David Glenn Baker's Answers

Will BK filing hurt my credit if I just file it without following through?

Yes. From what I can tell, the credit reporting agencies check the bankruptcy courts every business day to see who has filed a bankruptcy case on that day, and it immediately goes on your credit report, where it stays for 10 years. It doesn't matter whether you finish the case and get a discharge; it's there for 10 years. This doesn't mean you can't get credit after bankruptcy, it just means that the credit will be more expensive (that is, you'll pay a higher interest rate). Sometimes a...

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In the state of Massachusetts ,Can a bill collector have me arrested? Also call my boss to tell him I will be picked up there.

Depending on whether you can prove the harassment and that he called your employer, you might have a case under the Massachusetts Fair Debt Collection Practices Act. Unlike the federal law, the Massachusetts law applies to the original creditor, too. His actions might also be "unfair and deceptive" within the meaning of Chapter 93A of the Massachusetts laws. The fastest way to stop the harassment probably is to hire a lawyer. Once the lawyer tells the creditor that the lawyer has been hired,...

What rights do we have, after a 2005 Chapter 7 bankruptcy discharge, with secured collateral and no reaffirmation agreement?

It is unclear from your answer whether you and the bank agreed to a reaffirmation; it is not automatic, and the bank is not required to agree to reaffirm because the bankruptcy discharge does not prevent them from repossessing. You could possibly resolve your current problem by filing a new chapter 13 bankruptcy case, which will let you get caught up on the payments, even if the bank doesn't like that. Go to nacba.org and look for an attorney near you to help you resolve this problem.

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Settlement of discharged mortgage to release lean

Let me clarify this for you. A chapter 7 discharge eliminates your obligation to pay the money, but it does NOT eliminate the creditor's right to foreclose the mortgage. If you owe more on the first mortgage than the property is worth, the 2nd mortgage would be "unsecured", technically speaking, but the mortgage lien still exists and the 2nd mortgagee could try to foreclose. There would be no point to it because they would have to pay the 1st mortgage, too, at least in most states. But...

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When would you recommend to file for chapter 7 bank ruptcy before or after a dificiency judgement

As a general rule, it doesn't make any difference; so long as the circumstances giving rise to the debt occurred before you file the bankruptcy case, it doesn't matter whether there is a judgment against you for the debt. If the judgment hasn't been rendered, the debt is considered "unliquidated" (that is, the amount hasn't been determined), but that doesn't matter because the debt usually is discharged no matter what the amount.

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Do I need a lawyer to declare Chapter 7 Bankruptcy in Texas? Can I keep my house if I do declare Chapter 7 Bankruptcy?

You are not required to have a lawyer to file a bankruptcy case, but it is a bad idea to try to do it yourself. Bankruptcy is a complex area of the law, and there are many considerations that go into deciding whether to file, and what chapter to file under. Mistakes can be very costly! Consult an experienced bankruptcy attorney for assistance; don't try to go it alone.

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If we filed Chapter 13 to save our home - Can we still do a Loan Modification with our mortgage to lower the house payements

There is no reason why you can't seek a mortgage modification while in chapter 13. Some banks say they won't talk to you while the bankruptcy case is active, but an aggressive and knowledgeable attorney can force them to negotiate, sometimes by challenging the validity of the mortgage or discovering that the lender did something wrong in the lending process. If your attorney doesn't want to do that, you have the right to get another attorney at any time for any reason. I suggest you go to...

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Recently unemployed(over a month).How long do I need to be unemployed to claim Chapter 7?Prior could only claim chapter 13

You do not need to be unemployed to file a bankruptcy case. I suspect you are asking about the "means test", which requires that you disclose your income for the six months prior to filing and determine whether you income is above or below the median income for your state. Unfortunately, unemployment income is considered as "income" for bankruptcy purposes in some jurisdictions, so you need to consult with an attorney in your area for help. It may be that "prior could only claim chapter 13"...

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What if my 2008 tax is greater than the amount on IRS proof of claim?

Having represented debtors in bankruptcy for about 13 years, my experience is that the IRS is usually right in its Proof of Claim. Remember that when you file a tax return, the IRS checks it for accuracy and can make adjustments based on mistakes. Also, keep in mind that a Proof of Claim is a legal document that is as binding on the IRS as it is on you. Unless they could prove to the bankruptcy judge that the Proof of Claim was a mistake, they should not be able to collect anything more.

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Our HELOC was sold to Real Time Resolutions...can they collect or force foreclosure?

A HELOC is a mortgage just like the 1st. The discharge eliminates your legal obligation to pay the debt, but it does not eliminate the bank's right to foreclose. When a mortgage (including a HELOC) is reassigned, sold or transferred, the new owner of the loan has the same rights as the original owner, which would include foreclosure. It would be a good idea to try to get caught up on the HELOC as soon as possible.