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David Leibowitz
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David Leibowitz’s Answers

155 total


  • Is it possible to sue Robert J. Semrad Debt stoppers?

    I had a case with debt stopper about 3 years ago. I was to pay 260 every month for 3 years. during my final 3 months my case was dismissed because I was in default of like 400, which is what I only owned to them left. I contacted my attorney and h...

    David’s Answer

    Here, the question is why you were in default, what notice you got from the court, what notice you got from your attorney. To sue an attorney for malpractice, you have to (a) establish the facts (b) establish the negligence of the attorney (c) negate any comparative negligence on your part. You'll also have to establish that the actions of the attorney did not meet the standard of care for attorneys in this particular practice area. You'll need to consult with an attorney who specializes in legal malpractice and you'll need to find an expert to testify as to the standard of care for consumer bankruptcy attorneys. And the statute of limitations is 2 years from the date you suffer damages as a result of the claimed malpractice.

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  • Need to amend schedule B and C in Chapter 7 in Illinois and possible pending medical malpractice suit

    I have filed for Chapter 7 pro se in Illinois and now I need to amend my schedule B and Schedule C for a possible medical malpractice suit. My trustee said I need to include this information on line 21 of schedule B, but we don't even know if we...

    David’s Answer

    It is extremely important to list any potential claim, even if you don't know what it's worth. Yes, use whatever exemptions to which you are entitled. If you don't know the amount, that's OK. But if you fail to list the claim, the defense may argue that you are legally prevented ("estopped") from raising the claim subsequent to your bankruptcy. If the claim turns out to be significant, you may end up recovering even more than you owe to your creditors in bankruptcy. So do make this amendment with the help of your attorney.

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  • Are there any circumstances under which student loans can be discharged in bankruptcy?

    I have loans which I took out for my son to go to college. He did not finish college. I am unable to work, have applied for disability and was denied. I have entered an appeal. I have no income and no assets to speak of. Please advise me of my...

    David’s Answer

    It's difficult but not necessarily impossible. Lack of income and assets is not enough. You have to show a good faith effort to pay, inability to pay even a minimal amount, and substantial certainty that your financial condition won't improve. This is called the "Brunner Test". You'd have to file a bankruptcy case and then a complaint to determine discharge. The Krieger case suggests a new degree of possible leniency in this area at least in the Seventh Circuit which includes Wisconsin.

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  • Can i go to jail for a $300 loan

    They are calling me threaten me saying I'm going to jail....in its ain't been 30 day yet I'm scared

    David’s Answer

    If they are threatening you that you are going to go to jail, it might be a violation of the Fair Debt Collection Practices Act. You need to talk to a lawyer who understands this. You could recover substantial damages. However, you won't go to jail unless (a) a judgment is entered against you (b) a citation to discover assets is taken (c) you don't show up (d) a rule to show cause why you should not be held in contempt is issued (e) you still don't show up and (f) a body attachment is issued against you. For a $300 debt, this would be extraordinary. See a lawyer to assert any rights you have under the FDCPA

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  • As a creditor what can I expect at a chapter 13 hearing. Thank you in advance

    My wife and I rented a house to a single mother of two. After two years of excuses and promises we had to evict her. She was given a tiny payment plan (35.00) a month. She was given a judgement for 9500.00 dollars. It has been close to three years...

    David’s Answer

    Your trustee will be Glenn Stearns. You will be asked to explain your income and expenses. You'll be asked to briefly go over your income tax returns. You'll be asked if your schedules are complete. The trustee will explain to you how much you'll have to pay each month and where along with all of the details of chapter 13 administration. You'll also be informed about the need for a financial management course. You'll be asked to provide your income tax returns to the trustee annually during the terms of the plan. The meeting might take 15-20 minutes. Trustee Stearns may delegate to another person on his staff for the meeting.

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  • I filed Bankruptcy. after filing, one of the creditors sold the account. Is that legal?

    chapter 13, filed 2005, dismissed 2008 due to nonpayment. The account was sold after we filed, and when we were making payments. Really, it just seems odd that they could sell an account after bankruptcy has been filed on it, and we wonder if th...

    David’s Answer

    Creditors certainly can sell an account. However, after you've received your discharge in bankruptcy, the company which buys the account is considered a Debt Collector under the Fair Debt Collection Practices Act. By now, this account might be barred by the statute of limitations. Talk to a lawyer who understands consumer law and the Fair Debt Collection Practices Act.

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  • Is it okay to contact our Chapter 7 trustee myself to find out when our case will be closed?

    I want to be sure we are free and clear. Date filed: 11/16/2012 Date of last filing: 02/15/2013 Debtor discharged: 02/12/2013 Joint debtor discharged: 02/12/2013. Pending status: Awaiting Closing. "having been appointed trustee of the estate of ...

    David’s Answer

    In your case, the Trustee has done all he/she can do. The trustee filed a report of no distribution and the bankruptcy court has entered a discharge. Your case should be closed as a matter of administration unless there are overriding circumstances not obvious from your question. You might check with the court docket at PACER to see if the case has been closed. For MN, the site is www.mnb.uscourts.gov. If no reason appears, call the clerk's office. There might be a reason not obvious from your question.

    While answers about trustees and attorneys are all well and good, and could have validity in other situations, they don't seem particularly pertinent to your case.

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  • Credit card debt

    It has been over six years since i have last paid for my 3 credit cards, I lost my job back then and went through too many problems , but didn't file bankruptcy , now I am back to work and i want to know how to clean up my credit ?whats the statut...

    David’s Answer

    You asked several questions. But the most important one is the statute of limitations for credit cards. There is contention about this. But it could be as little as 4 years or 5 years. Credit card companies assert 10 years but the courts typically won't accept that.

    Negative credit reporting information may stay on your credit report for 7 years and an additional 180 days in the case of a charge-off.

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  • We were divorced in June 2012. Financial issues dont go into effect until bankruptcy is over and house is sold in 7/2014.

    living in same house until then also. Wanted to know how to file taxes?

    David’s Answer

    If your were divorced in June of 2012, your marital status at the end of the year should control. It would appear that you'd file either "single" or "single head of household" as the case might be. You are no longer married and would not file jointly.

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  • Bankruptcy and 1099-C. Can banks still issue 1099-C after filing for Bankruptcy?

    Have 2 investment properties currently in foreclosure. Have received offers for short sale. Weighing whether to accept short sale offers or file for Chapter 7 bankruptcy. Concerned about Tax implications if I accept short sale offers.

    David’s Answer

    If you are insolvent, you may not need to file a bankruptcy owing to tax implications. You frequently can avoid forgiveness of debt income if you are insolvent by filing appropriate tax forms. Of course, bankruptcy results in no "FOD" income at all.

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