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Spouse of 13 Debtor now wants to file
We've all struggled with this quandary. I tell the debtors that it is not
optional to list the non-filing (non-separated) spouse's debts, which it is
not, but that it would be best to file for both spouses so they both clean
their debts and recover their good credit rating. More often than not,
they both file and in all instances, we ultimately get the information for
both spouses. Otherwise, we simply will not file for the debtor. I have
way too many clients with discharges who come back to me years later to
deal with recalcitrant creditors and what allows me to sleep at night is
that I can go back into the petitions and find that I listed every claim
holder I believed had to be listed so that I can use that weapon against
them. Otherwise, even the actual filing debtor may be subject to attack
and will likely then turn his sights on me.
On Thu, Oct 5, 2017 at 12:54 PM, sam@southbaybk.com [cdcbaa] wrote:
>
>
> Hate to disagree Mark - but:
>
> 1. Your response does not answer the question of obtaining the creditor
> information from a non consenting spouse; and
>
> 2. I have filed many cases the "correct" way - only to have the spouse's
> creditors close their accounts and not take payments - which wrecks the
> non-filing spouses credit without the benefit of a corresponding discharge
> on their credit report - the worst of both worlds. They are also subject
> to suit, judgment and fishing expeditions (JD Exams) to explore if they
> have separate property from which to satisfy the judgment - which has
> happened to 2 of my clients in the past.
>
> Just sayin.
>
>
>
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We've all struggled with this quandary. I tell the debtors that it is not optional to list the non-filing (non-separated) spouse's debts, which it is not, but that it would be best to file for both spouses so they both clean their debts and recover their good credit rating. More often than not, they both file and in all instances, we ultimately get the information for both spouses. Otherwise, we simply will not file for the debtor. I have way too many clients with discharges who come back to me years later to deal with recalcitrant creditors and what allows me to sleep at night is that I can go back into the petitions and find that I listed every claim holder I believed had to be listed so that I can use that weapon against them. Otherwise, even the actual filing debtor may be subject to attack and will likely then turn his sights on me.On Thu, Oct 5, 2017 at 12:54 PM, sam@southbaybk.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
Hate to disagree Mark - but: 1. Your response does not answer the question of obtaining the creditor information from a non consenting spouse; and2. I have filed many cases the "correct" way - only to have the spouse's creditors close their accounts and not take payments - which wrecks the non-filing spouses credit without the benefit of a corresponding discharge on their credit report - the worst of both worlds. They are also subject to suit, judgmentand fishing expeditions (JD Exams) to explore if they have separate property from which to satisfy the judgment- which has happened to 2 of my clients in the past.Just sayin.
--
The post was migrated from Yahoo.
Listing the non-filing spouse's debts will not affect their credit,
nor could it. Their credit will be affected if they don't make
required payments or if THEY file a bankruptcy case. Listing debts
is not the equivalent of filing a bankruptcy case and, as the other
Mark aptly observes, most creditors will not connect the dots
anyway. It is required to list all debts for which the marital
community is liable.
On 10/5/2017 12:35 PM, Mark Jessee jesseelaw@aol.com [cdcbaa] wrote:
>
>
> You list the spouse’s debts on the schedules. The notice goes out
> to the creditors, but the notice only has the filing spouses name
> as the debtor. Not many of the nonfiling spouse’s creditors will
> actually connect the dots, so little negative impact, if any, on
> the nonfiling spouse. Clear positive outcome with the community
> discharge.
>
> Mark Jessee
>
> Sent from my iPhone
>
> On Oct 5, 2017, at 11:57 AM, sam@southbaybk.com
> [cdcbaa] > wrote:
>
>> Thank you David. I'm sure you are right, but I'm not sure
>> exactly how a practitioner can simply add a non-filing spouse's
>> own debts to the schedules against his/her will. We have
>> no access to the credit report or bills and statements without
>> consent - plus it would potentially destroy the non-filing
>> spouse's credit through no fault of their own. What do you do in
>> that situation - not file the case?
>>
>>
>
>
>
>
>
> Virus-free. www.avg.com
>
>
>
>
*************************
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You list the spouses debts on the schedules. The notice goes out to the creditors, but the notice only has the filing spouses name as the debtor. Not many of the nonfiling spouses creditors will actually connect the dots, so little negative impact, if any, on the nonfiling spouse. Clear positive outcome with the community discharge.
Mark Jessee
Sent from my iPhone
> On Oct 5, 2017, at 11:57 AM, sam@southbaybk.com [cdcbaa] wrote:
>
> Thank you David. I'm sure you are right, but I'm not sure exactly how a practitioner can simply add a non-filing spouse's own debts to the schedules against his/her will. We have no access to the credit report or bills and statements without consent - plus it would potentially destroy the non-filing spouse's credit through no fault of their own. What do you do in that situation - not file the case?
>
>
>
>
The post was migrated from Yahoo.
Doesn't the codebtor stay apply (by virtue of community asset
liability) to wife's debts? She shouldn't need to file now, and
ultimately once the plan is completed, the community discharge will
discharge the debts as long as they remain married (assuming wife's
debts were listed and notice provided, as required).
On 10/3/2017 5:18 PM, sam@southbaybk.com [cdcbaa] wrote:
>
>
> I filed a 13 for a dentist about 2 years ago. We confirmed a
> sweet plan - thanks in large part to an extremely favorable
> appraisal on the home. We avoided a judgment lien and a second
> mortgage and are paying only first mortgage arrears and taxes in a
> 60 month plan. At the time, I advised the Debtor's wife to also
> file. She has about $70k in credit cards in her own name. She
> insisted on not joining the filing and continuing to pay on her
> cards. Guess what? Now she wants to file.
>
> The home has now greatly appreciated in value (especially in
> reference to our old appraisal) and the equity now exceeds the
> homestead allowance. Husband's business income has also picked up
> and he has new equipment. Since these are clearly community
> assets, I don't know what would happen to these assets if I could
> qualify the wife for a chapter 7. Can the 7 trustee go after
> these assets despite them being property of the husband's chapter
> 13 estate? If I put her in a 13, the new circumstances would
> dictate that she make a large payment on her debt - probably 100%
> - which also seems like an bad result.. Any words of advice?
>
>
>
>
>
>
> Virus-free. www.avg.com
>
>
>
>
*************************
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Board of Legal Specialization
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My advice is to not file a chapter 7. I would write some letters and
negotiate the debts away. Have them try to pay pennies on the dollar.
Also, as an aside, I never understood how when a husband and wife file for
bankruptcy, the "wife's" debt, which is community debt, does not end up in
the schedules. Is the argument that the debt is not community debt because
it is solely in the wife's name?
Sincerely,
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On Tue, Oct 3, 2017 at 5:18 PM, sam@southbaybk.com [cdcbaa] wrote:
>
>
> I filed a 13 for a dentist about 2 years ago. We confirmed a sweet plan -
> thanks in large part to an extremely favorable appraisal on the home. We
> avoided a judgment lien and a second mortgage and are paying only first
> mortgage arrears and taxes in a 60 month plan. At the time, I advised the
> Debtor's wife to also file. She has about $70k in credit cards in her own
> name. She insisted on not joining the filing and continuing to pay on her
> cards. Guess what? Now she wants to file.
>
> The home has now greatly appreciated in value (especially in reference to
> our old appraisal) and the equity now exceeds the homestead allowance.
> Husband's business income has also picked up and he has new
> equipment. Since these are clearly community assets, I don't know what
> would happen to these assets if I could qualify the wife for a chapter 7.
> Can the 7 trustee go after these assets despite them being property of
> the husband's chapter 13 estate? If I put her in a 13, the new
> circumstances would dictate that she make a large payment on her debt -
> probably 100% - which also seems like an bad result.. Any words of advice?
>
>
>
My advice is to not file a chapter 7. I would write some letters and negotiate the debts away. Have them try to pay pennies on the dollar.Also, as an aside, I never understood how when a husband and wife file for bankruptcy, the "wife's" debt, which is community debt, does not end up in the schedules. Is the argument that the debt is not community debt because it is solely in the wife's name?This electronic transmission and its contents are legally privileged and confidential information and intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, copying or other use of this message and its contents is strictly prohibited. If you have received this transmission in error, please reply to us immediately and delete this message from your directory.IRS Circular 230 Disclosure:Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used or relied upon, and cannot be used or relied upon, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
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