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what can collection agency allowed to do?

Discussion in 'Bankruptcy Law' started by sosa, Nov 22, 2019.

  1. sosa

    sosa Law Topic Starter New Member

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    I have talked to several bankruptcy lawyers already, but everybody's advice is different. Some advise getting postnuptial because my wife's asset is at risk, and others say I don't need to worry about the assets that are kept under her name. Now, I am not even sure even getting postnuptial could excuse her from the action of debt collection... Hmmm
     
  2. sosa

    sosa Law Topic Starter New Member

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    I have learned previously that my wife has to file bankruptcy as well if I decide to file bankruptcy to avoid any liability of my debt. Then, shouldn't it naturally mean my wife's assets are also at risk in the attempt of debt collection?
     
  3. army judge

    army judge Super Moderator

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    A chapter seven personal bankruptcy (if you qualify) is the ONLY sure fire, legal tactic anyone with a judgment hanging over her/his/their head(s) can have the judgment (as well as ALL other debts) dispatched.

    Be advised, some debts are not dischargeable under BK.

    So far you have not mentioned any debt that wouldn't be discharged during a bankruptcy proceeding.
     
  4. zddoodah

    zddoodah Well-Known Member

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    The problem with a postnuptial agreement is that the judgment already exists. It would likely be disregarded under these circumstances.

    The problem with commingling is that it can be difficult or impossible to determine what's community property and what's separate property. If the separateness can't be proven, then the money would almost certainly be presumed to be community property.

    I didn't say that. I lack sufficient information to reach specific conclusions about your particular situation. I suggest you seek advice of counsel, and you might want to consider bankruptcy if this debt is substantial.

    The part that I underlined is just plain wrong. The debt is yours and yours alone, and you filing bankruptcy will (if you're eligible) result in the debt being discharged, which means it cannot be collected from any source.
     
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  5. sosa

    sosa Law Topic Starter New Member

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    Thanks. I am at loss at this point. The bankruptcy lawyer whom I consulted with mentioned that my wife has to declare bankruptcy as well when I do in the state of California. I definitely need to seek more advice...
     
  6. flyingron

    flyingron Well-Known Member

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    Well, technically she doesn't, but in actuality, she would. California is a community property state which means that she shares fully in both the community assets and debts.
     
  7. Tax Counsel

    Tax Counsel Well-Known Member

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    The key is whether the debt is community debt. If it is not, then there is no need for the spouse to join in the bankruptcy. Not all debts that one spouse has are community debts. Some may be simply the sole obligation of just one spouse.
     
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  8. flyingron

    flyingron Well-Known Member

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    Correct, and that's why I qualified my answer. In fact, a car accident judgement isn't a community debt unless the spouse would have for some reason been responsible even if they weren't married. However, the community assets are attachable and if there are other debts other than this it may push the spouse over to needing to file side.
     
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  9. Tax Counsel

    Tax Counsel Well-Known Member

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    If the debt is owed by just one spouse that spouse's interest in community property may be attached to collect once there is a judgement. If the debtor spouse files for bankruptcy and is granted a discharge, then his/her personal liability for the debt is gone and no future income or assets of either spouse, including any new community property would be attached. Any property before the bankruptcy that was attached by a lien might still be encumbered by that lien after the bankruptcy, however. That is not something that having the spouse file bankruptcy would fix.

    Certainly if there are other debts for which the other spouse may be liable then it would be worth discussing with a bankruptcy lawyer whether a joint bankruptcy would be worthwhile.
     
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  10. sosa

    sosa Law Topic Starter New Member

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    I found out that the spouse is not responsible for the debt incurred before the marriage in California: "Separate Debt: Debts incurred before marriage or after separation are separate debts and belong only to the spouse that incurred them."

    Dividing the Debts in a California Divorce

    This is a relief. Nevertheless, if this is true, then 2 of the bankruptcy lawyers I have talked to previously do not really know what they are talking about. They recommended getting the postnuptial agreement because the collection agency can come after the assets of spouse as well since it is accounted as the community property in the state of California. I just can't seem to decide who to trust at this point... especially, considering one of them was highly recommended
     
  11. Zigner

    Zigner Well-Known Member

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    You've had *4* attorneys try to explain to you how assets of the spouse can, in fact, be affected. I suppose you can fully rely on that internet posting and ignore what you've been told.
    (That's sarcasm, in case you missed it.)
     
  12. sosa

    sosa Law Topic Starter New Member

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    Yes, I got it. Thanks. Now, if the assets of spouse can be affected even for the debt incurred before the marriage, my next question is whether it can be waived if we draw postnuptial agreement to separate her assets from my liability... I should focus on figuring out this one now
     
  13. sosa

    sosa Law Topic Starter New Member

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    Is there a chance that the judgment I have maybe a time-barred debt and I don't have to pay anything? The judgment against me has been sustained over 10 years now by renewing it and I have heard the statute of limitations in case of debt in CA is normally 4 years...

    "Assert your FDCPA rights. It's against the law for a collector to sue you or threaten to sue you on a time-barred debt. If you think a collector has broken the law, file a complaint with the FTC and your state Attorney General, and consider talking to an attorney about bringing your own private action against the collector for violating the FDCPA."

    Time-Barred Debts
     
  14. Tax Counsel

    Tax Counsel Well-Known Member

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    Any post nuptial agreement you enter into now would not divest any current creditors of rights they may already have in assets of you and your spouse. It may be effective in protecting some assets from future creditors however.
     
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  15. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    A judgment is valid for 10 years in California and can be renewed for an additional 10 years..
     
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  16. Zigner

    Zigner Well-Known Member

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    Once a judgment is rendered, the statute of limitations on the original debt is irrelevant. You now have a JUDGMENT.
     
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  17. sosa

    sosa Law Topic Starter New Member

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    Thanks. Actually, postnuptial option was recommended by 2 bankruptcy lawyers I have counseled previously. I am getting confused more and more everyday...
     
  18. sosa

    sosa Law Topic Starter New Member

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    so.. the answer is no. I am planning to see another bankruptcy lawyer after the holiday season. Hopefully, he can provide some perspective. Thanks guys... I know I am slow but I am trying my best here. It's just hard to pay off debt which was originally about $20,000 and now became over $100,000 after 20 years. You guys have a wonderful holiday. I will keep you posted after seeing the new lawyer.
     
  19. army judge

    army judge Super Moderator

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    Good luck, with $100K of debt in the judgment alone, you ARE an excellent candidate for bK.

    Our BK laws were created to allow people NOT to drown in debt.

    Talk to enough BK attorneys so that you understand your position, and how a BK will allow you to lead a normal life once more.

    Merry Christmas and a most joyous, prosperous of New Years to you and yours.
     
  20. Tax Counsel

    Tax Counsel Well-Known Member

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    I didn't say that post-nuptial agreements are not useful. They certainly can be. Without knowing the exact facts the lawyers looked at and exactly what they told you I cannot say if they are correct. But understand that post nuptial agreements are limited in their effect when it comes to application to other persons, like creditors, that are not a party to that agreement.
     

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