Summons Regarding Repo'ed Car

[Ail]

I received a summons from civil court, The City Of New York saying the following. 'A SUMMONS AND COMPLAINT HAS BEEN FILED ON A CONSUMER CREDIT TRANSACTION ASKING THE COURT TO RENDER A JUDGEMENT AGAINST YOU. YOU MAY WISH TO CONTACT AN ATTORNEY.YOU MUST ANSWER TO THE LOCATION AND WITHIN THE TIME SPECIFIED ON THE SUMMONS. IF YOU DO NOT APPEAR IN COURT THE COURT MAY GRANT A JUDGEMENT AGAINST YOU. IF A JUDGMENT IS GRANTED AGAINST YOU YOUR PROPERTY CAN BE TAKEN. PART OF YOUR PAY CAN BE TAKEN FROM YOU(GARNISHEED). I have never been in this situation before and I am not sure what questions to ask.  What I DO KNOW is that I do not want any wage garnishments.  The car was repossessed in 10/08 and shortly thereafter my home was foreclosed upon.  What the defense(s) can I use to prevent judgment against me on a acct that has been charged off?  I am in the process of looking for another place to live and I am already in housing court to get more time to move.  Can I use the recent forclosure action to justify and prove my financial crisis?  Also how do I answer this summons?  I have the form, I just need to write the write defense(s).

Thanks

[Absolon]

Hi Patrice:

It's virtually impossible for me to give you a defense without reviewing documents and knowing exactly what happened and the circumstances.  This is not the best forum for that type of exchange anyway.  If you want to fight it you really need legal advice from someone who can review documents and speak to you personally.

However, let me give you some general facts and options.

You can ask the court for a delay.  You must have a decent reason such as medical, extreme personal, or special work issues.  This may buy you some time.

It sounds like you don't have to "ask questions" they are looking for your answer to the complaint.  So, what is your defense?  I mean is it a legitimate debt?  Is the amount correct?  was the repo legal?  Have you paid it?  Is it YOUR debt?  I mean, if the debt is yours and correct, I don't know how you want to respond.

If you don't comply or go to the court proceeding, you will like get a default judgement against you.  A judgement is also accomplished if go to the court hearing and lose the case.  A judgement then gives the creditor the right to collect on the judgement.  This is where wage garnishing, liens on property, attacking bank accounts, and even having the sheriff take personal property for sale at auction to pay the judgement comes into play.  There are complicated exemptions on what the creditor can do.  These vary wildly by state and are numerous and complicated.  But as an example, social security or disability income cannot be garnished.  There are all kinds of exemptions that allow you to protect some of your assets but it is likely that if they get a judgement, your life would be adversely affected and they can collect SOMETHING - wages, cash, or property - that you would not like.

You can try and settle the account before the court date.  At this point, it is not likely because they have already expended money to prepare and file the case.  They are likely going to want that money back and a decent down payment up front in order for them to cancel the hammer of getting a judgement.  However, if you think you can settle for monthly payments, it is better than getting the judgement.  Remember, any communication you have with them can be used against you to get the judgement.  So it is best to nevre admit the debt and just say you are trying to settle to avoid the hassle and risk of a court proceeding.

The only thing that will GUARANTEE no judgement is filing and qualifying for a bankruptcy.  This is a serious decision.  It ruins your credit for ten years.  But a repo shortfall is an unsecured debt and can be eliminated through a chapter 7 bankruptcy.  You need to contact a competant bankruptcy attorney in your jurisdiction and explore options if you are thinking of filing.

There is one final point I would like to make on your point of coming up with a defense.  You can aggressively fight this, but it is tough and needs a real persistant legal argument.  Basically, you try and prove the repo was completed illegally.  There are certain things the creditor needs to do in a repo, including proper notifications to you and selling the car in a "commercially reasonable manner."  Additionally, if they are not reporting properly to the credit bureaus they are in violation of the FCRA or FDCPA.  This violation can be used as a defense to offset or settle the account out of court.  Again, it really detailed and I don't even know if you have a case.  This is a really tough proposition but I thought I would at least throw it out for you.  An attorney would likely be needed.

Good luck, I'm sorry I can't give you a real specific answer but it's just not possible in this type of forum given the information available.

Regan