Richard Gaines Heston's Answers

Chapter 7. can money received from discrimination claim be considered income for chapter 7 means test?

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...

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Bankruptcy Adversary Question

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...

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I am in Divorce Process. My case set for Trial-Long Cause Non-Jury? What does it mean Will get divorce on that day??

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...

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Family Law Notice Re: Related Cases?????

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...

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Can you file bankruptcy with home for sale

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...

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Can I use the wild card exemption to keep my income tax refund. If so, please specify the law -- CCP 703 or 704?

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).

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Can a bankruptcy attorney reverse a chapter 7 filing in California after it has been discharged?

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...

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While waiting for the discharged at 65 days. I amended an exemption on the schedule. How long it take for the discharged?

With the fixing of the deadline to file objections to discharge or complaints to determine dischargeability (the "bar date") at 60 days following the date the 341(a) examination was initially set, you are apparently a few days beyond the bar date. Assuming the Trustee has filed the "no asset" report indicating no assets will be available for liquidation to pay claims, you should see a a notice of discharge in the mail in approximately 10-15 days, provided you have completed the post-filing...

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Hello need help with money owed harassment

In addition to the protections available under the Fair Debt Collection Practices Act (FDCPA) detailed in the prior answer, it would appear that you also have the defense of usury. Interest payments of $400 per month equal annual payments of $4,800. If the original loan was $10,000, annual interest of $4,800 means the maximum interest cap of 10% found in California's Constitution has been exceeded, unless your (former) friend is exempt from the usury limits as a licensee engaged in the...

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My husband's separate property.

The fact that your debts were incurred during the marriage simply means that your creditors have the right to look to both your separate property and to any community property in which you have acquired an interest in order to satisfy the creditors' claims. However, with limited exceptions, your creditors may not attach, execute or levy upon your husband's separate property in order to satisfy claims that you incurred. Thus, if you discharge such claims in bankruptcy, the creditors' claims...

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