real advise

[ruttie]

do you feel you can get an accurate answer on fighting debt collectors from a bankurptcy attorney? I have all my answers to admissions.non-interrogatories, proof of documents to send in & I made an appt. to have a attorney just look over the stuff. They said that ,while the information that I prepared was very good, as done by pro-per, the bottom line is that they will have an arbitrator that will point blank ask me if this is my cc debt? It really bummed me out, but I have to shake it off, because I have gone to alot of work with the answering & I have to send it in. I have alot of defense on they state in 2 documents 2 differnt balance amts. along with the affidavit stating a different last post date of the CC., & I think the BK attorney, just wants me to file BK. & not waste my time fighting this. Any feedback on this theory?

[skippy1960]

I think the BK attorney, just wants me to file BK. & not waste my time fighting this. Any feedback on this theory?

I think you have made the correct assesment in your last sentance. This guy isn't interested in you fighting, winning or losing he is interested in you filing BK, so he collects a fee.

BK is always a consideration but for me it is a final consideration. Final meaning I have done all I can and taken a judgement that I simply can't handle financially or will put my living situation in jeapordy.

As far as state run arbitrator you need to understand how much power this person has in your jurisdiction. Is this arbitration binding or just their to insitute settlement discussions and clear calendar. The good news is you have a bit more knowledge of a possible question you could be asked and can now prepare and formulate a response that is thoughtful.

The decision to continue the fight is always with you in the end.

[skippy1960]

Here is what I found on your process-

Arizona Statutes (ARS § 12-133) and Arizona Rules of Civil Procedure (ARCP 72-77) provide that in civil cases where the amount in controversy (excluding attorney's fees, interest, and costs) does not exceed a certain amount, the case must be referred to Compulsory Arbitration. In Pima County the jurisdictional limit is $50,000.00.

At the time a complaint is filed, the Plaintiff must file a separate statement with the Court indicating whether the case is subject to arbitration. The case is referred to arbitration when the Defendant files an answer to the Complaint. The parties can also agree to submit the case to arbitration. If there is a dispute whether the case should go to arbitration or not, the Court decides after hearing each side's arguments.

The law provides for arbitration as a method of getting smaller disputes resolved more quickly and, it is less costly than going to trial. However, a person's right to a trial by jury is preserved, since any party who is not satisfied with the result of the arbitration can appeal the case. On appeal, the case returns to the trial judge, and it proceeds to trial, either before a jury or the judge.

The arbitration process is as follows:

The Court selects an arbitrator from a list of local attorneys to hear the case.

Either side may strike the assigned arbitrator and another one will be selected.

The arbitration hearing should be set between 60 and 120 days from the selection of the arbitrator.

The arbitrator will conduct the hearing where each side will present their case.

The arbitrator will render a decision and make an award within 10 days of the arbitration hearing.

Any party who is not satisfied with the arbitration award may file a Notice of Appeal within 20 days of the final arbitration award.

If a Notice of Appeal is filed, the case returns to the judge who will set the matter on his or her calendar for a new trial.

If the party appealing the arbitration award does not obtain a result that is 23percent better than the arbitration award, that party is subject to sanctions. The sanctions can include attorney's fees, taxable costs and reasonable expert witness fees.

So this is fairly similar to being in court as far as the hearing is concerned, you should be prepared to argue your case just as if in front of the judge. What ever your defenses are you should present them.

In the end you can appeal if you loose with-in 20 days and maybe you get another shot. In the end one part of my strategy is BK, but not before I have made them spend as much money as possible. If your end game is BK and you are certain a judgement of this nature can be eliminated in BK, what do you care if the judgement and additional attroney fees are greater???

[ruttie]

Skippy,

thank you so very much for the information. The Bk attorney said that if I loose in arbitration that the plaintiff could possibly put a judgement against me for personal assets? I don't know what they could sanction against? I do have a PIF vehicle & my hubby a motorcycle, can they somehow take this? We will be loosing the house to foreclosure sometime next year. AZ. has been hit so hard , even worse than last year, the values are in arrears about 50%. So the trustee sale will take the house, I have exempt assets, which I will probably be selling after we lose the house, but can they put a lein against our vehicles. I just don't feel the need or desire at this time to file BK 7. The Bk attorney, kinda put the fear of god into me last week, but I have had to look at it, in their eyes, that they want to make the money from me filing bk. So, I got my confidence back & am going to proceed as planned. I will let the chips fall as they may & do whatever I have to ga forward.

Is there a situation where a judgement may not be discharged in BK 7? I was under the assumption that all judgements would be included, but I am not 100% sure.

Edited November 26, 2010 by ruttie

[skippy1960]

Bankruptcy is in Federal Court and I am fairly certain that judgement on unsecured debts is dischargeble. My limited knowledge is things dealing with income taxes, student loans and a few others aren't dischargable.

But hey the BK attorney wants you to file so give him a call and ask. Give him the kinda leaning your direction but need an absoulute answer about the judgment if you loose case in arbitration.

Lastly since you are going to be in foreclosure if you can hold off filing BK till you are in foreclosuer I have been told if can stall the foreclosuer process for another 6 to 8 weeks. Spoke with an attorney aquaintance regarding strategic walkaway, and he said file BK 5 to 10 days prior to sale and the sale will have to be rescheduled. Now I am in California so maybe different in AZ.