How To Get A Continuance At A Warrant In Debt Hearing
In many cases, clients of Merna Law need more time to prepare to file their bankruptcy case but are faced with lawsuits. Here is a solution for gaining and additional 30 to 60 days to get your case filed.
What happens if you don’t get a continuance?
Generally, on the Warrant In Debt hearing date, if you do not attend, a default judgment is entered in favor of the Plaintiff/Creditor. There is a 10-day appeal period after the judgment is entered. During that 10 days, the creditor is not able to execute on the judgment. After the 10 day period the creditor can begin collection efforts or execute on the judgment.
How does a creditor execute on a judgment?
The judgment in favor of the creditor gives the “judgment creditor” the ability to use the court’s/state’s power to do one of several things:
1. Garnish wages (25%)
2. Garnish bank accounts (all funds attached up to the amount of the judgment).
3. Lien property (real estate, personal property)
4. Attach and liquidate personal property such as a car or furniture (writ of Feri Facias).
How long does it take the judgment creditor to execute on your property?
Generally, the fastest a judgment creditor can attach wages, bank accounts, or any other property after the appeal period has passed is about 21 days. This is just based on the administrative time to submit to the court for a garnishment or lien, service of the garnishment or lien by the court, and implementation of the garnishment or lien by your employer or the Sheriff.
If the judgment creditor does not know where you bank, work, or live, it will take more time.
How do you get the continuance?
Requirements:
1. You must personally attend the Warrant In Debt hearing on the date indicated on the warrant. You cannot send a relative or friend.
2. Exception: You can attempt to get a continuance by calling the Clerk of Court. Generally, an adequate reason for the continuance will be required. Also, they generally allow only one continuance.
What happens when you appear at the hearing?
First, have a seat in the court near the front so you can hear the clerk make any pre-hearing announcements. Procedures for this vary from court to court. They may ask for anyone to identify whether their matter is “Contested”. That is you. You are contesting the debt which means you do not agree that it is owed and/or that the amount requested is correct.
If you have an opportunity to tell the clerk before the hearing that “You are here to Contest the Warrant and request the Plaintiff file a “Bill of Particulars””, she might have the authority from the judge to give you a continued date right there.
If the clerk does not have that power, you will have to wait until the judge calls your case at which time you advise the judge that you “Contest” the debt and “request the court order the Plaintiff to file a “Bill of Particulars” so you can defend against the amount owed.
Things to be weary of:
1. Do not go outside with the Plaintiff/Creditor and accept a payment plan for the debt. While this seems like it will by you time you are in essence agreeing that you owe the debt and they will be able to return to the courtroom and get the judgment. Then if you do not make the payments on the payment plan they will go directly to garnish or lien you.
2. Do not go outside even if the court directs you. The court does not have the power to direct you to accept a payment plan without hearing your case first. Many courts do this in hope diminishing the number of people on the docket by getting “settlements” worked out.
3. It does not matter to the court that you plan to ultimately file bankruptcy. They only have the power to deal with present facts. If you have filed then certainly give them a copy of the Notice of Bankruptcy Filing.
The Most Important things:
1. You must personally appear.
2. You must let the court know you “contest” or disagree with owing the debt or the amount of the debt.
3. You must let the court know that you are requesting a “Bill of Particulars”.