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This is part of our series on How To File Bankruptcy.
When you file bankruptcy, a failure to list all personal property may mean you don’t get to keep it.
When you think about property, you think of houses and cars. You’re not thinking about that junky sofa, a stack of CDs you abandoned years ago for an iTunes account, or that lawsuit you’re thinking about bringing.
Forget to list them on your bankruptcy schedules and you could find yourself giving it all up.
List All Personal Property
Under the bankruptcy laws, you’re required to disclose on your schedules all property you own.
That includes a laundry list of “stuff” you don’t ordinarily think about.
Everything from household furnishings to clothing, from bank accounts to potential lawsuits, from livestock to ammunition. It’s all got to be disclosed and valued.
How To List The Property
As with real property, you are required to describe the property with as much accuracy as possible. For example, you’ve got to provide the following information:
- description and location of the property;
- the nature of your interest; and
- the current value of the property.
How To Value Personal Property
The value of each item of personal property is the amount you could reasonably expect someone to pay for it. We’re not talking the cost to replace the items – we need to know how much would pay you for this particular item.
For musical instruments and jewelry think about, “pawn shop value”.
For collectibles, consider what a collector would pay.
Clothing and household furnishings? You’ll need to talk about Salvation Army valuation.
If you’ve got a pending lawsuit, we’ll need to talk with your lawyer and get a sense of what the case is worth.
Failure To Disclose
If you don’t list a piece of property, you lose the right to keep it.
The reason for this is that if you fail to list a piece of property, you can’t exempt any portion of the value. And given that all of your property becomes part of the bankruptcy estate when your bankruptcy case is filed, a failure to exempt the property means you haven’t kept it away from the estate.
This comes up most often in the case of a pending lawsuit for personal injury or money damages. If you don’t list it on your bankruptcy schedules, the other side will walk into court and get the judge to dismiss the case.
By failing to list it on your bankruptcy schedules, you’re effectively telling the world that you don’t own it.
That’s why I spend so much time with my clients talking about property. It’s important to protect you and cover all the bases.
How To File Bankruptcy: Listing Your Personal Property was originally published on Consumer Help Central. If you're seeing this message on another site, it has been stolen and is being used without permission. That's illegal, a violation of copyright, and just plain awful.
If your car has been repossessed and you live in California, your life may get a lot more difficult. Or not.
Most people think that if they don’t pay the car loan, the lender will come to repossess the vehicle. Once that’s done, they figure it’s all over.
That’s exactly what my client thought when the tow truck was hauling away his Ford Explorer. Fast forward a few months and he knows better.
Now, so can you.
When A Vehicle Can Be Repossessed
In the beginning, there’s a car loan. You miss a payment and figure that a delay of a few days won’t make a difference. With so many cars in California, it’s not uncommon to be late by at least a few days.
What you don’t know is that under California law, the lender can repossess your vehicle without any prior notice to you so long as you’re as little as one day late on payment.
In fact, the lender can repossess a car in California whenever there’s a default in the terms of the contract. That includes not only missing a payment but also an insurance lapse.
It’s a good idea to read the contract carefully so you can find the landmines.
Who Can Repossess A Vehicle
Under California law, the car finance company as well as a registered repossession agency can repossess your automobile.
In order to have authority to repossess the vehicle, the company must be licensed or registered with the California Department of Consumer Affairs, Bureau of Security and Investigative Services. You should always ask to see the license before surrendering your car to a repo agent, and verify that license with the California Bureau of Security and Investigative Services.
Place And Time Of Repossession (And The Shakedown)
A repossession agent in California can’t come into a private building such as a garage, nor can they enter a secured or locked area such as a gated driveway, without the permission of the owner of the premises.
Your car can, however, be repossessed from unsecured driveways, streets, parking lots, and other publicly accessible areas in California at any time of day or night.
You don’t need to be present when the vehicle is taken, so if you park on the street and go to sleep there’s a chance the car may be gone when you wake up.
If you happen to be present when the car’s being taken, you may be able to save the car by paying the balance due rather than losing your wheels. If that happens then you have the right to receive an itemized receipt, and the repossession agent is required to forward your payment to the car lenders.
Timeline After Repossession
Once the car is repossessed, the clock starts ticking.
California law gives the repossession agency 48 hours to give you a Notice of Seizure that provides you with the name and contact information of both the legal owner and the repossession agency.
You must also be given an Inventory of Personal Effects that includes a list of your personal property in the vehicle when it was taken, as well as information about how to recover your property and the amount of storage fees. The repossession agency must store your items for 60 days, after which all unclaimed property can be discarded.
One caveat about your personal property. Anything that’s been installed or affixed to the car such as that awesome audio system or custom rims – you’re not getting that back unless you negotiate with the lender directly.
Selling The Car After Repossession
Once the lender has taken the car back, they’ve got to take some action before they sell it.
Under California law, the lender needs to serve you (either personally or by certified or first-class mail) you at least 15 days’ written notice of intent to sell the vehicle.
This Notice of Intent to Sell must be served within 60 days of repossession, and gives you the right to ask that the lender delay the sale for 10 days.
Your Right To Get The Car Back
Not only do you have the right to get the car back and reinstate the loan when it’s repossessed, but California law gives you the opportunity to redeem the vehicle and reinstate your loan at any time prior to sale.
California Civil Code forces the lender to reinstate your loan if all past due amounts are paid, unless the legal owner can prove that you did one of the following:
- Provided false information on your loan application
- Hid the vehicle in order to avoid repossession
- Damaged, or threatened to damage, the vehicle in a way that reduces its value
- Committed, or threatened to commit, violence against anyone involved repossessing the vehicle
- Used the vehicle in the commission of a criminal offense
- Your right to reinstate your loan contract is limited to once every 12 months, and twice over the life of the contract.
What Happens After The Car Is Sold?
Theoretically, your lender could get more for the car at sale than you owe on the loan. I’ve never seen it happen, but anything’s possible.
If the sale of the vehicle results in a surplus, the surplus amount must be returned to you within 45 days of the sale.
If the sale does not net enough to fully satisfy your loan and other amounts due, you will be liable for the deficiency balance.
In order to collect the deficiency, however, the lender has to sue you for the balance due. They need to serve you with the Complaint, you get an opportunity to file an Answer, and you can fight it out in court.
Remember – Repossession Is Not The End
If you fall behind on your car payments, California law doesn’t leave you hanging.
You can cure the default and keep your car.
If you lose your car, you may not have to pay any deficiency.
And if you are sued for a deficiency, there are ways to defend the case.
So long as you’re proactive, things may not turn out so bad.
Image courtesy drbrain
Your Options for Dealing With Repossession Under California Law was originally published on Consumer Help Central. If you're seeing this message on another site, it has been stolen and is being used without permission. That's illegal, a violation of copyright, and just plain awful.
Filing for bankruptcy can be a responsible option for anyone looking to regain control of their financial obligations. Over 1,000,000 Americans sought bankruptcy protection in 2012 with many filing for legitimate reasons such as divorce, illness and job loss. The decision to file for many is a serious personal step that was a challenge to [...]
A new court opinion issued by the 8th Circuit Court of Appeals declares that alimony is part of the bankruptcy estate and can be liquidated by the Chapter 7 Trustee unless a specific state exemption protecting the alimony award exists. In re Mehlhaff, 2013 Bankr. LEXIS 944 (Bankr. D.S.D., Mar. 12, 2013).
Prior to filing bankruptcy in 2012, Laura Mehlhaff received an award of $200 per month alimony until her minor child reached age eighteen in 2014. The opinion does not state whether the alimony would terminate upon the death of Laura or her ex-husband or upon the remarriage of Laura, but most alimony awards terminate upon the occurrence of either event. However, it appears that South Dakota law provides that alimony is a property right and the Supreme Court of South Dakota in another case allowed a creditor to place a lien against an award of alimony.
if alimony is the kind of property right to which a lien can attach, it is the kind of property right that becomes property of the estate when a bankruptcy is filed. In re Mehlhaff.
The bad news is that Nebraska does not have a specific exemption law protecting alimony, and it appears that the 8th Circuit may have overruled a prior Nebraska bankruptcy opinion declaring that monthly alimony payments were not part of the bankruptcy estate. In re Loftus, Nebraska case number 97-82311. In that case Judge Mahoney ruled that:
A plain reading of the language of the divorce decree in question indicates that each month [the debtor] is entitled to the payments only if she is alive, her ex-husband is alive, and she is not remarried. . . .The Court finds that the alimony payments from [the debtor’s] ex-husband accrue each month.
In other words, since the alimony accrues each month, there is not a present right to receive the future payments and the alimony is not a property right.
The Nebraska Supreme Court has spoken on the issue of whether alimony is a property right. “This court on numerous occasions has held that alimony and allocation of property rights are distinguishable and have different purposes in marriage dissolution proceedings, but they are still closely related in the matter of determining the amount to be allowed.” McBride v. McBride, 211 Neb. 459 (Neb. 1982).
The question for Nebraska bankruptcy attorneys and Trustees is whether the 8th Circuit’s opinion in Mehlhaff overrules Judge Mahoney’s opinion in Loftus. What was once settled law in Nebraska is now no longer clear until a new opinion is issued or until the Nebraska legislature provides an alimony specific exemption law.
Until this issue is clarified, I would advise debtors holding significant alimony awards in Nebraska to avoid Chapter 7 and opt for the safer waters of Chapter 13.
Identity theft is an ever-growing issue in both Oregon and Washington, causing problmes with debt collectors and on credit reports. The criminals stealing your identity often open credit cards in your name and rack up massive charges, torching your credit score and barring your from making much needed future purchases . Bad credit scores can effect your ability to obtain insurance at a reasonable rate, oInsurance companies use lower credit scores to justify higher rates. You may even be denied employment or fired from your job because of false information in your credit history. And you could suffer serious harassment by debt collectors. Even after you discover the theft, corporate predators.
Signs of identity theft include the following
1. Mail or pre-approved credit offers with someone else’s name are arriving at your home or work
2. Unknown accounts are appearing on your credit report.
3. Companies that you have no relationship with have been looking at your credit report.
4. You are getting collection letters for accounts you do not have.
5. Your credit report includes a name or address for your that you have never used.
6. You are getting account information in the mail relating to accounts you didn’t open.
However, any of the above could have caused by error, so you Therefore, you won’t know if it identity theft is present until you get all the documents relating to the information that is wreaking havoc on your credit report.
The fact is that creditors routinely make errors regarding customer identity. Moreover, credit bureaus often get it wrong as well. Bureaus confuse consumers with each other, mix up credit information, and attribute credit history to consumers unrelated to an account.
Because your almost never really have definitive proof of identity theft, you should never sign an identity theft or fraud affidavit until you have actually seen the forged credit application. More importantly, you should never sign off on one of these affidavits without benefit of counsel.
If you are a victim of identity theft, you are entitled to several benefits under the revised Fair Credit Reporting Act. The FDCPA entitles you not only to copies of your credit report, but allows you to place a fraud block on your file. By placing a fraud block, you will be letting all potential creditors know that your identity has been stolen and warning them not to extend credit without absolute proof that they are actually dealing with you.
Sadly the damage done by identity theft can be so pervasive and time consuming that under certain circumstances(e.g. you are saddled with debt beyond the debt created by the identity theft) it might make more sense to simply seek relief under the bankruptcy code. More and more, we are filing Bankruptcy petitions in Washington and Oregon, not only to deal with real debts, but those created by identity theft.
If you have been a victim of identity theft and you want to get out of debt, contact our offices and set up an appointment at one of our Washington Bankruptcy and Consumer law in either Vancouver or Seattle, Washington or Portland or Salem, Oregon. We would be more than happy to help.
The original post is titled Dealing with Identity Theft in Washington or Oregon , and it came from Oregon Bankruptcy Lawyer | Portland, Salem, and Vancouver, Wa .
Under both the Fair Debt Collection Practices Act as well as the state consumer laws of Washington and Oregon, a collector may contact certain 3rd parties in connection with a consumer’s debt. A collector may contact a consumer’s attorney, the original creditor and its employees and legal counsel, the consumer’s spouse or guardian, a co-debtor and the consumer’s parent if the debtor happens to be a minor.
It’s a pretty short list and if a collector is contacting someone you know who isn’t on this list, a violation of the Fair Debt Collection Practices Act has likely already occurred.
The original post is titled , and it came from Oregon Bankruptcy Lawyer | Portland, Salem, and Vancouver, Wa .
When you file for bankruptcy, your creditors are notified so they can stop collection activities. Using the official bankruptcy notice addresses protects you from further harassment.
You’re required to list all debts on your bankruptcy schedules – no exceptions.
Once notified of a bankruptcy filing, creditors must stop collection activities.
Most banks and credit card companies have multiple addresses.
How can you figure out which one is the correct address to use on your bankruptcy schedules?
Official Bankruptcy Notice Addresses
The bankruptcy laws allow creditors to choose a preferred address for receiving bankruptcy notices.This may be a single preferred address for cases in every bankruptcy court in the country or different addresses for cases in specific bankruptcy courts.
If a creditor has chosen a designated address, you can list that creditor with the designated address or the one listed on the last received two pieces of correspondence from the creditor during the 90 days leading up to the bankruptcy filing.
How To Find The Official Bankruptcy Notice Address
If you owe money to, say, Citibank, there’s a good chance that the correspondence address differs from the billing address. Disputes go one place, account inquiries elsewhere.
You’ve got a few ways to find the official bankruptcy notice address. They are:
- read the statements to see if there’s a specified address listed;
- call customer service and ask;
- search Google for the name of the creditor and “official bankruptcy notice”;
- order a credit report that contains the notice address; or
- let your lawyer handle it.
I can’t speak for any other lawyer, but we handle it for our clients. It’s part of what we do – even if you come to us with a list of addresses, we double-check to make triple sure.
If You Don’t Use the Correct Address
If the creditor isn’t notified of your bankruptcy in the proper way and at the correct address, they aren’t considered to have actual notice of your bankruptcy case.
That means if the creditor keeps sending you bills or calling you about the debt, they can’t be held liable for a violation of the automatic stay. You can’t sue them, you can’t collect money damages, and they can keep up the collection efforts without consequences.
Avoidable Problems
Part of the goal of filing for bankruptcy is to make sure your creditors stop bothering you. By using the proper official bankruptcy notice addresses you can maximize the chances of that happening.
Image credit: AndrewGorden
Why Official Bankruptcy Notice Addresses Are Important (And How To Find Them) was originally published on Consumer Help Central. If you're seeing this message on another site, it has been stolen and is being used without permission. That's illegal, a violation of copyright, and just plain awful.
When people are in financial distress they feel that they cannot afford a “high priced attorney” to help them get a fresh start. Unfortunately this leads many Debtors to seek out the help of the cheapest attorney they can find. They call around and inquire about price and book an appointment with the attorney who promises them the lowest fees. However, bankruptcy is a specialized field that requires an attorney who understands all aspects of the bankruptcy forms, practice and pitfalls. Individuals who charge cut rate fees generally fall into one of two categories. They tend to be either general practitioners who have an “experienced paralegal” running their bankruptcy preparation or attorneys newer to bankruptcy who believe that lower fees will help them break into the market. Because of this, the attorney cannot afford to spend the time learning every aspect of their bankruptcy practice. Additionally, they cannot spend enough time on each individual case to ensure that the client is fully protected.
The reason that this is such a huge danger to Debtors is that the bankruptcy code is full of pitfalls that are not always readily understandable by individuals in financial distress. Newer attorneys and general practitioners generally do not understand that every question on the bankruptcy forms is being asked for a reason. Every issue that comes up as a result of those questions needs to be addressed prior to filing to help ensure that the Debtor receives the best possible results.
To give an example, the other day I was down in court. A new attorney at a “mill firm” had taken a case with a client who paid them $750.00 for their case. The client had taken out a loan from a credit union for $3,000.00 within 30 days of filing. Because the attorney did not understand that this was going to be an issue, the client was asked by the credit union to reaffirm the debt and pay it after the bankruptcy was complete. If the client refused, the credit union would file an adversary case against the debtor and the debt would be found to be non-dischargeable. Had the attorney caught this issue prior to filing the case, the Debtor could have been advised to wait until 90 days had passed from the date of the loan. By waiting just 3 months from the date of the loan, the entire debt would have been discharged. This means that the $750.00 fee that the attorney had charged had really cost the client $3,750.00. A good bankruptcy attorney with a deep insight into bankruptcy laws could have been hired for far less and the client could have received a better result.
The next day I observed another case of malpractice. An attorney at court had filed a case in which their client’s retirement had been rolled over into an annuity by their employer. The attorney did not take the time to research the annuity to ensure that it could be protected under the current bankruptcy exemptions. Because of this mistake, the attorney was unsure whether the Chapter 7 Trustee would liquidate the account. The attorney had been paid $800.00 for the case, but the client was at risk of losing an additional $25,000.00 due to the attorney’s incompetence.
Finally, while I was in the hearing room waiting for my case to be called I overheard a Trustee asking a Debtor about $8,000.00 that the Debtor had deposited into her adult daughter’s account. The mother was using the daughter’s account to store the money so that creditors could not get to it. The problem. the trustee is likely to argue that the deposit into the daughter’s account was a fraudulent transfer to an insider and will seek to disgorge the entire $8,000.00. If the Trustee is successful, the client will have paid not only the $750.00 that the attorney charged her, but also the $8,000.00 that she transferred to her daughter.
The bottom line is that a qualified bankruptcy attorney may cost a little more on the front end of the case, but is likely to avoid pitfalls that will cost you far more in lost assets and headaches at the back end of the case.
When you find yourself overwhelmed with debt and you decide enough is enough, you are ready to file for bankruptcy. There are a number of bankruptcy lawyers who are qualified to help you get the relief you are seeking. But, of course then comes the important task of choosing who you want to establish a [...]
There are a million places to get your credit report. Let’s make it free and easy, shall we?
You know you need to check your credit report regularly so you hit the Internet in search of a site.
You can pay for the report or get it for free. But figuring out which site to use can drive you nuts.
In fact, a Google search for “free credit report” returns over 630 million results.
Here’s where to get your credit report quickly and easily.
Getting A Free Credit Report
If you’re in line for a free credit report, you can go to each of the nationwide consumer reporting companies (Equifax, Experian, and TransUnion) and get your credit report at no charge.
That’s like driving 35 on the freeway. It will get you there, but not quickly or easily.
To order your free annual credit report just take one of these three simple steps:
- Log on to www.annualcreditreport.com
- Call 1-877-322-8228, or
- Complete the Annual Credit Report Request Form and mail it to: Annual Credit Report Request Service, P.O. Box 105281, Atlanta, GA 30348-5281.
In order to get your free annual credit report you will need to provide:
- your name
- your address
- Social Security number
- date of birth
- all previous addresses within the past two years
The website I listed is the only official one maintained by the three major credit reporting agencies under the federal credit reporting laws. Any other site claiming to offer you a free credit report should be viewed skeptically.
Paid Credit Reports
If you can’t get your credit report at no cost, you’re going to need to pony up and pay some money. A consumer reporting company is allowed to charge you up to $10.50 for a copy of your report. This doesn’t count any additional charges such as credit scores, which can cost more.
To pay for a copy of your credit report, you can go to any of the following places:
- Experian: www.experian.com
- TransUnion: www.transunion.com
- Equifax: www.equifax.com
Which Credit Report Better, Free Or Paid?
There is no difference between a credit report from one of the above paid sites as opposed to one received from the free repository.
The free credit report site is maintained by the same companies that will sell you a report.
If you can get the free one, do it. And if you can’t, then you’ll need to pay.
How To Easily And Quickly Get Your Credit Report Without Being Ripped Off was originally published on Consumer Help Central. If you're seeing this message on another site, it has been stolen and is being used without permission. That's illegal, a violation of copyright, and just plain awful.