Legal Question in Credit and Debt Law in California

We have retained and paid a BK attorney towards filing bankruptcy. We are holding off technically on filing pending a loan modification on our homeper the advice of the attorney. In the meantime, we have received a summons from one of the creditors. What should we do as far as delaying this summons because we are still waiting for an answer from our mortgage company. What procedure should we follow in order to delay as long as possible?


Asked on 9/29/10, 2:49 pm

2 Answers from Attorneys

David Gibbs The Gibbs Law Firm, APC

From the zip code, I hope you are not one of my clients, as I would hope that you would contact me with this question first! Regardless, by filing a response to the lawsuit, you will avoid immediate entry of a judgment against you (and the enforcement which would follow shortly thereafter). Many collections lawsuits, if an answer is filed tend to just languish in the Courts - not really moving forward. There is no guarantee that this particular creditor won't immediately begin discovery, and other pre-trial maneuvering, however, your odds of further delaying the lawsuit are much better if you file an answer (or other response). Without reviewing the complaint, it is not possible to advise you as to what response to file (Motion to Quash, Demurrer, Answer, etc...), but your bankruptcy attorney should be able to provide you some advice on this matter.

*Due to the limitations of the LawGuru Forums, The Gibbs Law Firm, APC's (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided is general and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence. As required by 11 U.S.C. �528, we must now disclose that, "We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code. Assistance we provide with respect to Debt Relief may involve bankruptcy relief under the Bankruptcy Code."

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Answered on 10/04/10, 3:05 pm
Robert F. Cohen Law Office of Robert F. Cohen

Creditors' attorneys hear the refrain, "I'll be filing bankruptcy" every day, several times per day. So advising the plaintiff's attorney of your plans won't be helpful. In fact, it might spur the attorney to be more persistent. You should file an answer to the complaint and, if you're Mr. Gibbs' client, to seek his personal guidance. More often than not, attempted loan modifications are not successful because the applicant doesn't quite qualify. I recently heard from a realtor that of those persons who were able to get loan modification, many of them still can't meet their obligations a year or two down the road. I hope you won't fall into either of those categories. Good luck!

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Answered on 10/04/10, 3:21 pm


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