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Michael J. Ireland

Michael Ireland’s Answers

211 total

  • Is bankruptcy nessasary

    Myis disabled from the brain aneurysmjust getting so security disabilityand you don't know getting money from my dad retirement from the servicebecause of her disabilitiesshe had a has a lot of billsand I'm I'm running a time I need to find her pl...

    Michael’s Answer

    Norman, I am not certain I understand the situation from your post.

    Is your mom single (widower) or still married to your dad? How old is she? Does she own her house? How much are the total bills (approximately)? Can you add this information to your post?

    IF she is single and permanently disabled and has very few assets and only 2 sources of income (military retirement and disability), it might not be worth the time and money to file a bankruptcy.

    However, depending on how aggressive the debt collectors are (and some other factors not mentioned in your post), it might be worth the time and money just to clean up the debts so it is over and done with.

    Good luck.

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  • Can a process server claim to be a Court officer and tell others im being sued?

    I had a process server go to my moms home looking for me. Buzzed her early in the morning and kept saying officer and looking for my. then came to her door and told her I was being sued and why. He did this a second time and told her neighbors. ...

    Michael’s Answer

    As Mr. Lysle said, a licensed process server is a Court officer, but NOT a police officer. They are REQUIRED to say they have legal process or legal papers or you are being sued, or similar words.

    If you used your mom's address on credit applications, identification, etc., it is REASONABLE for them to go there in search of you.

    If they discussed WHY you are being sued or any details of the lawsuit, that is inappropriate.

    Contacting neighbors TO ASK IF THEY KNOW WHERE YOU ARE is OK, but discussing with them WHY you are being sued or any details of the lawsuit is inappropriate.

    FDCPA lawyers generally pursuit lawsuits against debt collectors at no charge to you (they recover their fees from the bad collectors).

    Good luck.

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  • I was ordered to reimburse a credit card that was later discharged in a bankruptcy. Do I still have to repay it?

    I was ordered to reimburse my ex for a credit card balance which she never paid in our divorce. She had only paid about $5,000 of $90,000 bill. The balance was actually almost $100,000 when she declared chpt 7 bankruptcy and it was discharged. I...

    Michael’s Answer

    It is very difficult to directly answer because your facts are insufficient.

    WHAT court issued the order? If it is a state court debt collection judgment, that is very different from a family law judgment. (Sounds like a family law judgment though.)

    Does the order really compel you to "REIMBURSE YOUR EX" or does it say "PAY THE DEBT" or "PAY YOUR EX"? All three are different. Literally, "reimburse" requires the person to pay it first, but without looking at the EXACT language of the judgment, I could spend all day guessing what it really says and what that means.

    I strongly urge you to contact your family law attorney and have them decipher the meaning for you.

    Bankruptcy does NOT "trump" everything, especially when it comes to family law, so that is not a quick answer.

    Good luck.

    If that order is part of a FAMILY LAW divorce proceeding, you need to heed the advice of the prior responses - talk to your family law attorney.

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  • Some clarification (From me) regarding my 1st posting: What counts as an initial communication from a debt collector?

    Does the debt collector have to send me the debt validation letter within 5 days of the initial phone call, even if they just leave a voicemail, or does there have to be actual contact between myself and the debt collector for it to be considered ...

    Michael’s Answer

    Generally, the notice that you can request debt validation is done in the first WRITTEN correspondence sent to you a collector (usually in the "fine print" legal mumbo jumbo). An unanswered telephone call generally is NOT communication that triggers this requirement.

    As a complete aside, if you don't want them calling you, federal law allows you to notify them in writing to cease telephone calls. They can still mail you.

    If you are considering pursuing legal relief against a debt collector, contact an FDCPA attorney. As the others mentioned, generally those attorneys take cases in which the losing debt collection company pays their fees, so it should cost you nothing.

    Good luck.

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  • How to do a Court approval bankruptcy short sale?

    I am the listing agent on a short sale that the bankruptcy trustee has given me a court approval to proceed with the short sale. Bankruptcy trustee indicated I do not have to deal with the borrower any longer, borrower has moved out. I am dealing ...

    Michael’s Answer

    Messrs. Weiss and Brinkmeier are saying different things, probably because your fact scenario is skimpy on details.

    An OUT OF COURT short sale is described by Mr. Weiss. The Trustee (either Chapter 7 or Chapter 11) is your client, not the former resident. (If this is a Chapter 13 case, something is wrong.) You probably will need the Trustee to contact Chase to clear that up. Frankly, I am surprised the Trustee is dealing with this at all because there is NO money here for the Trustee. Most trustee's would just abandon the property back to the debtor, then you'd need to deal with the debtor (who might refuse to cooperate too, understandably). If it is NOT acceptable to Chase (for any reason), the short sale will probably fall apart because escrow cannot close without Chase's consent.

    Mr. Brinkmeier is referring to a 363 Sale THROUGH THE COURT free and clear of liens. Again, no trustee would want to do this because it costs money to prosecute the motion and there is NO money going from the sale to the Trustee. Therefore, no trustee should do this. So, again, the short sale cannot go forward.

    Frankly, this short sale looks very tenuous. If Chase will gain nothing, why should they even spend the time to process the short sale documents? Of course, if Chase holds the 1st AND 2nd, they might have some incentive, but you did not mention that.

    Good luck.

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  • If I get my SSDI benefits taken away because I included an overpayment by SSDI in my bankruptcy, what kind of lawyer do I need?

    SSDI ignored court letter to creditors, continued collecting overpayment for 2 months, until I resent to both local and regional offices. 3 months after bankruptcy is final, I receive a hand addressed letter for a full medical review of my disabi...

    Michael’s Answer

    As Mr. Nachbar suggested, you need to find an attorney who specializes in SSI and disability benefits.

    However, it generally is NOT illegal to discriminate against someone who has filed bankruptcy. Lenders do it every day. That's why credit reports exist.

    Good luck.

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  • What to expect for a hearing and motion for Chapter 11 plan as a creditor?

    Hi. I am a listed creditor for a hearing for a chapter 11 plan. I was wondering, in short, what to expect? How, and if, I should prepare anything? As a tenant this involves the refund of my security deposit. Will I be required to prove that I a...

    Michael’s Answer

    As Mr. Weiss implied, most of your questions should have been asked long ago because your treatment has much more to do with your scheduled claim/proof of claim than the Chapter 11 plan.

    A tenant owed a deposit is likely a PRIORITY claim in bankruptcy. It is unlikely (although possible), the Debtor properly scheduled your claim (it should be on Schedule E, but is most likely on Schedule F if listed at all). IF the schedules are not accurate OR list your debt as disputed, contingent, or unliquidated, then it is your obligation to file a timely proof of claim for the correct amount and claim the correct priority.

    Be sure to attach to the Proof of Claim the rental agreement that shows the deposit is to be refunded AND proof that the deposit was made (a receipt from Debtor) and proof that the deposit should now be refunded (proof you moved out).

    You can SEPARATELY list in your proof of claim (you should add a sheet with your explanation of the treble damages) the "treble" damages you are claiming as a general unsecured NON-priority claim. It will likely be paid Zero (or close to that), but put it on the Proof of claim. Do NOT list it as a priority claim because it is not a priority claim and the debtor will file a motion against you to have the claim corrected. You will waste your time and money responding to the motion and going to court and the court will change the treble damages to non-priority almost certainly.

    Even if the proof of claim deadline has passed (most likely), go ahead and file a late proof of claim with the correct amounts and priority for the deposit amount only.

    There are several possible hearings involving a Chapter 11 plan, but you did not mention which one. Whatever hearing it is, it most likely will be a waste of your time to attend. The only objections to the Disclosure Statement and Plan or confirmation of the Plan are likely way beyond your legal ability to figure out or comment on, and likely your deposit (unless it is for a large commercial property) is much less than what it would cost a bankruptcy attorney to review the plan and advise you on issues that you could contest.

    Additionally, if your proof of claim is correct, the priority amount it MUST be paid in full for any plan to be confirmed legally. Therefore, your only focus should be on getting the correct amount and priority of your claim on file with the Court ASAP.

    Good luck!

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  • What can I do about my bankruptcy attorney adding charges to my payment plan for benefits covered in my chapter 13?

    I filed a chapter 13 in 2010 made my 36 month payments and at the end I called my trustee only to find out that my bankruptcy attorney petitioned the court to add $2175.00 in additional charges that we told to me would be covered in the original ...

    Michael’s Answer

    Most motions to avoid residential liens (i.e., strip the 2nd DOT or LAM motion) are not contested. My fees for this work usually end up around $1,000-$1,500. Since your attorney's fees are a lot higher, you should wonder why. It is entirely possible that complications in your specific case justify the higher fees. You just need to review the fees and ask your attorney to explain.

    The state of California REQUIRES a written agreement for fees charged to an individual in excess of $1,000. Also, the Central District of California (where you are) REQUIRES attorneys to obtain court approval for any fees over the Court's FIXED fee limit for chapter 13 cases. The Court also REQUIRES that you be served with the motion for the Court's approval of those fees. Therefore, you need to check these things:
    1. Find your original agreement with the lawyer (or ask your attorney for a copy signed by you) to see if the flat fee $3,300 INCLUDES or EXCLUDES the Lien Avoidance Motion (also called a LAM motion). If the fee agreement says $3300 EXCLUDES the LAM motion, so far the attorney has done the correct thing. If the agreement INCLUDES the LAM motion, see my ACTION section at the end.
    2. Find the fee motion (or ask your attorney for a copy) and make sure your name and proper mailing address are listed in the Proof of Service (usually the last page(s) of the document). If you are listed, so far the attorney has done the correct thing. If you are NOT listed, see my ACTION section at the end.
    3. Review the content of the motion, looking specifically at the descriptions of the work provided and the time billed. Also look at the hourly rate. Try to determine if the fees charged are reasonable for the work done and CHECK THE MATH (make sure everything adds up). You may not have the knowledge to do so, but if you are charged for 60 telephone calls at 6 minutes each, there is probably something wrong there. If there are no glaring problems, so far the attorney has done the correct thing. If there are math errors or unreasonable charges, see my ACTION section below.
    4. Find the ORDER granting the fee motion (or ask your attorney for a copy). Do two things: (i) make sure your name and proper mailing address are listed in the Proof of Service (usually the last page(s) of the document); and (ii) make sure the amounts in the order are the amounts the Trustee says you owe. If you are listed and the Order is the same amount as the Trustee says, so far the attorney has done the correct thing. If you are NOT listed or the amounts are different, see my ACTION section at the end (next).

    A. After you have done the work above, the FIRST thing you should do (whether the attorney made an error or not), is to contact the attorney. I suggest you send a written letter or email so you can think about it ahead of time and you will have a record of what you said. Include the following in your letter:
    *Your surprise at the amount of the additional fees
    *A list of any errors or concerns you found doing steps 1-4 above
    *If you are pretty sure you did not get a copy of the motion AND order until very recently, state so.
    *OFFER what you believe is a reasonable amount to pay him.
    Any agreement with the attorney must be in writing signed by both of you. Send a copy to the Trustee.

    B. If you can't get an agreement with the attorney and there are CLEAR ERRORS IN MATH ONLY, go to the Trustee and see if you can work it out there.

    C. If you can't get an agreement with the attorney and you are NOT listed as served with the fee motion AND the order (neither one lists you), make a motion to the Court to vacate the order due to improper service. You likely will need a lawyer to do this.

    D. If you are listed as being served at the correct address on the fee motion OR the order, since it has now been YEARS since the hearing and the order, it is highly unlikely the Court will vacate or reconsider the fee motion now.

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  • A collection agency has placed a bad report on my credit report for a debt that is not mine

    to all the answered my question, thank you very much. It's helpful.

    Michael’s Answer

    On behalf of all the attorneys who generously devote their time to answering questions from the public as a free service, I say, "You are welcome."

    It is our hope that our education and expertise can be of help to others, and we are heartened when we see that result.


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  • I have trued 3 times for loan with wells Fargo or wachovia turned down wife passed away filed ch 13 . 2009 will not help

    would like wells Fargo to work with me to reduce my principle rate tell me i am not eligible they sent documents to me filled them out said under review 3 time i was denied i am retired now daughter working to help 4 mth behind now i had a real ha...

    Michael’s Answer

    Tragedies in life, such as the death of a spouse, can hit one very hard in many ways at once. I am very sorry to hear about your situation and truly hope you can find a way to save your home.

    However, the banks are not required to change their agreements with you just because you can't afford the mortgage anymore. In my opinion, the federal government and big banks have made a huge effort to publicize falsely that Loan Modifications are available to everyone for the asking. This is a scam on a massive scale because the government can't print enough money fast enough to give everyone a free pile of cash in exchange for nothing more than a vote.

    I have seen thousands of complete loan modification applications, with just a few dozen finally modified. Of course, that's what makes everyone believe the hype - someone DID get a loan mod, so everyone thinks they are available for the asking (perfect urban myth). The limits on loan modifications are very stringent and NO BANK is REQUIRED to issue a loan modification - it is primarily a GIFT to the homeowner, but nothing more than a loss mitigation decision based on economics.

    So, as for getting a home loan modification, you have tried three times without success. If your denials are based on "incomplete documentation" then you need to file again and follow up every other day and fax and fax and fax all the documents over and over and over to make SURE your application is COMPLETE. However, assuming your applications were complete and backed up by all the required piles of financial information, but still denied three times, it appears extremely unlikely you will succeed the fourth time.

    Here are some ALTERNATIVE suggestions
    1. People get very attached to their homes. If you have the money to indulge that attachment, fine. You do not have that luxury. Are you REALLY sure it is financially wise to stay in your home? Often, the loan balance is far in excess of the fair market value and it would be much easier to rent a house or apartment for less than the mortgage payment, taxes, and insurance cost (even after considering the mortgage interest tax benefit, which may be of little help in your low income situation).

    2. Assuming the loan balance is less than or equal to the fair market value of your home (i.e., it makes good economic sense to keep the house), here are some options to increase your income and make the loan payments affordable:
    A. Rent out rooms
    B. Rent out the garage
    C. If the back yard is large enough and local codes permit, perhaps you could rent space in your yard for long term storage of RVs, boats, or cars.
    D. Be sure to file a notice of appeal of property value with the local property tax authorities so the property taxes are as low as the current value of the house will permit.

    Unfortunately, a second Chapter 13 likely will not "save" your home. It may delay the inevitable a few months, but that is all.

    Finally, if you are in Chapter 13 right now, but you are already 4 months behind on your mortgage payments, the lender is not required to wait until your Chapter 13 is over to begin foreclosure. It is possible that the lender will ask the bankruptcy court for permission to foreclose despite your bankruptcy (it's a called a Motion for Relief from the Automatic Stay). In your fact situation, the Bank will likely allow the foreclosure.

    I strongly urge you to pursue the additional income methods IMMEDIATELY and you can also pursue a fourth try at a loan modification (the extra income MIGHT help your chances with a loan mod).

    Good luck.

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