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Martin M. Holmes
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Martin Holmes’s Answers

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  • Bankruptcy Options

    I am currently in massive $250k private student loan debt as well as credit card debt. I had been paying two of the three private student loans and interest payments for two and a half years until recently. I also have nearly maxed out multiple cr...

    Martin’s Answer

    Just because your private student loan uses the term “student loan” doesn’t mean it is one. At least for purposes of the U.S. Bankruptcy Code, a student loan must be from an “eligible educational institution“ to be considered nondischargeable. If it’s not, getting rid of it in a bankruptcy can be easier than it looks.
    Labels can be deceiving, a “student loan “ must meet specific bankruptcy code requirements to avoid being automatically discharged in bankruptcy. The “ student loan “ Must be a qualified education loan, as defined in section 221(d)(1) of the Internal Revenue Code of 1986.
    To be a “qualified education loan“ under the Internal Revenue Code, a loan must be from an “eligible educational institution.” The Department of Education publishes a list each year of qualifying schools. If an institution is not on this list, the loan is not considered a “student loan” under the Bankruptcy Code, and, therefore, can be automatically discharged in bankruptcy.

    If the private student loan is a ‘qualified educational loan” it is harder but not impossible to discharge in bankruptcy.

    The bankruptcy code provides that student loans are not discharged unless excepting such debt from discharge would create an “undue hardship for the debtor and the debtors dependents”
    .
    Establishing undue hardship has been very hard to do under the rational of relatively old case law. Courts are now beginning to take a second look at the standards.

    Even so, you might be able to receive a partial discharge.

    You need to consult with a qualified bankruptcy attorney in your area, preferably one who understands the student loan issues and has experience dealing with student loan’s in and out of bankruptcy.

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  • Is there anyway i can get that money back?

    I was living with a boyfriend, he owned the house. We installed carpet in the basement that cost $1600 I gave him half, with the understanding he would pay me back.

    Martin’s Answer

    Yu can file a claim in small claims court. The burden will be on you to prove that you paid $800 and that it was a loan not a gift or contribution to the household expenses.

    I suggest that you request payment and perhaps workout a repayment schedule. You will want to get some written acknowledgement from him that he owes you the money so you can prove your case.

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  • What happens if I don't have the secured property in a collateral loan and I file Chapter 7?

    Hi - I borrowed money from a jewelry store and they are wanting me to reaffirm the debt saying I have a collateral loan and that gives them a secured interest in the debt. I don't have the jewelry now to return to them and I cannot afford to affir...

    Martin’s Answer

    If you have not already done so you should hire a good bankruptcy attorney in your area.
    Bankruptcy is a complicated area involving both Federal and State law. It can be a wonderful benefit but it is like running through a mine field and can make your situation worse. There is no substitute for a competent bankruptcy attorney. Whether the store has a security interest in the jewelry is a matter of your loan agreement . I typically schedule the debt as an unsecured debt and let the creditor prove they have a valid security agreement. You did not state what became of the jewelry. If it was purchased and given as a gift the transfer may be subject to being set aside by the bankruptcy trustee as a fraudulent transfer.

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  • What is the statute of limitations for a lawsuit involving neglect by foster parent?

    My children were injured while in foster care. What is the statute of limitations for me to file a civil lawsuit on their behalf? What type of lawyer would I need?

    Martin’s Answer

    The statute of limitations is an affirmative defense and it is difficult to answer here. The Statute of Limitations ( SOL) that is applicable tone cause of action such as negligence is different than that applicable to breach of contract . Various circumstances toll the (SOL's) that is it stops the clock from running. I suggest that you see an attorney that specializes in personal injury case ASAP.

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  • When you win a small claims case, and the defendants do not follow through with paying. What are your options after that?

    Defendants are avoiding payment for damages they did to my vehicle totaling $1,300. I have a good case for small claims, but dont know what to do if they dont pay judgement.

    Martin’s Answer

    • Selected as best answer

    If you obtain a judgment and the appeal period passes you may use post judgment collection remedies to obtain the unpaid amount some of those include, a subpoena requiring the defendant/debtor to appear, produce records and answer questions under oath concerning their income and assets, garnishing wages, bank accounts and state income tax refunds. You can also place a lien on the defendant/debtors real estate by filing a judgment lien in the county where the defendant /debtor owns real estate.The court can provide forms for the garnishments and the forms have instructions. If you know where the defendant/debtor banks and or works you have a head start. Often times the hardest barrier to collection is locating income or assets that you can take..

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  • What should she do and what can she do legally before this gets more out of hand than it is already.

    A female friend of mine is being harassed by a local officer in the sheriff's department. He has stopped her over 15 times in one month and never given her a ticket, and he as shown up in front of her apartment, and left flowers and relatively ex...

    Martin’s Answer

    I agree with the prior Response. In addition I would suggest that she may want to employ a dash cam, voice activated tape recorder, and or premises security cam so that she can obtain evidence that she is being stalked by this individual, if/when it happens again she can ask him why he keeps pursuing her when she has told him she is not interested and has a boyfriend ask him if he left the flowers and gifts. Keeping it firm but friendly with a firm please stop. If she peruses a complaint for a PPO or with the Michigan state police such evidence will go along way to support her and avoid a "he said she said " situation that may result in an successful complaint.

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  • What do I do? I called the attorney who sent the letter but have not received a response.

    I have inherited property from my deceased mother and now my cousin sent a registered letter suing me but I do not understand what it means. I have 2 weeks left to respond in writing.but I don't know what I AM RESPONDING TO. there used to be oil o...

    Martin’s Answer

    Call a Lawyer in your area. Since you don't know what you are responding to you need to have somebody review the situation and explain it to you and outline your options. DO IT NOW. Failing to respond or to respond properly will in most instances be interpreted negatively resulting in expensive suit (s). Responding quickly and properly may result in avoiding ill will and suits.

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  • This is a scam, Right?

    I got a call from a process server who stated that she had legal papers to serve me and if I would be home. I told her I have no clue of anything to which she said you must call the company and become aware and until you do I cant serve you. ...

    Martin’s Answer

    Sounds like a legitimate attempt by a process server to locate you and deliver the papers. The process server is paid to deliver the legal documents to you, usually a flat fee, and for mileage. They want to get the documents to you without making multiple trips or spending a lot of time tracking you down. They typically will block caller ID so that the party they are calling picks up the phone rather than avoids answering. You have no duty to provide any information. The part about "you must call the company and become aware and until you do I cant serve you. " sounds like a scam to me.

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  • Is there a statute of limitations on debt to a utility, or debts otherwise?

    I've resided at the same address with same phone number for 15 years. Had my credit report pulled by Quicken Loans in 2013 and 2014. Was told that nothing was collection and all things were o.k. Had no contact from any collection agency for appr...

    Martin’s Answer

    The statute of limitations on contract debt is 6 years and runs from the date of default or last payment. certain events can toll ( suspend ) the time from running. However the facts you posted do not indicate that any of those would apply. Often times old debts are purchased by debt buyers, who attempt to collect the debt and convince the debtor to make a payment. Paying on the debt would start establish a new date for the running of the 6 year. that is you would waive your statute of limitations defense. Sometimes, scam artists find old accounts and attempt to collect them even though they have no right to do so.

    Some courts have held that attempting to collect a time barred debt is a violation of the Fair Debt collection Practices Act and that the collector is liable to the debtor for damages. Reporting a time barred debt to a credit reporting agency may also be a violation of the Fair Debt Collection Practices act.

    I suggest that you contact the credit reporting agency that show this debt and dispute it. I also suggest that you contact the collector by certified letter telling them you dispute the debt, obtain evidence of their authority to collect the debt, a copy of the contract and complete accounting rom the inception to date.

    It would be advisable for you to contact an attorney in your area that handles consumer protection cases.

    Stay away from companies that advertise for credit repair. many are scams. The Federal Trade Commission has good information on their website see the attached Link

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  • The house didn't sell and I can't afford it. Do I have to pay him if I file bankruptcy?

    In my divorce, we agreed that I would sell one of our rental properties and my spouse would receive all the equity. The house didn't sell in the time expected. If I file bankruptcy-and lose the house, am I still required to pay him?

    Martin’s Answer

    You should consult a bankruptcy attorney. Bring your divorce judgment with you to your meeting. If necessary your bankruptcy attorney can work with your divorce attorney

    A bankruptcy will discharge your personal liability on any mortgage or lien but will not discharge the lien itself. If the property is subject to a mortgage the mortgage company can foreclose. A chapter 7 will not discharge any liability to your ex-husband arising from the Divorce judgment. A chapter 13 bankruptcy will discharge your liability on a property settlement but not for alimony / spousal support. The terms of your judgment of divorce is important. If the judgment reserved spousal support, as many do It may be possible for your ex to get an order for spousal support.

    If this is your only financial problem bankruptcy is probably not your answer, You may be able to work something out with your ex like transferring the property to him either voluntarily or through a post judgment motion in your divorce.

    You would be wise to explore all your options
    In determining if Bankruptcy is right for you one must consider your total financial situation, Income, household size, living expenses, the nature extent and value of your property the nature and extent of your debts. Recent transfers etc.

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