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What would you do in this situation?

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  • What would you do in this situation?

    Several years ago when my wife and her ex got divorced, the ex agreed to keep and pay (along with a standard indemnify/hold harmless clause) for a jointly-owned timeshare. This obligation included a mortgage/promissory note of ~$15K plus the usual maintenance fees. He fell behind on payments a few times but eventually paid up after my wife threatened a trip to court. Then in 2010, he filed a Chapter 7. He said he would be reaffirming the timeshare but never did (I doubt a judge would have granted it anyway), and sadly we let our guard down because he continued making payments... until last spring. Now the timeshare company wants its money: currently $12K, with the possibility of several thousand more if accelerated.

    So far, the collection agency has been playing nice with my wife and assuring her they not intend to pursue her. Besides the fact that my wife has no formal income right now except child support, their "legal team" supposedly believes they still have a case against her ex on the basis that he indicated intent to reaffirm the debt, continued making payments for over 2 years (including the automatic stay period) and never amended his Statement of Intention. To me, this sounds like a complete load of you know what!!!

    In an ideal world, my wife would like to just file a Chapter 7 and have full assurance that she is rid of this marriage (the timeshare and anything else that might crawl out of the woodwork) once and for all. However, my income alone puts us over the state median. Seemingly, this leaves Chapter 13 as the only alternative. I am concerned, though, that with our income (which includes her child support) and almost complete lack of secured debt, we could potentially be looking at paying back a substantial portion, if not all of her unsecured debt. If her credit is going to be trashed anyway, maybe we should just find a way to settle on the timeshare and get on with our lives? She has maybe $5,000 in other debt besides the timeshare and we are easily able to pay it.*

    So what would you do? Would you try to negotiate a settlement, then possibly sue the ex on his non-dischargable indemnity obligation? Would you try for the Chapter 13 as soon as possible, perhaps with a careful reevaluation of my 401(k) for the benefit of the marital adjustment? *Or, would you wait and see what the creditor does, taking the risk that they will foreclose on the timeshare interest and then tack on several thousand more dollars in collection fees that would up being paid through a judgment or Chapter 13 later on (and again, sue her ex on the indemnity obligation)?*

    And just to answer a question I know many would ask, we have already consulted with a bankruptcy attorney and discussed Chapter 13, and there are plans to meet with others. She will also be consulting with a divorce attorney next week.
    4/2010 - Filed Chapter 7 no asset case w/car reaffirm
    5/2010 - 341 meeting, no creditors present
    10/2010 - Reaffirm finally approved and case discharged the same day

  • #2
    Originally posted by nceguyfromne View Post
    *Or, would you wait and see what the creditor does, taking the risk that they will foreclose on the timeshare interest and then tack on several thousand more dollars in collection fees that would up being paid through a judgment or Chapter 13 later on (and again, sue her ex on the indemnity obligation)?*

    That's what I would do. Play chicken with them and see if they flinch first.

    They more difficult you make it for them to contact you and get any money from you, the more likely they are to move onto lower hanging fruit-- other debtors who are willing to play their phone game.

    Is your state a community property state? If not, they can file a lawsuit against your wife, but they can't come after your stuff.

    You would want to make sure that none of your checking accounts (and other assets) are in her name. If they are, then close them and open new ones in your name only.

    My experience has shown that they simply cannot or will not sue everyone. Out of my many, many defaulted credit cards, only one of them ever sued me. They still got nothing from me because I made sure I was judgment proof.

    The less you communicate with them, the better. Any information they get from you will be turned around and used against you later to attempt to get money from you.

    EDIT: I answered my own question:

    No. In the United States there are ten community property states:
    New Mexico

    Read more:

    It looks like you're safe as long as you take steps to keep your assets and her assets separate from each other.

    The debt was incurred before you were married, it is not your debt. It's hers. If she is judgment proof, what can they do? Probably not much but huff and puff and bluff and try to scare you into paying.
    Last edited by GoingDown; 11-09-2012, 04:59 PM.
    The world's simplest C & D Letter:
    "I demand that you cease and desist from any communication with me."
    Notice that I never actually mention or acknowledge the debt in my letter.


    • #3
      Great advice, GD. The separate accounts are a good idea, anyway.

      Plus it's kind of weird your wife is talking to a collection agency at all, since it's not her debt, either. So no wonder they say they aren't going after her, they shouldn't. If by some legal move she could be forced to pay, it would be strange to have her be ordered to, in effect, use funds from his nondischargeable debt (child support) to pay his discharged debt.


      • #4
        With a hold harmless clause it's my understanding that while the Timeshare has full rights to sue her, she was the one who borrowed, she also has full rights to sue him for causing harm. Unless you have other debts and whatnot to make use of this I would fight this is divorce court, not BK court.

        The timeshare no longer has any rights to the ex as he did file BK on them and did not reaffirm. They are stupid if they try to go after him. Only thing they can do is come after yer DW or simply foreclose. In any case they can report it creditwise. Again however that is harm and that is on the EX dime's via your new wife.

        In short, timeshare reports neg credit, sues whatever on your wife, wife sues exe for causing harm in violation of separation order.
        3/2/09- Filed: chapter 7 / No asset
        4/1/09- 341 Hearing: 1 creditor showed up Got to love family feuds
        4/2/09- Trustee Report of No Distribution Filed
        6/24/09- Discharged and case closed


        • #5
          well, although, it was not the same circumstances, this is what i did. i offered them a DIL and i would give them back the deeded timeshare. it worked. they took it back with no problem. i also did that with a second home we had.

          see if they will do a DIL and just take the property back. also if they will make certain you have a release contract attached they will not pursue you for any deficiency that may arise.
          8/4/2008 MAKE SURE AND VISIT Tobee's Blogs! and all are welcome to bk forum's Florida State Questions and Answers on BK


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