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William James Waters

William Waters’s Answers

498 total


  • California chapter 7 bankruptcy homestead exemption: Single person gets 75k. Does debtor automatically get the 100k when married

    I am wondering in what circumstance might a married individual (who is on title by himself) not be able to take the 100k "family" exemption to protect his home.

    William’s Answer

    Yes, so long as you are married and both you and your spouse are living together in the homestead, you automatically are entitled to the $100k exemption. Circumstances where you would not be entitled to the $100k exemption would be, for example, if you were not part of a "family unit." In other words, if you were not married and the other person living with you was not related to you, or if you are married but not living in the homestead with your spouse and the other person living with you was not related to you or your spouse. There are also some limitations on how far removed a person can be and still be considered related for purposes of the "family unit" criteria.

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  • CA bankruptcy. Son and Dad on their residence deed. Son files chapter 7. He is married. 100k exemption to cover 1/2 equity?

    So the house has 175k in equity. Dad and Mom live there. So does adult son and his wife. the adult son alone wants to file chapter 7 bankruptcy. So, if I am correct, the son technically has 1/2 of 175k in equity ($87,500); Would son be able to pr...

    William’s Answer

    Yes, if you and your father are the only ones on title to the property, then you can claim a 1/2 interest and protect/exempt that interest under the 704 series homestead exemption. Keep in mind when calculating the equity, that the Court will allow you to deduct from the fair market value an amount equal to 8% of that value in order to reflect the costs of a hypothetical sale of the property. Therefore you might actually need to exempt less equity than you think. Also, if the property was acquired after your mother & father were married, then your mother would have a community property interest in the property, even if not on title. So it's possible you might only need to exempt a 1/3 interest. If that 1/3 equity interest is small enough, you might be able to exempt it under the 703 series "wildcard" exemption. These and other factors should all be discussed with a local bankruptcy attorney who could review all of the pertinent documents and all of the other facts of your financial situation and be in the best position to advise you on the approach that should be taken. Most bankruptcy attorneys will offer a free initial consultation.

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  • Chapter 7 in california. 703 exemptions. Pending worker's comp case. What exemptions are available to protect my case?

    I am not even sure whether I will win or not, but want to know if this is something exemptable in a CA bankruptcy chapter 7

    William’s Answer

    It depends on what any such worker's comp. payment would be for. Are you alleging disability? Illness? or what. Under the 703 series, your exemption claim could possibly fit under 703.140(b)(10)(C) "disability, illness, or unemployment benefit." However, if you do not have to use the 703 exemptions (i.e. it is not crucial that you have the 703 "wildcard" available), then you could use the 704 series instead, in which case your worker's comp. claim and any benefits received, would more clearly be exempt under 704.160.

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  • What do I do when a car insurance company issues the check in my name and the finance company?

    I am currently in Chapter 7 bankruptcy Before surrendering the vehicle I got into a non fault accident. I ask the other parties insurance to do a cash payout since I would be surrendering the car.

    William’s Answer

    In all likelihood the insurance company issued the check jointly in your name and the finance company name because 1) The finance company is a lienholder and has a legal interest in the vehicle and any such payments and 2) You were included on the check as well since it is not the insurance company's responsibility to try to sort out who is legally entitled to the payment. You should endorse the check over to your finance company since they are legally entitled to the proceeds. You get to walk away from any personal liability for the finance agreement for the car and for the damage to the car. To not inform the finance company of the settlement check or to try to cash the check without their endorsement would probably be actionable as fraud. All of this assumes the accident took place after you filed your BK petition. If the accident was pre-petition, then as other responses have said, you had/have a duty to inform the Trustee of the pending action / claim for damages. To the extent you would be entitled to receive any of the settlement proceeds, i.e. due to personal injury, that too would have to be disclosed on your Schedule B and exempted to the extent possible on your Schedule C.

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  • I need to file Bankruptcy to save my house from a foreclosure sale next month. Should I file Chapter 7 or 13?

    I am on state assistance right now, but I do have a job. I cannot afford to move and there is no value in my house, so selling is not an option. I need to stay in my house. I would like to know if it is better to file Chapter 7 or 13 and how to...

    William’s Answer

    I too agree with the prior responses. If you are currently behind on your mortgage payments, which it appears you must be since you have a foreclosure sale date set, then your only option is a Chapter 13. However, I would just like to make it very clear that you should not attempt a Chapter 13 on your own. That statement isn't self-serving, it's not being said to try to give an attorney your business instead of you doing it on your own, it's being said because it is true you would stand almost no chance of success attempting a Chapter 13 on your own. When you represent yourself, you are called a Pro Se debtor. The California Central District Bankruptcy Court recently completed a 2013 study of Pro Se cases and concluded: "Chapter 13 continued to be a disaster for those without counsel – less than 0.1 percent of pro se chapter 13 cases were confirmed. Almost 90 percent of pro se chapter 13 cases were dismissed prior to confirmation." If it is important to you to keep your house, you will only be able to do that if you have a successful Chapter 13 case that ends in confirmation of your Chapter 13 Plan, not in a dismissal. Your best chance at a successful Chapter 13 is by hiring an experienced local bankruptcy attorney to handle the case for you.

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  • Statue of limitations

    When judgement awarded in court, the party that was ordered to pay back the money filed bankruptcy after the fact. can you file bankruptcy on court order judgement? after the bankruptcy the party that filed received over million dollar settlement ...

    William’s Answer

    You should review the facts of your case with a local bankruptcy attorney to see if there is anything you can do. Many more facts would be needed for anyone here to be able to give you solid advice. A lot depends on when the bankruptcy was filed, what the judgment was for and the basis for the judgment. You say the other party was "ordered to pay back the money." Why? What was the basis for the underlying lawsuit against that person? Was it a criminal or civil case? Was fraud alleged? Was fraud found by the Court? Are we dealing with a restitution order in a criminal case? You may have had a chance to have the debt be declared non-dischargeable by the bankruptcy court, but if the bankruptcy is now over and the debtor has received a discharge, you may be out of luck. A local bankruptcy attorney, after reviewing all the facts and documentation and court papers in your case would be able to advise you on what your options are, if any.

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  • What forms to use to renew a judgment granted on 2/20/2008?

    I was granted a judgment on 2/20/08. Defendant filed bankruptcy before the decision was granted. Now I'm trying to collect but, I cannot locate her. To ensure I can collect I need to reactivate the judgment. What forms do i use?

    William’s Answer

    I agree with Attorney Wilton. If the debt that is the basis for your judgment was in existence at the time the bankruptcy was filed, then you, as a creditor, were subject to the "automatic stay" created upon the filing of the bankruptcy. That means that you were barred from taking any action whatsoever to collect on your debt. If you proceeded to obtain a judgment after the BK was filed, then you probably violated the automatic stay and could face penalties for having done so.

    If the basis for your judgment, and the underlying debt, was something that could have been viewed as non-dischargeable in the Bankruptcy, then you needed to file an adversary complaint in the bankruptcy case for a determination by the court that your debt was in fact non-dischargeable and that you therefore were then authorized to proceed with the enforcement of that debt. If none of that was done, or if your debt is not the type of debt that could have been found to be non-dischargeable, then you are prohibited by the permanent injunction that was created by operation of law upon the granting of the debtor's discharge in the bankruptcy case. It would be a federal offense for you to renew the judgment or do anything else to try to collect on the debt. It also would be too late for you to try to object to the discharge of your debt on non-dischargeability grounds.

    I would strongly suggest you review all the pertinent facts with a local bankruptcy attorney for confirmation, but based on the facts you have stated it appears you are prohibited from any attempt to collect on the judgment.

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  • Due to a med. disability and lack of money, I am not able to pay my credit cards. Is it better to file BK or try debt relief?

    I have talked to National Debt Relief and they want me to pay them $397.35 per month for 30 months. Total debt is $15,550. Even paying them $397.35 is a problem. Their fee is $3875. Would filing chapter 7 BK for medical problems (certified by ...

    William’s Answer

    I have had dozens of clients file bankruptcy after first trying debt consolidation or debt relief. In every case the attempt to avoid bankruptcy through one of those programs only caused their debt to increase. In your situation, your $15,550 debt will immediately become $19,425 by adding the debt relief fee. The problem with nearly all companies/programs like this is that they cannot promise you that your debt will go away or be cleared by the payment to them of only X dollars per month unless they have a written agreement with every one of your creditors to accept a certain reduced amount of monthly payment. If the creditors have not agreed to accept some reduced monthly amount in satisfaction of your debt, then that debt will just continue to increase with added interest and late fees, etc. The only one that benefits is the debt relief company. I have seen this situation over and over again.

    I would recommend contacting a local bankruptcy attorney for a consultation (most will offer a free initial consultation) in order to review your financial situation and the options available to you under the bankruptcy code, including the pro's & con's of filing. Medical bills, credit cards, and all other unsecured debt can usually be discharged in a Chapter 7 bankruptcy. The medical debt does not need to be certified by a physician. If even paying the $397.35 required by the debt relief company would be a problem for you, then it sounds like you would have no chance of ever paying off the $15,550 in debt, with interest continuing to accrue, so a Chapter 7 bankruptcy might be your best option, not just a "better" option. A consultation with a local attorney would let you know for sure if a BK would in fact be the best approach for you.

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  • I need help of my school loan?

    i was going to a private school for MRI program. when the theory parts was over i was waiting a year for my internship. then right after i start my internship in this clinic, the government closed the school because there degree were not acceptabl...

    William’s Answer

    Attorney Zhou raises some good points. If you feel there has been any fraud or other impropert conduct committed by the lender, you can submit a complaint. If it turns out you are liable under the student loan, you can request alternate payment arrangements, deferment or even a waiver. All of those options are discussed on the Government's "Consumer Financial Protection Bureau" website: http://www.consumerfinance.gov/blog/struggling-private-student-loan-borrowers-still-searching-for-help/

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  • Chapter 7 bankruptcy in california. own home. have $50k owed to HERO program for upgrades. Does this reduce my equity for bk ?

    So, I owe 200k on my mortgage. Owe the HERO program $50 for repairs made to the house. It either stays on the property tax bill (transfers as an expensive encumbrance to new buyers) or needs paid off at sale. If house is worth $350k, can I argue ...

    William’s Answer

    I agree with the prior responses that the HERO $50k is added to the other encumbrances on the property. However, keep in mind that you may be able to argue you have less equity than you think. Most of the judges in the CA Central District bankruptcy courts allow you to also deduct from the calculation of fair market value an amount representing the costs of a hypothetical sale of the property. Typically the amount used is 8%. Therefore, if the fair market value of your house is in fact $350K, you can subtract 8% ($28,000.), then subtract the $250k in encumbrances, and you end up with only $72,000 in equity. So, if the house is actually worth a little more than the $350k, you should still be O.K. with the available $100,000 homestead exemption under CCP Sect. 704.730(a)(2).

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