CC case need help with motion for summary judgment.

[WhyNotGiveItATry]

Hi All,

I'm new to this, so I apologize in advance if I don't use the proper legal language. I am self employed and flip houses for a living. The market has become extremely tuff in this economy and my income has dwindled to negative.

Here is a summary of the credit card complaint I'm involved with:

-In March 2010 I filed a petition for Chapter 7 BK (to essentially stop a foreclosure to allow a short sale on the property to close-last property of 6 that I successfully short sold)

-The case was dismissed shortly there after as I didn't attend the credit counseling and wasn't quite ready for BK

-The credit card company closed the account and sent it to their collections department in the same month. I had never missed a payment and intended on keeping the card as I had been using it for 10+ years.

-The collections department asked for payment in full. I told them I wasn't in a position for that and their offer was to settle for less than full balance (about 60%) which I couldn't afford either. They also offered a payment plan, but at this point my strategy was to settle with them at a 25-30% figure or some sort of small discount from principal with a payment plan.

-This department was rather rude and extremely difficult to deal with. They threatened and used every scare tactic to try and get me to settle.

-After about 2 months and not going down any lower on settlement they sent it to a local firm.

-They filed a complaint in June. They then proceeded to try and serve me and served my folks at their home instead. I know I could have probably got this service thrown out since it was improper, but at this point its water under the bridge.

-I answered the complaint within the time frame.

-The complaint was basic stating that:

1. They are a bank and I am who I say I am.

2. I was acting as an agent for marital community (although I am single)

3. When I received the credit card and I agreed to re-pay any charges made to the credit card according to the agreement.

4. I became bound to the terms of the agreement upon use.

5. I defaulted in payment. They stated the principal amount which was the same as the last statement and the interest rate which was the same as the last statement as well.

6. They are entitled to attorneys fees in event of default.

-I answered the complaint admitting allegation in 1,2,3 and stated I didn’t have sufficient information to deny or affirm 4,5,6. My affirmative defenses were basic. SOL, no proof of contract, no demand has been made, the amount owed is overstated. I demanded proof of amount owed.

-My assumption as I’m not very verse in this situation was it would go to arbitration and I would be able to plead my case. Within a few days they filed a motion for summary judgment basically stating there were no genuine issues as to any material fact in controversy. They included a copy of last statement, the cc agreement, and an affidavit from an employee at the bank stating I was the credit card holder.

-A few days after the motion was only mailed to me (not served), I received a notice of arbitrator being assigned to the case.

-A few days after the arbitrator was assigned, the plaintiff filed a motion to strike the arbitrator.

-I am currently in a place where I am on the verge of bankruptcy. I haven’t produced a profit in quite some time and am trying to figure out options with this case to avoid judgment. I don’t really have assets for them to go after, but I also don’t want a judgment on my record as it will make it extremely difficult if not impossible to continue doing any business transactions. I do have a car that’s in an LLC name (I am a co-signor) and some homes in LLCs, but personally nothing really of value.

If you would be so kind to help with any of the following questions, I would be extremely grateful!

1. The timeline for response on the motion is 30 days from the time they filed with the court. Is this correct?

2. Does the motion get seen by a judge since it’s in arbitration or will the case need to go to arbitration first?

3. Shall I attempt to answer the motion or only try some sort of negotiation before the due date?

4. Since I didn’t violate the terms of the agreement, in terms of default payments, is this a good argument to defend with?

5. I would be willing and have secured some capital to settle at ~30% of principal. Would it be more beneficial to have an attorney negotiate this or myself in your opinion?

6. When the case originated they offered a “pocket” judgment with a payment plan. Is this something I should consider in negotiating if I can’t afford a settlement for the amount they’re demanding?

7. If they obtain a judgment in the case that I do answer and lose, can they immediately go after any assets in my LLC’s names?

I think this is about it for now. Sorry again if this isn’t great legal verbiage. I am on a time crunch as the 30 days is up in about 10 days.

Thanks!!!

[ruttie]

just so you are aware the filing fee to answer a summons/complaint is $223. plus you need to make 3 copies of everything, before you go to the courthouse. they will charge you 50 cents a copy at the window or you can get out of line & use the copier at 10 cents a copy.