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Myava R. Escamilla

Myava Escamilla’s Answers

68 total

  • I filed Ch.7 BK and was granted a discharge in March. Can I reaffirm my mortgage to get the benefits for restoring my credit?

    My mortgage is at a great rate (3.875%) and I have considerable equity, so there is no way I want to walk away from this loan, but I hate to make payments every month with no benefit to my credit rating. Any ideas?

    Myava’s Answer

    There is no bankruptcy code to my knowledge which permits debtors to set aside the discharge or allowing the discharge to be set aside to reaffirm a debt. Section 727 provides for revocation of a discharge by a trustee, creditor or the U.S. Trustee, and then only under limited circumstances like, Rule 9024, which incorporates Rule 60(b), provides authority for a court to revoke a discharge, but the debtor must show “extraordinary” circumstances which prevented relief through usual channels. I don't know if what your describing would rise to that level of "extraordinary" relief..Good luck!

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  • Criminal Protective Order-Domestic Violence against my Ex-Husband filed in 2011 modified in 2012. He has my property.

    I have a Criminal Protective Order-Domestic Violence against my Ex-Husband filed in 2011 modified in 2012. It was a No-Contact and now has been modified to (may have peaceful contact the protected persons. named above). We had split-up earlier t...

    Myava’s Answer

    If you only have a criminal protective order, that will not cover community property issues. There is technically not a court order in effect preventing him from disposing of property.

    One thing to consider is filing for divorce or legal separation and having him served personally. The self help center in your local family court can help. There is a fee waiver so you can potentially have the filing fee waiver or be able to pay in installments. After personally serving him, ATROs would be in effect which order the parties not to dispose of property. With some exceptions, this is automatically effective upon personal service.

    That is probably the quickest legal route. To get a court order specifically turning over the property from the storage, you need to file a motion.

    However, practically speaking these methods don't truly protect that property. Is is hard to prove certain small items of property existed once gone. And there is great sentimental value to your belongings but little market value. Also you do not have actual access to them. (However, keep and print your texts acknowledging possession of your belongings.)

    Although this may be part of a game on his part to not only upset you but also keep control over some parts of you, I'm guessing you may want to "lose the battle on this one but win the war" ... In other words, agree to the payment, get your sentimental belongings and move forward in a positive direction in your life in other respects.

    ALSO have someone else retrieve your belongings or just exchange the key for you. Not you. Good luck & I hope you SAFELY retrieve your belongings! You're more important than any possession, no matter how sentimental. Keep that in mind when thinking about this issue!

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  • I need to file Bankruptcy. I met with a lawyer and he said I did not qualify. I make $25,000 monthly in wages, My home loan

    is $1,300,000 and house is worth $600,000. I have numerous other unsecured debts totaling over $100k. Without explaining how I got here, I have a family of 6 and above average monthly household expenses. I want to get rid of my second home loan a...

    Myava’s Answer

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    On first blush, yes it appears that you may be stuck with a Ch. 11, which is costly and really does requires specialized counsel. On the other hand, you mention some facts which potentially could make a Ch. 7 feasible.

    Many practitioners forget, for example, that business bankruptcies do not have means tests. So if your debt is substantially created by operation of a business, you should probably file a personal bankruptcy that is primarily business related. And thus the means test doesn't apply.

    Other examples of exceptional bankruptcies might include a debtor who suddenly takes custody of family members (sometimes by way of a death in the family or by court order..) and who has exceptional DOCUMENTED expenses. Medical expenses can sometimes be horrendous and, if DOCUMENTED properly, provide an arguable basis for an unusual hardship deduction.

    Bankruptcy is not simply running a set of numbers. It is a legitimate way of providing much needed relief and the caselaw is ample about different situations and circumstances, many of them sounding in equity & fairness. So, you may earn a lot relatively to most debtors on paper and still have nothing at the end of the day. If this is the case, and the Trustee finds the circumstances legitimate, you may be able to present a suitable case for a 7. Good luck!

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  • My husband is abusive but i cant prove it. will the courts except written journals of past and present incidents

    my husband knows im to afraid to go to the police, he threatens me with the fact i have no job and no money and then he threatens me with the fact that his mom has money and they can afford a lawyer and i cant. he was in jail for abuse of me but...

    Myava’s Answer

    • Selected as best answer

    Check out the national DV hotline for some resources in your area.

    They can help you safety plan, which can be a really important first step. If you were in my area, I would also suggest Laura's House hotline and shelter. It is still possible to contact them. You may just want to change counties entirely. And if there are no custody orders, you can move with any kids especially to remove them from danger.

    The prior response is correct: seriously consider shelter. You indicated that you don't have a job and therefore you don't have that reason for staying. I suspect you feel so defeated, listening to that garbage about you having no hope, no resources, that you probably believe it. But here you are on AVVO seeking help! Good for you! Don't give up. Because it really does get better.

    Don't be afraid of an unknown situation so much so that you do not leave the terrible present. Go into shelter. Take advantage of their counseling. Get transitional housing after completing the shelter program. Get al the aid you can. Shelter, safety and rebuilding your life is what they specialize in.

    Wherever you go, keep your journals. Keep them with a trusted friend if you have to - in order to get them out of the house and away from the possibility of destruction.

    You are not the first or last person to feel this way. There are a lot of people waiting to help. And you really are not trapped. Like many people who experience domestic violence, you'll discover that you are a survivor, not a victim. But it starts with the first move from you. Good luck!

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  • Can my wife, while we are still married, move my son to AZ, where she has family, without my consent?

    We are currently still living together but in separate rooms. No legal action has been taken by either one of us at this time.

    Myava’s Answer

    The above answer accurately points out that without the dissolution or legal separation bring filed, she is technically under no orders. You need -really do not delay - to go to your family law courthouse Monday and file for either dissolution or separation. If you don't have money, you can file a fee waiver that will either waive the filing fee entirely or allow you to pay in installments. After filing, have her personally served by someone over 18 and file the proof of service.

    The UCCJEA defines the home-state as where the children have lived in the past six months. You should act on this now before she moves. If you act, you can & will get jurisdiction here. in addition, the ATROS go into effect.

    I cannot tell you enough how difficult it is fighting for custody and visitation in an outside jurisdiction. If you want to preserve the relationship you have with your kids, which I'm thinking you do because you are inquiring on Avvo, handle this immediately.

    Remember, you don't have to file for divorce. Legal separation can protect your rights too. But do not make the mistake of sitting on your rights. Good luck!

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  • Where can I find out exactly which debts were discharged in bankruptcy?

    Trying to determine from discharge, petition and docket

    Myava’s Answer

    It sounds to me that you are looking at a bankruptcy that has already been filed and discharged. You can create an account on PACER, the federal case access database. Searches are easy to perform and I'm sure you'll be able to locate the bankruptcy for which you're looking. Assuming this is a CH. 7, look at the Petition, schedules D, E and F to see who was listed as creditors. If there are no other filings (such as reaffirmations, adversary proceedings) it is reasonable to believe that most debts listed, exceptions exist (taxes for example, just because you list them doesn't mean they necessarily are going away) were eliminated with the discharge. Good luck!

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  • How can I have a restraining order removed?

    My partner was convicted of a felony domestic violence charge (273.5 A). A 3 year restraining order was issued which prevents him from having any contact with me. Is it possible to have this order removed, and how can that be done?

    Myava’s Answer

    It is possible. As a prior response indicates, you have to work with both the DA as well as his attorney (not sure if he has the PD or private counsel) and put that motion before the judge.

    A word of caution however: whether he was convicted at trial or whether he plead to the charges, he incurred a felony DV. Was it the first time? Do you want it to be the last?

    Perhaps the best thing to first ask yourself: is it in my best interest to release this restraining order? Who else puts YOUR best interests first? It can be only you. A person who abuses you is absolutely NOT putting your best interests first. They cant because they have a problem that you CANNOT FIX.

    Some folks say, yes I must release the RO because we have children together. That is all the MORE reason to reconsider your reasoning as to why you'd like this RO released. Do you want to put your kids at risk or do you want them to have a healthy, positive, violence free environment?

    If no one has told you before, you also deserve a healthy, positive and violence free home. ...this is something to consider.

    I wish you the best of luck and hope this was helpful.

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  • Can I collect on a personal loan to my ex-wife in the amount of $23,000 that was made 13 years ago?

    We were living in California at the time. She now lives in Danville,Ca. I live in Austin, Tx. She signed a promissory note on 1/20/2000. The note was inadequate with an interest rate of 0%, yes 0% and the due date of the note has expired. She has ...

    Myava’s Answer

    Based on these facts, yes it would seem that you can collect. If the loan was after your dissolution, not part of the marriage in any way, I'd suggest filing in civil court rather than family court. If your contract provided for attorneys fees in the event if default, you may want to file in unlimited. I'm not sure if your contract provided for a forum state. Sounds like it perhaps should be filed in CA; however, if you file in TX & personally serve her, she might not object to personal jurisdiction and you may be able to proceed in your home state. States recognize judgments from other sister states, so a judgment in TX can be enforced in CA. Best to act and protect your rights in any event. Good luck!

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  • Is merely filing a restraining order against an ex-husband enough to file I-751 on the basis of abuse even if the temporary

    restraining order was dismissed completely against him? I am trying to remove the conditions from my green card by claiming abuse. Would it be enough for me to mark the abuse option for my I-751 and send the attempted temporary restraining form I ...

    Myava’s Answer

    The emails can be attached but it's not a guarantee that the petition to remove conditions would be necessarily granted.

    Remember that conditions to remove based on abuse must be empirical evidence that you and/or children were battered or subjected to "extreme cruelty" You can submit anything from copies of police reports, emails, court orders, witness statements notarized, medical reports, pictures, social workers, statements from your clergy....all these types of documentation count. I myself would NOT depIend on JUST AND ONLY the Temporary Restraining Order and nothing else. I suggest gathering up more evidence - assuming this abuse is legitimate, there is probably a lot more than you think.

    However, has your spouse canceled the petition? How bad was this abuse and for how long? If this was NOT the first incident, there may be a lot of other documentation available for you. You may be eligible for a UVisa, if there was any arrest, or VAWA petition. And why didn't the permanent go through? Remember, if there is a new incident, you can file a TRO again and have another opportunity for a permanent order if the abuse does not end.

    If you're down in San Diego, check out these local nonprofits for DV. They may have referrals for an immigration attorney in your area. I would really suggest consulting an attorney before filing significant legal documents especially when it relates to immigration.

    check out these places listed here and tell them that you need legal help on a dv related matter:

    Don't feel overwhelmed and get to know your local resources. Good luck, don't give up.

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  • Can you become a u.s citizen if you are a victim of domestic violence

    If im not a cit izen but im a victim of domestic violence by a u.s citizen my husband do iget to be a u.s citizen automatically and not having to go through the process because of the crime or is tne process of be oming a citizen quicker

    Myava’s Answer

    Potentially, yes. It's called a VAWA Petition and you can sponsor yourself in this petition. But you need to have some supporting evidence (for example, restraining orders, police reports, doctor's reports, etc. are helpful.) Your declaration is very important

    I would check out your local domestic violence non-profit agencies and see if they can refer you to someone to help you with this. In CA, legal aid sometimes finds attorneys who even help 'pro bono' for these petitions. I would not advise preparing the petition on your own.

    Good luck!
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