notice from rubin and rothman concerning court action

[snodrop13]

undefinedarial blackWhat is the name of your state? ny yesterday 10/16/04 we were delivered papers to our home regarding a credit card held by citibank but turned over to rubin and rothman for collection. We have a very large amount of unsecured debt as well as an irs obligation of just shy of 14000 for 2002/2003. We anticipate another 9000 or more to be added to that for 2004. We sought legal advice initially hoping to file chapter 7 bankruptcy. Because we are decent wage earners we were steered toward chpter 13 to clear our tax debts and pay approx 10 percent of our unsecured debt over 36 months. Because we want to include our 2004 tax liability we cannot file chpter 13 until january after we have filed our taxes. We have retained an attorney and paid him 1000. He advised us to steer any collection calls in his direction. I have a huge phobia about court appearances, our attorney advised that if we got a summons to court to file an answer asking for proof of the obligation...this would stall off the collectors and bring us closer to january. The summons we were served was delivered in person, there was no sheriffs car so i am not sure who delivered it(i wasn't home when it came) its in my husband's name. It is listed for us to appear in city court but no date or time is given. The summons is dated 9/15/04 from rubin and rothman. It states that we have 10 days to answer if it was delivered in person. We received it on 10/16/04 do we have 10 days to respond? What sort of affidavit do we have to file with the court? the summons seems to be generated from the rubin and rothman llc is that correct? on the bottom of the summons and complaint page it has the we are attempting to collect a debt disclaimer further stating that this communication is from a debt collector. Can my attorney help with this in that he is on retainer? If these people are rewarded a judgement will my chapter 13 grant me an automatic stay from that? Help

 

[Ladynred]

Yes, you have 10 days to file your Answer with the court and the lawyer, so don't dilly-dally. Your lawyer could probably do the Answer for you, but he's also likely to charge you more for it. You can file the Answer yourself. The instructions are on the summons.

Here's some info on how to Answer a Complaint:

http://www.legalhelp.org/answering_complaint.htm

http://www.legalhelp.org/affirmative_diffense.htm

You basically want to make your Answer a general denial. Where it states in the complaint the amount they allege you owe, 'lack sufficient knowledge' is what you should use. Do you know exactly how they came up with that number ? What proof do they have to back it up ??? Make them prove it.

The mini-miranda 'this is an attempt to collect a debt .. blah, blah, blah' is required by law if the compliant is the collector's first contact with you. It also gives you the right to dispute the debt within 30 days. In other words, you demand validation - make the m prove the debt, the amount, etc. Send the lawyer a debt validation demand letter and send it certified, RRR immediately. You can find sample letters and more info on validation at www.creditinfocenter.com.

Once you file for BK, this debt and/or judgment if it goes that far, will be included in your BK and the judgment can be vacated later.

 

[snodrop13]

thank you for the quick advice. If i file the answer letter tomorrow do you have any idea how long it would be before they would generally respond? would it mean an appearance in court? If they are able to get a judgement against us how soon after that are they usually able to reach into our wages and have them attached? The lawyer states that the total of wage garnishment regardless of how many judgements there are against you cannot exceed 10 percent in ny...would that be of the gross or the net? also would they be able to attach my husband's miltary retirement? he recently retired after 30 years. If they get a judgement against us can we try to negotiate directly w/rubin and rothman and try to stall wage attachement until January?

 

[Ladynred]

If i file the answer letter tomorrow do you have any idea how long it would be before they would generally respond? would it mean an appearance in court?

Its impossible to say if there will be any response other than to set a court date. The next thing you get is likely to be the lawyer's request for summary judgment, which is fairly standard with this type of case. Actually, your best bet really IS to go to court. No one wants to go to court, but its your only way to really defend yourself and most of the time you will be sent to negotiate with the lawyer before you even see a judge. If you can't come to terms, then it goes before the judge.

If they are able to get a judgement against us how soon after that are they usually able to reach into our wages and have them attached?

I believe they have to wait 10 days after the judgment is rendered to give you a chance to appeal it. After that, they can go forward with bank levies, wage garnishment, and siezure of non-exempt property. Wages are easy targets as are bank accounts.

would they be able to attach my husband's miltary retirement?

No, retirement funds are 100% exempt. However, if that money is direct deposited into a bank account, they could sieze the account and ask questions later. You would have to show proof that the funds are exempt.

The lawyer states that the total of wage garnishment regardless of how many judgements there are against you cannot exceed 10 percent in ny...would that be of the gross or the net?

Here's what the NY statutes say:

(b) Issuance. Where a judgment debtor is receiving or will receive
money from any source, an income execution for installments therefrom of
not more than ten percent thereof may be issued and delivered to the
sheriff of the county in which the judgment debtor resides or, where the
judgment debtor is a non-resident, the county in which he is employed;
provided, however, that (i) no amount shall be withheld from the
judgment debtor`s earnings pursuant to an income execution for any week
unless the disposable earnings of the judgment debtor for that week
exceed thirty times the federal minimum hourly wage prescribed in the
Fair Labor Standards Act of 1938 as in effect at the time the earnings
are payable; (ii) the amount withheld from the judgment debtor`s
earnings pursuant to an income execution for any week shall not exceed
twenty-five percent of the disposable earnings of the judgment debtor
for that week, or, the amount by which the disposable earnings of the
judgment debtor for that week exceed thirty times the federal minimum
hourly wage prescribed by the Fair Labor Standards Act of 1938 as in
effect at the time the earnings are payable, whichever is less;

Here is the page of the statute:
http://assembly.state.ny.us/leg/?cl=16&a=41

Section 5231 is what I posted here, Section 5205 gives your exemptions from judgment.

Yes, you can negotiate with the lawyers. Just be aware that they likely won't accept less than what they'd get from a wage garnishment.

 

[snodrop13]

ny - what is summary judgement? Am i given the chance to make payments to the creditor or rubin and rothman of my own will thereby avoiding wage garnishment or bank account levying. Am i notified before my bank account is frozen or my employer is contacted - are there options available to me to avoid these actions? If i am agreable to pay 10 percent of my gross weekly will they let me do it without involving my employer or contacting my bank. This particular account is in my name only but my checking account is a joint account is that a consideration? Also can the creditor go after my wife's wages for this action? We have no valuable property and do not own any real estate or vehicles with any equity but we would be willing to pay on the judgement(if it goes against us)until January when we file chapter 13. Would my lawyer for the bankruptcy be able to negotiate this for me? If he were to contact the creditor regarding my impending chapter 13 would that help?

 

[Ladynred]

what is summary judgement?

With a Motion for Summary Judgment, the lawyer is asking the judge to just grant him the judgment because nothing you've presented in your Answer changes the allegations in the Complaint so the judge should just award the judgment w/o a court date.

Am i given the chance to make payments to the creditor or rubin and rothman of my own will thereby avoiding wage garnishment or bank account levying

You can either contact the lawyer yourself before court and try to negoitate a payment arrangment, you can show up for the court date and negotiate then.

Am i notified before my bank account is frozen or my employer is contacted - are there options available to me to avoid these actions?

No, you will NOT be notified of these actions once a judgment is granted. If they told you they were going to raid your bank account would YOU leave the money there ??? No..and that's why they don't notify you. If they go for wage garnishment, you will be notified by your employer and you will have the chance to appeal it or quash it altogether.

This particular account is in my name only but my checking account is a joint account is that a consideration? Also can the creditor go after my wife's wages for this action?

They can attach the joint account. Any account with the debtor's name on it is vulnerable. They can NOT go after your wife's wages if her name isn't on the suit or the debt. NY is not a community property state.

Would my lawyer for the bankruptcy be able to negotiate this for me? If he were to contact the creditor regarding my impending chapter 13 would that help?

Can he ? Probably. Will he ?? If he does it'll cost you, but I'd be willing bet he won't want to. Since you have retained a lawyer, then having him contact the plaintiff's lawyer might help, but it likely won't stop the suit.

 

[snodrop13]

ny Is there any legal action i can take between now and january to protect myself from court summons and judgements? Can a chapter 13 be filed now and amended to include 2004's tax liability in january? This citibank debt is a debt that grew from just over 2400 (my credit limit) to 4900 over a period of 4 years despite the fact i made the minimum payment every month and did not use the card. Do people ever win when they fight the big companies? also my lawyer advised me to stop paying the unsecured credit payments which will leave many accounts 3 months past due when i file in January...My wife and i have 3 other citibank accts that we are pretty sure have gone the way of this 1st one that we received a summons for - although we have not yet received the initial collection letters from rubin and rothman on these accts.

 

[Ladynred]

Is there any legal action i can take between now and january to protect myself from court summons and judgements?

No. Bankruptcy is the only thing that can do that (that I know of).

Can a chapter 13 be filed now and amended to include 2004's tax liability in january?

Most definitely.

QUOTE]Do people ever win when they fight the big companies?[/quote]

Some do, yes, but its not easy unless you're beyond the legal SOL.

Do people ever win when they fight the big companies? also my lawyer advised me to stop paying the unsecured credit payments which will leave many accounts 3 months past due when i file in January.

That is standard advice, why throw money down a rat hole ??

 

[snodrop13]

NY- today i spoke to my lawyer who still feels that we are safe to proceed in january with chapter 13, although i never proposed moving it up to him on the phone. what would be entailed with moving the chapter 13 up now and then amending it in january? also regarding my summons he advised me to file an answer and told me i would have to file an affidavit - where do i get an affidavit? he also said that i would have to get a court number but when i went to the court house to get it - rubin and rothman had not yet filed a proof of service so there was no number. I was served on saturday, the lawyer said i should wait until friday to file an answer but to make sure the lawyer for the plaintiff was sent a copy...does that sound right?

 

[badapple40]

With a Motion for Summary Judgment, the lawyer is asking the judge to just grant him the judgment because nothing you've presented in your Answer changes the allegations in the Complaint so the judge should just award the judgment w/o a court date.



You can either contact the lawyer yourself before court and try to negoitate a payment arrangment, you can show up for the court date and negotiate then.



No, you will NOT be notified of these actions once a judgment is granted. If they told you they were going to raid your bank account would YOU leave the money there ??? No..and that's why they don't notify you. If they go for wage garnishment, you will be notified by your employer and you will have the chance to appeal it or quash it altogether.



They can attach the joint account. Any account with the debtor's name on it is vulnerable. They can NOT go after your wife's wages if her name isn't on the suit or the debt. NY is not a community property state.



Can he ? Probably. Will he ?? If he does it'll cost you, but I'd be willing bet he won't want to. Since you have retained a lawyer, then having him contact the plaintiff's lawyer might help, but it likely won't stop the suit.

Assuming Federal Court and the numerous states that have adopted rules based off the federal rules:

Summary judgment has nothing to do with the answer. Judgment on the pleadings does.

Judgment on the pleadings means the Defendant, or Plaintiff, has not adequately pled a defense/denial/claim then the opposing party moves for judgment. Its related to a 12(b)(6) motion in that the party did not state a claim upon which relief can be granted.

Contrast that with a motion for summary judgment, which deals with proof. A summary judgment motion if moved for by the party without the burden (typically the defendant, unless its a counterclaim), needs no proof, but then compels the party with the burden (typically the plaintiff, unless its a counterclaim) to come forward with credible evidence, by way of affidavit, deposition, admissions, or interrogatories (credible evidence under Civil Rule 56).

If the Plaintiff comes forward with evidence to support his or her claims, and has moved for summary judgment, the Defendant must then answer with credible evidence, bringing foward affidavits, depositions, admissions, or interrogatories of his or her own to refute that of the Plaintiff, and create what is known as "genuine issues of material fact."

 

[snodrop13]

NY - can someone advise me on where to get an affidavit so that i can answer my summons in court?

 

[badapple40]

Draft it up yourself. I don't see why you need an affidavit to answer a summons. An answer usually suffices. The summons is probably accompanied by a complaint (or should be). It probably has numbered paragraphs, e.g. 1. Defendant is a resident of X state; 2. Defendant was negligent, etc.

Just answer the complaint. If its something you know, e.g. it alleges you are a citizen of your state, admit the paragraph. If its something you think is false, deny the paragraph. If the paragraph contains items that are true and items that are not, you can do something like "Plaintiff admits paragraph 1 to the extent it alleges he is a citizen of New York, but denies the remaining allegations." If its something that you don't know or aren't sure of, state that you deny the paragraph for want of knowledge. Using my above example, you would, if you are a resident of X state, type up an answer that would state:

Form it like so:
IN THE COURT OF WHEREVER THE ACTION IS FILED

Joe Plaintiff, :
:
Plaintiff. : Case No: _______________
:
v. : Judge: _________________
:
You, : Defendant's Answer
:
Defendant :

1. Defendant admits the allegations in Paragraph 1 that he is a resident of X state.
2. Defendant denies the allegations in Paragraph 2 that he was negligent.

Include a paragraph at the end that says: "To the extent that any allegation made in Plaintiff's complaint has not been answered, it is denied."

sign it, and serve it on the counsel of the Plaintiff, and file it in court.

For whatever reason, the formating didn't push the :'s to the middle, but they should be all lined up in the middle of the document.

You may, if you want to, sware or affirm the answer before a notary, but I've never seen that done in an answer, only in a sworn complaint. Maybe other practicioners on here have.

You REALLY should get an attorney to handle this. There are often time sensitive deadlines involved in litigation that you are likely to miss if you are not licensed.

If this is already pending litigation and you are facing a motion for summary judgment, then you will need an affidavit. Again, you REALLY should get an attorney to handle this.

 

[snodrop13]

NY - the attorney who will be representing my bankruptcy chapter 13 due to be filed in january 2005(after we complete our 2004 taxes) advised me to answer the complaint by filing an affidavit in court by this friday (i was served this past saturday) he advised me to have it notarized, file it at the city court and to have it served on the plaintiff's lawyer - i am alittle unsure of this process - do i just send it by registered mail with signature requested - also is there such a thing as a blank affidavit legal form?

 

[Ladynred]

An affidavit of WHAT ??? An affidavit can be almost ANYTHING. I do believe the lawyer is referring to the Answer itself, for which we've already given you plenty of resources to work with.