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Harley Aaron Feinstein

Harley Feinstein’s Answers

185 total


  • Will corporation chapter 7 affect personal assets?

    My parents have a machine shop in Oregon. The shop is a corporation and is not doing well. They keep taking money out from their savings and put into the company. They are getting old and it is time to let go. My mom is the president and dad is th...

    Harley’s Answer

    Your question was "If they file chapter 7, will it affect their personal assets..." Your question doesn't say anything about the corporation filing bankruptcy. The short answer is that if your parents file chapter 7 bankruptcy they can keep the assets that the applicable exemption laws say they can keep. If they've been living in Oregon the last few years the it's the Oregon exception laws that would apply.

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  • My husband and I bought a house but only his name is on the mortgage and deed of trust. Can we sell and not pay off the mortgage

    We would pay off part and continue payments on the rest.

    Harley’s Answer

    In theory you might be able to this but, as a practical matter, your buyer probably won't want to buy the property unless you pay off the mortgage before the close of escrow. Actually people sometimes do sell their real estate without paying off the encumbrances even where there is a due on sale clause in the note and deed of trust. This was common in the 70s and early 80s when I was a young lawyer. We used 2 methods: an all inclusive deed of trust or a land sale contract. It was common then because interest rates had gone up and buyers wanted to assume the sellers' interest rate. Interest rates haven't gone up lately so people aren't much interested in this. But it could be a way for a buyer with weak credit to buy property. The main problem is that this is risky to the buyer. There's nothing illegal about this in a criminal sense but if the lender finds out about the sale the lender will foreclose unless the buyer can somehow quickly get other financing.

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  • Will bk 7 help my mother? when is the best time to file, now or after foreclosure?

    My mother is included in the mortgage loan for primary residence that is now in foreclosure process. Is this the best time to file bk7 or wait to see if lender go after her after Trustee Sale? My mother do not have any assets, she's 68 years old...

    Harley’s Answer

    You said "My mother is included in the mortgage loan for primary residence that is now in foreclosure process". Is she the borrower or guarantor? Generally the anti deficiency statutes don't protect a guarantor.

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  • Someone is filing a suit of "other negligence" in FL against me. I don't live in FL now. I missed the server..what can happen?

    The person is filing a negligence/other suit against me & the place I worked at. I have no money, and I'm a full time student. They are wanting a lot of insurance money, I do not have the money to fly back to FL where this is taking place & I miss...

    Harley’s Answer

    If you missed the process server then the attorney for the plaintiff will still serve you but it will take him a bit longer. In many states the plaintiff can serve you by certified letter if you are in a different state. If, for whatever reason, the attorney for the plaintiff just can't get you served he will get permission from the court to serve you by publishing a little ad in the classified section of a newspaper. Your next step should be to contact the insurance company that at one time covered you and see if they will help you. If they will defend you then great ....let them worry about this for the time being. But if they won't then you are on your own. Someone said hire an attorney. But how can you do this if you don't have any money? This plaintiff will probably get a default judgment against you if you can't afford to hire an attorney. Perhaps the insurance company for your former employer will pay the claim and you won't owe anything. If not then there will be an unsatisfied Florida judgment against you. The plaintiff can have it entered as a California judgment and garnish your wages and take your property. Bankruptcy may be the solution. I can help you with this if needed.

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  • How can my wife with "her own" maxed out credit get relief without affecting the excellent credit of our joint accounts?

    My wife has maxed out (>$50K) credit cards and I paid them off 4 times over the past 20 years and she agreed to close and not open more. She has no job/career and spent our daughter's college fund -entering UT Austin in fall -no financial aid. ...

    Harley’s Answer

    Consider going to a family law attorney and entering into a post nuptial agreement which makes all the property either her separate property or your separate property. Under California law your separate property cannot be taken to satisfy her debts (the exception is for necessities) See link below.

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  • How do I approach my attorney regarding incorrect Schedule C discovered post-discharge (C7)? He wants to charge me AGAIN!

    During a recent hearing on my Motion to Avoid Lien (Real Property), the Judge informed me that he cannot rule on my motion because my home is NOT listed on Schedule C as exempt property. He continued the matter. I initially filed the motion pro ...

    Harley’s Answer

    • Selected as best answer

    If there was no equity in your house it wasn't an error by your attorney not to exempt it. But now you wish to file a motion to void a judgment lien and to do that you need to list the house as exempt even though there's nothing to exempt. It is perhaps a strange contradiction that you would need to list an asset as exempt even though there is no equity but bankruptcy is full of strange counter-intuitive things.

    So, I suppose, if your attorney knew that you were going to want or need to file the motion to void the judgement lien then perhaps it was an error not to exempt the house. But did he know that you were going to need to file the motion to void the judgment lien? Did you tell him about the judgement? It's not clear that your attorney really made a mistake.

    Obtaining a motion to reopen under these circumstances is easy...much easier than getting the motion to void the lien signed by the judge and to get it properly recorded.

    If you're sophisticated enough to handle the lien voiding motion you can certainly handle the motion to reopen. And since it's not clear that your attorney did anything wrong I wouldn't try to stick him or her with the $245 reopening fee.

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  • I signed a Release of All claims in Nov. 2011. It is amost Feb. 2012 and I have not been paid any money for my accident claim.

    My car was a total loss and my ins. co. paid me for the car, but is now subrogating the other parties carrier. I settled my BI claim in Nov. for $6,200. I signed the release. I am still waiting to be paid. In the Release it says "release of a...

    Harley’s Answer

    The reason for the delay in you receiving your check for the bodily injury settlement doesn't make sense. (" My attorney said there is still a dispute on the property damage and my ins. co. is asking the other party to pay them directly a sum amount for PD."). If your attorney isn't responding you need to threaten to report him or her to the State Bar.

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  • Can we fight mortgage fraud "MERS" loan through chapter 13 ?

    by listing the pretender lender as unsecured and make them produce the note in chapter 13 to validate their secured loan -is this done in chap 13? have heard stories of debt being wiped out due to lender not being able to produce evidence of debt??

    Harley’s Answer

    One more point: It is not correct that the standing argument can be brought in state court by filing an Answer to the foreclosure complaint. Unlike many other states, In California, it is highly unusual for a lender to file a complaint for foreclosure. It is done without any judicial action. So you will not be filing an answer.

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  • I received my BK7 discharge 5 months ago. One creditor was not included...do i still have time to reopen and add this creditor??

    my employer received a wage garnishment order ..for a creditor i did not include in my BK 7 ..can't find the reopen motion in the court's website ..i live in santa ana california..even though it has been 5 months since i received my discharge can ...

    Harley’s Answer

    Click on the link below to an article I wrote on the subject of CREDITORS OMITTED FROM BANKRUPTCY. Also check the link to the article I wrote entitled CREDITORS TRYING TO COLLECT AFTER BANKRUPTCY. There is the basis of a letter you may be able to adapt to your purposes.

    Good luck.

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  • Can you declare unsecured debt assigned to you in divorce court in bankruptcy Court?

    When the judge assigns debt in a divorce can the party assigned the debt declare these unsecured debts in a bankruptcy proceeding. Does the judge's decree place unsecured debt in a different category. I know taxes, child support, etc. cannot be ...

    Harley’s Answer

    You can discharge your debt to the creditor but your ex wife would have the right to sue you for indemity or reimbursement even though you have declared bankruptcy. See link below to an article I wrote on the subject.

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