Frequently Asked Questions - Affidavit and Complaint for Claim and Delivery of Property
Can I go to jail for not making my loan payments to a finance company?
No, you cannot go to jail for not making your loan payments! Creditors may try to make you believe that this is possible, but South Carolina does not have “debtor’s prison.”
Click the link below to hear stories from other South Carolina clients about the false threats they have received from creditors.
Is it important for me to go to court?
Yes, you should go to court. The Guided Interview will help you create an Answer to the Complaint you have received. By going to court and making the right arguments, there is a chance your case will get dismissed.
Can the finance company take my property before my court date?
No, They can only take your property if they have a pick-up order from a judge - or if you offer to give it to them. The finance company will have to prove certain things in court to get a pick-up order. You do not have to give them the property unless the Court has a hearing and the Judge orders it.
What if I don't have the property anymore?
If you don't have the property anymore (it was thrown away or disposed of somehow) the finance company can only get a judgment for the value of that property. That is why the Property List is important to have in Court.
The only exception to this rule is if you sold the property. When you sell property that is listed as security on a finance company loan, you are supposed to pay that money to the finance company.
What does the finance company have to prove in court to get a pick-up order for my property?
The property they want to take must be listed on the Affidavit and Complaint;
The property listed on the Affidavit and Complaint is the same property listed on your loan papers;
That you had the property when you signed your loan papers;
That you still have the property listed on your loan papers;
If you no longer have the property, what the property is worth;
That you have not made your payments; and
That they have sent you a Notice of Right to Cure. This is a specific notice stating how much you must pay to bring the loan current. The creditor has to give you the opportunity to pay this amount before they file a lawsuit against you.
Is the property worth the amount/value listed on the loan papers?
Usually not. You are allowed to testify for the Court about what the true value is. For example, you may have paid $75.00 for a DVD player and listed that as the value on your loan papers, but now the DVD player is worth very little because you can buy it at most stores for $10.00.
So, a judgment for the value of all the listed property might be $200 even though the balance due on the loan is $2,000.
Can I sue the finance company?
Yes, the Guided Interview will ask you questions to determine if you have a claim against the creditor. This is called a counterclaim. Some counterclaims are possible if the creditor: