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Robert M. Gardner Jr.
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Robert Gardner’s Answers

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  • What is the statue of limitation for suing a police dept. in GA?

    This is a hit and run case from 2011. I gave the police the registration info. for the other vehicle involved and yet they (detectives) claim they cannot find the accused.

    Robert’s Answer

    Unless a police department vehicle was the one that hit you, you would have no basis to sue the police department. Failure to investigate or simply incompetence on their part is not something you could sue them for either as they would have sovereign immunity from a suit of this kind. Were you to try, you would have to send them what is called an anti litem notice within months of your loss to sue them, then sue them or the at fault party within 2 years under the applicable statute of limitations. Therefore, it sounds like you don't have any recourse, unfortunately.

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  • My husband wants to adopt my daughter and her biological father just filed a petition to terminate his parental rights.

    The hearing date is coming up soon and we have not started the adoption process so will the biological father's rights be terminated or not? I was told it's possible that the judge won't grant the termination due to the fact we have not begun the ...

    Robert’s Answer

    A judge is often hesitant to terminate rights of a biological father when no adoption is pending, as the terminate can also terminate his child support obligations. From what you have stated to me, if the father is willing to give up his rights, you should look to get him to sign a surrender of rights pursuant to an adoption. This would make the adoption process quicker, smooother, and cheaper. If you could present this to him at the hearing as an alternative, that may work best for all involved.

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  • What type of attorney would we need to represent us to negotiate a proposed reduced payoff of our 2nd mortgage with the lender?

    We negotiated our first mortgage with Bank of America through NACA to get a fixed reduced rate. The second mortgage was bought by another lender who wants to now negotiate a payoff. They initially charged it off and turned it over to a collection ...

    Robert’s Answer

    You could continue to negotiate with them yourselves, or hire a debt relief attorney to go over your options and see if you have something to hold over the second mortgage company (such as a lien strip in a bankruptcy). He or she could also tell you what your exposure would be if you did not settle with them. Sometimes, however, it works best if you work something out for yourself. Once they find you have an attorney, they may suppose that you have money to burn and become less willing to cut you a deal.

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  • I filed chapter 7 bankruptcy in 2012 and am now discharged and mortgage was sold to different company. Can I still walk away?

    I filed chapter 7 bankruptcy in 2012 and am now discharged. My lawyer told me that I am free to walk away from the house at any time without consequence. However, the mortgage company that I had while in bankruptcy has transferred my loan to anoth...

    Robert’s Answer

    As the other responders have stated, you can still walk away, regardless of who owns the mortgage. HOA fees and taxes are still your responsibility until the foreclosure, and the timing of a foreclosure is solely at the discretion of the current mortgage holder. However, you should not worry about the taxes, as those run with the property, and someone will eventually have to pay them in order to clear title to the property. What happens in a foreclosure process is that you will get letters from an attorney stating when the foreclosure it, and accelerating the amount owed to pay off the mortgage. Ignore the parts about money, and make sure you read these carefully to see when they are actually foreclosing so that you can make sure everything is out of the house. I advise my clients to also make sure there is insurance on the property until the foreclosure happens, as someone getting hurt on the property will sue you as long as the property is still in your name. That would even include someone vandalizing your abandoned house.

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  • Will bankruptcy get a civil judgment off me

    a car accident I was not in

    Robert’s Answer

    As the others stated, a motion to avoid the judicial lien should be filed in the bankruptcy case, and that will take care of it assuming you qualify for a discharge in bankruptcy. You mentioned a car accident. If this judgement is being used to suspend your license, the filing of a bankruptcy case will get the suspension lifted.

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  • On SSDI, haven't filed taxes, need to do Chapter 7 bankruptcy.

    I have been on SSDI for nearly 20 years, I have no additional income and was informed that I didn't need to file taxes. My current household income has taken a turn for the worse and I need to file Chapter 7. Can I do so without having to go ba...

    Robert’s Answer

    If you did not have enough income to require you to file tax returns, you would file an affidavit to that effect when you file the bankruptcy case. That should be all you have to do for a chapter 7.

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  • Can I ask credit card companies to reduce the interest rate they charge & offer to pay less than the minimum payment?

    My 80 yr old parents filed bankruptcy about 3 yrs ago and now they have accumulated 15K of debt again. They also bought a new car and my mom had a stroke in June & I fear medical bills will eat them alive. They have no assets other than the car a...

    Robert’s Answer

    It sounds like they filed chapter 7 a few years ago. If so, they can't file another chapter 7 for 8 years. The could file a chapter 13, but would have to just consolidate all of the debt and pay it all back unless it has been 4 years since the chapter 7 was discharged. However, that does not mean that they are not close to this, and that creditors can't be held off until then. If they have no assets to lien, and no wages to garnish, they may be immune from anything that creditors could do to them anyway, with the exceptions that some medical providers can deny future treatment if their bills are not being paid. The car can be repoed if the payments are not made, so make sure that those payments are current. Then, see a bankruptcy attorney for a free consultation about options. They will have to be involved directly, as you cannot file a bankruptcy for them as their power of attorney. Also, I agree that debt consolidation is garbage in most cases, and won't work for most medical bills anyway, just credit cards.

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  • Is it possible to get a letter of administration without filing probate?

    My husband passed away it will be 3 years this August . All of his affairs I have taken care of except the mortgage is in his name . They won't talk to me unless I have a letter stating I am the administrator . My deed states joint tendency with t...

    Robert’s Answer

    The house is now yours, subject to the mortgage. However, you cannot become the administrator (if no will) or the executor (if he had a will), without probating his estate. Also, if you went to sell the house, the seller would have no way of knowing that he had passed away because there is nothing filed in the Court records showing that he passed. This also prevents the mortgage company from speaking with you because they can only speak with the person on the loan or their legal representative. Speak with a probate attorney about options such as obtaining letters of administration, or even filing a petition that no administration is necessary. Often an order in the latter is legal enough to get the mortgage company to talk to you. In the meantime, make the payments on the house and you should be fine.

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  • In Georgia if a person walks away from a chapter 13 bankruptcy, can he bankrupt again within seven years?

    Debtor has bankrupted against a small claims judgement and walked away from the chapter 13 bankruptcy. He has not made an agreed upon payment in 5 months. What is my recourse and can he reinstate the bankruptcy or refile. Also is interest on th...

    Robert’s Answer

    If a chapter 13 is dismissed, and the debtor did not receive a discharge in a prior case within the last few years, he can refile it any time. That does not mean that you, as a creditor, cannot move ahead until he does re-file, or even to oppose his re-filing if you have grounds to do so. As to interest, since the case was dismissed, you treat the accrual of interest as if the bankruptcy case never existed. Payments you may have received during the bankruptcy should be given credit. And, if he re-files chapter 13, you need to file a proof of claim for the amount he owes you through the date of the new filing.

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  • Is it true that the fair debt collection act says that if we give a partial payment to a debt they have to accept?

    Let's say I am supposed to pay $197 a month for my loan. If i only give them $100 or $50 are they obligated to take it? I heard if they didn't then they would be in violation of the Fair Debt Collection.

    Robert’s Answer

    The FDCPA does not apply to the original creditor, only to third parties collecting. It does not force them to take less than the original amount, and often they won't do so because of internal policies they have where they won't sue until a certain period of time has gone by since a last payment. Therefore, if they accept the payment, often they will not sue, but there is no law requiring them to do so. If this is the original creditor you are dealing with, accepting a partial payment may mean that they are willing to work with you, but does not bind them to anything.

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