will sieze first, and your parents will have to file papers to get the money returned. The other wrinkle is if the SS funds are in an account that is mixed with NON-exempt funds, it could be a problem.