I am not an attorney, I am a debt and judgment referral specialist (Judgment and Collection Agency Broker). This article is my opinion, from my experience in California, and laws are different in each state. If you need legal advice or a strategy to use, please contact an attorney. What if one has a judgment debtor, and their non-debtor spouse has filed for Chapter 7 no-asset Federal BK court protection? What if just the non-debtor spouse filed for bankruptcy, and the spouse-debtor did not?
How can you enforce a judgment against the debtor spouse, if their non-debtor spouse filed for BK protection, or has previously discharged their debts in bankruptcy? How does this interfere with one attempting to enforce a judgment from the non-BK community property state-based debtor spouse?
After the non-debtor spouse has initiated a BK, or has already discharged their debts; attempts to satisfy the debtor spouse's debt using community property becomes stayed (forbidden and illegal).
The debtor spouse's sole and separate property is usually available for levies to pay off a judgment. However, one need to stay extra mindful not to violate a BK court's order, and do the homework. With a tiny judgment, or when the judgment debtor is and will stay broke, it might be best to give up, and forget about the judgment.
BK stay violations can bring severe penalties, so you must take care to have sheriffs or marshals garnish only non-dischargeable and/or non-stayed assets. For extra safety, youshould make double-sure which assets are legally and actually available first. A good way to look before you leap, is by using a debtor examination (often with a request for document production). This is accomplished by scheduling and serving an OEX (Order to appear for EXamination) on the debtor.
When bankruptcy is involved, it's a very good idea to first obtain permission from the BK court, prior to trying any recovery or discovery actions against a judgment debtor.
To help to determine what your current or future enforcement tactic could be, one could begin by requesting of the bankruptcy court for leave (permission from) their bankruptcy court, to permit you to get a state court issued OEX (Order to appear for EXamination), served on the debtor, with the included (at least in California) OEX lien against just the debtor spouse's separate and sole property.
In most states, serving an OEX on a judgment debtor starts a lien against their personal property assets. In California, serving an OEX on a judgment debtor spouse creates a 1-year silent lien against any personal (however not real-estate based) and community property shared by the other spouse, if it isn't stayed by a BK protection.
The judgment debtor and their spouse have a one hundred percent indivisible interest in their community property of the marital assets, as long as they remain married to each another. In a community property state, when one spouse's debts are discharged by a bankruptcy, the community property that was acquired pre-petition (and usually pre-discharge), is immune to levy due to the "phantom discharge" created by current laws. (I am not a lawyer.)
The word "phantom" in the phrase "phantom discharge" means that in community property states, there can be an extra BK protection after one spouse files for bankruptcy protection, that can protect the assets of the other judgment debtor spouse. Most often, "phantom discharges" occur only in community property states (currently Arizona, California, Louisiana, Idaho, Nevada, New Mexico, Texas, Washington, and probably Wisconsin).
A phantom discharge occurs when personal and real estate-based community property becomes immune to judgment recovery against a judgment debtor spouse, because the non-debtor bankrupt spouse owns a 100% and indivisible interest in the community property estate, and that spouse's indebtedness has been discharged.
Phantom discharges are an undeserved shield from creditors for the community property assets of both spouses of a married couple, even if only one spouse discharged their debts in bankruptcy. (See bankruptcy codes 11 US 541 and 11 US 524).
While the couple remains married, the phantom discharge remains, which is many times a huge injustice for judgment creditors of the (non-bankrupt) judgment debtor spouse.
If the married couple benefitting from a phantom discharge becomes divorced, one can petition the family court to enjoin the divorce proceedings, and levy the nonexempt part of the debtor spouse's portion of their marital estate, if any.
Only entities or people may get bankruptcy discharges. Property is not an entity, so it cannot get a discharge. Sometimes a debtor does not win in BK court, and one or all, of their debts are declared non-dischargeable.
In many community property states; and in California, family code section 910 (a), specifies that any personal and real property of the community estate can be used to satisfy the debts of either spouse incurred during or before marriage. This means that real or personal property of the community estate may be used to pay a non-dischargeable debt. This is the opposite of a phantom discharge, so creditors get a clear path to all of the community assets of the judgment debtor.
Showing posts with label Bankruptcy. Show all posts
Showing posts with label Bankruptcy. Show all posts
Saturday, August 4, 2012
Friday, July 20, 2012
How To File Bankruptcy: A Debtor's Guide
If you are struggling to pay your bills and wondering what the future holds, you may also be considering how to file bankruptcy, wondering what it protects, and what are the risks, and what is really involved. It may just be a vague idea at this time, or perhaps you are actively considering it but are unsure of how to proceed.
Fortunately, the bankruptcy process is relatively simple if you do it right.
The following outlines what going bankrupt entails, learn what it takes, and when finished, you will be able to make a better decision if it is the right path for you.
Have You Done All You Can To Make Good?
The first step in going bankrupt is to get all your financial information together and decide whether this really is the best option for you right now. Sometimes debt can feel overwhelming, but inmany cases a few small lifestyle changes can make paying it down much easier.
However, that is not always the case and bankruptcy may very well be the best option for you right now.
If you are unsure of whether you should proceed with it or not, consider getting credit counseling from a professional. There are many excellent nonprofit credit counseling centers available to help.
These services can help you organize your finances and take advantage of debt relief resources you may not have been aware are available to you.
How To Choose A Bankruptcy Attorney
Once you have decided to file for bankruptcy, you will need to find a lawyer. It is possible to file pro se, without a lawyer, but it is generally not recommended. Bankruptcy can be a complex process and even a small mistake can cause major problems for you, including the loss of assets like your home or car or even a dismissal of your case entirely that otherwise could have been avoided with experienced legal help.
It pays to do it right the first time around with something this serious. Scrape, borrow, negotiate to come up with a reasonable fee for a bankruptcy attorney to manage going bankrupt for you.
To find a lawyer, begin by asking for recommendations from anyone you know who has filed for bankruptcy or might otherwise know of a good one. You want to find someone who specializes in bankruptcy cases as they will know how to file bankruptcy effectively and typically their fees will reflect an understanding that you are in financial distress.
You can also search online for a good bankruptcy attorney. Many sites even have client ratings to help you decide. Pick several attorneys that offer a free initial consultation, and go talk to several of them before making your decision. Do not be intimidated, ask a lot of questions about their experience and expertise, and listen to what they suggest for your case.
After talking with several lawyers, choose the one you feel most comfortable with.
What Going Bankrupt Will Require Of You
Once you have a lawyer, you typically will need to seek credit counseling from a center that is approved by the federal bankruptcy court. This must be done within 180 days of filing and you will need to show proof that you completed the course and intend to comply. This is to help prevent you from finding yourself in the same financial straits that led to bankruptcy in the first place and is an important step that will benefit you in the long run.
Your lawyer will look over your finances and determine whether you should file for Chapter 7 or Chapter 13 bankruptcy. Chapter 7 bankruptcy erases all debts that can be discharged, forgiving them, but you may lose some assets in the process and there are also income restrictions. For those with higher income or more assets that they want to keep, Chapter 13 is a safe way to do so.
You may have to pay back some of your creditors but your payments will be structured in an affordable way based on your projected income. Some debts are never able to be discharged, such as federally guaranteed student loans, back child support or alimony and certain court judgments. However, most credit card debt, medical bills and personal loans will be able to be discharged if you qualify for bankruptcy.
Your lawyer will inform you of the paperwork you need to do and the information you need to provide.
Avoid Temptation - Post Bankruptcy Recovery
Although it can be tempting to lie about assets or income in order to secure a more favorable outcome, it is a very bad idea to do so. The court will check into your financial statements and if they discover you are hiding assets your case will likely be dismissed and you may face criminal charges. You also need to be very clear about all your debts, as if you forget to list one in your paperwork it will not be discharged.
Bankruptcy can be a long and stressful process, but it can be worth it in the end. If you are drowning in debt and unable to pay it off, declaring bankruptcy may be the right choice for you. It is a common occurrence and nothing to be ashamed about if you have done everything in your power to make good but are being crushed by your debts.
Instead, look at it as getting a second chance to make smart financial decisions having learned from your missteps . If you are wondering how to file bankruptcy, wonder no more. With a little help you will soon find yourself on the road to your second chance.
Fortunately, the bankruptcy process is relatively simple if you do it right.
The following outlines what going bankrupt entails, learn what it takes, and when finished, you will be able to make a better decision if it is the right path for you.
Have You Done All You Can To Make Good?
The first step in going bankrupt is to get all your financial information together and decide whether this really is the best option for you right now. Sometimes debt can feel overwhelming, but inmany cases a few small lifestyle changes can make paying it down much easier.
However, that is not always the case and bankruptcy may very well be the best option for you right now.
If you are unsure of whether you should proceed with it or not, consider getting credit counseling from a professional. There are many excellent nonprofit credit counseling centers available to help.
These services can help you organize your finances and take advantage of debt relief resources you may not have been aware are available to you.
How To Choose A Bankruptcy Attorney
Once you have decided to file for bankruptcy, you will need to find a lawyer. It is possible to file pro se, without a lawyer, but it is generally not recommended. Bankruptcy can be a complex process and even a small mistake can cause major problems for you, including the loss of assets like your home or car or even a dismissal of your case entirely that otherwise could have been avoided with experienced legal help.
It pays to do it right the first time around with something this serious. Scrape, borrow, negotiate to come up with a reasonable fee for a bankruptcy attorney to manage going bankrupt for you.
To find a lawyer, begin by asking for recommendations from anyone you know who has filed for bankruptcy or might otherwise know of a good one. You want to find someone who specializes in bankruptcy cases as they will know how to file bankruptcy effectively and typically their fees will reflect an understanding that you are in financial distress.
You can also search online for a good bankruptcy attorney. Many sites even have client ratings to help you decide. Pick several attorneys that offer a free initial consultation, and go talk to several of them before making your decision. Do not be intimidated, ask a lot of questions about their experience and expertise, and listen to what they suggest for your case.
After talking with several lawyers, choose the one you feel most comfortable with.
What Going Bankrupt Will Require Of You
Once you have a lawyer, you typically will need to seek credit counseling from a center that is approved by the federal bankruptcy court. This must be done within 180 days of filing and you will need to show proof that you completed the course and intend to comply. This is to help prevent you from finding yourself in the same financial straits that led to bankruptcy in the first place and is an important step that will benefit you in the long run.
Your lawyer will look over your finances and determine whether you should file for Chapter 7 or Chapter 13 bankruptcy. Chapter 7 bankruptcy erases all debts that can be discharged, forgiving them, but you may lose some assets in the process and there are also income restrictions. For those with higher income or more assets that they want to keep, Chapter 13 is a safe way to do so.
You may have to pay back some of your creditors but your payments will be structured in an affordable way based on your projected income. Some debts are never able to be discharged, such as federally guaranteed student loans, back child support or alimony and certain court judgments. However, most credit card debt, medical bills and personal loans will be able to be discharged if you qualify for bankruptcy.
Your lawyer will inform you of the paperwork you need to do and the information you need to provide.
Avoid Temptation - Post Bankruptcy Recovery
Although it can be tempting to lie about assets or income in order to secure a more favorable outcome, it is a very bad idea to do so. The court will check into your financial statements and if they discover you are hiding assets your case will likely be dismissed and you may face criminal charges. You also need to be very clear about all your debts, as if you forget to list one in your paperwork it will not be discharged.
Bankruptcy can be a long and stressful process, but it can be worth it in the end. If you are drowning in debt and unable to pay it off, declaring bankruptcy may be the right choice for you. It is a common occurrence and nothing to be ashamed about if you have done everything in your power to make good but are being crushed by your debts.
Instead, look at it as getting a second chance to make smart financial decisions having learned from your missteps . If you are wondering how to file bankruptcy, wonder no more. With a little help you will soon find yourself on the road to your second chance.
Saturday, July 7, 2012
Secured And Unsecured Loans In Bankruptcy
When it comes to taking out a loan, you should know they are not all the same. There are many types of loans and the terms and conditions of a loan can vary greatly. Different types of loans each have their own benefits and risks. The terms of a secured loan can be stricter than an unsecured loan. One of the main differences between these two types of loans is how debt collection efforts are handled in the event you default on your loan payments. Your debt repayment options may be managed differently in a secured loan than an unsecured loan. In the event of an extended financial hardship, you may not be eligible to have certain types of loans eliminated through bankruptcy.
Secured Loans
Most major loan purchases, such as your home or car, are called secured loans. They are called secured loans because the debts acquired under this type of loan are secured against collateral. A mortgage loan is considered a secured loan. In a mortgage loan, the lender has the right to repossess the home if you default on your payments. Defaulting on a mortgage loan can lead to foreclosure, whereby the lender takes over the rights to the home and may sell the home in order to satisfy the debts owed. Loans for car purchases are also secured loans. The lender can repossess your car and sell it to recover the loan amount. If the sale of the asset does not satisfy the full amount of the debt that is owed, you may still be held liable for repaying the remaining amount owed on the debt.
A personal secured loan is one in which you are using your home or car as collateral, but the money received in the loan is used to purchase other items. An example of a personal secured loan is a payday loan, in which you put the title to your car as collateral against the loan. Even though the loan is not used for the purchase of the car, the lender has the right to repossess the car if you default on repaying the loan. If your car is repossessed during a payday loan, you are still liable for any debts still owed on your car loan through the originating lender. This can lead to further financial trouble and more debt.
Secured Loans and Bankruptcy
Secured loans can be more difficult to manage when if you find yourself in financial trouble. A secured loan may not be eligible for elimination if you file for bankruptcy. In some cases, a Chapter 7 bankruptcy can eliminate the debt owed on a secured loan, but you may risk losing the property to the lender. Legally, lenders are allowed to seize and liquidate some of your assets in order to fulfill the debt payments of a secured loan. However, there are many states whose bankruptcy laws may offer exemptions for some of your assets. Bankruptcy exemptions may allow for your home and car can be protected from liquidation during bankruptcy. A Chapter 13 bankruptcy can protect your assets from liquidation through a Chapter 13 repayment plan. The repayment plan allows for you to keep your assets while you make payments towards the loan over the course of 3 to 5 years. Once you complete the repayment plan, you will be relieved of your loan debt and own the rights to the property.
The most important thing to remember about defaulting on a secured loan, is that time is crucial for protecting your assets. Once you realize you may not be able to make your payment, contact your lender and discuss negotiating a modified repayment plan. Many lenders prefer to modify a repayment plan that better suits your budget, than risk losing money through selling the property through foreclosure or repossession. If your lender is not willing to negotiate, seek counsel from a qualified bankruptcy attorney.
Unsecured Loans
Unsecured loans are loans that do not have any collateral used against the loan. The loan is unsecured because it is based on your promise to repay the debt. In an unsecured loan, the lender is not given any rights to seize or liquidate a specific asset. If you default on the loan, the lender may make debt collection efforts but are not afforded the right to reclaim any of your property.
The most common type of unsecured loan is a credit card. Defaulting on a credit card may lead to collection efforts, but creditors cannot take your assets to pay for the debt. Some personal loans are considered unsecured loans if you did not put up any of your property as collateral for the loan. Defaulting on unsecured loan payments can lead to negative consequences such as damage to your credit, harsh collection attempts and legal action. Another example of an unsecured loan is a student loan. Generally, student loans are treated seriously by the lending institution and defaulting on such loans can lead to significant consequences. Federal bankruptcy laws do not protect borrowers that default on a student loan payment and you risk having your wages garnished for purposes of paying the debt owed.
Unsecured loans and Bankruptcy
Unsecured loans are much easier to have discharged through bankruptcy than a secured loan. A Chapter 7 bankruptcy can eliminate most of your unsecured debt. In some cases, the bankruptcy court may decide to allow for some of your assets to be liquidated to fulfill debt payments. However, bankruptcy laws offer exemptions to protect most of your assets in bankruptcy. As in a secured loan, a Chapter 13 bankruptcy will protect your assets as you make payments towards the debt.
Your debts are your responsibility, whether they are secured or unsecured loan debts. Although bankruptcy allows for debt relief when experiencing financial hardships, this assistance should not be abused. It is always best to repay your debts in full to prevent any further damage to your credit history and to maintain a good financial standing. However, good people may experience tough times. Bankruptcy can provide relief from your debts and protect your assets, but it is best to be properly advised about your financial situation before you decide to pursue bankruptcy. A qualified bankruptcy attorney can review your options and help you make the decision to put you on the path to financial stability.
Secured Loans
Most major loan purchases, such as your home or car, are called secured loans. They are called secured loans because the debts acquired under this type of loan are secured against collateral. A mortgage loan is considered a secured loan. In a mortgage loan, the lender has the right to repossess the home if you default on your payments. Defaulting on a mortgage loan can lead to foreclosure, whereby the lender takes over the rights to the home and may sell the home in order to satisfy the debts owed. Loans for car purchases are also secured loans. The lender can repossess your car and sell it to recover the loan amount. If the sale of the asset does not satisfy the full amount of the debt that is owed, you may still be held liable for repaying the remaining amount owed on the debt.
A personal secured loan is one in which you are using your home or car as collateral, but the money received in the loan is used to purchase other items. An example of a personal secured loan is a payday loan, in which you put the title to your car as collateral against the loan. Even though the loan is not used for the purchase of the car, the lender has the right to repossess the car if you default on repaying the loan. If your car is repossessed during a payday loan, you are still liable for any debts still owed on your car loan through the originating lender. This can lead to further financial trouble and more debt.
Secured Loans and Bankruptcy
Secured loans can be more difficult to manage when if you find yourself in financial trouble. A secured loan may not be eligible for elimination if you file for bankruptcy. In some cases, a Chapter 7 bankruptcy can eliminate the debt owed on a secured loan, but you may risk losing the property to the lender. Legally, lenders are allowed to seize and liquidate some of your assets in order to fulfill the debt payments of a secured loan. However, there are many states whose bankruptcy laws may offer exemptions for some of your assets. Bankruptcy exemptions may allow for your home and car can be protected from liquidation during bankruptcy. A Chapter 13 bankruptcy can protect your assets from liquidation through a Chapter 13 repayment plan. The repayment plan allows for you to keep your assets while you make payments towards the loan over the course of 3 to 5 years. Once you complete the repayment plan, you will be relieved of your loan debt and own the rights to the property.
The most important thing to remember about defaulting on a secured loan, is that time is crucial for protecting your assets. Once you realize you may not be able to make your payment, contact your lender and discuss negotiating a modified repayment plan. Many lenders prefer to modify a repayment plan that better suits your budget, than risk losing money through selling the property through foreclosure or repossession. If your lender is not willing to negotiate, seek counsel from a qualified bankruptcy attorney.
Unsecured Loans
Unsecured loans are loans that do not have any collateral used against the loan. The loan is unsecured because it is based on your promise to repay the debt. In an unsecured loan, the lender is not given any rights to seize or liquidate a specific asset. If you default on the loan, the lender may make debt collection efforts but are not afforded the right to reclaim any of your property.
The most common type of unsecured loan is a credit card. Defaulting on a credit card may lead to collection efforts, but creditors cannot take your assets to pay for the debt. Some personal loans are considered unsecured loans if you did not put up any of your property as collateral for the loan. Defaulting on unsecured loan payments can lead to negative consequences such as damage to your credit, harsh collection attempts and legal action. Another example of an unsecured loan is a student loan. Generally, student loans are treated seriously by the lending institution and defaulting on such loans can lead to significant consequences. Federal bankruptcy laws do not protect borrowers that default on a student loan payment and you risk having your wages garnished for purposes of paying the debt owed.
Unsecured loans and Bankruptcy
Unsecured loans are much easier to have discharged through bankruptcy than a secured loan. A Chapter 7 bankruptcy can eliminate most of your unsecured debt. In some cases, the bankruptcy court may decide to allow for some of your assets to be liquidated to fulfill debt payments. However, bankruptcy laws offer exemptions to protect most of your assets in bankruptcy. As in a secured loan, a Chapter 13 bankruptcy will protect your assets as you make payments towards the debt.
Your debts are your responsibility, whether they are secured or unsecured loan debts. Although bankruptcy allows for debt relief when experiencing financial hardships, this assistance should not be abused. It is always best to repay your debts in full to prevent any further damage to your credit history and to maintain a good financial standing. However, good people may experience tough times. Bankruptcy can provide relief from your debts and protect your assets, but it is best to be properly advised about your financial situation before you decide to pursue bankruptcy. A qualified bankruptcy attorney can review your options and help you make the decision to put you on the path to financial stability.
Sunday, June 10, 2012
Boat Loans After Bankruptcy
Boat is the dream of every coast living residents who are living near the sea or the rivers. There are many problems for fisher men as well as other persons who want to purchase a new boat, fishing rode, net or other articles, which are related with boat however they don't concern about new boat because we are ready with Boat Loans After Bankruptcy to help the fisher men as well as other persons. Lenders who are attached over internet are providing Boat Loans After Bankruptcy without checking the credit history of the borrowers thus fishermen can get Boat Loans After Bankruptcy easily and then they can go to the beach or the bank of river to fishing. Many lenders or credit agencies are ready to provide Boat Loans After Bankruptcy. You are to apply for Boat Loans After Bankruptcy over internet by filling an online application form and few details as per requirement of the lenders and experts of the selected lender will complete rest of the work. Besides this lenders who are providing boat loans after bankruptcy don't need the documents to fax or no need to check your credit history at the time of providing Boat Loans After Bankruptcy. Therefore, borrowers who are bankruptcy, they can get Boat Loans After Bankruptcy amount range from 00 to 0,000 without any tension. There are many lenders attached over internet, they also provide Boat Loans After Bankruptcy through bad-credit-boat-loans online every time When you apply for Boat Loans After Bankruptcy then our lenders will provide you an online application to fill up, you are to fulfill your residence, name, contact number, email ID, account number, amount range, date of birth etc and remain task will be completed by the our experts of the lenders. Experts of the lenders will transfer the Boat Loans After Bankruptcy directly in your account within few hours. lenders want to tell you about the interest rate or repaying the Boat Loans After Bankruptcy. If you are a bankruptcy, however the rate of interest is average at your Boat Loans After Bankruptcy amount and the repayment process of Boat Loan After Bankruptcy may for 7years. If you are a good credit history borrower, the rate of interest is low at your Boat Loans After Bankruptcy, and you can repay the Boat Loans After Bankruptcy within 7years or 10 years. Thus you can't find such opportunity anywhere.
Subscribe to:
Posts (Atom)