When differences arise between two involved parties and they are unable to reach a conclusion, those involved may decide to work things out in the Court by filing a lawsuit. In a situation where money is the subject being disputed, the ultimate goal of a lawsuit would be for the court to order the defendant to pay the plaintiff the money owed to him/her. For example, if you have borrowed money from a creditor and have failed to pay them back as planned, the creditor may choose to file a lawsuit to grant them a wage garnishment or bank levy.
WHAT HAPPENS IN A LAWSUIT?
To begin a lawsuit, you must file a summons and complaint. A summons is received by the defendant notifying them that the opposing party is suing them. The complaint is the initial pleading which begins the case. It is filed by the plaintiff and lists all claims against the defendant. The complaint also lists what the plaintiff is hoping to gain from filing.
Once the defendant has received the summons and complaint, the lawsuit has been initiated and he/she must provide the Court with an answer within 30 days. The answer is the defendant’s opportunity to address the claims against them. The defendant may choose to defend his/her actions and explain to the Court the plaintiff’s accusations may be false. In addition, the defendant may file counterclaims against the plaintiff.
If the defendant fails to provide an answer within the 30-day limit, the Court may issue a default judgment against them. A default judgment is granted as a result of a party failing to provide the Court with an answer. In this case, the default judgment would favor the plaintiff.
If the defendant is successful in providing the Court with an answer on time, the discovery process begins. Discovery serves as the evidence in a lawsuit. Both parties will gather any information that may serve as evidence to the Court and use it in favor of their argument. All written discovery must be submitted within 30 days. Discovery includes questioning witnesses to confirm the facts you are presenting are true. The opposing party has the opportunity to question these witnesses as a technique to demonstrate any discrepancies.
During discovery, both parties may file pre-trial motions. Pre-trial motions may include a motion to dismiss the case, suppress certain evidence from being used, request a summary judgment, or request a change in venue. Once the discovery period has closed and any desired pre-trial motions have been filed, the trial may begin.
During a trial, both parties will have the opportunity to present their evidence, including any documents or witnesses they feel may help convince the Court in their favor. After each party has presented their evidence and issued their closing arguments, the court will evaluate all information to reach a verdict.
If the trial results in favor of the plaintiff, the Court will issue an order stating the defendant owes the plaintiff the established amount of money and is required to pay the amount. The defendant is not required to pay the plaintiff immediately or all at once, but instead may be asked to submit payments through wage garnishments, bank levies, and/or liens placed on assets.
ALTERNATIVES TO A TRIAL
When dealing with lawsuits, a trial is not the only way for both parties to reach an agreement. Other options include:
Reach a SettlementIf both parties are hoping to avoid a trial, they may choose to hold a settlement conference in hopes of reaching an agreement beforehand. Many cases often settle before a trial, allowing for a quicker and cheaper alternative. Both parties will have the opportunity to meet with a judge. The Judge will present offers and counteroffers to both the defendant and plaintiff. If the two parties can reach an agreement, the case will be dismissed. However, if the parties are unable to settle, the case will then continue to a trial.
Go through MediationSimilar to a settlement, mediation uses a neutral third party to speak with both parties separate and assist in reaching an agreement. However, instead of a judge, mediation uses a mediator who aids when needed. If successful, the two parties may settle and will not need to continue with a trial.
Attempt ArbitrationArbitration combines methods used in both a mediation and a trial. Like mediation, arbitration uses a neutral third party to help resolve the issue. To reach a conclusion, the arbitrator will hold an informal trial. Both parties will issue opening statements and present any relevant evidence. Once the arbitrator has issued his/her decision, the decision is either binding or non-binding. If the arbitration is binding, then the arbitrator’s decision is final and must be followed by both parties. If the arbitration is non-binding, the arbitrator’s decision is voluntary and can only be finalized if both parties choose to accept it.
File a BankruptcyFor those who have outstanding balances with creditors, filing for bankruptcy can serve as alternative to a trial. When creditors are unsuccessful with their usual collection methods, they may choose to file a lawsuit and ask that the Court grant permission to pursue further actions. This may include repossessions or a home foreclosure. As a debtor, filing for bankruptcy can prevent this lawsuit from being filed. When a bankruptcy petition is filed, the Automatic Stay is enacted and prevents the civil court from continuing any ongoing or new lawsuits.
If you have fallen behind on payments to your creditors, they may choose to file a lawsuit with the Court to grant them permission to take further actions. If you do not file for bankruptcy, the Automatic Stay cannot protect you and the lawsuit will be filed. A creditor lawsuit may result in the following:
Wage GarnishmentIf creditors have been granted a garnishment order, creditors may order for your employer to withhold a portion of your paycheck to pay off any outstanding debts. Federal law limits each wage garnishment to no more than 25% of your disposable income.
Bank LeviesSimilar to a wage garnishment, a bank levy can be placed on your bank account after the Court has made the creditor a judgment creditor. A bank levy allows creditors to transfer money from your bank accounts to pay for outstanding debts. It also freezes your accounts and prevents you from withdrawing funds.
Home ForeclosuresIf you have fallen behind on home mortgage payments, your lending company may turn to the Court to pursue foreclosure. The property will be auctioned, and the highest bidder will receive the property. The money made from the auction will be used to pay off the remaining balance of the loan. In California, the stated adheres to a Non-Judicial Foreclosure process which allows lenders to foreclose without filing a lawsuit in Court.
WHAT DOES A BANKRUPTCY DO?
Filing for bankruptcy relief ultimately can rid you of the stress of dealing with the lawsuit. Lawsuits, as you hopefully can see by now, can be extremely costly and stressful. By filing for bankruptcy, we can stop the lawsuit immediately and allow you to get your financial life back.
How Does A Chapter 7 Bankruptcy Help?
The Chapter 7 Bankruptcy process is a court administered liquidation wherein the goal is to eliminate your dischargeable debt. The Court, and more specifically the Trustee assigned to your case, is obligated to determine whether you have enough assets that are unprotected in your Chapter 7 that they can liquidate them and make money for your creditors. At the same time, you are allotted protection on your assets up to a certain monetary limit. Most situations result in all of the assets being protected and the trustee unable to liquidate anything. If, however, there are unprotected assets to liquidate, the trustee’s job is to do exactly that----sell them and pay the money to your creditors. Ultimately, the goal is to receive a discharge. In most situations, we can accomplish this within approximately 3-4 months. The Discharge acts as a permanent injunction on the creditor from attempting to collect on the debt again. Thus, if you are being sued and you end up filing for Chapter 7 bankruptcy and receiving a discharge, you no longer have any personal obligation to that creditor and essentially, the lawsuit is over.
How Does A Chapter 13 Bankruptcy Help?
The Chapter 13 Bankruptcy process is quite different than a Chapter 7 but still provides exceptional relief when dealing with a lawsuit. Chapter 13 is a process where a person reorganizes his/her debts and commits to a 3-5 year repayment plan. In that plan, they are obligated to pay certain debts back in full---certain debts might only get paid a portion of what is owed---and some might not get paid at all. At the end of the Chapter 13 case, the person who filed receives a discharge, just as they would have in a Chapter 7. Again, this Discharge eliminates certain obligations so you no longer have any legal requirement to pay on them again. By doing this, you would avoid having your income garnished, your bank levied, or liens placed on your assets. Whether your best option is to file Chapter 7 or Chapter 13 is something we will need to discuss, but these options should be considered if you are looking for relief on a pending or soon-to-be pending lawsuit.
HOW CAN WE HELP?
Being served with a summons and complaint can catch you off guard and be a stressful process. If you are served, contact us immediately to speak directly with an attorney regarding your situation. We will work with you to determine whether or not you will need to go to trial or continue with another method.
We help clients in the following areas: Modesto, Stockton, Turlock, Ceres, Empire, Escalon, Hughson, Lathrop, Linden, Manteca, Oakdale, Patterson, Ripon, Riverbank, Salida, Tracy, Waterford.