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Automatic Stay and Co-debtor
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Dear Hale,
I have attached Word versions of: (a) a letter I have successfully used to stop codebtor stay violations against a nonfiling spouse, and (b) an OSC motion I sucessfully used a few years ago against a coterie of codebtor stay violators against a nonfiling spouse.
Even though my wife is from Wisconsin, I cant opine on Wisconsin family law. However, my reading of 1301 does not require the codebtor to be a nonfiling spouse. As long as both parties are on the debt, me seeing what relevance family law has on the general application of
In your clients case, their marital status can, or course, be used to establish joint liability on the debt, thus implicating 1301. If there is no separate property in your clients case, the Smith holding is inapposite to the analysis. Can you establish the absence of separate property?
All the best,
Nick
Nicholas Gebelt
Nicholas Gebelt, Ph.D., J.D.
Attorney at Law
Certified Bankruptcy Law Specialist State Bar of California Board of Legal Specialization
Law Offices of Nicholas Gebelt
15150 Hornell Street
Whittier, CA 90604
Phone: 562.777.9159
FAX: 562.946.1365
Email: ngebelt@goodbye2debt.com
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There's no SP. Non-filer H was cardholder, Ch 13 filer W authorized user.
On 2/6/2019 9:45 PM, Office mitnicklaw@aol.com [cdcbaa] wrote:
>
> Does H have separate property? Was H a cardholder or authorized user
> on the account?
>
> Law Office of Eric Alan Mitnick
> 21515 Hawthorne Boulevard, Ste. 1080
> Torrance, CA 90503
> (310) 792-5864 (tel)
> (310) 347-4353 (fax)
> MitnickLaw@aol.com
> Sent from my iPhone
>
> On Feb 6, 2019, at 8:26 PM, Hale Andrew Antico bk.lawyer@gmail.com
> [cdcbaa] > wrote:
>
>> Chapter 13, wife files, non-debtor husband listed on Schedule H as
>> co-debtor, since debts occurred during marriage here in CA. We're a
>> year in, and credit card company serves husband with a lawsuit at
>> home for debt listed in the case on F and H.
>>
>> Sounds like a violation of 362 and 1301. I've prosecuted stay
>> violations before, but not a non-debtor spouse 1301 issue. Poking
>> around for case law on the issue to find some support, and I stumble
>> upon this:
>>
>> 7th Circuit says
>>
>> in Wisconsin (also a CP state) in _Smith v Capital One_ 845 F.3d 256
>> (2016) that a lawsuit against co-debtor isn't a violation, since the
>> App Court wrote:
>>
>> Even if appellant's reading of § 1301 were correct, application
>> of Wisconsin marital law would not convert her husband's debts
>> into her own. In Wisconsin, married individuals can have both
>> individual and marital property
>>
>> A.P. properly dismissed. I feel like I'm taking crazy pills.
>>
>> So now my question is, to you family law gurus (@PatrickGreen - wait,
>> tagging doesn't work in emails), is CA like Wisconsin family law, or
>> is there a violation of the stay in my 13?
>>
>> Thanks in advance,
>>
>> Hale
>>
>> --
>> */Hale Andrew Antico/*
>>
>> (888) 54-BKLAW
>> http://www.los-angeles-bankruptcy.net
>>
>> /Vice-President, Central Dist Consumer Bankruptcy Attorneys'
>> Assn.(CDCBAA)/
>> /Past President, James T. King Bankruptcy Inn of Court/
>> /Member, National Association of Consumer Bankruptcy Attorneys (NACBA)/
>>
>> /We are a federally designated Debt Relief Agency under the United
>> States Bankruptcy Laws./
>> /We assist people with finding solutions to their debt problems,
>> including, where appropriate, assisting them with the filing of
>> petitions for relief under the United States Bankruptcy Code./
>>
>> /Email isn't secure, so it's not confidential. By communicating with
>> me by email, you understand that it's not confidential./
>>
>> /This does not constitute an electronic signature./
>> --
>> */Hale Andrew Antico/*
>>
>> (888) 54-BKLAW
>> http://www.los-angeles-bankruptcy.net
>>
>> /Vice-President, Central Dist Consumer Bankruptcy Attorneys'
>> Assn.(CDCBAA)/
>> /Past President, James T. King Bankruptcy Inn of Court/
>> /Member, National Association of Consumer Bankruptcy Attorneys (NACBA)/
>>
>> /We are a federally designated Debt Relief Agency under the United
>> States Bankruptcy Laws./
>> /We assist people with finding solutions to their debt problems,
>> including, where appropriate, assisting them with the filing of
>> petitions for relief under the United States Bankruptcy Code./
>>
>> /Email isn't secure, so it's not confidential. By communicating with
>> me by email, you understand that it's not confidential./
>>
>> /This does not constitute an electronic signature./
>
*/Hale Andrew Antico/*
(888) 54-BKLAW
http://www.los-angeles-bankruptcy.net
/Vice-President, Central Dist Consumer Bankruptcy Attorneys' Assn.(CDCBAA)/
/Past President, James T. King Bankruptcy Inn of Court/
/Member, National Association of Consumer Bankruptcy Attorneys (NACBA)/
/We are a federally designated Debt Relief Agency under the United
States Bankruptcy Laws./
/We assist people with finding solutions to their debt problems,
including, where appropriate, assisting them with the filing of
petitions for relief under the United States Bankruptcy Code./
/Email isn't secure, so it's not confidential. By communicating with me
by email, you understand that it's not confidential./
/This does not constitute an electronic signature./
The post was migrated from Yahoo.
Does H have separate property? Was H a cardholder or authorized user on the account?
Law Office of Eric Alan Mitnick
21515 Hawthorne Boulevard, Ste. 1080
Torrance, CA 90503
(310) 792-5864 (tel)
(310) 347-4353 (fax)
MitnickLaw@aol.com
Sent from my iPhone
> On Feb 6, 2019, at 8:26 PM, Hale Andrew Antico bk.lawyer@gmail.com [cdcbaa] wrote:
>
> Chapter 13, wife files, non-debtor husband listed on Schedule H as co-debtor, since debts occurred during marriage here in CA. We're a year in, and credit card company serves husband with a lawsuit at home for debt listed in the case on F and H.
>
> Sounds like a violation of 362 and 1301. I've prosecuted stay violations before, but not a non-debtor spouse 1301 issue. Poking around for case law on the issue to find some support, and I stumble upon this:
>
> 7th Circuit says in Wisconsin (also a CP state) in Smith v Capital One 845 F.3d 256 (2016) that a lawsuit against co-debtor isn't a violation, since the App Court wrote:
>
> Even if appellant's reading of 1301 were correct, application of Wisconsin marital law would not convert her husband's debts into her own. In Wisconsin, married individuals can have both individual and marital property
> A.P. properly dismissed. I feel like I'm taking crazy pills.
>
> So now my question is, to you family law gurus (@PatrickGreen - wait, tagging doesn't work in emails), is CA like Wisconsin family law, or is there a violation of the stay in my 13?
>
> Thanks in advance,
>
> Hale
>
> --
> Hale Andrew Antico
>
> (888) 54-BKLAW
> http://www.los-angeles-bankruptcy.net
>
> Vice-President, Central Dist Consumer Bankruptcy Attorneys' Assn.(CDCBAA)
> Past President, James T. King Bankruptcy Inn of Court
> Member, National Association of Consumer Bankruptcy Attorneys (NACBA)
>
> We are a federally designated Debt Relief Agency under the United States Bankruptcy Laws.
> We assist people with finding solutions to their debt problems, including, where appropriate, assisting them with the filing of petitions for relief under the United States Bankruptcy Code.
>
> Email isn't secure, so it's not confidential. By communicating with me by email, you understand that it's not confidential.
>
> This does not constitute an electronic signature.
> --
> Hale Andrew Antico
>
> (888) 54-BKLAW
> http://www.los-angeles-bankruptcy.net
>
> Vice-President, Central Dist Consumer Bankruptcy Attorneys' Assn.(CDCBAA)
> Past President, James T. King Bankruptcy Inn of Court
> Member, National Association of Consumer Bankruptcy Attorneys (NACBA)
>
> We are a federally designated Debt Relief Agency under the United States Bankruptcy Laws.
> We assist people with finding solutions to their debt problems, including, where appropriate, assisting them with the filing of petitions for relief under the United States Bankruptcy Code.
>
> Email isn't secure, so it's not confidential. By communicating with me by email, you understand that it's not confidential.
>
> This does not constitute an electronic signature.
>
The post was migrated from Yahoo.