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William Richard Abelmann

William Abelmann’s Answers

3 total

  • I filed bankruptcy over 10 years ago and recently a collection agency is trying to collect on a debt included in the bankruptcy.

    The original debt was with Providian Bank. I thought if a debt was included in a bankruptcy, then there could not be collected on again once it was included in the bankruptcy. What recourse do I have to fight this.

    William’s Answer

    If the debt was discharged in your prior bankruptcy, you may also have recourse through a discharge violation. You can reopen your case and file an adversary proceeding against the collection agency to seek damages and attorney fees.

    As it is a collection agency, you are also likely to have recourse through the Fair Debt Collection Practices Act. Your state may also have an Unfair and Deceptive Practices Act incorporated into state statutes that may net you further statutory damages.

    I recommend consulting a local consumer attorney and/or bankruptcy attorney to review your options.

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  • In an unsecured loan what criteria is used to claim it as a business loan as opposed to a consumer loan

    a loan was discharged in a chapter 7 bankruptcy case as a consumer loan in the filing. the loan was an unsecured business loan. what evidence is required for the court to rule it as a business loan.

    William’s Answer

    It appears that you may be a creditor in this case. Generally, classification of debts as consumer or non-consumer will not have a significant impact on the dischargeability of debts in a chapter 7 proceeding. As the debtor prepares the petition, they will have the opportunity to describe each debt. This description may include words such as "business loan". In any event, the only explicit description of debts as consumer/non-consumer is in the initial pages of the voluntary petition where the debtor elects whether debts are primarily consumer or non-consumer.

    Note that if the debt was inadvertently not listed, the discharge may still extend to your debt. You should contact an attorney if you want to seek to preserve your rights to dispute dischargeability.

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  • Chapter 7 Bankruptcy: Is it consider a secured or an unsecured debt?

    My wages are currently being garnished from a judgement entered from a credit card company. My question is : should this debt be listed as a secured debt or as an unsecured debt??

    William’s Answer

    Secured status will depend on whether any collateral was posted for use of the card (or funds in an associated savings/checking account pledged as collateral), or what was purchased with the credit card. If a creditor alleges a purchase money security interest in items such as jewelry, furniture, or electronics, secured status may also depend on whether the creditor's security interest has been adequately established. If you are unsure, it is probably best to list the debt on Schedule F and let the creditor prove the secured status.

    Note that if you have a judgment debt, the judgment may have attached to any real property you have in the form of a judgment lien in addition to the current garnishment. Such attachment would also likely result in the debt being characterized as secured. Given the potential complexities involved, I would also recommend seeking advice from a bankruptcy lawyer in your jurisdiction.

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