As mentioned in another blog post, after the creditor serves you with a lawsuit you have 30 days to provide a written response, also called an answer, which basically extends the amount of time you have until the creditor takes further action.
If you don’t respond to the lawsuit you will be served with a Default Judgment, which simply states that you owe money to a creditor. Even if you do respond to the complaint by filing an answer the creditor will usually be successful on a summary judgment motion. This means the judge will decide that you don’t have a defense to owing the debt and they will find in the creditor’s favor.
After a creditor obtains a judgment against you, their next move in the collection process will be to serve you with a Notice of Rights to Have Exemptions Designated. You will most likely receive this paperwork similar to how you received the lawsuit and judgment, by the local Sheriff’s office or certified mail. When you are served with the initial lawsuit, it is in your best interest to go ahead and contact a bankruptcy attorney before a judgment is issued against you. However, this doesn’t mean if you have been served with a judgment and Notice of Rights to Have Exemptions Designated that filing for bankruptcy is not an option. It is absolutely still an option; you just want to take action sooner rather than later so you do not risk losing your property.
When you are served with the Notice of Rights to Have Exemptions Designated you will have a chance to list out all of your property and utilize specific exemptions in regards to what you can and cannot protect. However, the problem with doing so is that if you fail to list something or list it incorrectly protected, you run the risk of your property being taken from you. You also have a timeframe to complete the right to have exemptions designated document and get it filed with the court, which is 20 days.
Far too often, clients tell us “I have nothing for them to take,” but this is usually not the case. Many items are often subject to being seized such as land, house(s), car(s), bank accounts, etc. A creditor will take whatever they can get and are doing so to try an repay the amount you owe them. From our experience, many creditors feel by taking whatever they can from you, it not only gets your attention but will push the Debtor into wanting to make payments. What they are not considering is the emotional impact it can have on you and your family. If you are served with a Notice of Rights to Have Exemptions Designated and want to find out your options for protecting your property, you should contact a bankruptcy attorney immediately. This is because after the Notice of Rights to Have Exemptions Designated has been served and you’ve been given the 20 days to file a response, a Writ of Execution will be placed against you. This basically means that the Sheriff will come pick up, on behalf of the creditor, any goods that were not listed or protected. This is where the exemption documentation that you completed by listing out your property is so important. If the property is not listed correctly or not listed at all, you stand the high risk of the property being taken from you right then and there.
By filing bankruptcy an automatic stay goes into place, which stops the creditor (or Sheriff) from coming to seize any of your property.