Service of Summons and Complaint

People often come into my office asking about bankruptcy because they have been sued. It is stressful and emotional to have a process server show up at your door and hand you papers letting you know you have been sued. You start to imagine the worst and expect the creditor to take everything you have.

You need to see an attorney right away so they can evaluate the lawsuit. In California you have 30 days to respond. If you do not file an answer within those 30 days the creditor will ask for and receive a default judgment. That means the creditor does not need to prove you owe the money they are asking for. They will have a judgment that is valid for 7 years and can be renewed every 7 years after that.

Often I see people who have ignored the summons and the 30-day warning. It is human to freeze under stress and think there is nothing you can do. You may think you owe the money due to a deficiency after foreclosure on a house, or a credit card bill that ran up, or medical bills that you were unable to pay. However, there are often mistakes made by creditors with accounting and recording keeping so don’t feel bad making them prove up the claims.

It is also confusing because there are other dates on the papers attached to the summons that refer to status conferences and the like. You may end up with a default judgment that occurs before the status conference date. When that happens none of those later dates matter. The default judgment ends the active case and the creditor will proceed to attempt to collect the judgment.

Bankruptcy will not only stop the pending law suit, but if judgment has already been entered against you it will stop collection efforts on that judgment. When you file for bankruptcy the bankruptcy court will immediately enter an order for an Automatic Stay. This stay order stops any collection efforts from proceeding against you, including any pending lawsuits and collection of judgments.

The Superior Court and the creditors are notified by your bankruptcy attorney that you have filed for the protection of the Bankruptcy Court and no action should be taken against you once they have received the notice. Filing bankruptcy provides immediate relief because the lawsuit will not proceed, you will not incur court costs or attorney’s fees to defend that lawsuit, and your creditors will not be able to collect on judgment and go after any of your assets or income.

If judgment has already been entered the creditor can garnish wages and bank accounts, and take non-exempt property. Filing bankruptcy will stop any type of garnishment or execution on your property. At the completion of the bankruptcy, entry of the bankruptcy discharge and final decree will void the judgment that was entered against you and eliminate the underlying debt.

If you have been sued or are expecting to be, call a bankruptcy attorney in your area immediately. You can get help and relief from the situation through the protection of the Bankruptcy Courts.