Andrew M. Doktofsky’s Answers

When a person files for bankruptcy, an automatic stay goes into effect. The stay prohibits the commencement or continuation of legal proceedings against the debtor. However, there are exceptions to the automatic stay. One of the exceptions is for divorce or the dissolution of a marriage, except to the extent that the divorce action seeks to determine the division of property that is property of the bankruptcy estate. So if there are issues of equitable distribution of marital property in your...

In New York, an attorney can issue a subpoena. However, if you are representing yourself in the action, you must have a judge or the court clerk sign the subpoena. However, keep in mind that subpoenas are issued to non-parties only. If you want to obtain documents from the defendant, you can only do so through a discovery demand, specifically a Notice for Discovery and Inspection. The sheriff generally does not serve civil subpoenas. You generally must hire a process server to do so. However,...

This statute refers to aliens. If you are a US Citizen, you may act as an executor in New York, regardless of what state you reside in. Also, you may act as executor alone, as opposed to the requirement that non-domiciliary aliens have a co-fiduciary appointed. You can read more about the probate process in New York on my website at http://www.amdlaw.com/Probate/ProbateProceedings.aspx.

The answer to your question is dependent on the specifics of your situation. First, you must determine which set of property exemptions you should use. Debtors in bankruptcy in New York can choose between the exemptions provided for under the Bankruptcy Code or the exemptions provided by New York State law. Which set of exemptions to use is of critical importance. If you own your home, and it is your principal residence, New York State law provides for a homestead exemption of $150,000 per...

As stated in the previous answers, you cannot do what you are proposing. However, in a Chapter 7 case, you have the option of redeeming the collateral. This would involve paying the secured lender the fair market value of the vehicle, regardless of the outstanding balance on the loan. To do so, you must either have sufficient non exempt cash available or you may be able to obtain special financing that is offered specifically for redemption in bankruptcy. Redemption requires that a motion be...

Funds in your 401(k) account cannot be taken by a creditor to satisfy a credit card debt. Nor can your unemployment benefits be taken. Based on what you have written, at the moment you are judgment proof, meaning there is nothing a creditor can take from you. If you owe this particular creditor over $16,000, but can only pay off $4,400, it would make little sense to make the 401(k) withdrawal, unless it would satisfy the debt in full. Even in that case, you are taking money away from your...

The fee will depend on the complexity of the case. The fee can range from $800 for a very simple case up to $2,000 for a debtor that owns a small business. Please visit my website at http://www.amdlaw.com/BankruptcyLaw/HowMuchDoesBankruptcyCost.aspx for estimates of what it will cost you to file for Chapter 7 based on your situation.

If you signed a reaffirmation agreement, and it was filed with the court prior to your discharge, then you are still obligated to pay the loan. If you do not bring the loan current, the lender will sell the car at auction. You will then be liable for any deficiency owed. A deficiency is the difference between the balance due on the loan and what the secured creditor receives for the car at auction. If you did not sign a reaffirmation agreement, then your obligation to pay the loan was...

If the deed was fraudulently obtained, then your father in law would have to bring an action to set aside the deed. This would be done in the Supreme Court. He will have to be able to prove that he did not intend to sign a deed. The father in law's age and health at the time of the transfer will be important factors. He should also file what is known as a "Lis Pendens" with the county clerk to prevent the sale of the property. If the transfer was legitimate, then the remainder interest in...

To have a Chapter 7 case dismissed, it is necessary to file a motion with the court. However, if there are non-exempt assets that can be sold, the Trustee will oppose the motion and it would be extremely unlikely that you would be permitted to dismiss the case. The information you provided is limited. However, you must consult with a bankruptcy attorney to see what your options are. You may be able to convert to a Chapter 13. Or it is possible that you did not properly claim exemptions that you...