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Martin M. Holmes
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Martin Holmes’s Answers

15 total


  • I'd like to get a job, but afraid of losing my whole paycheck

    I've been recently sued for an auto accident that my kid's father caused back in 2011 as of this past February or March. I wasn't working during the court procedures but recently been offered a job position. My question is can I work out a payment...

    Martin’s Answer

    In Michigan the owner of a vehicle is jointly liable for injuries caused by a negligent driver. That is in all probability the basis of the judgment against you.
    A judgment creditor cannot garnish the full amount of your paycheck but I would expect bank accounts to get hit as well as state income tax refunds.
    Perhaps a bigger problem is that if the judgment is not paid your driver’s license can be suspended by the state.
    $500,000 is a huge debt. You may want to take a look at filing a bankruptcy discharging the debt and getting a fresh start. A bankruptcy will prevent the Plaintiff from garnishing wages or anything else and with the debt discharged your driver’s license should be safe.
    I would consult a consumer bankruptcy attorney in your area.

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  • Can I discharge student loan debt if I'm mentally disabled? (Bipolar Type 1 and Paranoid Schizoaffective disorder diagnosis)

    Was recently diagnosed, and am currently looking to get SSI disability. Suffered lots of childhood abuse and suffered from severe mood swings throughout my teenage and adult years. Am currently court ordered to take depression and anti-psychotic m...

    Martin’s Answer

    As others have suggested discharging student loans in bankruptcy is very difficult.

    #11 U.S.C. § 523(a)(8) excepts from discharge an individual educational loan made, insured, or guaranteed, in whole or in part, by a governmental unit or nonprofit institution of higher education, and, if excepting the debt from discharge will not cause undue hardship for the debtor and the debtor's dependent. In order for a debt to be excepted from discharge under #11 U.S.C. § 523(a)(8), all of the following elements must be present:

    1. The debtor must be an individual debtor.

    2. The debt must be a debt for an educational benefit loan or overpayment that was:

    a. made, insured, or guaranteed by a governmental unit as defined in § 101(27); or

    b. made under any program funded in whole or in part by a governmental unit or nonprofit institution (regarding whether debtor must be obligor or co-obligor, see section 16.86).

    3. Excepting the debt from discharge will not impose an undue hardship on the debtor and the debtor's dependents

    It is the debtor's burden to show that excepting the debt from discharge will cause undue hardship. See Miller v. Pa. Higher Educ. Assistance Agency (In re Miller), #377 F.3d 616 (6th Cir. 2004)

    There is no standard definition of undue hardship and the question of undue hardship depends on the facts and circumstances of each case. One widely-followed test for determining undue hardship was set forth in Brunner v. New York State Higher Educ. Servs. Corp., #831 F.2d 395 (2d Cir. 1987) (per curiam). In Brunner, the court stated that to prove undue hardship a debtor must show
    "(1) that the debtor cannot maintain, based on current income and expenses, a 'minimal' standard of living for herself and her dependents if forced to repay the loans;

    (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and

    (3) that the debtor has made good faith efforts to repay the loans." Such good faith efforts can be shown by payment history, efforts to use workout or forgivness plans with the Department of Education or Lender.

    The national Consumer Law Center has good information check out http://www.studentloanborrowerassistance.org/

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  • Do I have to give him back the engagement ring?

    He proposed August 2014 I left him November 2014 I understand the law varies by state

    Martin’s Answer

    In Michigan An engagement ring given in contemplation of marriage is an impliedly conditional gift that is a completed gift only upon marriage. If the engagement is called off, for whatever reason, the gift is not capable of becoming a completed gift and must be returned to the donor.

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  • Is bankruptcy my best option ?

    2 years ago, I received ssi and they said there was a overpayment, my payee filed the waiver and it was denied. Now they are saying it is all on me when I had a payee the whole time. The debt is 16,000. They have already took my tax refund. I don'...

    Martin’s Answer

    Bankruptcy may or may not solve your problem. If fraud was involved, then the debt may not be discharged in bankruptcy. You need to get copies of all of the correspondence and set up a consultation with a good bankruptcy attorney in your area. In Kalamazoo I recommend Paul Davidoff (269) 388-2100. See my article on this sight How to find a good Bankruptcy Attorney. Stay away from bankruptcy petition preparers. They are not attorneys. You have a lot of money at stake.

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  • Do I need a attorney?? Need answers

    I sold my friend a car and moved out of state. In doing so I left my expired plate in the trunk of the car... 2011 she was in a accident, hitting the wall on the freeway, she suffered injuries and was rushed to hospital. Passenger: He did not rece...

    Martin’s Answer

    If you have been served with a lawsuit you need to retain an attorney ASAP. You have limited time to file a written answer with the court. If you do not the Plaintiff can obtain a judgment by default.
    Do not hesitate. You have some defenses,

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  • Can a company recoup money from a defendant in a lawsuit if the defendant is only receiving disability?

    I returned a vehicle to credit acceptance because I was not able to continue to pay for it after I became disable. They sold it for little and didn't even get half of what I owed, now they are coming after me for the remaining balance. I received ...

    Martin’s Answer

    It depends on the type of disability. Social Security Disability can not be garnished. A bank account can be garnished but if the Money in the bank account is social security disability then it is not subject to being taken by a creditor. The process would go like this. Creditor obtains a judgment then after the appeal period obtains a writ of garnishment from the court and serves it on your bank. The Bank can not release any funds to cover checks or pay you until it received an Order releasing the garnishment. the Bank notifies you of the Garnishment and files a return with the court that says We have X amount of $ , You have 14 days to file an objection to the Garnishment. You file an objection and tell the court why the ganishment should be dissolved. the curt sets a hearing, You prove that the only $ in there is from social security the court releases the garnishment. And notifies the bank. Your problem of course is your money is tied up for a few weeks and you may get bounced checks and fees. If the disability income you are talking about is not social security but private disability insurance payments it is not exempt from garnishment in the bank account. If your getting Social security payments they should go into an account that only has social security deposited to it. Other funds should be deposited into a separate account. that way if you have to prove the money in the account is social security you can produce the bank statements that show the deposit from Social security. You may have defenses to the suit for the deficiency. The repossessing auto companies must sell the car in a commercially reasonable fashion and give you advanced notice of the sale. they must also give you an accounting . Check with a lawyer.

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  • 2 year old charge off is keeping me from qualifying for a home. Alleged debt has been forwarded 4 times. Should I pay or fight?

    I have a charged off account showing on my credit report for a vehicle that was stolen. I believed my previous insurance company paid balance off 2 years ago, however, I have been unable to get verification of the 'settlement' from that insurance...

    Martin’s Answer

    • Selected as best answer

    " charge off" doesn't mean the same thing as paid off. Typically lenders such as Ally are accrual basis tax payers. The debt to them is considered income when it is incurred not when payment is received. It can be offset for tax purposes when the account is " charged off " or written off as a bad debt on the books of the creditor. Typically the charged off debts are sold to debt buyers who then pursue collection. I suggest that you respond to the collector or credit reporter that the Account is "disputed" and request: 1. a copy of the contract or loan documents. 2 A complete accounting of all payments and charges from the date of the loan to the present. 3) A copy of all correspondence . In Michigan if a vehicle is repossessed, the owner must be notified in writing of the repossession and the date time and place of the sale. Following the sale the creditor must submit to the owner an accounting showing the sale price, additions or charges made in connection with the sale and the balance still due. the sale must be in a commercially reasonable manner. Failure to do that provides defenses to a suit for a deficiency. While you are waiting for the response, Obtain a copy of the police report showing the theft of the vehicle and the insurance company file showing the claim and all correspondence and payments. Once you have gathered that information you will have the ammunition to request the creditor to correct their file , dispute the debt with the credit reporting agencies or determine if the debt or any part of it is just and collectible. Gather the information and then hire an attorney for a consultation to review your options. The federal Trade commission has some good resources for disputing inaccurate credit report information. For more information, see How to Dispute Credit Report Errors at ftc.gov/bcp/conline/edcams/credit/ .

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  • At what point do i need to turn in my van if i choose not to keep it out of the bankruptcy?

    I haven't decided if i am going to keep my van out of my bankruptcy (haven't filed yet), and am just now 27 days late on the payments. I was informed that the bank was not reporting correctly to the credit bureau and I am not receiving credit. M...

    Martin’s Answer

    When you file a bankruptcy, all creditors are immediately enjoined by operation of law from taking any further action to collect the debt. This is called an “automatic stay”. That means the bank can’t repossess the vehicle without first going to bankruptcy court and obtaining an order lifting the automatic stay. Your options with regard to the vehicle will depend on the type of bankruptcy. In a Chapter 7 you can choose to 1) surrender the vehicle. 2) Redeem the vehicle by paying the creditor what the vehicle is worth not what you owe. This requires a cash payment but there are companies that will finance the redemption. 3) Reaffirm the debt.
    Creditors like reaffirmations because they take the debt out of the bankruptcy discharge and you remain liable on the debt. So if the engine blows next year you still owe the creditor. When you file a chapter 7 you must declare your intent to surrender, redeem or reaffirm. You can change your mind and not perform that intent. If you don’t perform the intent by 30 days after you meet with the bankruptcy trustee the creditor can repossess meeting with the trustee is about 30 days after you file.

    In a chapter 13 bankruptcy you can pay the car payment through the chapter 13 plan and unless the loan on the car was taken to purchase it in the last 910 days you can “cram down “ the debt to pay only the fair market value of the vehicle which often is less than the amount of the debt. You can “cram down” the interest to around 5% if that is less than the interest on the loan. You can also reduce the amount of the monthly payment

    One word of caution. Your bankruptcy will not discharge your ex husbands liability on the loan. If your judgment of divorce provides that you are responsible for paying the loan, the bank will be able to make your husband pay the debt. Your husband will be able to make you repay him and a Chapter 7 bankruptcy won't discharge your obligation to him. A chapter 13 bankruptcy will discharge your obligation to your ex husband for property settlement but not spousal support.

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  • Savings account garnishment question

    A creditor recently garnished my savings account. Took everything. The court paper states the first $500 is exempt. Also, it states I should have been notified within 7 days of the court order to garnish. It was issued on the 4th, I received it on...

    Martin’s Answer

    There are specific reasons that will allow a court to sustain an objection to garnishment. For example if all of the funds in the account were from social security it is not subject to garnishment. If the debt was discharged in a bankruptcy, or if there is a pending bankruptcy the funds are not subject to garnishment. If no bankruptcy has been filed. Filing a bankruptcy may help by discharging the debt and other debts, You may be able to recover the funds that have been garnished if it is over $600 and the garnishment was within the 90 days preceding you bankruptcy filing. You should immediately consult an attorney that is knowledgeable about debt relief and bankruptcy law to explore your options.

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  • Can my wages be attached for a credit card that has been delinquent for over 6 years?

    No payments have been made since 2008

    Martin’s Answer

    It depends on the law of your state. What are the statute of limitations and how is it raised? Typically wages can not be garnished or property seized until after a judgment. In order to obtain a judgment you first need to be served with a summons and complaint alleging the debt. In Michigan the statute of limitations is 6 years. It is raised as an affirmative defense. If you don't answer a complaint and raise the defense you lose the right to do that in the future. Has a judgment entered in your situation? Is the debt in the hands of the original creditor or assigned to a collection agency or debt buyer? Recent court decisions of held that filing a claim on a time barred debt is a violation of the Fair Debt Collection Practices Act. You need to consult an attorney in your area to review your situation in detail, in order to properly protect yourself.

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