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Charles Moses Clapp

Charles Clapp’s Answers

49 total


  • What happens if a collection agency files suit but sends it to an incorrect address? Does it affect my time to respond?

    I only know because letters are being sent to my parents' house in a different city and county from various bankruptcy attorneys. It is a suit from a collection agency I am unfamiliar with so I don't even know who the debt is from. I tried to look...

    Charles’s Answer

    Mr. Riddle is correct that your time to file an answer to the complaint doesn't start until you are properly served. However, personal service--like you see in the movies with the court server disguised as the pizza man--it not the exclusive means of perfecting service. If the plaintiff has made a dilligent effort to personally serve you, and hasn't been successful, they can move the court for service via publication. Then they just have to publish that you are being sued for 4 weeks, and you are served.

    What this means is you need to speak with an attorney about your options immediately. Sounds like you still have some time, since service via publication usually takes a few months.

    Filing bankruptcy will very likely get rid of this debt, along with most others you may have.

    Hope this helps!

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  • Can property subject to a judgment lien be sold at a tax sale and does purchaser inherit lien?

    Georgia taxes owed on property for 3 years due to be sold at tax sale but property has judgment lien attached

    Charles’s Answer

    The answer to your questions is yes and yes. A judgment lien will not stop a property from being sold at a tax sale. The tax lien has super-priority, which means it cuts ahead in line in front of any other security interests in the property, including mortgages and judgment liens. After the tax lien is satisfied, an purchase money mortgage holder would be next in priority, followed by HOA liens and judgment liens.

    All liens will be paid by the proceeds from the tax sale. If there is no equity in the property to satisfy the liens, then it is doubtful that anyone will purchase the property.

    Hope this helps!

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  • Do I sue bankruptcy trustee lawyer?

    house upside down.mtgr kept delay refinance3yrs,.filed bankruptcy. sudden fyi deed not signed by both owners last refi. so mtgr and 1 owner own house. mtgr didn't finish motion for forced sign. trustee goes to insur of mtg negotiate some $$ 67k ?...

    Charles’s Answer

    First let me say that your question is very difficult to understand. However, based on what I can make out, it sounds like the security deed for your home was not properly attested. If that is the case, then the Trustee has probably moved the court to void the security deed and take the house for the bankruptcy estate. If this happens, make sure you have used all of your exemptions on the home. You will stand to gain anywhere between $20-40k when the home is sold. In the meantime, you get to live in the house for free. Finally, you may be able to negotiate a deal with the Trustee to purchase the home from the bankruptcy estate.

    You should contact your attorney and schedule a sit down meeting with them to discuss how to proceed. I don't think the situation is as bad as you think. But your first priority should be to sit down with your attorney and have a frank discussion about what is transpiring!

    Hope this helps.

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  • Yesterday I got A writ of Fi Fa in the mail. Is there anything I can do?

    In 2012 I was served for a credit card debt which I didn't know about until the day I was served. Turns out a friend of the family stole my card and maxed it out. When I went to court I went alone and explained this to the credit card company lawy...

    Charles’s Answer

    You can't appeal a consent judgment, and it sounds like that's what you've entered in to. That leaves you with 3 options:
    1. Pay the debt through garnishments/bank levy;
    2. Attempt to settle the remaining balance with a lump sum of money. Post judgment, this typically takes 80% of the amount owed, so in your case, you would probably need $8k to get the other party to settle. Remember that the plaintiff is now holding all the cards--they have a consent judgment for the full amount, and once they record the FiFa, they can draw 25% of your after-tax income, plus they can levy your bank account; and
    3. File bankruptcy.

    So your best bet is probably to file bankruptcy. You should consult a lawyer who specializes in bankruptcy right away.

    Hope this helps and good luck!

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  • If I live on a fixed SS disability and i have been disabled since birth, can i be made to pay fines and probation fees?

    when the case was heard and i was put on probation for 5 years for a felony charge, my attorney or no one let the judge know i did not have the ability to pay. it would be a hardship on me as to not having anything to live on. I only receive 622.0...

    Charles’s Answer

    Court fees and fines, including probation fees, are non-dischargeable in bankruptcy. However, your failure to make probation payments cannot be used to violate your probation, unless the Probation Officer proves that you willfully avoided paying the money. In other words, they have to show that you actually have the money to pay the fines, but willfully withheld paying for it to buy something else that is a non-necessity. There was actually a U.S. Supreme Court case about this that came out of Georgia called Bearden v. Georgia, 461 US 660 (1983).

    However, despite the fact that this case exists, there is broad misinterpretation of its meaning. If you only receive $622 monthly, you should qualify for a public defender. Speak with your local public defender about this issue and make sure to quote the Bearden case.

    Hope this helps!

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  • If an HOA filed bankruptcy would they have a legal claim to a back-billed amount?

    The HOA stopped invoicing for 4 months, then sent a letter stating that dues were increasing effective May 1. They also back-billed for the 4 months they had not been invoicing. Now they want the the entire amount. This was do...

    Charles’s Answer

    You still must pay the HOA for the months you weren't billed, regardless of whether the HOA filed bankruptcy.

    First of all, HOAs are entitled to assessment fees pursuant to state law. Filing bankruptcy does not change this. IF the HOA filed bankruptcy, the right to collect the fees may belong to the bankruptcy estate, rather that the bankruptcy debtor (allegedly, the HOA). But this subtle change in who is entitled to the fee does not change the fact that you are still liable to pay the fee.

    Hope this helps!

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  • If a financial institution issues a 1099C for one customer are they required to issue for all that fall into same criteria?

    Is there some kind of fair practice regulation that is in violation if the financial institution is not consistent in how and who they report on 1099C for default of loan?

    Charles’s Answer

    First off let me say that the first answer hit it right on the money. It is up to the lender whether to issue a 1099-C. Usually lenders issue these because they get a tax right off, but issuing 1099-Cs are in no way mandatory.

    I would simply add that, if you have received a 1099-C, you can contest it by filing a Form 982. Filing a Form 982 allows you to reduce your taxable income by any amount added by a 1099-C by showing that you have discharged the debt in bankruptcy. However, even if you haven't filed bankruptcy, you can still use the Form 982 to show you were insolvent at the time, and therefore the addition to taxable income should not apply.

    In short, if you have received a 1099-C, you should consult a CPA or tax attorney about filing a Form 982.

    Hope this helps!

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  • What's the statute of limitations for collecting a med. debt from over a year ago when service was conducted in TX, I'm in ATL?

    I paid the Urgent Care facility and so did BC/BS. The negotiation w/ BC/BS was conducted in 7/2013, now they are seeking over $138 from me. Seems to be an attempt to boost their collectables. They are threatening to go to collections. I am DONE pa...

    Charles’s Answer

    In Georgia, the statute of limitations on contracts is governed by OCGA sec 9-3-24 and 9-3-25.

    The statute of limitations on written contracts is 6 years from when the account is due and payable, and runs from the date of last payment.

    The statute of limitations on open accounts is 4 years.

    Usually, medical debts are written contracts, because when you go into the hospital, prior to having work done, you sign lots of documents, including contracts requiring you to pay the bill.

    Your question is unclear about whether you incurred the debt while you lived in Texas or Georgia, but in my answer I am assuming Georgia. Texas law may be different.

    As another person pointed out, for an amount as small as $138, you are probably better just paying it. It is possible that you may have an action for violation of the FDCPA, in which case you should bring all your documentation to an attorney and have them review it. Also, if you have other debts, you should speak with a bankruptcy attorney about your options.

    Hope this helps!

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  • Chapter 13 Bankruptcy question. Preferential Transfer.

    We garnished the wages of a debtor. The Garnishee sent payments directly to us, rather than the Court. We tried to fix this through the Court and an order was issued to the Garnishee but they still paid us directly (we reported these payments to ...

    Charles’s Answer

    If an amount in excess of $600 was taken from a debtor within the 90 day period prior to filing bankruptcy, this is considered a preference and can be recovered for the benefit of the bankruptcy estate. If the debtor is able to exempt the proceeds, then the debtor or his attorney can sue for turnover of these proceeds.

    I believe you are misinterpreting 11 USC sec 547(c)(8), which states that the aggregate an aggregate amount of less than $600 is excluded from the trustee's reach. Put simply, any aggregate amount exceeding $600 is subject to turnover.

    One thing you have on your side is the amount. There are very few debtor attorneys who would take the time to sue you for an amount of $650. So, you may be able to just ignore the debtor attorney. But if he ends up suing you, you will likely be forced to give the money back.

    So, in summary, tehcnically you have to give the money back, but since the amount is so small, you may be able to avoid paying the money because it is unlikely someone would filing a lawsuit for turnover for $650.

    Hope this helps!

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  • What is going with my property esp motion to substitute party plaintiff?

    I filed chapter 7 bankruptcy and surrendered my mortgage in it. in Jan 2012 and was discharged on april 25, 2012. The bank never took the property. I checked the county website and I am seeing this on 9/10/2013 notice of dismissal and than on 2/2...

    Charles’s Answer

    • Selected as best answer

    Based on your answer, it sounds like the bank was trying to judicially foreclose on your property. This means that the bank was suing you in order to foreclose. Judicial foreclosure is a much slower and more expensive process than non-judicial foreclosure, which typically takes about 2 to 4 months.

    I am going to make another assumption that whoever initially attempted to foreclose sold the loan to someone else--which is why a party moved to substitute as plaintiff. And then it sounds like the case was dismissed.

    Sounds like a bank wants to foreclose on your house, but for whatever reason, the foreclosure is not going to occur right away because the lawsuit was dismissed. Like Mr. Ashman said, enjoy the free rent in the meantime, and make sure you preserve the property by maintaining insurance and keeping up the HOA dues.

    If your goal is to surrender the property, contact the bank about executing a deed in lieu of foreclosure. Or simply sit back and wait for the bank to execute the foreclosure, which could take months and, in some situation, years.

    Hope this helps!

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