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John Clayton Colwell

John Colwell’s Answers

26 total

  • My husband has decided to file chapter 13 bankruptcy. as his spouse am I affected by his filing?

    husband is self employed I have a full time job we have been filing joint tax returns for more than 12 yrs

    John’s Answer

    You may have to be more specific by what you man 'affected by his filing'. If you mean, are you 'included' or 'part' of the bankruptcy, as in are YOU filing bankruptcy, the answer is clearly NO. You cannot be a joint debtor unless or until you sign and file your own petition in bankruptcy. Put another way, he can file a BK/Ch. 13 by himself, as well as you can file one by yourself. There is no requirement to file jointly. HE will have to disclose that he is married, and HE will have to disclose your joint income, or at least your contribution to the household, if any, and likewise your joint expenses, if that is how your family budget is maintained. So, you might be 'affected' in that budgeting sense. Finally, if you mean will HIS BK show up on your credit report, the answer is no. He's filing BK/Ch. 13, not you.

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  • Does the bankruptcy court have any right to dismiss a ch. 13 case after total pymt has been made?

    My spouse and I filed a ch. 13 in 2/2010 and were told that the total to complete the bankruptcy would be 78k. 5 1/2 yrs later, we have paid 79k, and were still dismissed from our case with 1300 dollars owing to the IRS (which was listed as a "pri...

    John’s Answer

    On appropriate notice and with an opportunity to request a hearing, sure, a court can dismiss a Ch. 13 case. Whether total payments had been made, as your title suggests, would presumably have been a subject of a timely opposition to the dismissal, had one been filed, which, I guess didn't happen. Now, with the dismissal entered, you are seeking to go back into court for a motion to vacate the dismissal and, I suppose, additional relief to allow you to make the final payments, if any and go to discharge. This may be an uphill battle. You need the help of an attorney in your area who understands the local judicial climate for such an action. And, you may have to act quickly.

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  • Will my lawyer help me complete the paperwork for a Chapter 13 bankruptcy?

    All of the paperwork is overwhelming and scary! Will my lawyer help me complete it?

    John’s Answer

    Certainly your lawyer should help. You do need to provide some level of basic information, paperwork, paystubs, registration, proof of insurance, and the like, so the lawyers staff can prepare the petition and the statement of financial affairs, and the Ch. 13 plan. Indeed, you are paying the lawyer, either directly or 'through' the plan to help you prepare and deal with the 'overwhelming and scary' paperwork. You should do the best that you can, and if you have questions, write them down and ask your lawyer or his/her assigned staff person for clarification/help!

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  • Can I have payments made on a title loan apply to the current balance in a Chapter 13 BK?

    I have a 2004 vehicle with a current value of less than $1000. I took out a title loan about a year ago for $3600 and have made payments of about $3400 so far. Currently I think I owe about $3800. If I file Chapter 13 Bankruptcy, will the cars ...

    John’s Answer

    I have an office in Vista, CA so I figured I should chime in. As suggested by others, you can likely cram down the loan to the value of the vehicle. Keep in mind, however, that your definition of value and the car creditors definition of value, may not be the same figure. Some creditors are aggressive about the final number, some are not. Put another way, value, in this context, is fungible. As far as getting a new loan during an open Ch. 13, that is very difficult to achieve, as most new lenders are very afraid of being pulled into an open bankruptcy, be it Ch. 13 or Ch. 7.

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  • I had an attorney tell me chapter 13 would cost $3500 in filing fees which were set by the state (CA). Is this true?

    I have been considering Chapter 13 which I know amounts to a "consolidation" of my debt and a 36-60 month pay back period with a fee paid to the attorney who then disburses the payments to my creditors. I went to an attorney who told me my paymen...

    John’s Answer

    • Selected as best answer

    In addition to the other answers from participating attorneys, I actually have an office in Vista, CA, so I felt I should chime in. In San Diego County, Ch. 13 attorneys can agree to the 'no look' or 'presumptive' reasonable attorneys fees to be paid for servicing the case over the projected 3 to 5 years. In San Diego, for a consumer case (as opposed to a small business case), the presumptive fee is currently $3300. This amount is set or approved by our Court, and it is set to increase on 8/24/2012 to $3600. Note, this is the base attorney fee and does not take into costs, such as filing fees, credit reports, tax transcripts, nor schools. Most, but not all Ch. 13 practitioners adhere to this fee structure. Some attorneys choose to bill hourly, which is more traditional in other practices. Those that bill hourly sometimes get paid more, sometimes less. In your situation, using your $15K in debt, and taking into account the $3600 presumptive fee, the quote at $600 per month would be about right for a 100% payout to creditors and finishing at the minimum 36 month time frame. There are many variables that might change that mathematics, such as a longer plan, or a lower % paid to the creditors, not to mention a close look at your income and expenses to determine what is 'feasible' and what you can or should afford. For example, if you were to pay 70% to the creditors ($10,500) and stretched it out to 60 months, the plan payment would be around $275 per month. All this is just pushing numbers around, and a more comprehensive interview would be required to determine what kind of plan would be best, or even if Ch. 13 is the best choice for you.

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  • My lawyer is not filing the order to dismiss my chapter 13 bk after the motion to dismiss has been filed at my request ? 2 do?

    I requested to voluntarily dismiss my chapter 13 due to payment to high. My lawyer filed the motion to dismiss but hasn't filed the order for dismissal and won't return my phone calls. I called the court and trustee and they said they are waiting ...

    John’s Answer

    Your comment about your wages being withheld tells me you have a wage order in place by the Ch. 13 Trustee. Your attorney failing to submit the order suggests to me that there are remaining fees owing on your case, and but for the wage order, will not be paid. I'd like to be wrong, but that is what I see, reading between the lines. The prior answers here are all correct. My own thought before reading the answers was also to see if you can get a form dismissal order to file yourself, since the motion to dismiss is already on file. Ours here in San Diego is very simple and a one pager. Failing that, yes, I'd get the assistance of another lawyer to get the 13 closed out.

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  • Once bankruptcy proceedings are begun, is one allowed to change their mind and stop the proceedings?

    Specifically Chapter 13, non business related.

    John’s Answer

    In Ch. 13, you are most likely able to dismiss the case on your motion. There are caveats, however. For instance, one would want to examine carefully if this is a good strategy where a stay relief motion had already been filed in your case. You might find a bar to re filing any kind of bankruptcy for 6 months. Additionally, it used to be true that you had an absolute right to dismiss in Ch. 13. That 'absolute' right is probably still correct for say 98% of the cases, but a recent U.S. Supreme Court case has called in to question whether the right to dismiss in Ch. 13 is absolute. Thankfully the facts in that Supreme Court case were, shall we say, convoluted, and the applicability is therefore remote, but unfortunately, the absolute right to dismiss has been called into question in Ch. 13.

    John C. Colwell, CLS-BK
    Attorney at Law
    Certified Bankruptcy Specialist by the CA State Bar of Legal Specialization
    Debt Relief Legal Clinic
    San Diego County, CA
    www.debtclinic.com
    877-663-3287
    Facebook page
    http://www.facebook.com/pages/San-Diego-CA/Debt-Relief-Legal-Clinic/101118150043?ref=nf
    NACBA, Board of Directors
    www.nacba.org

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  • How soon after filing Chapter 13 can you file again?

    My Chapter 13 has been discharged for 4 yrs. I am now on SS income only and having problems paying delinquent property taxes. In order to save my home from going to auction will filing Chapter 13 resolve this problem?

    John’s Answer

    The base answer is 2 years. Sort of.

    It is true that you can file a Ch. 13 again, at any time. The more subtle question is, given your facts, if you do file again, are you entitled to a discharge (forgiveness) of debt? The answer is yes, so long as 2 years have passed from the filing of the prior Ch. 13 to the filing of this Ch. 13, which it appears has happened in your case. (You may note need a subsequent discharge in the 2d Ch. 13, but it is a factor to consider).

    Now, whether you can propose a feasible Ch. 13 plan payment to cure the property tax arrears and deal with whatever other debt may have accrued over time, in a new Ch. 13, well that is a different question, as answered by the other posters.

    John C. Colwell
    Attorney at Law
    Certified Specialist, Bankruptcy Law
    by the State Bar of California Board of Legal Specialization
    Debt Relief Legal Clinic
    www.debtclinic.com
    877-663-3287
    Facebook page
    http://www.facebook.com/pages/San-Diego-CA/Debt-Relief-Legal-Clinic/101118150043?ref=nf
    NACBA, Board of Directors
    www.nacba.org
    San Diego NACBA members only listserv
    nacba_sd-subscribe@yahoogroups.com

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  • What will happen to my Heloc after I get a dischaged from a chapter 7 filing

    My house is worth $350,000 and I owe $435,000 on my first mortgage I have a Heloc with a balance of $218,000 as you can see I am way under water,I intend to keep the house but I need to know what to do with my Heloc after my discharge,do I settl...

    John’s Answer

    The option to try and settle with the 2d TD holder may be best, if they are agreeable, and you have monies to pay them off.

    The suggestions to convert to Ch. 13 are also possibly valid, although you may not find that option to be best, given your personal circumstances re: other debt obligations and total amount of debt being discharged.

    In San Diego County, you should know that filing a Ch. 13 after the Ch. 7, well, within 4 years of the Ch. 7, may or may not result in an option to lien strip. This is why the other posters have suggested converting now. There is an open question of law regarding whether you can lien strip in a subsequent Ch. 13 filed in 4 years from your existing Ch. 7.

    The law is unsettled here in San Diego County, as well as across the country. Some places it is allowed, and some places it is not allowed. In our area, one Judge has said NO you cannot strip in the subsequent Ch. 13 filed in 4 years. 2 of our other Judge's have said YES you can, under certain circumstances. The 4th Judge has not rendered an opinion.

    The Judge who has said NO, is currently on appeal, so perhaps we will have a more firm answer in the coming months (or years),

    Having said all this, I'd have you speak with your attorney or definitely speak with an experienced attorney regarding the relative pros and cons of converting now or re filing a 13 to obtain the lien strip, or, as suggested, settle with the 2d and avoid the lien strip issues entirely.

    A conversion would likely have to occur prior to the discharge order being entered in your case, or at least it would be harder to convert if the discharge has entered, so I'd keep that deadline in mind, as well.

    John C. Colwell
    Attorney at Law
    Certified Specialist, Bankruptcy Law
    by the State Bar of California Board of Legal Specialization
    Debt Relief Legal Clinic
    www.debtclinic.com
    877-663-3287
    Facebook page
    http://www.facebook.com/pages/San-Diego-CA/Debt-Relief-Legal-Clinic/101118150043?ref=nf
    NACBA, Board of Directors
    www.nacba.org

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  • My chapter 13 BK case has been dismissed, as my payment ballooned from $540 to $1,216 a month, and I can't afford that new payme

    How long do I have before my creditors start coming after me? I had a lawyer file my case for me; is he still my lawyer, or did our assocation end when my case was dismissed? Am I entitled to any refund of undistributed funds that I paid into my...

    John’s Answer

    Creditors can start coming after you as soon as they realize that the case has been dismissed. The dismissal extinguishes the automatic stay, and that stay is what was protecting you from collection efforts. Your lawyer is no longer on retainer nor responsible for your case, for a like and similar reason, your case has been dismissed. The distribution of funds paid in on a dismissed case will vary from jurisdiction to jurisdiction. You would be best served by contacting the Ch. 13 Trustee's office to determine how they deal with funds on hand in a dismissed case. You can file another Ch. 13 case. You can file it immediately, but as the prior attorney has advised, you will have to show a change of circumstances (depending on where you live, it may have to be a positive change, or it could be a negative change), and if you file within 1 year, you will have to file a motion to have the stay extended. Again, as suggested previously, you should either go back to your prior attorney, if you feel comfortable with him or her, or seek out counsel to assist you in the re-filing of the case and of filing the extension of stay motion. I suggest you use www.nacba.org to locate a member attorney in your area.
    JCC

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