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Andrew M. Doktofsky

Andrew Doktofsky’s Answers

58 total


  • I am filing chapter7 and I own (clear title) a vehicle worth 23000.00. What is the likelyhood the court takes my vehicle?

    850K bankruptcy. I own the one car.

    Andrew’s Answer

    If your valuation is accurate, a Chapter 7 trustee will demand that you turn the car over, or, as stated in a prior answer, you will have to pay the trustee for the non-exempt portion of the vehicle. How much of the vehicle you can exempt depends on whether you are using the New York State exemptions or the federal bankruptcy exemptions. Given that you are at risk of losing your vehicle, you should consult with a bankruptcy attorney. You can read about property exemptions on my website at http://www.amdlaw.com/BankruptcyLaw/PropertyExemptions.aspx

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  • I received a waiver of process consent to probate form regarding my father's will. I wish to contest the will. Do I sign?

    I am looking to contest the will because the will presented is only a photocopy NOT the original. If I sign the form, aren't I saying I am ok with the will and to proceed? So if I don't sign it, how do I go about contesting and putting a claim a...

    Andrew’s Answer

    If you intend to contest the will, then you should not sign the waiver and consent form. Keep in mind that under certain circumstances, a photocopy of a will may be admitted to probate. Also, you can make a claim against the estate for funeral expenses, regardless of whether you consent to probate or not.

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  • Bankruptcy question for New York

    I have a bx attorney (this will only be my third meeting) but he never mentioned something I just read and I am nervous. If one of my creditors in the bx plan is the same bank where I keep my checking account, once the petition is filed (which wi...

    Andrew’s Answer

    A bank may take money that you have in a bank account to satisfy a debt owed to the bank, even if you file for bankruptcy. This is known as a right of setoff. However, federal law prohibits banks from setting off debts owed for credit cards. For instance, if you have a Bank of America credit card debt that will be discharged in bankruptcy, and you have a bank account at Bank of America, the bank may not setoff funds in your bank account. However, if you have a personal loan or overdraft, then the bank can exercise its right of setoff.

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  • We are filing a joint chapter 7. Car is in my name. Can I double the exemption because it's a joint petition. It's worth 6,000

    Filing for chapter 7 in New York. I understand exemption is worth around $3k, but I can double for a joint petition, however title is in my name only.

    Andrew’s Answer

    • Selected as best answer

    If title to the vehicle is in the name of one debtor only, the exemption cannot be doubled in a joint bankruptcy filing. You may take only one exemption of $4,000 (under New York State exemptions) or $3,675 under the federal exemptions. However, if you are using the federal exemptions, you may be able to use the available wildcard exemption (up to $12,725) to protect any remaining equity in the vehicle. You should consult with a bankruptcy attorney to be certain that you are using the correct exemptions.

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  • How can a lien be removed from a house after the bankruptcy of a previous co owner?

    There was a lien on my home against my co-owner/ ex- boyfriend for a credit card judgment. I bought out his share and then discovered lien. He claimed bankruptcy after I bought out his share. His bankruptcy attorney said that he can remove the ...

    Andrew’s Answer

    Under certain circumstances, judgment liens can be avoided (removed from real property) in bankruptcy. However, in order to do so, the person claiming bankruptcy (the debtor) must actually own the property at the time that the bankruptcy case is filed. From the facts that you have presented, the debtor no longer owned the property at the time that he filed for bankruptcy. Therefore, the judgment lien could not be avoided in his bankruptcy proceeding.

    Judgment liens are valid for 10 years, and can be renewed for an additional 10 years. So, unless renewed (which creditors usually do not do), the lien will expire 10 years from the date that the judgment was entered with the county clerk.

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  • Is there a possible adverse affect if the defendant files the RJI instead of the bank's lawyer?

    My husband and I were served with a foreclosure summons Sept. 2012. We retained a lawyer to submit an answer. The bank's lawyer never filed an RJI. We have no idea what will happen now and our lawyer is very expensive. I've been seeking additional...

    Andrew’s Answer

    It depends on what you intend to do with the property. The bank's attorneys are required to file the RJI and request that a foreclosure conference be scheduled. If you are seeking to obtain a mortgage modification, then your attorney should request that the bank's attorneys file the RJI. The more time that passes, the further in arrears you become, and this can make it more difficult to qualify for a modification. If you are seeking to simply stay in the home as long as possible, without obtaining a modification, then your best strategy may be to do nothing. However, as you are represented by an attorney, who is familiar with your case, you should consult with him or her as to what your best course of action would be.

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  • Does a lien on property survives when there is a court discharge (bankruptcy) ?

    the creditor was filed on schedule f (bankruptcy) but because they had a lien on property they claim that I still have to pay..

    Andrew’s Answer

    Your personal obligation to pay the debt is discharged when you receive your discharge from the bankruptcy court. However, if the creditor had obtained a judgment prior to the bankruptcy filing, and you own real property, then a judgment lien attaches to the property. Judgment liens can be voided in bankruptcy in most circumstances, if the property is your primary residence. However, this is not automatic and requires a motion to void the judgment lien. Judgment liens are good for ten years from the date of filing, unless renewed for an additional ten years. So while the creditor cannot try to collect the debt from you personally, if you sell or refinance your home during the time that the lien is valid, then the judgment lien would have to be paid, with interest at 9% per year.

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  • I am filing for chapter 7. I have 2 liens on the house. One in mine name and the other in my husband. My husband is deceased .

    Can his lien be removed at the same time as mine with my bankruptcy?

    Andrew’s Answer

    • Selected as best answer

    If the judgment that created the lien was in your husband's name, that lien cannot be avoided, or removed, in your bankruptcy filing. Judgment liens can only be avoided under certain circumstances in a bankruptcy proceeding. However, only judgment liens entered against the debtor can be avoided. Keep in mind that judgment liens are only valid for ten years, from the date that the judgment was entered, unless the lien is renewed for an additional ten years.

    You can read more about liens and bankruptcy at http://www.amdlaw.com/BankruptcyLaw/LiensandBankruptcy.aspx

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  • If you get a judgements from credit cards and you eventually have to file chapter 7 can those judgements be included

    is it then exempt ny

    Andrew’s Answer

    Judgments for credit card debts are dischargeable in Chapter 7 bankruptcy. If you own a home, keep in mind that a judgment creates a lien on the property. These judgment liens can usually be removed in bankruptcy. However, it is necessary to file a motion with the bankruptcy court requesting that the liens be removed. You can read more about liens and bankruptcy on my website at http://www.amdlaw.com/BankruptcyLaw/LiensandBankruptcy.aspx#judicial_liens.

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  • What is the statute of limitations on chapter 7 bankruptcy in NY state with regard to nondisclosure of assets.

    How long does the courts have until they cannot reopen a chapter 7 case irregardless of discovery of additional evidence? what about private lenders? banks/institutions?

    Andrew’s Answer

    The trustee, US Trustee or a creditor have until the bankruptcy case is closed, or one year from the date of discharge, whichever is later, to move to revoke a discharge based on the failure to report assets. However, knowing and fraudulent concealment of assets in a bankruptcy case can be considered a criminal offense. The statute of lmitations for criminal prosecution is five years from the date of discharge or date of denial of discharge.

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