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  1. Not in KY so this is kind of generic advice. KY may be different. You may want to consult a local consumer attorney. You were correct to file a timely answer. The question is what Court are you in and do they allow discovery. If so hit them with a request to produce records. You have your evidence to present on the identity theft at trial. You want to show you reported the theft, affidavits you produced on the theft, Letters from the card issurer acknowledging your reporting of same. You are dealing with a third party debt buyer. They usually cannot produce evidence of how they were sold or assigned the debt from the original credit card issuer. There has to be a chain of title for them to prosecute. The original creditor should not have sold this off if it was identity fraud, but obviously they did. These guys are looking for the default judgment. You may find they don't even show up when you go to court. Validation is really under FDCPA before you even get to Court, when the debt collector first contacts you.
  2. Don't let these guys bully you. Unless the account is in both your names, they cannot hold you liable. STOP making offers to make payments to them. Don't agree to make payments to them, if you pay it keeps resetting the Statute of Limitations. If you are an authorized signer on the card, it is almost impossible to hold you liable. I have tried this issue before and unless you can prove the authorized signer signed their application and they can prove that the authorized signer ran up the charges, it is impossible to hold the authorized signer to the debt. Because of course they can't produce evidence of who made the charges. You do need to file an answer in the case denying whatever they are claiming. Some AZ attorneys may need to chime in because I don't know AZ law on exemptions for SS and VA, but here they couldn't touch it with garnishment so you are judgment proof. The only thing they could get is a judgment with a lien against your house if you own one. Never do arbitration unless you are forced to. The filing fees alone are more than what you owe if they force you to AAA. State evidence rules don't apply so who knows what they get in.
  3. Here is how it works. Chapter 7 can't file another chapter 7, 8 years from the filing date of the first one. You can file a chapter 13 after a chapter 7 up until 4 years, but there is no discharge of the debt. It is just a repayment plan. 4 years from the filing date of a chapter 7 you can file a new chapter 13 and discharge debt. You can file a chapter 7 if you previously completed a chapter 13 case where you paid the creditors at least 70 percent of what they were owed without waiting out the eight years.
  4. Take it from someone who deals a lot with Zwicker, look at the following. Usually in their complaints they don't attach anything as evidence. In most states there is probably a civil practice rule that states you must attach a copy of the contract or bill to the complaint as evidence of the breach of contract. Most of your defenses you listed don't mean much. Zwicker is a debt collection agency with a few attorneys working in offices around the country. They have a set software program that cranks out the same pleadings time after time. Typically, they don't send you a letter first with the required FDCPA language in it or label it on their complaint. So you argue violation of FDCPA and tell them they must provide verification and evidence of the debt. Always argue statute of limitations as a defense. They may not be able to prove it with a lack of evidence. Look at their credit card agreement. AMEX Bank states applicable law is State of Utah or Federal Law, which can mean a different statute of limitations. As soon as you answer their computer will kick out discovery to you to answer. Make sure you answer their Requests to Admit within the applicable time frame or they will use that against you in their Motion for Summary Judgment. Like most of the debt collector firms they don't want to go to trial and many times don't show up. They are looking for default judgments (which they get a lot), Consent judgments with the pro-se debtor, or judgment from a motion for summary judgment without a hearing. So you want to try and settle with them right after you file the answer. Good Luck
  5. Mann Bracken the national debt collector lawfirm has shut down on 12/22/09. They have layed off their staff and are telling people to call the credit card company and not them. Wow Mann Bracken is the front for a company called Axiant that had filed a chapter 11 bankruptcy and has now converted to a chapter 7 bankruptcy. Axiant furnished the staffing for Mann Bracken. Look if you have been sued by them in a debt collection law suit. Odds are no one will show up for the hearing.
  6. There is always two sides to the story. The look back period on filing a new bankruptcy starts from the date you filed the previous case that you were discharged in. Dismissals don't count. To file a new chapter 7 it is now eight years, unless the previous case was a chapter 13 and you paid the creditors at least 70 percent of what they were owed. You can't file a new chapter 13 that will get you a discharge of your debts within 4 years of filing chapter 7, 11, or 12. You can file a new chapter 13 if you filed a prior chapter 13 and completed it within 2 years of the first case being filed which makes since since the min is 3 years. You can file a new chapter 13 after chapter 7 after two years but no discharge, you must pay the creditors 100 percent of what they are owed. Work your dates out and see if this is why you are in chapter 13. If you miss the 341 meeting twice case will be dismissed. You have a right to dismiss a chapter 13 at any time or convert the case to 7 if you have not exercised that right previously during a case. After the first time it must be decided by a Judge.
  7. Co-debtor stay only applies if it is consumer debt. If it was a business loan on the truck you guaranteed, you will probably have to pay. If it is consmer debt then it is a violation of the automatic stay in bankruptcy. Banks are getting more aggresive on trying to go around this mainly the card companies.
  8. That is very reasonable for expenses. On 1099 income make sure you include almost 13 percent for social security plus your applicable tax rate. I would guess you are already under on median income not knowing your state. As a sidenote, US Trustee just came out 11/1 with revised median household income figures.
  9. Unless you have a lot of problems from previous banks before filing you should be okay. Bingo made a good point on chexsystems. I list them for notice as a creditor so they get notice of the discharge. I really have not heard of people having problems after a BK getting a checking account unless they had a lot of overdrawn accounts prior. Make sure you make your house payment, car payment, any new debt payments on time after discharge. This will help to rebuild your credit.
  10. You really should talk to a bankruptcy lawyer and not file this yourself. In terms of means test household size, most judges use the heads in beds test for the household size. US Trustee looks at who is on the tax return when it comes to dependents in household size. I think you may have some preferential insider payment problems that an attorney needs to look at. It looks like you transferred all the assets to him and you kept the debt. Even in divorce you can't just stack the deck with asset transfers to avoid the trustee from recovering assets. When preferential transfers are made to a spouse considered to be an insider, the trustee can go back two years and recover property. House is still in both names so you list it as jointly owned with the associated debt.
  11. Talk to a bankruptcy attorney before you file yourself. If the only thing the creditor can get to is a percentage of your salary ( it depends to if they even know where you work) and you don't have any assets you may be judgment proof. Likewise if you are retired and you are sitting with a house with a lot of equity in it, you could be in trouble either way you go. You could try to work out a payment plan with the dentist. They are only going to get depending on the state a percentage of your net pay. Just keep in mind that once he has that judgment he can attach it to the house, garnish wages, or garnish bank accounts. Bankruptcy would stop all of this, but make sure it is the wise thing to do. If that is your only debt, it is not a lot to file over. Last is there anything you could sell and settle with this dentist on?
  12. They can't do this under the automatic stay in bankruptcy. You need to talk with your attorney and let him know. If they have instituted action against you, they can be held to stiff fines by the bankruptcy court. This happens to me all the time where some creditor tries to start a fight claiming they were not notified of the bankruptcy case. If they don't back off, I go after them for a violation of the automatic stay. Make sure this was not just empty threat you got on the answering machine. The collection people are out of control. They will violate every Federal law possible to collect a debt. I have people who have told me that they were called 20 times a day by collection agents. In some cases it is not even their debt. Tim Cook
  13. This is what is going on with mortgages since the first of the year. I request a reaffirmation agreement from the first mortgage and they will not send it. They know that they have a secured interest in the property with their recorded mortgage and they will not pursue a reaffirmation agreement with the client in bankruptcy. They figure either they pay or not and we will foreclose on them. I think they don't want to be bound by the agreement because in most cases they are just a servicing agent. They have no idea who actually owns the mortgage at this point. There have been some recent cases where the tall tower banks could not even explain to the Court who actually owned the mortgage. The second mortgage will try to get you to reaffirm their mortgage. It is not smart to do that if you are underwater between the first and second morrgages. The people who want you to reaffirm are the car guys, the furniture guys, the appliance guys, and the jewelry guys. I was sent one reaffirmation agreement from Wells Fargo where they wanted the guy to reaffirm a debt for work he had done on his teeth. All of these you must look at closely as to whether to reaffirm the debt or not. You never want to reaffirm debts that are associated with collateral that is worth nothing compared to the debt. Tim Cook
  14. You can keep it simple. Keep in mind in a chapter 7 case, a trustee is only looking for assets that I can't exempt to sell off. He sells them takes a cut and gives the rest to the creditors. You list major items of furniture and appliances, collections, tools, jewelry. Each state has different exemptions on what you can exempt of your assets. You want to list your property at FMV which I tell clients is the value a used furniture dealer would come in and buy the property for, or what a neighbor may pay you for it.
  15. I am a NACBA attorney in Atlanta. You have some good ideas to cut costs. The cost goes up when I am presented with a shoebox full of bills. What I do is send the potential client a questionaire with a checklist before they even meet with me. It saves a lot of time. On credit counseling the cheapest one out there is (.a123cc.com) at $30 and (.a247class.com) at 17.50 for financial management class. Whoever you use make sure they can get the class done in a reasonable time. They are very backed up right now which is delaying me getting the case filed. I can't file a case without the credit counseling certificate. All of them are listed on my website that are approved for Georgia. Tim Cook Law
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