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Matthew Paul Trask

Matthew Trask’s Answers

4 total

  • Can a landlord sue for past due rent when tenant claims bankruptcy?

    I have a tenant that has owed me rent and now is stating she is going to file bankruptcy. She was not the only name on the lease, another person was the primary lease holder. Can the unpaid rent be claimed under bankruptcy?

    Matthew’s Answer

    Generally speaking, and assuming the debtor's petition and schedules are prepared properly, a debtor may discharge unpaid rents, meaning that the debtor is no longer liable for those debts. Also, in the event that your tenant files for bankruptcy, you will not be able to attempt to collect the debt (e.g., commence eviction proceedings against the bankrupt tenant) without first obtaining permission from the bankruptcy court in a "motion for relief from automatic stay". However, the law in Massachusetts has consistently held that the automatic stay protects only the filing debtor and not other parties in interest to an underlying claim. Therefore, you could proceed with eviction, collection or litigation against the other, non-bankrupt debtor. The fact that one party to the lease filed for bankruptcy does not extinguish the other party's liability, provided both tenants agreed to be bound by the lease.

    Finally, check the terms of the lease. Many standard form MA leases contain a provision that states that a tenant's filing bankruptcy constitutes a default of the lease terms, granting an automatic contractual ground to pursue eviction. You must still obtain permission from the bankruptcy court first, or wait until the bankruptcy case is concluded before proceeding with the eviction. You may not be able to collect the past due rents from the bankrupt tenant, but you may be able to immediately mitigate any further financial losses.

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  • Can i include utility bills in my bankruptcy and still get utility services?

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    Matthew’s Answer

    I agree with Attorney Coffman (above). However, remember: your bankruptcy will discharge only the pre-petition debt (unless you have post-petition administrative claims in a Chapter 11, although for this response, I will assume you do not). It will not affect any post-petition debt, save for the creditor's entitlement to a security deposit for continued service. Therefore, only past-due balances will be discharged. As soon as you file your case, any utility services received after filing will not be included in the bankruptcy, and must be paid. It is the date you filed your case that matters - not the date you receive your discharge.

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  • Can your home be taken for unpaid med bils

    my son is in a rehab hosiptal after major surgery his insurance company has stopped paying saying he is only covered for 70 days

    Matthew’s Answer

    THE BAD NEWS:

    Like nearly every other area of the law, the answer is "it depends". Generally speaking, a creditor (in this case, the hospital) can sue a non-paying party that received services. In the event that the hospital wins the lawsuit, they may attempt to collect that judgment by placing a lien against your home.

    Still, there are a few details that you have omitted from your question. How old is your son, and are you a legal guarantor for his medical expenses? If your son is an unemancipated minor, you would likely be responsible for the costs of his care. If your son is an adult, you would only be liable for his medical treatment costs if you are contractually obligated to do so: i.e., you signed an agreement to cover his expenses at the time of his admission.

    THE GOOD NEWS:

    In any case, since you are a Massachusetts resident, the very first thing I would reccomend you do is ensure a "Declaration of Homestead" is filed with the Registry of Deeds in your county. The Declaration of Homestead can prevent a subsequent creditor from executing a judgment or lien against your home, thereby protecting it from being seized to satisfy a judgment up to $500,000. (Take a look at Massachusetts General Law Chapter 188, Section 1). The law regarding homestead exemptions requires that the declaration be filed before the lien is attached or the judgment executed.

    So, even if you are ultimately liable, there are things you can do to protect your home. You may still owe the money, and resolving that issue may involve other legal strategies (debt negotiation, bankruptcy, etc.), but you can protect the equity in your home.

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  • Can I get a student loan while I am in Chapter 13?

    I have been thinking about going to college and I might need to get a student loan. Is this possible under a Chapter 13?

    Matthew’s Answer

    Simply incurring new debt while obligated under a 3-or-5 year Chapter 13 repayment plan will not affect the course of the Bankruptcy. However, there are a few points to consider:

    1. If the terms of the education loan require that you begin repayment of the loan during the contemplated Chapter 13 plan period, you must continue to make the plan payments to the Trustee, or the plan will fail and your discharge will be denied. A trustee will not downwardly-adjust a Chapter 13 plan payment to allow for the repayment of post-petition debt.

    2. Your Chapter 13 plan payment amount is calculated based upon your actual income and average monthly expenses. Put very simply, the Chapter 13 plan payment is the remaining disposable income of the debtor after payment of monthly expenses, like food, rent/mortgage, and medical needs. Again, if the loan terms would require repayment before the Chapter 13 case were complete, there would likely not be any funds left over in your monthly budget to make the loan payments. Increasing your income should not necessarily be counted on as a solution, either. If requested by the trustee, 11 U.S.C. s.521(f)(4) requires a Chapter 13 Debtor to file tax returns (or an income and expense statement) annually, during the pendency of the case, and could lead to plan modification - effectively raising the plan payment to compensate for your increased income.

    3. Any bankruptcy filing is going to negatively impact your credit, but it is difficult to say whether or not a bankruptcy is going to prevent you from getting a particular loan from a particular lender. Each lender's policy regarding creditworthiness varies, especially with respect to the loan amount, repayment terms, and interest. It will be difficult to get any loans with a recent bankruptcy, and you should expect to receive a lower loan amount at a higher interest rate.

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