Legal Question in Bankruptcy in California

I am being sued by a creditor, If I file a demearer as my response will this push my case to the hearing date and prevent the creditor from obtaining a defualt judgement or do I need to file a general denial inorder to do this?


Asked on 11/28/10, 3:09 pm

2 Answers from Attorneys

Robert F. Cohen Law Office of Robert F. Cohen

If you have a proper basis for filing a TIMELY demurrer, go for it. You will not have to answer until either the court tells you that you must do so or the complaint is amended, and will prevent a default and default judgment. You still will have to pay the first appearance filing fee or obtain a fee waiver from the court.

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Answered on 12/03/10, 3:39 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

I agree with Mr. Cohen, but it's unclear to me why you would elect to demur rather than answer. I assume you are planning on representing yourself, since you ask LawGuru rather than your own attorney. Preparing a proper Demurrer is a lot more demanding than preparing an Answer, particularly if the plaintiff's Complaint is unverified.

Please note that a "general denial" is not an Answer per se; it is just some language that sometimes can be put into an Answer, whereby the defendant in effect says "I deny it all." If the Complaint is verified, you can't use a general denial; you have to respond to each and every material allegation, admitting or denying each. Also, an Answer to a verified Complaint must itself be verified.

I note that your question is asked under the Bankruptcy Law topic heading. If you are currently in bankruptcy and are protected by the automatic stay, it seems that the suit is improper and showing the plaintiff or his attorney proof of the bankruptcy case should get the complaint voluntarily dismissed.

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Answered on 12/03/10, 6:10 pm


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