Financial problems making me physically ill!

[TroubledT]

Greetings to all here! I'm new to this and I just don't know what to do. Lord, we do I start???

I have an attorney who wants to take me to court for a 9 grand debt from eons ago on an old credit card. I'm married (18 yrs) to a great guy and all assets are under his name. (our home, car) I haven't worked in over 8 years after a bad accident and I suffer from horrendous panic attacks. (moving vehicles) Neeldless to say my husband is the bread winner and I keep house and take care of him and all our small dogs. We simply cannot afford this debt and I see no choice but to file for BK (Chapter 7)
I have many questions!!! 1.) I'd be filing just for me but, would this affect him, our home and vehicle? 2.) I have one current credit card that's nearly maxed but, I've been paying well above the minimum on time for nearly a year.(The past 3 yrs I've learned to manage finances a lot better) I want to keep this card and continue paying on it. Will filing Ch 7 affect that card? My husband has a credit card that also allows me to use it,, will that be affected? 3.) My husband wants to file for me (He's pretty smart with forms) instead of paying an attorney as, we don't have the money for an attorney. Because I have no assets of my own, and don't work what kind of chance do I have at wiping this debt out?
Ever since I got the notice from the attorney and the court, I've been throwing up and all I do is toss and turn at night. Any advice would be greatly welcomed.

[lrprn]

Welcome to BK Forum, TroubledT - glad you found us!

I have an attorney who wants to take me to court for a 9 grand debt from eons ago on an old credit card.

A few questions first so we understand your situation a little better. How long ago is "eons ago" in years? Which state did you live in when you used the card? Which state do you live in now? Is your husband's name on this card as a co-signer or authorized user?

Depending on the state you live in and the length of time that has passed, it's possible this debt may be past the statute of limitations so you may not owe it. Also if the creditor or the collections company can't prove you owe the debt, then you're home free again.

There may be no need to file bankruptcy to deal with it. Don't do anything in a rush - take some time to find out what's real in your situation and what's just an empty threat.

The best thing you can do in this situation is to talk with a few knowledgeable bankruptcy lawyers in your area who are familiar with collection practices. Most give free or low-cost consultations. Call and make appointments to talk with them about your situation. You'll learn a great deal about whether filing bankruptcy or fighting the threat is going to be your best option.

1.) I'd be filing just for me but, would this affect him, our home and vehicle?

If you file alone, the answers depend on the state you live in and who is showing as the responsible financial persons on the home deed, your car title, and your car loan.

2.) Will filing Ch 7 affect that card?

You have to list all your debt if you file bankruptcy. Only if the card has a balance of zero can you leave it out. And even then, chances are 95% that the company will cancel it anyway.

My husband has a credit card that also allows me to use it,, will that be affected?

If you are only an authorized user, then you don't have to list it in your bankruptcy and it won't be affected.

3.) My husband wants to file for me (He's pretty smart with forms) instead of paying an attorney as, we don't have the money for an attorney. Because I have no assets of my own, and don't work what kind of chance do I have at wiping this debt out?

Since you are unemployed, even if you file alone, a lot is going to depend on how much your husband makes. (Very complicated - too long to explain here - and probably why filing pro se (without a lawyer) along with the potential for a court judgment may make filing on your own risky.) How much has your family made in income and any other sources of income over the last six full calendar months?

Again, welcome - keep asking questions - we'll help you as much as we can. We are good venting listeners and love to celebrate the good days together too!

[Richard Kaufman]

Tell him a BIG SO WHAT!!!. let him go to court and get a default judgment against you. You have nothing to attach. Everything is in your husband’s name. If you find that later on you are being denied credit because of it ( which I doubt will happen) then re-nagochate with them later. I would not consider filing BK over this. Sleep well.

[TroubledT]

Hi B/F Guru,
Thanks for responding...I feel as if I am losing my mind. First off, I live in Massachusetts. We rent in Mass but, our home is in Maine. We plan to move permanently in the next 3 yrs.

I believe the debt is from the year 2000/2001 from Aspire. The lawyer claims I had a balance of 4 grand and that it has accrued interest and is up to 9 grand now. A sheriff sent me a notice from the local court telling me I am being sued but, there was no court date..( I don't get that at all!!)

My husband makes about 50/55 grand a year.

[TroubledT]

Richard, I hate the thought of filing but this lawyer told my husband on the phone this morning that everyday the bill is going up by $6 bucks a day. When I had this credit card it was only under my name and truth of the matter is, I was whacked out on morphine, fentenyl patches, vicodin, xanax etc from the accident and the 8 surgeries I had to fix me up (thank god I had medical insurance!!)

[lrprn]

Hi B/F Guru,
Thanks for responding...I feel as if I am losing my mind. First off, I live in Massachusetts. We rent in Mass but, our home is in Maine. We plan to move permanently in the next 3 yrs.

This complicates matters. If Ch 7 bankruptcy does look like the right thing to do in your situation (and I'm still not sure it is), you need to be living in whatever home you use for the homestead exemption when you file. Renting in one state and owning a home in another - how did that come about? This is very unusual, and I don't know how it might play out. If you do file in Massachusetts, you need experienced legal help to sort this out to make sure you don't endanger your Maine home.

I believe the debt is from the year 2000/2001 from Aspire.

If the debt is from Mass, then the statute of limitations on credit card debt looks to be six years. If the debt is from Maine, that also looks to be six years. When did you make the last payment on this debt?

The lawyer claims I had a balance of 4 grand and that it has accrued interest and is up to 9 grand now. A sheriff sent me a notice from the local court telling me I am being sued but, there was no court date..( I don't get that at all!!)

You can find out if the case has been scheduled in your local court by calling the local courthouse.

My husband makes about 50/55 grand a year.

The median income in Mass for a family of two is about $60,000 a year. Have you been living in Massachusetts full-time for the last two years?

There is something to be said about letting this judgment happen. You are unemployed and said that everything is in your husband's name. If you confirm that, then there's nothing for this creditor to take from you - no wages to garnish and no assets that are yours in any way.

You shouldn't file bankruptcy unless it's the very best option for you. Don't let your fear cloud your judgment and rush to file. You could be killing a gnat with an elephant gun when there may not even be a gnat! There are other options to explore to handle this threat.

[Richard Kaufman]

Richard, I hate the thought of filing but this lawyer told my husband on the phone this morning that everyday the bill is going up by $6 bucks a day. When I had this credit card it was only under my name and truth of the matter is, I was whacked out on morphine, fentenyl patches, vicodin, xanax etc from the accident and the 8 surgeries I had to fix me up (thank god I had medical insurance!!)

The first thing I would do is. Look at my credit and see how it's reporting. If this really is a debt from 7 years ago. It most likely shows up as a charge-off. I don't think they are allowed to keep a debt open this long. The guy your husband is talking too. is a half-assed collection lawyer at best(if her really is one). I would check with the court to actually see if there really is a date. Most likley not. Just a scaire tactic to get you to call. I really doubt any judge would allow them to come after you 7 years later. If I was the judge I would ask the creditor...Where you bin all this time? again if this is the only thing? Don't file over this. At worst if it truly does go up $6.00 a day. that will stop when you DON'T SHOW UP AT COURT. I would rather have a unsecured judgement on my credit the a BK any day.

[TroubledT]

It is somewhat complicated. We bought our home in Maine back in summer 04 (Under my husband's name) His job is in Mass but this place is listed as his primary residency (lower mortgage rate) I am a legal resident of Mass but, I stay here in Maine for the summers and fall.

The attorney claims the payment I made was back in 01.

Believe me, the last thing I want to do is file Chapter 7

[TroubledT]

Richard, the strange thing is this. My husband I sat down right before we bought our home and in a matter of 30 minutes we had paid off a ton of debts that were hanging over us via check by phone. (I had gotten a small settlement after all my surgeries) I wasn't even aware of this debt till about a year ago and I thought it was just some mistake.

If they do send me a date for court and I don't show, they'll put out a default warrant on me. I've never been arrested or even had a speeding ticket in all my 43 yrs and I certainly don't fancy the idea of having cuffs put on me (putting cuffs on someone else,, now that's a thought <eg>)

[guzzie]

hi and welcome...we're hear to help....stop look and listen to these people... I think you are ok...they can't take what you don't have....don't let them bully you or your husband...don't use the elephant gun if you don't have to...once the wheels are turning, know the bk is on the c reports for 10 long years....use the fly swatter and stop making yourself sick...you'll be fine.....good luck....guzzie

[BKOnce]

Did sumbody just say stress?... well, ..now just relax, breath in.. breath out... wow... what a feelings... it comes out... relieved...

[BKTango]

In the land of collecting, most bottom feeding collectors will wait until the debt is just about at the statute of limitations date then file suit against the person hoping they get the judgement or you get scared and pay up.

If ANY collector ever tells you, or leads you to believe that you are going to get arrested. That's a HUGE violation of the Fair Debt Collection Practices Act. There is no debtors prison and you will not ever be arrrested for not paying a 6 year old bill. They are lying. That will never happen. At most if you do not show up in court they will receive a default judgement, that really will not do them any good at this time as you have nothing to collect on.

If after you call your local court and determine that a case has actually been filed, file an answer with the court, stating you want the debt verified and the debt is basically past the statute of limitations for collecting.

If a case hasn't been filed, and the collector contacts you again, tell them IF this debt is even yours that is is past the SOL. If they contact you again, or violate the FDCPA again you will report them.

These people are doing what they get paid to do. They are scaring you into paying on a debt that is past it's collecting status. Also your fear of thinking that you are going to get arrested, honestly just gives them more room to scare you into paying.

Here is a link to the FDCPA, please read up on this and learn what collectors are and are not allowed to do.
http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm

[Minnymouth]

TroubledT,

First CALM DOWN..............nobody gets arrested over their debts..... they don't come and get you!!

Creditors have to take you to court to get a judgment and you must be notified of a Court date and given ample time to respond.....

Least they can do is get a judgement against you, and since you have no assets what are they going to get..... Your not working so they can't garnish you wages, etc......

So basically, right now your judgement proof if everything is in your husbands name and your not working.....

Be sure to talk to at least 3 attorneys about your situtation before you jump into filing bankruptcy and you don't really need too....

Later if need be judgemets can be vacated. And if your lucky enough the SOL may have already run out on this debt and this collector is just "grasping at straws" at the last minute...

Keep Calm........Chill out....... you really don't have a serious problem here to deal with.

And keep us informed....

Minny

[SinkingFast]

The Creditor may be treading on the boundary of the Statute of Limitation for collection of that debt.

The SOL on Open Contracts, which is what CC accts are, is 6 years in Maine. That's why the attny made a point to mention the payment you possibly made in 2001. The SOL clock starts ticking when you make your last payment.

http://www.fair-debt-collection.com/...-State.html#20

If you incurred the debt while living in Mass,........ Same thing. The SOL is 6 years.

You really need to dig out your old records and see if you can figure out exactly when you made the last payment to Aspire.

Look at the document you got in the mail. If the Creditor truly did Docket the Claim with the Court, you'll have a Docket number assigned on there. Otherwise, this is just a piece of paper the attny picked up at the Court House, filled in with your info, and has sent to you as a scare tactic.

All you have to do to throw a kink in the process is file a response to their Claim. Ask for the debt to be validated. You want an accounting of when and how much. Just because interest and penalties accrued doesn't mean a thing. The key is the last payment they received from you. And if that was early 2001, any time before now in the year, then their 6 years has come and gone. They are $hit Outa Luck!

As others have mentioned too,.......... All the assets you have are in your hubby's name. If you're joint on the bank acct, get your name off. Open up your own small acct. Then there's no assets to attach with a lien. No bank acct to garnish with a Banking Institution Garnishment. In effect, you're basically judgement proof.

[TroubledT]

Thanks to all for educating me on this situation. My husband spoke to attorney yesterday afternoon by phone. He pretty much said what all you kind people have said and informed my husband about our joint banking accts. As I write this reply, he's on his way to the bank to withdraw our funds and start up new accts under his name only.
Will also file a response to the court and ask for it to be verified.
If by chance they do get a judgement, will I just be obligated to make small monthly payments or does the judge decide what comes next?
I know I won't get arrested just for the debt but, not showing up at court and having a default warrant will get me in some hot water.
One other thing that has me confused is this..the original company (Arrow Financial) sent me a court paper around April or May dismissing this case. Does this mean that they sold the account to this bottom feeding lawyer? It was a letter from my local coourthouse.