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Derick Calmerin Villanueva

Derick Villanueva’s Answers

5 total

  • Can I discharge the debt from a personal injury law suite via bankruptcy?

    I was at fault in a car accident and I am being sued for well over my insurance policy limit ($50,000). I wasn't drunk, nor was it intentional. If the court burdens me with debt over my insurance policy limit, I won't be able to pay, and will loos...

    Derick’s Answer

    Dear Sir or Madam:

    Pursuant to the US Bankruptcy Code a Chapter 7 discharges those debts which are:

    4) Debts for personal injuries or death caused by the debtor's operation of a motor vehicle while intoxicated.

    Based on my understanding of your case, since the accident resulted from mere negligence which was not intentional or reckless and did not involve alcohol or drugs, those debts may be subject to discharge under Chapter 7 bankruptcy.

    Please be advised that I am not licensed in California and do not practice in California. It would be adviseable to speak with a California attorney. Please be further advised that this communication does not constitute attorney client privilege and no relationship is thereby formed on this basis.

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  • Should I file for bankruptcy after I settle my lawsuit for personal injury or before?

    I was injured two years ago in a slip and fall accident that left me with a broken ankle and immobile for a few months and I suffer a great deal with that leg, with appointments at doctors and therapy constantly. I have been considering filing for...

    Derick’s Answer

    Dear Sir:

    First of all, please be advised that I practice in Georgia and not in New York and thus New York laws may differ on this case. I practice in both personal injury and bankruptcy and I have had clients in similar situations. Most states like Georgia have property exemptions that you can claim to keep in bankruptcy. In Georgia, a Debtor can claim up to $10,000 of a personal injury settlement. For instance, if your personal injury claim yeilded a $50,000 settlement (less $20,000 in medical expenses and 16,500.00 atty fees assuming the standard 33% contingency) you would have $10,000 for your own and $3,500 available to your general unsecured creditors.

    Irrespective of whether you settle your personal injury claim before or after you file, you will have to list this on Schedule B as an asset of the estate. Failure to do so may land you in serious trouble if the Trustee finds out. There is case law to support that Debtors who fail to list their personal injury claims on their schedules may not later claim exemptions if the Trustee can prove by clear and convincing evidence that you acted in bad faith and attempted to conceal assets.

    I would advise that you notify both your personal injury attorney and your prospective bankruptcy attorney in New York to provide you with the exact exemption amount for personal injury claims since this differs from state to state.

    Good Luck

    Derick

    Disclaimer: The information contained in this web site is intended to convey general information. It should not be construed as formal legal advice or opinion. It is not an offer to represent you, nor is it intended to create an attorney-client relationship. No attorney-client relationship will be formed merely based upon communication to us through this web site. No one should provide any confidential communication to us prior to our formal acceptance of your case. No information sent through this web site is considered by you to be confidential or secret.

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  • Can a senior citizen file bankrupt on all credit cards and still keep her house

    can a senior citizen that owns a house file bankrupt on seventy thousand dollard worth of credit cards

    Derick’s Answer

    My practice has represented many senior citizens in their bankruptcy cases and yes, in most instances, senior citizens can discharge all credit cards on a straight Chapter 7 bankruptcy and obtain a discharge. Unless a creditor can raise grounds that you obtained credit or a loan through material or false misrepresentation or transfered property through fraudulent conveyance, they cannot object to your discharge.

    However, the house is still the main concern for most senior citizens since they have built up substantial equity. In Georgia, you have an exemption of $10,000 for your primary residence. This may be problematic if you own your house free and clear or all liens or mortgages. So, for instance, if you house is worth $150,000 but it is encumbered by a $100,000 mortgage, You would have $40,000 available to your general unsecured creditors ($50,000 equity less $10,000 exemption). Some of my clients have been able to keep their property via revese mortgage, however.

    However, you may file what is called a Chapter 13 case if you have disposable income and keep your property. I would suggest that you contact an experienced bankruptcy attorney to assist you with a Chapter 7 and Chapter 13 case and explain your rights under each.

    Disclaimer
    The information contained in this web site is intended to convey general information. It should not be construed as formal legal advice or opinion. It is not an offer to represent you, nor is it intended to create an attorney-client relationship. No attorney-client relationship will be formed merely based upon communication to us through this web site. No one should provide any confidential communication to us prior to our formal acceptance of your case. No information sent through this web site is considered by you to be confidential or secret.

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  • What rights does a business owner have with a debt collector for credit card debt?

    I am trying to get a detailed statement of purchases on a credit card for a business that closed 3 years ago. The business was dissolved and all debts and assets were turned over to my partner. The debt collector says they don't have the info, a...

    Derick’s Answer

    Unfortunately because the debt is "business" and not personal or consumer, you cannot avail yourself of any rights under the Fair Debt Collection Practices Act (FDCPA) which requires debt collection agencies to send you a validation letter which describes the alleged debt owed, interest and other charges.

    Dealing with business debt is tricky since the law assumes that most business owners are more sophisticated and savy than the average consumer and that the parties deal at "an arms length" transaction.

    Unfortunately, in this case, my best advice is to wait until the statue of limitations expire or wait until you get served with a possible lawsuit and then fight them off through discovery and make them prove their case in court.

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  • Garnishing a judgment debtor's bank account

    I won a judgment a year ago before the debtor was married. Now they are married and have a joint bank account. How do I start the process of garnishing their bank account and what are the steps I need to follow?

    Derick’s Answer

    Usually garnishing a bank account is not the best way to collect a judgment. Depending on what state you are in, you would have to send a summons of garnishment both to the bank institution and the last known address of the defendant. If the defendant gets word of the impending bank garnishment, they will have advance notice and close the account and thus prevent you from ever collecting on the account.

    The best garnishment practice is to find out their employment and garnish their wages. If they are self employed, however, bank accounts may be your only option. Now that you have your judgement, I would advise you to file what is know as a post judgment interrogatories and serve this on the defendant, they normally have 30-45 days to anslwer the interrogatories and provide you with information about employment, assets and financial accounts. If they fail to answer, they may be held for contempt. I would advise you to retain an experienced collections attorney to handle this. Most attorneys can do this on a contingency basis plus court costs arrangement.

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