Stipulation

[Davidca]

What is the name of your state? California

So I took a cash advance on a credit card 4 months before filing chapter 7. All the dept in my bk has been discharged except this credit card which filed suit. I made a deal to pay part of the amount of cash advance and they sent me a Stipulation of Nondischargeability.

It stated in one place that I admit no liability and elsewhere that no judgment would occur as long as I make payments on time. HOWEVER, on another piece of paper is an Order to be signed by the judge stating that judgment is entered in favor of the credit card company.

Yes, the no liability/no judgment statements contradict the Order against me. Am I missing something or not understanding something?





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[legal_wonderer]

Congratulations on everything except this being discharged. I'd love to hear the answer to your question.

lw

 

[Ladynred]

Its a fairly common practice to have to sign a stipulation to judgment when you settle with a creditor when they sue you. If you miss any payments or are even late, then they can go forward with all legal remedies to collect - garnishment, bank levy, and siezure of non-exempt property. Not sure I understand the contradictory language that says you're not liable, unless its referring to the part of the debt that you are NOT paying.

 

[Davidca]

It says "...Based on the foregoing facts...the parties....stipulate as follows:

1) In full satisfaction of any and all claims which Plaintiff has against Defendant, Plaintiff shall be entitled to a Judgment in its favor against Defendants in the pricipal sum of $## subect to the terms and conditions set forth below.

No execution of Judgment so long as Defendant remits the sum of $## payable as follows:...blah blah blah.

2) That said debt shall be declared nondischargeable pursuant to 11USC 523(a)(2)(A)

4) Both plaintiff and defendant shall bear their own costs...

6) This Stipulation for Entry of Judgment and Settlement does not constitute an admission of liability or non-liability..."

The next page is a signature page and the page after that is an Order only to be signed by the judge...
"It is hereby Ordered, Adjudged and Decreed that Judgment is entered in favor of Plaintiff....excepted pusuant to USC 523 (a)(2)(A)....."

Need any more info? What do you think?




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[Ladynred]

#6 basically means that neither party is admitting to anything.. lol. They're not saying your liable, or non-liable.. and neither are they. Legal speak, you don't admit to anything.

 

[Davidca]

Yes, but then why have the Order stating that I have a judgment against me? That DOES say that I am liable. You see, number (1) stating there is no judgment is contradicted by the Order stating that there is a judgment.

 

[AttorneyOney]

They would only dare to put this agreement in front of an unrepresented debtor. It reads to me like a reaffirmation agreement in disguise, and that requires court approval. I think you should try to get advice from a consumer bankruptcy specialist before doing anything at all. I also suggest reading section 523(d) of the Bankruptcy Code before deciding that you can't afford an attorney -- it was enacted specifically to stop creditors from filing dischargeability complaints in order to coerce reaffirmation agreements.

 

[Davidca]

I just read 523 d...
(d) If a creditor requests a determination of dischargeability of a consumer debt under subsection (a)(2) of this section, and such debt is discharged, the court shall grant judgment in favor of the debtor for the costs of, and a reasonable attorney’s fee for, the proceeding if the court finds that the position of the creditor was not substantially justified, except that the court shall not award such costs and fees if special circumstances would make the award unjust.

The credit card company stated in the Stipulation that each side was responsible for their own costs so I guess I dont understand what you mean.
- How should reaffirmation and stipulation agreements read?
- How should they differ?
- Is this agreement they drew up unlawful? Why?
- Can I get them to drop their case because of this "agreement" they drew up?

 

[AttorneyOney]

Please go and ask an attorney what 523(d) means. I read it to mean that a consumer sued for alleged fraud can get attorney's fees paid if he prevails and if the the creditor's position was not "substantially justified". That means "free lawyer" in many situations.

 

[Davidca]

Anyone else want to chime in?