Summary Judgement

[trinibird]

Location: Essex County, NJ.

Background: Husband's vehicle repossessed. Creditor sued for outstanding balance after sale of vehicle. Got a court date. When appeared in court told no hearing - plaintiff got a summary judgement issued but not granted by the courts against my husband. Immediately filed a motion to stop process and get new hearing. Got new hearing date. Day later got phone call from plaintiff's atty. Returned call thinking they wanted to settle outside of court. Instead told to answer questionnaire they're sending (which we have 14 days to answer) then they'll talk.

Questions: Is the summary judgement still valid? Do we have to fill out the questionnaire? Or can we wait for the hearing? If we fill out the questionnaire, will they be able to garnish his paycheck? If we do not answer this questionnaire, can another summary judgement be issued against him before the court date (2/3/01)? What legal steps do we have available to us?

I appreciate any advice you can give us.
Thank you.

 

[JETX]

Q1) Is the summary judgement still valid?
A1) Confusing information. In your message you say, "summary judgement issued but not granted by the courts". Do you mean that the Plaintiff filed a MOTION for a Summary Judgment and you stopped the MOTION? If so, then a Summary Judgment was not rendered.

Q2) Do we have to fill out the questionnaire? Or can we wait for the hearing?
A2) If the 'questionnaire' was sent to you as pre-trial discovery, then you need to answer it in accordance with your states rules (x days after receipt, etc.). If just sent to you informally, then you don't need to answer it.

Q3) If we fill out the questionnaire, will they be able to garnish his paycheck?
A3) No. A garnishment proceeding in this case cannot occur without a valid rendered judgment. However, if the Summary Judgment is still in place, then they would be able to use that as a garnishment vehicle. (Check to see if the Judgment is valid... call the court clerk).

Q4) If we do not answer this questionnaire, can another summary judgement be issued against him before the court date (2/3/01)?
A4) A summary judgment cannot be rendered without notice to you. If you challenge the MOTION for Summary Judgment, a hearing will be scheduled for the MOTION.

Q5) What legal steps do we have available to us?
A5) To do what??? Though a little confused, you seem to be handling this just fine.

 

[trinibird]

Thank you for answering so promptly.

Q/A2 How do we know the "questionaire" is pre-trial discovery? Will it be sent to us from the courts and/or the plaintiff's attorney? Will it say "pre-trial discovery"? When you say, "sent informally", what does that mean?

Q/A1,3 The phrase "summary judgement issued but not granted" was used by a county clerk in communication about our case. We will check with the courts if the summary judgement is still valid before proceeding with the "questionnaire".

One last question (or two), when all is said and done, do we have any openings to set-up a repayment schedule with the plaintiff that is fair to us? Or, because it has progressed this far, if they win, they will garnish?

 

[JETX]

If 'the questionaire' is pre-trial discovery, you should receive it from the opposing counsel. In most cases, it will be Certified and will clearly note that it is a Discovery document (either an Interrogatory, or Request for Admissions). It will be a formal looking document, since it is a part of the court record.

When all is said and done....
1) You can certainly negotiate a payment schedule with the creditor or his agent, but they are under NO obligation to accept it, or your offer of scheduled payments.
2) If they get (or have) a rendered judgment (and you will know when/if this happens), they can most certainly request a Garnishment order where allowed by law.