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David Kestner’s Answers

25 total

  • Can a default judgement be vacated after Chapter 7 Bankruptcy Discharge?

    In August 2012, a creditor filed a Motion to Vacate Dismissal, which the judge ordered to Vacate Dismissal and further ordered Default Judgment. 1 week later I filed a Motion to Vacate Judgment and Motion for New Trial, which was placed on a 15 d...

    David’s Answer

    If there was a final judgment entered before your bankruptcy was filed, and if the judgment was in the Circuit Court of the county in which your real property is located, you would want to vacate the judgment or otherwise try to avoid the lien as a preference. If you don't own real property, or if the judgment was in District Court and no notice of lien is filed the judgment is a nullity and no action is needed. If the bankruptcy has closed there is no stay of your action in the case and you can pursue the motion to vacate.

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  • Now that the probate made it into the court web site how long before they have a PR assigned

    My case finally mde it into the court web site. It has been over 90 days since the owner of the house passed away. Case Status is pending PR anyone know what this actually means and how long until they have a PR so that I can continue to close o...

    David’s Answer

    This depends on local practice. Call the local probate division and ask the question. It may be that the petition has been filed, but that it is insufficient, there may be unmet bond requirements, etc. It is unclear if you are the pending purchaser of the house, an heir of the decedent or perhaps an agent.

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  • Is the money is a sole bank account martial property?

    My husband is abusive, so I finally asked him to leave. A few days after he left he attempted suicide. In his "note" he left me his bank card and all of his money. We do not have joint accounts. He is obviously now in the hospital now recovering...

    David’s Answer

    While this is likely marital property, marital property is only relevant on the date of divorce, at which time the court can take such action to divide joint property or to grant an award to equitably distribute the property. Since the property is not joint, it is titled to him and removing the property without his permission or using his card could be construed as theft.

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  • Can my lawyer demand that I pay my bill in full before continuing to represent me in a divorce and child custody case?

    My current lawyer in Chestertown, MD refuses to keep representing me if I do not pay my bill in full ($5000+). She knows that since I left an abusive marriage and then had to find a place to live and a full time job (while taking care of my 10 yea...

    David’s Answer

    Your lawyer has an ethical duty to continue to represent you until a court grants her motion to withdraw. Such motion will generally be granted unless your court date was imminent, in which case the court might deny the motion. She can not refuse to communicate with you until her motion is granted.

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  • Chapter 7 Bankruptcy - Survivorship/Malpractice Settlement

    My mother died unexpectedly last December and I have been on leave from work due to depression that is being treated by a Doctor and therapist. I have exhausted all of my leave and savings and have been without pay since May. The creditors are s...

    David’s Answer

    Maryland's exemptions include an exemption for "money payable in the event of sickness, accident, injury or death of any person". There is some dispute as to whether this allows exemption for economic damages, so your bankruptcy attorney would have to look at that issue. If you are only 60 days past due it is unlikely the creditors will take any formal action and when they do, they will have to sue you before they can garnish, etc. This will take some time.

    I am not sure you need to file a bankruptcy. If your settlement is substantial, your attorney should be able to negotiate a resolution of the remaining bills.

    As to your eligibility to file, that depends on your past 6 months of income, your household size, and your future projected income. You should definitely talk to an attorney about this.

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  • How do I file for divorce if I don't have her adress and she refused to give it ti me when asked?

    legaly seperated for 7+ yrs

    David’s Answer

    If you are filing this yourself without an attorney, you need to hire a process server to attempt service at the last known address. If that is unsuccessful, you can file an motion for alternate service. if you can show her taking actions to avoid, that should be sufficient. Otherwise, you can file such a motion after taking substantial attempts to locate i.e. MVA search, internet searches, inquiries to her family member, friends, last employer, etc.. If it comes to that, I would recommend you hire an attorney, as this can be somewhat complex.

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  • Can I get a dissolotion of marriage? Lived in seperate states for 11 years. Legally married for 26 years.

    married jan.22,1987 . Have been living apart since 2001.

    David’s Answer

    Most, if not all, states allow for a no-fault divorce predicated on the parties physical separation for a period of time. Certainly 11 years would be sufficient time. However, you were together for a substantial period of time, and there may be significant marital property issue (such as some division of retirement assets) that should be addressed or at least reviewed before you proceed.

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  • How to file a petition for Bankruptcy Chapter 7 for Undue Hardship to forgive private student loans?

    I have 3 private student loans that are in collections and 1 government student loan in good standing. The collection agencies are going after me to pay off the balance (for the private student loans) with a one time payment. I have about $110,00...

    David’s Answer

    As previously mentioned it is unlikely you will be successful under these facts. However, to answer your question, the process would be to file a chapter 7 petition and then file an adversary proceeding to declare the debts subject to discharge. This adversary proceedings, is in the nature of litigation, and it would not be recommended that you proceed without an attorney to represent you. You would need to be familiar with the law, the rules of procedure and evidence, compliance with applicable local rules, etc.

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  • Does a will always have to be probated?

    My aunt recently died and I am co-executor with her daughter. The daughter receives everything in the will and has the house and car for sale. There is about 10,000 in bills that I gave her daughter who came in from out of town that need to be pai...

    David’s Answer

    Your question is somewhat confusing. You say that you are the co-executor, but that implies the will has already been probated while your title suggests it has not. . If you are merely named in the will, you do not have to participate in the process and therefor will have no responsibility. If you petition for and actually appointed as personal representative you have a fiduciary duty to interested persons, which include creditors. If your state requires all personal representatives to act unanimously (such as executing a deed) then you have control on whether the assets are liquidated and the disposition of the assets. If not, then you are under a responsibility to safeguard those assets.

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  • Can 2nd mortgagor reverse foreclosure auction sale and keep just a judgment on me even thought I filed Chapter 7?

    I initially filed Chapter 7 to stop foreclosure by 2nd. 1st is going to be current very soon and I will be in good standing with them. The first foreclosure auction was invalid, second was invalid and now I'm waiting. Since I surrendered the prope...

    David’s Answer

    If you receive a discharge in the Chapter 7 your personal liability to the 2nd Mortgage will be discharged. The creditor will retain its lien and with or without a judgment they can wait as the bankruptcy will not invalidate the mortgage lien. Essentially your payments to the first mortgage will essentially be rent until sufficient equity accrues to allow the 2nd to foreclose.

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