My wife and I had only student loan debt, but after researching the consumer protection act of 2005 we learned that we were eligible to file bankruptcy for student loans as it was an undue hardship on our dependents. All debts were declared. Scrut...
The code excepts student loan discharge from discharge UNLESS a debtor files an affirmative action (called an adversary proceeding) to determine that the debt was not excepted from discharge. There was also a deadline where you had to have begun this process "to determine the dischargeability of certain debts." If you didn't do this in the Chapter 7 (and it sound like you didn't have an attorney handle the Chapter 7 case) then the debt survived the discharge. If you had an attorney who failed to bring the action then you may have a case for malpractice by that attorney. If no attorney, then you may need to file Chapter 13 now to at least control the bleed back to the student loan creditor. You won't be able to discharge the debt in 13 now because she is currently ineligible for a discharge in Chapter 13. Thought she is ineligible, she can still stop the garnishment and control the payment during the life of the 13. The silver lining is that the student loan creditor may be the 'only' creditor in the Chapter 13 case. Also, this fact pattern illustrates why it is critically important to find competent legal counsel when considering filing bankruptcy. Going it alone can lead to unintended and dire consequences.See question
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.
Have you called your bankruptcy attorney to ask him or her to explain why you are still getting these letters?
They are not a discharge violation because they are not an attempt to collect debt. They are complying with the state law that says they have to mail you notice of the sale.
Since you're getting their letters, I think you must be in the house still. Therefore those letters tell you when you'll need to be out of the property. If you are in the property after the foreclosure sale, the sheriff is going to execute a writ (your stuff is going to be on the curb).
Also, I think it's worth knowing when the sale actually happens so you know when you are 'safe' to cancel your homeowner's insurance policy?
You need to keep your property insured until it's taken back by the bank at foreclosure or you risk being liable for damage that happens to the property or to people on the property.
One never knows when the house will be struck by lighting, damaged by a flood, or be taken over by a drug den. You must keep it insured to protect yourself.
Good luck.See question
We had a couple of problems that came up and money is short so we need about 1500 to get over the hump. Would it be alright to withdraw this amount?
Are you pre or post confirmation?
If you had an attorney represent you, please call him or her and ask this question.
Pre-confirmation, I'd be very careful about doing anything like this because while the money in your 401K account is likely NOT an asset of your bankruptcy case, you want to wait for the Chapter 13 trustee to see and pass on it.
Post-confirmation, again the issue is whether the asset has been deemed to be not an asset. The general rule is that your retirement accounts are exempt because they are not an asset of your estate. But the amount of allowed exemption, and even the status of the exemption is a function of Virginia law on exemptions. The guiding rule for retirement accounts is that they are not property of the estate. There is a different guideline for other assets that are property of the estate.
One would want to make sure that the asset was disclosed and exempted properly before he or she moved it out of the retirement account into an non-protected bank account.
You said you needed $1500. If it were a more significant amount of money, it may also come back and bite you in the but if the money can be viewed as the trustee as available for your disposable income.
If you paid an attorney to file your case, then you paid to have this question answered.
Call your attorney. And if you didn't have an attorney, and are pre-confirmation now might be a good time to find an attorney to pick up your case.
Good luck!See question
We have four properties. One is our homestead. The others are residential properties that we bought as investments. Each is secured by a mortgage and they are all about 10 to 20 thousand in negative equity. Nonetheless, we want to keep them and co...
I suspect that the reason the attorney scared you is because he or she knows that the Chapter 13 trustee will object to you keeping property that has negative equity if it means that you'll be spending money on the mortgages.
The issue is that the money you spend on the mortgages could ostensibly be going into your Chapter 13 plan.
You can minimize the problem if you're getting rental income for the properties that covers the mortgage (because that means that you're not throwing money down the hole so to speak).
You can also minimize the problem if you are in a 100% plan where your unsecured creditors are already getting everything they are entitled to from your disposable income.
You should call back the attorney you met with to figure out where you stand.
It's not that the judge or the court wants you to suffer or be forced to give up property 'just because you filed.' It's more that your creditors are entitled to get all of your disposable income and the code doesn't allow you to bankroll losing assets at the expense of your creditors.
Don't give up on Chapter 13! It's an extremely powerful tool that you can use to level the playing field between you and your creditors.
Good luck!See question
I am considering chpt 7. My mother and I own a vehicle together but they used her as the primary on the loan which I hate they did. I am now trying to figure out how this is going to affect her and what she can do to get out from under this. I hat...
If you were my client filing chapter 7 bankruptcy with a car that you can't pay for (but mom is a joint consignor) I'd discuss the possibility of filing bankruptcy then 1. surrendering the car about a month after you file 2. get new wheels by explaining your options to you and 3. explain what will happen to your mom.
Once you file bankruptcy and the vehicle is surrendered, you will not be liable for the debt. Your mom however, will be 100% liable for what is called the deficiency. The deficiency is the difference between the value of the note plus any fees the lender tacks on and the actual amount the car sells for at auction.
Your mom's credit score will be impacted by the surrender. If someone does not pay off the deficiency (this could be you on your mom's behalf since it's your car) then your mom could be sued/garnished.
This is a sticky wicket, but not insurmountable. It's worth discussing your situation and your mom's. Your question suggests that she doesn't have credit issues herself. But I suggest that you call for legal advice.
Call me Attorney Shannon D. McDuffie for more information about the debt and filing bankruptcy. (404) 418-8879.See question
I'm commanded to file answer no less then 30 days after served with this summons.How do I file an answer to this summos of garnishment for $8.560 I'm not working at this time I have no money in the bank or at home no safe deposit box all i hav...
If you're not working and no money in the bank then what on earth is your creditor going to garnish? Does your home have equity to support a lien? If you have no income and no equity, then you may be bullet proof my friend.
If you're bullet proof there is no reason to worry about the judgment. I urge you, however to explore your options. If your only income is SSI, then I bet appearing at the hearing and/or communicating that fact to the attorney who is suing you will result in dismissal of your case.
You need advice about your property, your assets, and your options.
Call me, Attorney Shannon D. McDuffie for more information about debt collection defense and/or filing bankruptcy (in the event your assets are exposed).See question
a lawfirm has garnished my wife and I. They have withheld enough to satisfy the judgement, but it was submitted to the courts as two seperate cases. Therefore double the amount will be taken before it's over. The disbursement to the court will ha...
I suspect that you and your wife were sued by one of the large debt collection firms in Atlanta. The firm may not realize that it sued you both in two different cases.
The reason you were both sued is because you are joint and severally liable for the debt. Joint and several means that each account owner has 100% ownership of the debt. But there is still just one debt. I agree that the fees and fines have probably upped the balance. I've seen debt collection suits for double the amount of the principal at the time of default. I don't think that you'll get a reimbursement because I bet you owe way more than you think you do.
You need to call payroll and get a copy of the garnishment worksheet for each of you. That will tell you how much the firm is trying to get out of you. It's also possible that you can get payroll to track down the withheld $$ to see if the firm has cashed their check.
Outside of filing bankruptcy, traverse is the only way to stop the garnishment. You are both liable, and you can both be garnished.
Call me Attorney Shannon McDuffie for more information about debt collection defense and/or filing bankruptcy. (404) 418 8879/See question
I have been summoned to court this week regarding a debt from 2002. This was a debt that was written off and sold by the orginal creditor. It is so old it is not even on my credit reports. We went to court at the end of 2005 and they were awarded ...
Yes, you should have your husband open up a new account without you. The fact that Georgia is not a marital property state will not protect you from the creditor who is pursuing you. I suspect that you've been subpoenaed so that you'll have to testify where your account is. That way, the creditor can get the contents of the account. Watch out because the creditor could get 100% of the account. It doesn't matter that only some of the money is yours. You didn't indicate that this was the case, but It doesn't matter if some of the money is SSI.
You have no defense to the collection action if the statute of limitations was tolled in the 2005 proceeding.
You'll need help deciding whether to deal with this by moving your money out of the creditors' reach. Or if you need to take other more intense action such as filing bankruptcy.
If you were to file bankruptcy the debt underlying the judgment and next week's court action would be undone.
Call me Attorney Shannon McDuffie if you'd like more information about debt collection defense and/or bankruptcy. (404) 418 8879See question
I invested a great deal of money in a commercial real estate venture, to be paid back this month. Instead, the whole deal has fallen through and backruptcy has been declared. Is there any way to get anything back? Someone suggested notifying my ta...
Are you a creditor of our esteemed gubernatorial candidate?
Notifying your tax consultant may result in you being able to write off the loss.
I agree that you need a consultation with a bankruptcy attorney who can review the pending case and explain your options.
Shannon McDuffieSee question
I am currently being sued from different credit card companies, maybe a car repo, also. If I forn new company as llc with a business partner, can I be sued in it for prior debts.
Yes. I advise you to consult with an attorney who will explain the finer-points of the corporation that you've formed. The LLC entity that you formed is intended to draw a circle around your 'stake' of liability. But it cannot protect you when you incurred debt as a sole owner. That is because you are personally liable for the debt that you incurred as a DBA sole proprietor. Any asset accounts you open in the name of the LLC will also be your personal property (to the same % of ownership you maintain in the LLC).
Even if the LLC is 'debt-free' creditors who pursue your personal debts will haunt your LLC assets.
Might be time to think about filing bankruptcy for yourself personally. I'm happy to meet with you to talk about what your options might be. Attorney Shannon McDuffie (404) 418-8879See question