QUESTION
What is a motion for default on a credit card issue?
Asked on Oct 18th, 2011 on Bankruptcy - Minnesota
More details to this question:
My minor son accepted a service from a credit card company. The papers said I was to send a written response. I did nothing because they served a minor and not me directly. Received a letter in mail stating motion for default and default.
10 ANSWERS
In most, if not all, states, you have a certain time to respond to a lawsuit with an "Answer" filed with the court (typically 20, 23, or 30 days after service of the Complaint and Summons). If the time elapses, the Plaintiff can motion the court for a "default judgment" in their favor - basically getting a judgment against you without having to prove anything with evidence, testimony, etc.
Answered on Oct 20th, 2011 at 1:04 PM
Glen Edward Ashman
Your mistake probably cannot be fixed. When you get legal papers you have an emergency and need a lawyer. Service on a minor sometimes IS legal. But even if it was not, a defense not raised properly with the court is waived. So you ended up in default. That means you lose. Your options now: (1) pay the debt, (2) get a lawyer and see if you can bankrupt on the debt. [If you are very lucky, you might fall in some narrow time window to reopen a debt, which would be a third choice.] You now have an even worse emergency because seizure of your wages and bank account is next. Drop everything and see a lawyer TODAY. Not tomorrow. TODAY.
Answered on Oct 20th, 2011 at 12:53 PM
When you are served with a summons and complaint, you have 20 days to file an answer. Failure to do so will result in the plaintiff (the person suing you) filing for a default entry. Once that is received they file a motion for default judgment. By failing to answer you will be deemed to have admitted liability for whatever charges are brought against you. It is possible to have a default removed. The court should grant the motion to do so if it is filed in a reasonable time. You should consult a defense attorney to deal with this matter. One issue may be the service upon your minor child. If it is obvious your child is under 18, it would be worth raising insufficient service in your answer.
Answered on Oct 20th, 2011 at 12:09 PM
Chapter 7 Bankruptcy Attorney serving Huntington Beach, CA
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Law Offices of Robert Parkinson Taylor
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It's probably a "Notice of Entry of Default" and you will probably end up having a judgment against you if you don't file a motion to set it aside ASAP. You can't ignore service just because it is improper. You have to fight it at the outset by filing a Motion to Quash or, like now, you have to quickly move to set it aside for defective service. Practically speaking however, if you legitimately owe this creditor the money they're asking for, it's probably not worth challenging.
Answered on Oct 20th, 2011 at 12:22 AM
Chapter 7 Bankruptcy Attorney serving Lisle, IL
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Mankus & Marchan, Ltd.
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There is now a judgment against you for your debts to the credit card company. It's a default judgment because you failed to show up for the hearing. In Illinois, service of summons at your home to a person 14 years or older is presumed to be valid.
Answered on Oct 19th, 2011 at 6:36 PM
The service was invalid - it must be on a family member over 18. You can file a motion to vacate the judgment but you must show a valid defense. If you really owe the money they can just re-serve so I would try to settle it. Or file a bankruptcy if otherwise indicated.
Answered on Oct 19th, 2011 at 6:05 PM
Bankruptcy Chapter 11 Attorney serving Dacula, GA
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Chronister Law Firm, LLC
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Pursuant to Georgia law, a plaintiff must either personally serve a defendant or an immediate relative over the age of 18 residing in the defendant's household. If the plaintiff in your case served a minor child in your household, this is not good service and the lawsuit should not move forward until the plaintiff perfects service on you. If the plaintiff made a motion for a default judgment, you can respond in writing with the Court raising the service issue and opposing the plaintiff's motion. If the plaintiff already has a default judgment, you can file a motion to vacate the judgment based upon the lack of personal service.
Answered on Oct 19th, 2011 at 6:01 PM
A complaint and summons must be served by "leaving copies thereof at the individual's dwelling house or usual place of abode with some person over the age of eighteen (18) years then residing therein..." You are correct that that service was not properly made. However, that is not the end of the story. You need to oppose the motion for default, asserting that that service was not properly made. If you do nothing, the court will enter judgment against you. You may still be able to have that judgment set aside because of the service issue but doing so afterwards leaves you exposed to writs of execution and garnishment. This is a problem that will not go away by ignoring it.
Answered on Oct 19th, 2011 at 5:45 PM
judith runyon
This is not a bankruptcy question. Talk to a State law attorney.
Answered on Oct 19th, 2011 at 5:41 PM
Chapter 13 Bankruptcy Attorney serving Bloomington, MN
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Gregory J. Wald
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Service in Minnesota can be on anyone at your residence who is age 14 or older. An Answer is a formal reply that affirms or denies each allegation of the complaint. The format of an Answer is specified by the rules of court. If you don't serve an Answer within 20 days after service, the creditor can file a motion for default judgment. A judgment is a court determination as to what debt, if any, you owe. A money judgment can be used to garnish wages and seize bank accounts and any other property that is not exempt from attachment from creditors. If you deny that you owe the money, it might not be too late to serve an Answer and file a response opposing the motion for default judgment. It would be best to hire an attorney for this. In most cases, bankruptcy will eliminate your personal liability for credit card debt, even after a judgment is entered.
Answered on Oct 19th, 2011 at 5:13 PM