Skip to main content
Kelly Hope Zinser
Avvo
Pro

Kelly Zinser’s Answers

25 total

  • Default judgement against me and new lawsuit filed by same company against me.

    can i BK out of both or do i have to wait the outcome of new lawsuit.

    Kelly’s Answer

    The first thing you should do is to meet with a bankruptcy attorney to see if you are eligible to file a Chapter 7 or Chapter 13 bankruptcy. That attorney can also look at the complaints for each lawsuit to let you know whether or not they can be discharged in bankruptcy. Most collection lawsuits can be discharged. You also need to take action soon before any of the collection activity begins on the default judgment. The last thing you need is a wage garnishment or a levy on your bank accounts. Assuming you are able to file bankruptcy, you should do so soon to avoid any collection efforts on the default judgment.

    Please note that although this answer may provide information concerning potential legal issues, it is not a substitute for legal advice from qualified counsel. You should consult an attorney for individual advice regarding your own situation. Answering this question does not create any attorney-client relationship between you and Kelly Zinser, Partner at Olenicoff & Zinser, PC.

    See question 
  • My husband aquired 2 credit cards in his name only without my knowledge.Will filing bankruptcy affect my credit?

    He stopped making the payments and now they want to set up a 4 yr payment plan or file bankruptcy? We have a new baby and can't really afford any more payments? I don't want a bankruptcy affecting my good credit or my job. Any advice will be gre...

    Kelly’s Answer

    I often file bankruptcy cases for one spouse rather than both spouses. This is usually done because all or most of the debt is in one spouse's name. That way the other spouse can keep their credit clean. I think it is a great solution if you can do it. The one thing I will warn you about is that it can be a trickier bankruptcy petition to prepare. Because California is a community property state, you have to list all the assets not just the assets of the filing spouse. Also, you have to take into account both spouse's income for the means test but there are extra expenses that can be deducted on the means test that are expenses of the non-filing spouse. So, just be careful. Too often I see debtors at their creditors' meeting who are surprised when their spouse has to turnover their car to the Trustee. There are legal and upfront ways to work around this - just be careful to choose an attorney with adequate knowledge and expertise.

    Please note that although this answer may provide information concerning potential legal issues, it is not a substitute for legal advice from qualified counsel. You should consult an attorney for individual advice regarding your own situation. Answering this question does not create any attorney-client relationship between you and Kelly Zinser, Partner at Olenicoff & Zinser, PC.

    See question 
  • What is a means test?

    For bankruptcy chapter 7

    Kelly’s Answer

    The answers above explain the means test but I will add my two cents when it comes to Orange County, CA. The means test is tricky down here because the cost of living is so high but we have to work with the median household income of the State of California. For example, the median income for a family of four is $79,194 (as of March 15, 2010). This is a very low threshold as many families struggle in Southern California who earn significantly more than that. Finally, even if you are above the median income there are several strategies to get you to pass the means test so you will be able to file a Chapter 7 case. You just need to find an attorney who is willing to work with you on it as it can take a lot of extra work.

    Please note that although this answer may provide information concerning potential legal issues, it is not a substitute for legal advice from qualified counsel. You should consult an attorney for individual advice regarding your own situation. Answering this question does not create any attorney-client relationship between you and Kelly Zinser, Partner at Olenicoff & Zinser, PC.

    See question 
  • Bankruptcy Means Test and household members.

    Hello, I am considering filing for Chapter 7 bankruptcy. I am single and my debt mainly consists of purchases I made on credit cards. Currently, my average gross income is over the median income for a household size of 1. But, I live with my...

    Kelly’s Answer

    I practice bankruptcy law in the Central District and I have had the U.S. Trustees office specifically look at whether the dependents were on the tax return. The safest way to deal with this issue is to claim your dependents on your tax return. However, there is no need to despair as there are many ways to pass the means test. You just need to find an attorney who has the experience and the patience to go through the means test. There is usually a way to pass the means test if you work with your attorney. And I agree with another answer that you absolutely cannot trust the online calculators. It is a bit more complicated than that. Good luck!

    Please note that although this answer may provide information concerning potential legal issues, it is not a substitute for legal advice from qualified counsel. You should consult an attorney for individual advice regarding your own situation. Answering this question does not create any attorney-client relationship between you and Kelly Zinser, Partner at Olenicoff & Zinser, PC.

    See question 
  • My business slow down in 2009 and i stopped c/cards payments about 5 months from now.Total debt 158.000.What is the best option?

    I'm working with debt consolidation firm already 5 month to settle accounts,but I see they are collecting money which I paying monthly.At the same time part of creditors sending me very good offers-about 20%,another already sent a summons.The time...

    Kelly’s Answer

    I am not sure who you are worried about going after your assets in your LLC but here are two scenarios. If you are worried about creditors going after your assets in your LLC, that would be difficult. Creditors can easily garnish your wages (if you have any), file a judgement lien which could attach to your home or other real estate and place a lien on your bank accounts. If you are worried about the bankruptcy trustee going after assets in your LLC, the answer depends on what exemptions are best for you to use in bankruptcy. In bankruptcy, you will value your membership interests in your LLC. Ideally, you would be able to exempt (in other words: keep) those membership interests. Fortunately the exemption levels just increased in California as of April 1, 2010. You should consult a personal bankruptcy attorney who has experience filing bankruptcies with business owners. Your case will be more complicated than the average bankruptcy filing but it is not an unusual scenario. Often bankruptcy attorneys will offer a free initial consultation and my theory is that it is better to consult an attorney sooner than later to strategize.

    Please note that although this answer may provide information concerning potential legal issues, it is not a substitute for legal advice from qualified counsel. You should consult an attorney for individual advice regarding your own situation. Answering this question does not create any attorney-client relationship between you and Kelly Zinser, Partner at Olenicoff & Zinser, PC.

    See question 
  • Can an illegal immigrant file for bankruptcy?

    Can they be deported for filing bankruptcy? Will they be asked for their legal status throughout any of the bankruptcy process? Will the court ask about their legal status? I have an uncle who is considering a bankruptcy. Although he has a uni...

    Kelly’s Answer

    Your aunt and uncle should absolutely not file for bankruptcy until they are here legally. This is a very serious matter and it really could put them in more trouble than they are already in now. From what I have seen at the Creditors Meetings, the U.S. Trustees Office in Santa Ana, CA takes an illegal immigrant filing very seriously and questions the illegal immigrant about how he or she obtained their debt. Oftentimes, there is some element of fraud in the credit applications - whether it is a false social security number or other information. If you have obtained a loan or credit by fraud it is non-dischargable. I do not know what has happened to these poor people but I do wonder what attorney would file bankruptcy for an illegal immigrant - especially in Orange County, CA. I think it is entirely possible that people are reported to the INS. Please pass this on to your aunt and uncle.

    Please note that although this answer may provide information concerning potential legal issues, it is not a substitute for legal advice from qualified counsel. You should consult an attorney for individual advice regarding your own situation. Answering this question does not create any attorney-client relationship between you and Kelly Zinser, Partner at Olenicoff & Zinser, PC.

    See question 
  • My husband an i want to file bankruptcy but don't know where to start

    we feel bankruptcy is our only option but dont know where to begin

    Kelly’s Answer

    Your first step should be to meet with a bankruptcy attorney for a free consultation. Ask for recommendations - often other lawyers know who the good bankruptcy attorneys are. If you do not get any good recommendations, start searching on Avvo. You can do a search for attorneys who offer a free consultation. Meet with the attorney and make sure you are comfortable with them. If not, you can always interview another attorney. I ask my clients to bring me a one page snapshot of the financial picture. It should include how much debt they have, the type of debt, car payments, car value, house payments, house value, principal balance on their mortgage(s) and their monthly income. You are better off starting on this now and avoiding costly mistakes that you would not have made had you spoken with a bankruptcy attorney sooner.

    Please note that although this answer may provide information concerning potential legal issues, it is not a substitute for legal advice from qualified counsel. You should consult an attorney for individual advice regarding your own situation. Answering this question does not create any attorney-client relationship between you and Kelly Zinser, Partner at Olenicoff & Zinser, PC.

    See question 
  • Do you believe those credit companies that say they can cut your debt without going into bankruptcy?

    I don't even know if the credit service companies would help my situation. I own a small business that has over $100,000 in credit card debt and at this point I can't make all my payments because business is bad. I can't afford to make minimum p...

    Kelly’s Answer

    You can negotiate with credit card companies yourself to settle your debt. There is a catch - you have to have the money available for the settlement - usually about 25 cents on the dollar. If you cannot make your minimum payments, you probably do not have $25,000 (or more) lying around. My best advice to you is to go and meet with a bankruptcy attorney. Find one that offers a free consultation (you can do this search easily on Avvo). Many time I wish clients would have come to me sooner so I could have helped them strategize instead of making costly mistakes. Just because you have a consultation with a bankruptcy attorney, does not mean you have to file bankruptcy right then but at least you will have a path to follow and you will know when or if it is the right time to file for bankruptcy. This is your future at stake - take care of yourself and start getting some good advice. If something seems too good to be true - it probably is.

    Please note that although this answer may provide information concerning potential legal issues, it is not a substitute for legal advice from qualified counsel. You should consult an attorney for individual advice regarding your own situation. Answering this question does not create any attorney-client relationship between you and Kelly Zinser, Partner at Olenicoff & Zinser, PC.

    See question 
  • Is bankruptcy the answer for us?

    We are a married couple with 2 small children. With our 2 cars, 2nd mortgage and 3 credit cards we have $60,000 in dept. We have perfect credit and are never late making payments but we are extremely overwhelmed each month. It would be great to...

    Kelly’s Answer

    You sound like you all may be good candidates for bankruptcy but unfortunately I do not have enough information. So, I will give you a few pointers that should help send you in the right direction.

    First, search Avvo to find a lawyer who will offer a free consultation. After meeting with a knowledgeable bankruptcy attorney, you should have a good idea if bankruptcy is the right path for your family. Second, it is most likely that your second mortgage cannot be discharged in bankruptcy. There are unique circumstances where the second mortgage can be stripped if it is completely unsecured. This is called "lien stripping" and can only be done in a Chapter 13 case and upon completion of the Chapter 13 Plan. Local practices vary greatly from District to District and even among Bankruptcy Judges within the same District. So, if the biggest amount of your debt is the second mortgage, you will want to consult a bankruptcy attorney to see if you are a good candidate for lien stripping. Third, unless you plan on surrendering your two cars in a bankruptcy, you will still need to pay on the cars. Again, in a Chapter 13, you may have some other options - including a "cramdown" of the debt on the cars to the value of the cars. A cramdown strategy presumes that your cars are worth less than what you owe. Fourth, your credit card debt - this is where bankruptcy is the most helpful. If this is the majority of your debt - then bankruptcy will work well for you.

    Finally, you do not mention your salary (nor do you need to on a public forum) but in order to qualify for a Chapter 7, you will need to pass the Means Test. This is too complicated to go into here so again, your best bet is to schedule a free consultation with a bankruptcy attorney.

    Please note that although this answer may provide information concerning potential legal issues, it is not a substitute for legal advice from qualified counsel. You should consult an attorney for individual advice regarding your own situation. Answering this question does not create any attorney-client relationship between you and Kelly Zinser, Partner at Olenicoff & Zinser, PC.

    See question 
  • Do we have to pay our parents' credit card debt when they die?

    My parents have a lot of credit card debt. Just enough life insurance to cover funeral expenses and they own their house which is probably worth about $45,000.

    Kelly’s Answer

    Generally, if there is no money left in the estate you do not need to pay a deceased person's credit card debt. Credit card debt is an unsecured debt so the credit card company has no recourse unlike a lender with a home mortgage. You may want to check with an estate planning attorney in Texas about your parents' situation. If your parents have $45,000 in equity on their home and it is unlikely they will incur additional debts, they may want to file bankruptcy to protect your inheritance. You can even pay for their bankruptcy. Also note that if your parents do not have a trust, their assets will likely go through probate and will be subject to additional fees (although in California your parents estate looks like it would be fine if it is under $100,000). I wish you the best of luck and take good care of your parents!

    Please note that although this answer may provide information concerning potential legal issues, it is not a substitute for legal advice from qualified counsel. You should consult an attorney for individual advice regarding your own situation. Answering this question does not create any attorney-client relationship between you and Kelly Zinser, Partner at Olenicoff & Zinser, PC.

    See question