Author Topic: creditor lawsuit now going to pretrial conference  (Read 331 times)

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poorlydia

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creditor lawsuit now going to pretrial conference
« on: June 12, 2017 09:15:50 PM »

I was served with a summons and complaint in Wisconsin from the original creditor.   My bankruptcy lawyer was unable to help me so I was on my own to handle this.  I will be filing for bankruptcy but my bankruptcy lawyer said it would be better for me to wait four or five months to file so I would qualify for chapter 7ómy income is lower and I will qualify then.

I answered the summons by contesting it and that I did not agree on the amount listed (Iím not sure if itís right or wrongóI stopped receiving statements and am unable to see them online).  I also said in my answer that I elect to have this matter handled in arbitration per my credit card agreement.  I saw on the court site now that they scheduled a pretrial conference at the courthouse in July.

I had a free consultation with a lawyer that is more familiar with creditor lawsuits and he said to send a letter to the creditor and tell them that we retained a lawyer to file for bankruptcy (and give the lawyerís information) and the creditor may drop the lawsuit.  He said if we didnít hear anything back in a week or two, to go to the courthouse and give a letter to the judge asking that the case be moved to arbitration but he may not allow it since I have no real defense but I have a right to arbitration according to my credit card agreement.   He wasnít aware of any formal paperwork to file with the courthouse and said to use a letter.  He said then to start the arbitration process through Jams. 

Iím not sure if this is the right thing to do or not.   I see posts on this website talking about filing a motion to compel arbitrationóis a letter to the judge really going to help with this and delay the pretrial conference while we try to go to arbitration? 

CleaningUp

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Re: creditor lawsuit now going to pretrial conference
« Reply #1 on: June 12, 2017 09:24:56 PM »
The way to handle notifying the court about your BK plans is to file a motion for continuance on the pendency of bankruptcy.

Courts are not going to waste their time on hearing cases that BK is going shortly to wipe out.
« Last Edit: June 12, 2017 09:29:47 PM by CleaningUp »

poorlydia

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Re: creditor lawsuit now going to pretrial conference
« Reply #2 on: June 12, 2017 09:40:03 PM »
Thank you for the reply.  This is something I can do now even though the bankruptcy wonít be happening for four or five months?

Bruno the JDB Killer

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Re: creditor lawsuit now going to pretrial conference
« Reply #3 on: June 12, 2017 09:57:11 PM »
My bankruptcy lawyer was unable to help me so I was on my own to handle this.


There you go. Tell him he isn't getting paid until he fixes this and see his attitude change.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

CleaningUp

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Re: creditor lawsuit now going to pretrial conference
« Reply #4 on: June 12, 2017 11:43:38 PM »
The BK lawyer is not obligated to come to her defense on any matter that comes up BEFORE the bankruptcy is filed.

OP can always file for a Chapter 13 and convert it down the road.


...This is something I can do now even though the bankruptcy wonít be happening for four or five months?



Yes.  By the time the court revisits this, if they ever do, the BK will be filed.



poorlydia

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Re: creditor lawsuit now going to pretrial conference
« Reply #5 on: June 13, 2017 02:07:43 PM »
Thanks.  I was thinking my only option for delaying this lawsuit until I can file for bankruptcy would be to try for arbitration but Iíll look into the continuance on the pendency of bankruptcy that you mentioned.

Thanks again!

poorlydia

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Re: creditor lawsuit now going to pretrial conference
« Reply #6 on: June 19, 2017 03:37:35 PM »
A little more info and another question:

I called the creditor lawyer who I had a free consultation with to ask him if I should try for the continuance pending bankruptcy to buy me more time and he said I should try for arbitration.  But he also said he isnít real familiar with the continuance for bankruptcy and how much time that would really buy. 

He also said he knows this judge and that he does what he wants and may not allow for the arbitration and that he wants his cases to move fast.  Gee, if itís in the credit card agreement that Iím allowed arbitration can a judge do this? 

CleaningUp

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Re: creditor lawsuit now going to pretrial conference
« Reply #7 on: June 19, 2017 04:25:29 PM »
You seem to have this belief that judges go by the law.  Don't get upset, this isn't personal...It's far more common than you can imagine.  Once they get on the bench they think that they ARE the law and aren't required to follow what the statutes, the higher courts, and the contracts say.  Around here, we call them the Mayberry judges.

Your only recourse would be to accept the Mayberry judge's decision and appeal to a higher court, although I don't think the rejection of a continuance is a an appealable matter.

If you are in a small claims court, you frequently have the ability to appeal to the next highest court for a trial de novo if your are hit with a judgement.  The higher the court, the more likely that the judge will actually follow the laws.


Bruno the JDB Killer

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Re: creditor lawsuit now going to pretrial conference
« Reply #8 on: June 19, 2017 05:20:47 PM »
Can and should are two different things. He can do it, but he'd be wrong and subject to an interlocutory appeal, something no judge expects a pro se to know about much less use. Read up and surprise him.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

poorlydia

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Re: creditor lawsuit now going to pretrial conference
« Reply #9 on: June 19, 2017 06:53:29 PM »
Thank you both for this information and I will look into an interlocutory appeal.  This is a small claims court. 

The creditor lawyer I spoke to said again to give a letter to the judge requesting the private arbitration and try to do that this week and send a copy to the creditor who is suing me.    The creditor lawyer thinks I will still need to go to the pretrial conference but itís important I get the letter requesting private arbitration to the judge beforehand.   I called the courthouse to verify this and they also said to bring a letter for the judge and it usually is decided on fast.  I thought there would be more paperwork involved or something more formal.   

If he does deny arbitration and I get this answer before the pretrial date, is this when I should appeal his decision or will I have to go through the pretrial conference before I can do that? 

CleaningUp

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Re: creditor lawsuit now going to pretrial conference
« Reply #10 on: June 19, 2017 07:19:05 PM »
Of course you have to go to the pretrial conference if you are doing the case pro se.

Why would you think that you could skip it?

Look up what pre-trial conferences are supposed to accomplish.

poorlydia

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Re: creditor lawsuit now going to pretrial conference
« Reply #11 on: June 19, 2017 09:05:08 PM »
I take it Iím thinking about this all wrong.  I was thinking if the judge allows this to be moved to arbitration that everything at the courthouse would be put on hold pending arbitration results.   I take it thatís not the case and I need to go to the pretrial conference no matter what?   And at this conference is when I try to push for arbitration since I donít want to settle or am i still confused on this? 

CleaningUp

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Re: creditor lawsuit now going to pretrial conference
« Reply #12 on: June 19, 2017 10:58:23 PM »
Unless the Court has accepted your motion and either continued the case pending arbitration or dismissed it, the Court still has jurisdiction. 

If you don't show up, how can you assure that your motion to compel arbitration is heard?

As for how you handle matters in the pre-trial conference?  It depends on what the court wants to hear.  But I would be making darn sure that my MTC is one of the subjects discussed at the hearing.

Remember, once the MTC is granted, the Court no longer has jurisdiction over the case.  Your job is to make sure that at this hearing or another hearing that the Court is aware that their jurisdiction is being challenged.


Bruno the JDB Killer

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Re: creditor lawsuit now going to pretrial conference
« Reply #13 on: June 20, 2017 01:20:57 PM »
Your rules of court should tell you all about the appeals process. Some small claims courts (like Connecticut) do not have an appeal option. "Most" offer a "de novo" (all new) appeal to the next higher court, where you get a real judge. You can then file an MTC and your chances of getting it granted are much better.

Be advised, OCs will sometimes throw good money after bad and will arbitrate, in which case you need a viable defense.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

poorlydia

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Re: creditor lawsuit now going to pretrial conference
« Reply #14 on: June 20, 2017 02:26:06 PM »
Thanks for all the replies.  Thatís the biggest problem and that I really donít have a defense.  Iím not sure if the amount they show is correct but theyíll be able to show fairly quickly how they came to this total.  I notified them when I had to stop making payments that I was having financial difficulties and then I did send that letter recently saying I will need to file for bankruptcy but didnít say that I needed to wait longer to file.  I havenít heard anything from them and Iím sure this will come up at the pretrial conference. 

Iím in Wisconsin.   I hope this will work out to delay this longer and closer to when I can file for bankruptcy.   If I understand this correctly, Iíll  do the following:

Go to the courthouse this week to give a letter for the judge requesting that my case be moved to private arbitration per my credit card agreement and send a copy of this letter to the creditor.

If I donít hear anything about a change to the pretrial conference, plan to go to that and first thing is to bring up the arbitration agreement.

If I get turned down and things proceed, can a judgement be issued at the pretrial conference or will a trial usually be set before a judgement is issued?

I did find the information about appealing and it says if a court commissioner made the decision in your case you have 10 days to appeal to request a trial in front of a judge.  If a judge made the decision you need to appeal to the Wisconsin Court of Appeals and itís a complicated process.   I think this is a judge assigned to our case but I don't know if he will be at the pretrial conference?