Skip to main content
Craig Dennison Robins

Craig Robins’s Answers

278 total

  • Does a creditor have to return the money if garnishment took place less than 90 days prior to filing a chapter 7 BK?

    Creditor was garnishing my check prior to my bankruptcy chapter 7 filing. The amount was roughly $400. It has since stopped. Can I get this money back from creditor?

    Craig’s Answer

    • Selected as best answer

    With all due respect to the two attorneys who previously provided answers, I disagree, and I do not believe they provided you with correct information.

    You simply cannot get the $400 back from the creditor in any event.

    In order to recoup funds that were given to a creditor in the 90-day period prior to filing, the funds have to be a "preferential payment."

    In consumer cases, a preferential payment must be more than $600. You indicate that the payments were roughly $400. Thus, the payments made (even though you did not voluntarily make them) do not add up to the necessary amount to make it a preferential payment.

    From a practical matter, even if the creditor received $600 or more thereby giving you the right to bring a proceeding to recoup the preferential transfer, bringing such a proceeding would not be a simple matter.

    First, the trustee would have to abandon this as an asset since the trustee has first dibs over these funds.

    Second, you or your attorney would have to bring an adversary proceeding, which is essentially a federal lawsuit brought within a bankruptcy. It is a rather involved proceeding and it would probably only be feasible if the amount of recovery was in the thousands of dollars.

    See question 
  • I lost my house due to foreclosure. Now I just received a Acquision or Abandonment Secured Property...what should I do?

    second mortgage is still sending me monthly bill statement.

    Craig’s Answer

    Most homeowners who lose their homes in foreclosure have homes that are underwater. When a home is underwater, the homeowner owes the lenders more money than the home is worth.

    In such a case, at a foreclosure sale the lender will not recoup enough to satisfy the amount due on the mortgage. In some states like New York, this gives the lender recourse to pursue the homeowner for the deficiency. If that happens, filing for bankruptcy is sometimes the best option to eliminate such an obligation. You don't indicate whether your home was underwater but I suspect that this is the case.

    With regard to the second mortgage, once the home is sold at a foreclosure auction by a first mortgagee, the second mortgage is extinguished. However, the second mortgage bank still has the right to pursue the homeowner for the balance due on the mortgage note. Thus, they can still seek to collect on this. Again, seeking bankruptcy relief might be the best way to discharge such obligations.

    Obviously, speaking with a local bankruptcy attorney would be the best way to learn more about the best options for your particular situation.

    See question 
  • Bankruptcy chapter7

    chapter 7 bankruptcy discharged a while back. had a loan and used my vehicle as collateral. They still haven't came to repo it. can i just offer them 200 dollars for it? as i assume they still have interest in it. how do i do this? as i don't want...

    Craig’s Answer

    You can certainly make an offer and doing so will not change the fact that you already discharged the debt. You will want to resolve the lien if you plan to sell it.

    See question 
  • Do I have to defend an open case, if I already was discharged in bankruptcy?

    I was named a defendant in an auto accident. I was the driver, and passenger sued me, and other driver. I did not have any insurance After I put in an answer, I filed for Chapter 7 bankruptcy for all my other debts, and included the open case in...

    Craig’s Answer

    Although the other attorneys state that you should appear in court and show your order of discharge, I disagree. You do NOT have to appear and you do NOT have to defend.

    All you need to do is make sure the plaintiff's attorney is aware that you received your discharge AND that you scheduled the plaintiff as a creditor in the petition (Schedule F). You can do this by mailing, faxing, e-mailing, or hand-delivering this information to the plaintiff's attorney.

    As soon as the attorney receives this information, the attorney has an affirmative duty to remove you as a defendant from the case. It's really that simple!

    I would also send a copy of these items (order of discharge and Schedule F of your petition which contains the listing of the plaintiff as a creditor) to the Court for filing in the case to make sure the court is aware.

    There is no reason why you need to take a trip to appear in court or defend the case any further as long as the plaintiff's attorney has notice of your bankruptcy discharge. Good luck!

    See question 
  • Can I sue the mortgage lender for sending me foreclosure notices after my bankruptcy has been discharged?

    I want to sue for emotional distress because I continue to get foreclosure notices every month from the banks attorney. I have received my discharge papers but every month I get certified letters sent to me.

    Craig’s Answer

    These letters may or may not be a violation of your order of discharge. Here's why:

    When you obtained your Chapter 7 discharge, you successfully discharged your obligation to pay any money to the mortgagee. However, the mortgagee still has the right to take the property back through a foreclosure.

    In order to do so, state law requires the lender to send you certain types of notice. If the lender is trying to pursue you for money, then there is a clear violation of the stay. However, if the lender is merely trying to protect its rights to take the property back, then there is no violation.

    There are a number of posts on my Bankruptcy Blog about Violations of the Order of Discharge and related issues. Please check them out by clicking the link below.

    Good luck!

    See question 
  • Chapter 7>Chapter 13 Bankruptcy

    I know that I qualify for Chapter 7 Bankruptcy. My problem is that even after discharging unsecure debts, my student loans and child support are a crushing load. Is it possible to file Chapter 7 then file Chapter 13 to get some breathing room on...

    Craig’s Answer

    It sounds like you definitely need Chapter 7 relief. However, I am not convinced that you would need to file a subsequent Chapter 13 payment plan bankruptcy just to deal with the student loan.

    Instead of filing for Chapter 13 relief afterwards, I would recommend that you get in touch with your student loan lender and try to work out a payment arrangement.

    Also, Chapter 13 would not necessarily work for you because you would likely have to pay a substantial sum over a five-year period, whereas working direclty with the lender would give you a much longer time period, and hence, lower monthly payments.

    There are a number of articles on my Bankruptcy Blog about student loans. The link is below.

    Good luck!

    See question 
  • Im filing chapter 7, my ex-boyfriend stays with me occassionaly. do i have to count him in my bankruptcy?


    Craig’s Answer

    If the boyfriend only stays with you occassionally, then he certainly does not reside with you on a regular basis and you would not include him.

    I discussed this concept in great detail in an article on my Bankruptcy Blog. You can click on the link below to see it.

    Good luck!

    See question 
  • What recourse do I have if a creditor files a claim on a chapter 13 that was discharged 4 years ago in chapter 7 no asset?

    Chapter 7 was in Erie PA and was discharged as a no asset. The property from the mortgage was decreed by divorce to my ex-wife so between the 2, I have no legal right or liability for the property. Citi-financial filed a claim on this discharged...

    Craig’s Answer

    Since you discharged this debt in your prior Chapter 7 case, the creditor does not have any right to pursue this debt any further, and that includes filing a claim in your current Chapter 13 case.

    This claim is frivolous. However, all Chapter 13 claims are presumed valid until the Court makes a determination otherwise. Thus, you can bring a motion objecting to the claim. In addition, you can seek legal fees on the ground that the claim was frivolous and in violation of your prior Chapter 7 discharge. You may also be able to bring a proceeding against this creditor by reopening your prior Chapter 7 case and seeking recourse on the ground that the creditor violated the order of discharge.

    However, if this was my client, I would probably just send a threatening letter to the creditor asking them to withdraw the proof of claim and also seeking a few hundred dollars to compensate me for my time. The creditor will most likely withdraw the claim, but will probably not pay. Sending the letter first at least shows your good faith in trying to resolve this before bringing any kind of motion in the bankruptcy court.

    There are a good number of articles that I have written about frivolous bankruptcy litigation on my bankruptcy blog. See the link below.

    Good luck!

    See question 
  • Converting Chapter 13 to a Chapter 7

    In March of 2002 I filed Chapter 7 bankruptcy due to huge medical debt (about $250K) and kept paying on a debt to a local hospital ($32K) per the advice of my then attorney. After makeing about $13,000 in payments, the hospital sought a judgment ...

    Craig’s Answer

    There are a lot of unusual facts in your question.

    First, it doesn't make sense that you continued to pay the hospital after you filed your Chapter 7 in 2002. Perhaps you were concerned that they would deny you medical assistance thereafter if you did not.

    In any event, as long as you listed the hospital debt in the 2002 Chapter 7 filing, then the debt should be discharged, even if you voluntarily continued to make payments thereafter. If this was the case, then the hospital violated the order of discharge when they sued you, which means you would be able to get all of the money back that you paid, and then some. Violating the order of discharge is a very serious offense.

    If you did not list the hospital debt in your 2002 filing, then you did not observe your obligations as a Chapter 7 debtor. In any event, you should be eligible for conversion to Chapter 7 now, as more than 8 years has elapsed since your prior Chapter 7 filing.

    For a great deal of information about violations of the order of discharge and articles about refiling, please see the link below.

    Good luck!

    See question 
  • Pacer

    Is it possible to see in PACER if a creditor will show up at the creditor's meeting or if a creditor has disputed the dischargeability of a debt?

    Craig’s Answer

    "PACER" which is the bankruptcy court's electronic docketing system, provides information about all filed documents on-line. If a creditor has already disputed the dischargeability of a debt, then they would have filed an adversary proceeding, and that information would be available on PACER.

    However, a creditor is not required to file any information regarding their intent to appear at the meeting of creditors. Thus, there is no way to know in advance if a creditor will appear or not.

    There is a great deal of articles about dischargeability as well as dealing with creditors at the meeting of creditors on my blog. The link is below:

    See question