Asked over 2 years ago - Brooklyn, NYFlag
I have a levy on my bank account which has my husbands entire pay for 2 weeks. It is from a credit collector for my personal credit card, not his. I
If I file bankruptcy, can I get the money returned? How long a process is it?
When you file Bankruptcy you create a financial estate. That estate is “administered” by a Trustee. There are very different paths to the same outcome if you file a Chapter “7” or a Chapter “13” Bankruptcy, but the result is the same: you get rid of “unsecured” and maybe other kinds of debt.
Bankruptcy is filed by creating and filing a Petition. In the Petition you list all of your assets and income for the household; and all of the debts and obligations for that property or person who is filing.
After everything is listed your attorney applies “exemptions” to the property. Exemptions are creatures of State law in New York. Quite simply, they are the “things you get to keep” as defined by specific statues and laws.
There are many exemptions. It does not matter if a person files a Chapter 7 or a Chapter 13 Bankruptcy. These exemptions apply to all cases:
Homestead exemption: This is where the homeowner who is on the Deed and living in the property gets to protect $50,000.00 (in New York…other States Vary!!!)each (up to two) of equity in the property. So, if one person is on the Deed and they live in the house and the home is worth $50,000.00 and is paid off, they get to keep the home and no one can try and take it if they file Bankruptcy. If two people are on the Deed and reside in the home the house can be paid off and worth $100,000.00 and nothing will happen to it if they file a Bankruptcy.
Personal property: The vast majority of people do not have to worry about losing property when they file Bankruptcy. However, it is your obligation to report all property. Most people’s furniture, bedroom sets, dining room sets, clothes, etc. are normal consumer items that we list, but since the PERSONAL PROPERTY EXEMPTION IN NEW YORK IS $10,000.00 DOLLARS (In New York…check your State) we have found that it is not worth the trouble by the Trustee appointed to oversee your Bankruptcy to take and sell the property.
Take out a second mortgage to pay credit cards;
Transfer property to family members or friends to “protect it”;
Take money out of your retirement account to pay credit cards.
REQUEST: Please give this answer a "thumbs up"(below) if you find it valuable.
Disclaimer: This answer does not constitute legal advice. I am admitted in the States of New York, New Jersey and Massachusetts only and make no attempt to opine on matters of law that are not relevant to those three States. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. Consult an attorney in your locale before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship. The opinions expressed herein are those of the author only and the fact that he has worked as an Assistant District Attorney; State Supreme Court Clerk; Special Assistant United States Attorney (Hawaii); Assistant Cornell University Counsel or Judge Advocate, United States Marine Corps should not be relied upon to assume that these statements reflect the policy of these organizations.
A Chapter 7 usually takes about five months from filing to discharge. A Chapter 13 can take up to five years to complete. The time from hiring an attorney to filing varies depending on complexity of case and lawyer's caseload. In an emergency, an emergency "skeleton" filing can be done in two days. By law, you need to complete a credit briefing course the day before filing the case. An attorney can file the case electronically even if the court is closed.
If a creditor has obtained more than $600 in the three month time period prior to filing bankruptcy, it is considered a "preference" and he can usually be ordered to give it back, but you would also need to exempt the funds or the chapter 7 trustee would take the money to pay creditors. If you can "trace" the funds as coming only from his paycheck, the creditor may be required to return it even without bankruptcy, but there is a concept known as "mingling" where once funds are mingled they are joint funds and attachable.
Generally, if judgments are pending, husbands and wives should have separate bank accounts and not mix funds.
If this was helpful, please click the thumbs up.
Marvin Wolf, Esq. Admitted in NY and NJ
Federal Debt Relief Agent and attorney at law. I file bankruptcies when appropriate.
The above is legal information only and not specific legal advice. No attorney-client relationship is intended or created.
A chapter 7 generally takes 4 to 6 months and it is over.
Bankruptcy requires review of your entire financial situation including all debts, income and assets. I highly recommend that you retain an experienced bankruptcy attorney in your jurisdiction to guide you through the complexities of bankruptcy law and procedure.
If you find my answer helpful, please click the ‘thumbs-up’ tab below. Thank you.
This answer is provided for informational purposes only. Actual legal advice can only be provided in an office consultation by an attorney licensed in your jurisdiction, with experience in the area of law in which your concern lies.
25,034 answers this week
2,626 professionals answering
Get answers from top-rated lawyers.
25,034 answers this week
2,626 professionals answering
Don't speak legalese? We define thousands of terms in plain English.Browse our legal dictionary