Richard Gaines Heston’s Answers

I am sorry to hear of what you have had to suffer through. The prior advice regarding Laura's House should be considered for support and assistance. Priority one should remain safeguarding your well-being, but you need not fear that seeking the divorce will necessarily compromise that. You can file the Petition for Dissolution either through counsel, in which case only her/his business address will appear, or in pro per (representing yourself) and give only a P.O. Box. If your husband's...

The meeting of creditors, also called the 341(a) examination, cannot be scheduled any sooner than 20 days nor any later than 40 days after your case is filed. Most such meetings are scheduled between 35 and 40 days after the case is filed. Certain deadlines are scheduled based upon the date of the exam, the last of which expire 60 days after the exam, or roughly 95 to 100 days after the case is filed. At that point, the case is scheduled to be closed, and provided that you have obtained and...

Given its importance in the Means Test, one would expect a clear definition of "income" to be provided in the Bankruptcy Code. It is not. Section 101(10A) defines "current monthly income", but not so much by what is income, as by what is not income, which is limited to benefits paid under the Social Security Act and payments to victims of war crimes and domestic and international terrorism. As a result, the issue must be grappled with on a case-by-case basis. You did not state what types of...

As they say, "A nod is as good as a wink to a blind horse". You won, and that is the bottom line. Without knowing more about the reasoning of the appellate decision, it appears that the appellate court was pointing out that the plaintiff never had it right, even from the get-go. Perhaps unnecessary to the decision, a footnote such as this, sort of a "zinger" to plaintiff and his/her counsel, may be the appellate court's way of suggesting that a further discretionary appeal to the Ninth Circuit...

Lacking any net realizable equity were it to be sold, if you file a Chapter 7 bankruptcy the appointed Trustee would simply abandon the rental property and ownership would re-vest in you upon closing of the case, a period of 4-6 months on average. In a Chapter 13, where you remain the debtor in possession, the absence of any equity would mean that you would not need to factor in the property in the analysis of whether your Chapter 13 plan would meet the best-interest-of-creditors test. But, if...

Unfortunately, service of process by mail is permitted in the bankruptcy system, making it critically important to have on file a current address, as creditors can mail such adversary complaints to the address on file. But if the creditor's counsel has reached out to you to get your input, it is likely that he or she will not try to quickly take your default. For this Thursday, I would try to appear telephonically at the Status Conference. If this is a case being heard in the Santa Ana...

Divorces are always heard by judges, not juries. To aid in calendar management, when a trial date is set, the court will request that the parties or their attorneys provide an estimate of the time needed to try the case. Generally, if estimated at more than two hours, the case is deemed a long cause matter, whereas an estimate of less than two hours results in a short cause classification. Because a court can hear multiple short cause cases in one day, the shorter matters are given...

What your former attorney is doing is clearly wrongful. The attorney's pre-petition fees were discharged in your case, and the discharge injunction bars all attempts at collection of the fee. While a Chapter 7 case can be reopened and a discharge vacated to allow the case to be dismissed, doing so is highly unusual and you alone would have standing to seek the voluntary dismissal of your case. This might occur where a debtor came into a sizable amount of money more six months after the case...

The Related Case Statement is simply a tool to curb the abusive practice of "judge shopping". When a case is first filed, a judicial officer, either a commissioner or a judge, will be assigned. (A commissioner is hired by the court, rather than appointed by the governor, and can serve to perform all of the duties of a judge, but only on the consent of both parties to the case.) If the judicial officer is a commissioner, either party to the family law case can refuse to accept the commissioner...

Yes, tax refunds can be claimed as exempt in an amount up to $21,825 under the so-called "wild card" exemption of California Code of Civil Procedure Section 703.140(b)(5).