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Rustin Scott Polk's Answers
Contributor Level 9
- 48 Legal Answers
- 1 Legal Guide
2
Attorney answers:
CH7 VS CH13?
Chapter 7: Chapter 7 is the most common form of bankruptcy. It is a liquidation proceeding in which your non-exempt assets, if any, are sold by the Chapter 7 trustee and the proceeds distributed to your creditors. Chapter 7 is available to individuals, married couples, corporations and partnerships. Individuals get a discharge within 4-6 months of filing the case. If there are assets which are not exempt, the trustee takes control of those assets, sells them and pays your creditors off with...
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Attorney answers:
Can I avoid my wages being garnished for restitution?
A chapter 13 bankruptcy will allow you to pay it out over 5 years, but will not let you pay less than the full amount or let you discharge any part of the total debt. It will have to be paid; the question is would you like for them to take huge chunks out of your checks or if you would rather pay it out over the 5 years. Rustin Polk Dallas Bankruptcy Lawyer www.214bankruptcy.com
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3
Attorney answers:
Chapter 13 Stricken?
Although the question says you're in Dallas, my guess is your case was filed in the Eastern District rather than the Northern District. DFW straddles the dividing line and if you're in Collin or Denton County, you end up in the Eastern District. There's an important reason for focusing on that little detail-- the rules between EDTX and NDTX are very, very different. On a 13 in the Eastern District, your Certificate of Service on the back of the Petition cannot simply say that it was...
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Attorney answers:
What is a non judicial foreclosure? I thought in the state of Texas the new law required you to go thought a judge.
I think the "new law" you mention is the home equity loan situation. A HELOC involves going through a judge. Regular mortgages (actually, a Deed of Trust) and HOA's can still go the nonjudicial route. Of course there is a whole set of rules you have to follow when doing that and your HOA lawyer will know how to navigate you through those rules, but it does not involve filing a court lawsuit first as required for home equity loans. I hope this brief description helps. Rustin Polk Dallas...
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Attorney answers:
Can I get arrested or have a judgment filed against me for a payday loan that is over a year old?
Mr. Bailey's answer is not correct. It may be correct for the state in which he is licensed, but not in Texas. The specific situation described will not qualify for the Texas theft by check statute because Check'N'Go takes postdated checks. Since the check is postdated, it cannot satisfy the statute's requirement that you "represented" to Check'N'Go the funds were actually in the account on the date it was issued. The payday loan companies say these things all the time-- scaring you is...
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3
Attorney answers:
What can I do to get my car back? Can I get arrested for not surrenduring it?
The court lifted the stay so that the bank can take whatever actions it needs to take. If the bank wants their car back, let the bank go get it. It's illegal for you to help conceal the car from them or to hinder their ability to find it, but once you tell them everything you know then it's their problem. ========== Rustin Polk Dallas Bankruptcy Lawyer
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Attorney answers:
If someone files bankruptcy on an onwer financed note, can we get the property back or do they get to keep it
To Mr. Goldstein's answer I would only add that whatever you end up deciding to do-- accelerate the note, foreclose, etc-- you will first need permission of the court since all of your collection or enforcement activities will be "automatically stayed" under 11 USC 362. Getting out from under the automatic stay requires a separate motion and hearing. Rustin Polk Dallas bankruptcy attorney
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2
Attorney answers:
Can I keep my vehicle when filing for Chapter 7, if the original note was obtained using the vehicle as collateral?
If the credit union changed the loan documents to reflect it as unsecured, then they have novated the original agreement and they will not be able to claim secured status. We would need to read the loan documents to make sure that assumption is correct. Even if that were not the case, their claim would be avoidable because they did not perfect their lien within 30 days. Maybe Mr. Kelly's answer is correct under Illinois law where he is licensed, but it is incorrect here in Texas where you and...
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Attorney answers:
I recieved a summons for non payment of a sears credit card in Texas. What do I need to do?
If you received an actual summons from them then I assume that the took the drastic step of actually suing you. You can defend that lawsuit or just let them take a default judgment against you (not usually a very good idea). Those kinds of suites are not too hard to get resoled, but something you really have to ask yourself before finding and hiring the lawyer is this-- do you want to pay a lawyer $2,000 or so to fight that one debt and then you keep all your other debts, or is it better/...
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3
Attorney answers:
Can you file bankruptcy if you have no credit card debt, you are only trying to save your home?
Yes. If you file a bankruptcy, in can help you save the house and prevent foreclosure. My firm does a dozen or so of these every month. Now, you still will need to find a way to make the mortgage payments in the future. If you can do that, then you can take all the past due amounts and roll them into a Chapter 13. That lets you pay it back slowly over 5 years, instead of the 6 months or so that the mortgage company usually tries to impose on you. Rustin Polk Dallas, TX www....
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