Expert: Mark J. Markus- California Bankruptcy Attorney - 8/15/2008

Question
QUESTION: my husband and i will soon by filling bankruptcy.  my question is slightly long.  we met with our lawyer today and found out that we make too much to file chapter 7.  he quoted us as having a payment of $500 a month for a chapter 13 which we will barely be able to afford.  he suggested that i quit my job since my check is consumed with gas, daycare, and a large car payment.  he said we should let the bank take the car and that since our income would then go down we could file chapter 7 bankruptcy.  he said that we would have to wait 2-3 months until our income drops below a certain level in order to file.  my concern is what to do with the credit cards and debt in the mean time?  we are only 1 month behind but by that time we will be 4 months behind.  I'm concerned that they will file a lawsuit against us.  he didn't seem to give us any reassurance about this but did express that this is our best option.  how long on average does it take before they file lawsuit? and will they back off if we tell them we will be filing bankruptcy?

ANSWER: It typically takes credit card companies many months, if not years, to commence lawsuits.  They generally just harrass with phone calls for a long time first.

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QUESTION: so should i be concerned that within 5 months of non-paymnet they will file a lawsuit?  and am I correct in saying that they cannot garnish your wages untill after a lawsuit has been filed and gone to court?  I just feel like my lawyer's not giving me correct information!

Answer
It is unusual that they file lawsuits that quickly.  I can't promise you anything one way or another.  As to whether they can do a prejudgment writ of attachment or some other remedy prior to getting a judgment, that depends on the laws of whatever state you are in.  YOu need to consult with an attorney in your area.  In my experience, however, they have to get a judgment first in order to garnish wages.