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Kelly Marie Resnick

Kelly Resnick’s Answers

39 total

  • What will the court say if I already spent my income tax

    I filled for chapter 7 bankruptcy in mid Feb. I had not gone for my first court appearance . Meantime I received my federal income tax. I spent the refund.I had know idea that when I went to court the judge would demand the refund. What happens n...

    Kelly’s Answer

    Like the other response stated, this is only an issue if the funds are non-exempt. If you put your petition together yourself, you should be familiar with the exemptions, especially the "wildcard." If you have available exemption, you can amend your Schedules B & C to protect the refund. If you do not have enough exemption left, then the Trustee will demand that you pay back the funds spent. You need to be proactive here since you did spend these funds without authorization, so do not wait. Either exempt and amend; or call an attorney. Good luck!

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  • When I receive form edc 5-200 does that mean my chapter 13 payments ends.

    I received form edc 5-200 (Notice to Debtor of Completed Plan Payments and Obligation to file Documents). I know I have to fill the forms out but does that mean I have to make my next payment which should be the last anyway, I plan on making it ...

    Kelly’s Answer

    I agree with the previous answer. The trustee may have sent the paperwork early since by your calculation you have one more payment left. I agree, make the payment and if it is an over payment, it will be refunded to you. In the meantime, contact your attorney to get a proper calculation, or check the Trustee's website if they have one.

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  • Bankruptcy rule 4001(a)(1)

    what does this mean? 14 days from what and when? thank you

    Kelly’s Answer

    I believe you are referencing Rule 4001(a)(3) based on your reference to "14 days." This section provides: An order granting a motion for relief from an automatic stay made in accordance with Rule 4001 (a)(1) is stayed until the expiration of 14 days after the entry of the order, unless the court orders otherwise. The automatic stay is the court order that goes into effect as soon as a Debtor files bankruptcy and prevents any and all collection efforts against Debtor and his/her property during his/her bankruptcy case. Creditors can request that this order be terminated as it relates to them by filing a Motion for Relief from the Automatic Stay. A common scenario is for a first mortgage to request this relief in order to continue with foreclosure proceedings against property, not the Debtor personally. If the Court grants the Relief from Automatic Stay, the creditor must wait at least 14 days after the Order for Relief from Stay is issued by the Court to continue collection efforts. However, a creditor can also request the Court to waive this 14 day waiting period.

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  • What is the effect of discharge of debtor/plaintiff's Ch. 7 bankruptcy petition on the cases he removed to federal bksy court?

    Plaintiff filed two lawsuits against defendants. Plaintiff/Debtor then filed Ch. 7 bankruptcy to get a stay in an unlawful detainer action. The stay was lifted and he was evicted. Plaintiff/Debtor removed the two state actions to federal bankru...

    Kelly’s Answer

    I agree with the other attorneys who have answered. The adversary proceedings will continue despite any discharge that is entered. The status of the cases themselves depend on whether or not the Trustee of the Chap. 7 case believes he/she can recover something from the lawsuit. If he/she believes there is something there to collect, the Trustee will step into the shoes of the debtor and move forward with the case. If the lawsuit is "abandoned" meaning the Trustee does not believe that the lawsuits are valuable to the estate, then it is unlikely the bankruptcy court will move forward on these cases and will most probably send them back to the state court.

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  • What should i do

    Filed /discharged chprtchprt 7 bankruptcy in 2009. Continued to pay the mortage till appx 2010. Serious medical expensive n the loss of income cauesd us to just simply not be able to afford the hoa fees. At the time my hoa refuesd reasonable payme...

    Kelly’s Answer

    Since you received a discharge in a Chapter 7 case in 2009, you are not eligible to discharge your debts until 8 years after that. So Chapter 7 may not be a viable option for you. You could file a Chapter 13 which will give you a 3 or 5 year payment plan to pay off this debt. You can also try to negotiate a payment plan directly with the creditor to avoid a wage garnishment. The longer you avoid this situation, the more fees you are going to incur, so you shouldn't avoid service.

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  • I moved to CA from NJ and will file Chap 7. What address do I use to fill out the forms and to whom/where do I send the forms?

    - Lived in San Francisco, CA the last 8 months - Lived in Matawan, NJ for 20 years prior to moving to CA. - No longer have a New Jersey address - Only have a CA address

    Kelly’s Answer

    • Selected as best answer

    Your question is related to two issues in bankruptcy.

    First, where to file. Since you have been living in San Francisco for more than 91 days immediately preceding the filing of your case, the proper place to file your case is in the Northern District of CA, San Francisco Division.

    Second, what exemptions can you use to protect your property. If you have been living in CA for less than two years (which you have), you must use the exemptions of the state where you were domiciled (i.e. where you called "home") for the better part of the 180-day period immediate prior to the two-year period preceding your filing. For you, based on the information you provided, this would be New Jersey exemptions. Unless, NJ only allows current residents to use its exemptions and in that case, you can use the federal exemptions.

    Your case has some complexities in it, so you may want to speak to an attorney.

    My office handles San Francisco division. Feel free to call us for a free consult!

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  • FHA underwater loan

    is true if file BK chapter 13 the banks has to eliminate my second loan and also value the house at the price on the market to lower the payment thanks

    Kelly’s Answer

    What you're asking is somewhat true. First, if we are talking about your primary residence, you can eliminate a wholly unsecured 2nd mortgage in a Chapter 13. This means that the value of your home must be less than the outstanding balance of your first mortgage only. A motion will need to be filed to get this done--it does not happen just by virtue of you filing bankruptcy. So you should speak with an attorney to make sure it is done correctly, especially with the rise of the real estate market recently.

    However, a Chapter 13 will NOT modify any of the terms of your current 1st mortgage on your principal residence. You can apply for a loan modification directly with your 1st lender (*which must be approved by the Court if you are in an active Chapter 13) and this application must be pending at the time you file your bankruptcy or very soon after (at least in CA). The Court will not hold up a secured lender's foreclosure rights on a "promise" to apply for a loan modification.

    The type of situation you're speaking of regarding "valuing the house at the price on the market" may refer to an investment property you own, NOT your principal residence. The catch is that you must pay off the market value of the property in full in 5 years. Although enticing, borrowers can rarely pay off the full value of their investment property in 5 years so they keep the mortgage intact and continue regular payments.

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  • Does a Judgement Lien Expire

    I have a judgement lien on my home that is 7+ year old, will it ever expire due to the length of time?

    Kelly’s Answer

    In California, a judicial lien will expire in 10 years; however, the creditor can renew the judgment before it expires for another 10 years. They can do this every 10 years. You may, depending on your situation, be able to remove this lien in a bankruptcy. There are other options as well to settling this obligation. You should speak to an attorney about your options since you could be stuck with this debt for a very long time.

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  • When I notified our Electric Company that we had filed BK7, they demanded a copy of the Petition w/Payment?

    What amount, and when, will the electric company include of our account, in our BK7? It is listed on the schedules, and they were notified 2 times. Once by the court's original creditor matrix, then again...when they wanted a copy of our petitio...

    Kelly’s Answer

    The utility company cannot alter, refuse or discontinue your service just because you filed for bankruptcy. The electric company is not exempt from the automatic stay per se, but the prohibition preventing the utility company from pursuing the balance is found in a different section of the bankruptcy code (11 U.S.C. s. 366). This section also prohibits utility companies from shutting off or refusing to provide service just because you filed bankruptcy. There is a caveat however--this protection does not last forever without action from you. Within 20 days of your filing, you must provide the utility company with "adequate assurance" that you will pay future utility bills. Usually, "adequate assurance" is a cash deposit or prepayment--it is basically a security blanket for your utility company that you will continue to pay for the utility charges incurred after the day you filed your petition. The acceptable forms of assurance varies by jurisdiction so you may want to check with a local attorney about what has been accepted in the past. As for discharging the previous amount, the utility company does not have a choice in this matter--if you successfully complete your bankruptcy and obtain a discharge, the debt you owed them prior to filing is discharged just like all your other debts. I have seen though utility companies request "adequate assurance" payment in the amount of the bill you just discharged, so you may want to retain an attorney to represent you here. My office has a Sacramento location.

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  • I filed an amendment to my schedule. F to add creditors and just realized I forgot account numbers. What should I do

    What should I expect since I forgot account numbers

    Kelly’s Answer

    You can use the last 4 digits of your social security number. The creditor can look up your account using this information, with your name and address.

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