who has had a credit card bank fight a discharge and won? why?

[bcohen]

I know this is an old thread, but it's not too old, and this is an important topic. Credit card companies can object to having their debt discharged if there is a presumption of fraud. I am not aware of any situation where a medical creditor could object to discharge (and win). If you become sick or injured, and incur medical debt--even if you lack the means to pay, the provider cannot object to discharge in the same way that a consumer creditor could. It is assumed that you have the right to protect your health, even if you are insolvent at the time.

[LadyInTheRed]

Welcome to BK forum, brandv1!

Please look at the dates of threads before posting and do not revive old threads unless there is a very good reason to do so.

Please review the forum rules at http://www.bkforum.com/announcement.php?f=3.

Feel free to start a new thread to tell us your story or jump into current threads. Many come here asking about credit counseling/settlement companies as a way to avoid bankruptcy. Your experience can help others. And hopefully others can help you as you go through your BK.

[brandv1]

the only one who ever sent me to collection was Citi

Citi is the main reason we're doing Chp 13. I tried working with them, and with the collection company they retained. I even used one of those Credit couseling/settlement companies (worst mistake ever). Citi turned down 12 payment plan offers, including one that they had counter-offered with previously. So they went ahead with garnishment. It started on payroll ending 2 days from now, but we filed back on the 23rd.

[Babybear]

Thanks Tom,
Now I am really depressed. The federal guidelines suck. I Cant do that. I cant get a lien on the house either. If she moved here in Dec of 2009 than we can file this December? Or I have to wait another 6 months? Is it going to cost a fortune to fend off these lawsuits? What do you suggest with say amex who we owe 11k and last used in july -aug. of last yr. and have been making payments of 250 a mth ever since. But cant afford to keep doing so. How about Barclays bank which we owe 8500. Used til Dec and again paid 250 a mth from June til now. Macys which I put 12000 on from may til dec of 2010 and paid 200-500 a mth til now. I can afford to pay 600 a mth that they want now. These are the biggest bills. But still there is care credit, Charges from sept 2010 til Jan 2011 for over 9000. Minimum of 350 a month . Again we cant aford this much longer. Now my mother needs caterac surgery and it will cost 5k cash which we dont have. I have a cement floor and no kitchen counter since Home depot cut my credit from 11k to 4k at the last minute when I was in the middle of remodeling. That 4k is used up already. I just cant afford to keep paying. I know I went crazy with these cards for the past year but now will I have to pay the price and get sued and end up paying most of it back anyway or will I get to the bk stage and be able to wipe this all away? I am worried.

[tobee43]

Hi Babybear - The timeframe varies from bank to bank, and probably state to state, too. I quit paying my credit cards and LOC, all with the big boys, Citi, Chase, and Bank of America in May, 2010, and didn't have money to file until October 2010. Chase called incessantly after the 1st two months I missed payments, BOA sent me a couple of emails, but the only one who ever sent me to collection was Citi, and I received that notice one day after I filed, but they didn't bother me after that letter because at that point, the Automatic Stay was in effect. Do you care to ellaborate on what you're worried about, in particular?

that's really an interesting point about what your saying about varying from state to state....the new laws of 2005 added that 90 day fraud clause...and while i know we filed in florida they stuck to that 90 day ruling like glue.....whereas, i knew someone in nj that had to wait it out for almost a year...as per her atty...however, i may not have the entire story.

babybear....if you have judgments that are now liens against your house and you are retaining it....after you bk discharge you can file the order to vacate the judgments and have the liens removed. normally it cost of course more money and many do the motions themselves...i would not suggest that....

we did it...rec'd the signed by the judge order to vacate those liens and they are gone....forever and ever...

[tcreegan]

Hi Babybear,

debee has it right, NY requires you to actually be in the state to use their exemptions. You can't use CA exemptions until you have been there 2 years. In between you use the federal exemptions. This might not be good news.....under federal exemptions you can only protect $21,625 of equity in your house. If you wait 2 years, you can use the CA senior citizen $150,000 exemption.

To help ease your worries some.....the credit card companies aren't going to get a lien against the house. At least not anytime soon.

First they send letters, courtesy calls, then more threatening calls and letters, and finally turn it over to a collection agency. Now the collection agency goes through the whole process again. Now they might file a lawsuit. You or your attorney do a simple few steps and delay the lawsuit for 6 months to a year. If you file BK during this process, the case gets dismissed. If you don't file BK, they still have to win the lawsuit. Once they do, they have options: garnish wages, levy bank accounts, put a lien on property. To do any of these things, they have to go back to court and get permission (you can delay this process too) Then finally they get around to placing a lien on your property, following a technical set of guidelines which if they don't follow they have to back and do it over again.

So it is relatively easy to delay the credit card people out past your BK filing date. And then they go away for good.

Medical debt is no different than any other unsecured debt. Lump them in with the credit card peope.

If you get called for fraudulent charges, the creditor will file an AP in the court. This costs money, so they are'nt going to object unless you have 4 figure number or higher. And how long ago were the charges, that sort of thing factors in.

Well, getting late, must sign off, hope what I wrote is somewhat sensible.....

Tom in Colo

[debee]

The federal homestead exemption is only $21,625. The max of $125K applies if a person is using state exemptions - for instance if someone moves to a state with an unlimited homestead exemption and buys a 10 million dollar mansion and then files bk two years later. Only 125K would be exempt.

The federal exemption amounts changed last April and a lot of websites have outdated info. This one seems to be updated: http://www.legalconsumer.com/bankruptcy/laws/ You have to scroll to the very bottom to get the federal list.

[Babybear]

ok I am confused. This is what I have read in a few articles

Under the new bankruptcy legislation, you will not be able to exempt more than $125,000 on equity in a residence purchased within 1,215 days (or three years and four months) before filing for bankruptcy.

would that be considered the federal exemption you are referring to because I cant seem to see the flow chart indicated on the link you sent me.

[debee]

You have to be domiciled in NY to use their exemptions. (You can read this fact on the website I linked to in my previous post).

You have to have been in CA for two years to use theirs.

So in your case, your only option is to use the the Federal Exemptions.

Either that or wait until you've been in CA long enough (to use CA exemptions) before filing.

Good luck to you.

[Babybear]

http://thismatter.com/money/credit/bankruptcy/chapter-7/homestead-exemption.htm

This is also a really good link and says that if you didnt live in Ca. for 2 years before filing bk than use where you lived for 180 days prior to that. So again does that mean I can use the new york homestead exemptions for the property in Ca. ? Why is it so hard to find out this answer. The attorney doesnt know and no attorneys in New york responded to my emails.

[Babybear]

http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$CVP5206$$ @TXCVP05206+&LIST=SEA4+&BROWSER=BROWSER+&TOKEN=180 78244+&TARGET=VIEW

I like this link better but it doesnt say if you can apply these exemptions to property in California

[debee]

I think you have to be living in NY at the time you file in order to use their exemptions. You & your Mom would use the federal exemptions. You can poke around this website for more info: http://www.exemptionsexpress.com/index.html

[BrokeinMD]

Your situation is complicated and is not common. You may want to consult with an estate attorney, as well. Your mother assigned you as POA to take care of her expenses and affairs to the best of your ability. Since she is now in a position of financial hardship, you may want to seek out relinquishing your POA duty to another family member or trusted person to help her sort it out. Good luck to both of you.

[Babybear]

we are both in California and live together. I take care of her. She is 82. I have power of attorney for her and handle the shopping and the bills. I just hope she can answer questions at the hearing since I am sure all this will be a bit hard for her to fully understand in terms of giving the right responses. My issue was with which exemptions are to be used. The attorney here in Ca. said that it would be the New York Exemptions since she lived there prior to 2 years, prior to moving to Ca. and buying the house we now live in. So I am assuming that the new york exemptions apply to the California house, but many of the attorneys seemed so unfamiliar with doing that type of BK and they all seemed to want more money for research. Isn't this type of thing common? Has anyone here had a similiar situation?

[BrokeinMD]

If you click on the Exemptions Tab on the top of this forum, you can check out the exemptions for each State, too. I remember your earlier posts. Your case is a little complicated since your expenses are intertwined with your mothers, and you're both not in the same state. Your best bet is to get a free consult with a BK attorney to review the options with you.