Northern California Bankruptcy Lawyer

On The Bankruptcy Soapbox

The Soap Box

Collection Law Suits in California

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lawsuit

A prospective bankruptcy client often arrives in my office because a creditor is hot on their heels.

They’ve been sued for debt and they are panicked about the consequences.

Almost invariably, the client has leapt to two incorrect assumptions:

  1.  the world as they know it is coming to an end; and
  2.  they don’t have to do anything until the date set for the case management conference, months down the road.

Wrong on both counts.

Judgments take time

The filing of a lawsuit is a step toward a legal judgment in favor of the creditor. A judgment is a determination that the debtor owes the amount of the debt and usually the creditor’s expenses to get the judgment.

A judgment entitles the judgment creditor to enlist the coercive power of the state to collect that judgment by levy, lien or garnishment.

All about California judgments

Judgment liens

A judgment in California does not automatically constitute a lien on the debtor’s assets, as it does in some states.

In California, a creditor with a judgment must take an additional step to create a judgment lien.

A judgment lien on real estate is created when an abstract of judgment, issued by the court after entry of judgment, is recorded in the records of the county recorder.

A judgment lien on personal property is created by filing a notice of judgment with the Secretary of State.

A judgment lien allows a creditor to execute on that lien through the courts. In that process, even outside of bankruptcy, the judgment debtor may claim an exemption in certain kinds of property.

Understanding exemptions.

In short, getting a judgment is just a step toward actually taking something from the judgment debtor. All these steps take time and cost the creditor something.

Time to consider your options

The filing of a lawsuit may be a good indicator that you need to do something proactive about your financial situation but it is not an emergency.

About that second assumption, that you don’t need to act before the court date, you must read this.

More

California judgments are dischargeable in bankruptcy

Avoiding liens in bankruptcy

Do you need to file bankruptcy

What’s the difference between a good bankruptcy lawyer and a great one?

 

Collection Suits and Court Dates

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Those in financial difficulty are frequently not operating at their peak.  I know that.

But for the life of me, I can’t understand how the recipient of a summons and complaint from a California court can read the papers and absorb only that they have a “court date”.

Arghhh!

How California lawsuit works

The basic outline of a law suit is that the creditor files a complaint with the court. The court issues its summons, which validates the complaint and puts the defendant on notice that there is a legal suit pending.

The summons tells the person served plainly that they must file a typewritten answer to the complaint within 30 days of service.  Fail to file an answer and the other side may get a judgment for the relief prayed for, which is usually money.

Served along with the complaint is a notice of case management conference on a given date.  The CMC is well after the date on which the answer is due.

At the case management conference, assuming that an answer has been filed, the court will set deadlines, trial dates, etc.

But none of this scheduling is necessary if the defendant has not contested the complaint by filing an answer.

You must answer

Why is it that a consumer debtor grasps only the date of the case management conference, and absorbs none of the rest of the message that says clearly, in two syllable words, that one must file an answer for there to be anything for a court to decide?

Stress MAKES you stupid

I should have a cassette tape to play to tell clients that the case management conference date is meaningless if you didn’t file an answer.

If you don’t have a defense to the action, that’s fine.  If you agree that you owe the amount of money shown in the prayer of the complaint, there may be no need for an answer and a defense.

Just don’t obsess about a date that means nothing if you didn’t take the time to read the summons and understand that filing an answer is the price of admission to the courthouse.

Lawsuit is a wake-up call

Often, the filing of a lawsuit is just the most dramatic evidence that your finances are scrambled.

Consider whether you spend your energies fighting this one action, or whether you need a more global remedy like bankruptcy.

Bankruptcy and the alternatives

Image courtesy of Pixabay.

Why Even Rock Solid Marriages Need A Prenuptial Agreement

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ring-260892_1280_optPre nuptial agreements aren’t just for the rich or  mid-life marriages.

In California, pre nuptial agreements do far more than provide a blueprint for division of property at divorce.

A prenup can earn its keep for decades in marriages where divorce never enters the picture.

Why?

It protects the assets of the marriage from outsiders.

A prenup can limit what assets the creditors of one spouse can reach to satisfy a debt.  Let’s see how that works.

What’s a prenup

A prenuptial agreement is a contract between two parties, made prior to their marriage, that controls the ownership, management, and division upon divorce, of their assets and income.

After the divorce case of San Francisco Giants Barry Bonds testing his prenuptial agreement that denied his wife any part of his earnings during marriage, California prenups must meet a series of tests designed to make sure that the agreement was made knowingly and preferably with advice from a lawyer.

The California Supreme Court upheld the Bonds prenup, even though the wife had no lawyer, was disadvantaged by the agreement and had it popped on her on the eve of the wedding. That decision sparked changes to the law  to make more certain that both parties understood the arrangement and its consequences.

My interest as a bankruptcy lawyer in prenups is rooted in how a pre nup works during the marriage.

A prenup’s value lies in overriding the California  presumption that everything acquired during marriage is community property.

Community property is vulnerable

Community property is liable for the debts of either spouse incurred during the marriage.

Any debt.  Whether the other spouse knows about it or not.

Worse, the community property is liable for the debts of either spouse that they incurred before marriage.

In the absence of an enforceable agreement, California law makes everything acquired during marriage community property, including the wages of each spouse.

The result is that one spouse can find their wages garnished to pay a judgment their mate without any involvement from the spouse whose wages are garnished.  Ouch.

Cut exposure in half

Too often, the full ramifications of community property and the claims of creditors aren’t obvious until a business deal goes bad, or there’s a horrific accident, or the student loan collectors come round.

Then spouses see that everything they’ve acquired and their income going forward is liable to pay a crushing debt. Or at risk in a bankruptcy.

When giving isn’t a virtue

And often it’s too late to do anything that’s legally effective to move away from community property.  Post nuptial agreements not to have community property are subject to being invalidated as fraudulent transfers.

Fraudulent transfers include disposing of property without getting equivalent value in return , like giving stuff away.  Fraudulent transfer law also applies when you take actions after a debt is incurred that are intended to make it hard for an existing creditor to collect what he’s owed.

If a transfer is fraudulent, a creditor can invalidate it and reach the assets you were trying to insulate.

So, if you wait to reconsider community property until there’s a real need, it may be too late.

Weighing the risk

If you elect to alter the results of the community property system to limit exposure to creditors, you have to live with the consequences should the marriage dissolve.

A California family court has jurisdiction over the community property of the couple, but not over their separate property.  And separate property is what results by reason of a pre nup.

A family judge could still award family support and can also divide the family home even if held as separate property.  But other acquisitions may be beyond the reach of the family court by reason of how title to the asset is held.

So, a prenup is not without its own risks.

Who said marriage is easy?

California Garnishment Now Provides Greater Protection Of Wages

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california garnishment lawWorkers making close to the California minimum wage got additional protection from wage garnishments under a change in the law effective in 2013.

With the annual increases in the state minimum wage, in 2019 California law now protects an employee’s weekly net wages up to 40 times the state minimum wage, currently $11 to $12 per hour.

The prior formula  limiting a judgment creditor to 25% of a debtor’s after tax wages remains.  But the amended law caps a wage garnishment at the lesser of the two calculations.

A judgment creditor isn’t absolutely entitled to the amount figured under these formulas, however.

If the judgment being collected is for a debt other than support, a judgment debtor can seek a reduction in the amount of the  garnishment from each paycheck to the extent necessary for his support.  CCP 706.051.

Garnished-now what?

The only run of the mill creditor who can garnish your wages is a creditor who has already sued you and won a judgment.  That judgment entitles the creditor to levy bank accounts and garnish wages for 10 years or until the judgment is paid in full.  More about judgments.

The judgment accrues interest at 10% simple interest per year.

Two questions arise:

1.  Can you meet your current living expenses on the money left after a garnishment?

2.  Is this judgment just one part of a bigger debt problem?

The dangers of doing nothing are greater than just the other bills that don’t get paid while your wages are garnished.

Too often, the reduction in available cash puts your car or housing payments in jeopardy.  And, it probably pays a debt that is dischargeable in bankruptcy, as most unsecured debts are, while non dischargeable debts like taxes, student loans or child support go unpaid.

Here are some ideas on who to pay with the money remaining.

Your wage garnishment action items

See an experienced bankruptcy lawyer.  You want to know two things.

  • Can you petition the state court for a smaller garnishment? and,
  • Does bankruptcy make sense in light of the bigger picture of your income and expenses?

A bankruptcy will stop a wage garnishment. And, you may be able to recover the money taken from your check from the creditor as a preference.

If bankruptcy is an appropriate response, there is no point in paying the judgment creditor for another pay period.  Pick up the phone and get some advice.

More

How to interview a bankruptcy lawyer

Wage garnishment survival guide

   Bankruptcy’s effect on judgments

Does Marriage Make Me Liable For My Spouse’s Debts

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Liability of community property in California

Countless times, a client announces that he won’t marry the love of his life until he’s fixed his debt problems.

Noble thought, but unnecessary in California.  Even though we have a community property system of marital property.

His bride will not become liable for the debts he brings to the marriage.

If the newlyweds elect to have community property, then the community property is liable for the baggage he brings, but those debts will not follow his spouse.

Personal liability

A basic principle of law is that each person is only personally liable for debts they create: marriage does not automatically make the spouses liable for each others debts. An exception is debts for necessities of life.

In California, a marriage can be seen as comprising three entities (wouldn’t you know it in California):

  • husband,
  • wife, and
  • the community property.

California law assumes that assets acquired during marriage are community property. The entirety of the community property is liable for the debts of either spouse.

Under this system, then, if husband contracts a debt, husband’s creditor can reach both halves of the community property to satisfy that debt.

If the parties don’t have community property, as by reason of a pre nuptial agreement, then the creditor can reach only the husband’s earnings and assets for debts he incurs.

If the spouses divorce, the community is terminated. Once the community property is divided in the divorce, that former community property becomes the separate property of the recipient spouse.

Bringing debts to the marriage

Because community property is liable for the debts incurred by both spouses, before and after they marry, those debts can certainly impact the household finances.

Bankruptcy may be one way to wipe the slate clean.  One spouse can file bankruptcy even during the marriage and get a discharge of that spouse’s debts.  The community property is freed of claims against it for debts discharged in the bankruptcy.

Except for joint debt included in the bankruptcy case, one spouse’s bankruptcy filing doesn’t impact the other spouse’s credit record.

The other approach to an indebted spouse is to make an agreement, preferably before wedding, that limits or negates the acquisition of community property.  That’s a prenuptial agreement.

A debt free spouse with a prenuptial agreement is insulated from loss of wages or property in their name to their spouse’s creditors.

 

More about community property in bankruptcy.

Does Bankruptcy Discharge A Judgment In California?

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Nothing gets a person into a bankruptcy lawyer’s office quicker than being served with a lawsuit.

The prospect of losing a lawsuit and having a judgment entered against them terrifies.

Callers are frantic to see if they can file bankruptcy before judgment is entered.

They worry that once a judgment is entered, their options in bankruptcy vanish.

Not so.

The debt underlying a California judgment remains just as dischargeable as it was before the case was filed.

And,  a judgment in California does not automatically become a lien on the defendant’s property.

It takes another step in California for a money judgment to become a lien.  And as long as there is no lien, the debt is unsecured and  potentially dischargeable in bankruptcy.

Discharge turns on kind of debt

Contrary to what some dishonest debt collectors will tell you, judgments are just as dischargeable in bankruptcy as the underlying debt is.

Whether an unsecured debt can be discharged in bankruptcy looks at  the nature of the debt, not whether a court has ruled on the merits of the claim.

So,

  • Child support is non dischargeable, whether or not there is a judgment.
  • Debts incurred by fraud are non dischargeable in bankruptcy, if the creditor can prove fraud to bankruptcy standards.
  • Credit card debts honestly incurred are dischargeable, judgment or no.

Liens change everything

What does change the dynamic is an abstract of judgment or a notice of judgment lien.

These documents do create a lien on the judgment debtor’s assets.

Recording an abstract of judgment creates a lien on real property in the county in which it is filed.  A notice of judgment filed with the California Secretary of State creates a judgment lien on personal property located in the state.

If the lien cannot be avoided in bankruptcy, the judgment creditor has obtained an advantage.

What my friend Jay Fleischman’s post about civil judgments in New York and their bankruptcy implications points out is the way state law impacts the operation of federal bankruptcy law.

The rights that each party in a bankruptcy case brings to the bankruptcy case originate in state law.

It also demonstrates why lawyers are licensed in each state and why my California law license does not entitle me to practice bankruptcy law in New York.

And why bankruptcy is not a do-it-yourself project.

More

When you’re served with a lawsuit

Three debts bankruptcy doesn’t discharge

Everything you need to know about judgments

Wage garnishment survival guide

Who are the really scary creditors

Image in the public domain, courtesy of Wikimedia.

What Are Your Rights In A California Foreclosure

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Foreclosure AuctionThe old saw about Oakland, California is that there is no “there” there.

I suggest it’s the same about being “in foreclosure”:  foreclosure is not a place, it’s a path.

Nothing legally meaningful changes until you get to a foreclosure sale.  Everything before that is prelude.

Yet several  Bay Area clients have asked whether they can remove personal property from their home while it’s “in foreclosure”.

Another client wanted to know what the rights of the foreclosing creditor were to come into her home before any sale was held.

Another thought he needed to vacate the house before the sale.

Your rights to the property remain the same,  unchanged by any default on the mortgage payment.

Rules of California foreclosure

Be clear:  it’s your property until there is a foreclosure sale.

Likewise, the lender is still an outsider unless and until it obtains title to the property by being the highest bidder at the foreclosure sale.

So, certainly you can remove personal property from your home, and, no, neither the lender nor anyone else can come on your property without your permission.

Debt changes your thought process

I’m fascinated by the concept of being “in foreclosure”.  It seems to be akin to being  “in collections”.

Neither are real places, or even changes in your legal rights.

Nicholas_Owen_in_the_manaclesYet laymen seem to think of them as situations in which the rules change and consequences follow. [ I have a mental image of them being dank dungeons with manacles on the wall, and cobwebs hanging from the beams.]

True, each represents a process that may lead to a change in legal rights, or a loss of property, but they are roadways, not fixed “places.”

The foreclosure process, which by California law, takes a minimum of  four months from formal notice of default to foreclosure sale, is being drawn out these days,  by the action or inaction of the foreclosing creditor.

The Homeowner’s Bill of Rights makes dual tracking illegal;  modification processes abound.

Don’t leave before it’s final

Which brings me to my current favorite sermon:  even if it’s inevitable that you lose the house to foreclosure, stay in the property and live payment-free until there is actually a sale.

You may be astounded at how long that interval is, how very much longer than the four month legal process.  Build up some savings to make your move.

How long does California foreclosure really take?

The foreclosure that was longer than War and Peace

More on walking away from a house you can’t save

HBOR

First image courtesy Colleen Lane;  woodcut of torture of Nicholas Owen courtesy of Wikimedia.

Do California Seniors Need to File Bankruptcy?

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Rocking chair on the deck - Antigua, Mar 2010California, it turns out, is a great place to retire.

Not because of the cost of living, certainly.  In spite of the cost of living.

Because California exemptions are very generous to those of retirement age.

Those exemptions effectively make many indebted seniors collection-proof.

How exemptions protect seniors

Exemption laws come from the idea that, even if you owe money to creditors, a certain level of income and assets are protected from collection.

  • If you earn a wage, California law caps the amount of your wages that can be garnished at 25% of your after tax paycheck.
  • Pension income cannot be levied, before or after it’s paid to a retiree.
  • IRA’s are exempt to the extent necessary for support
  • The California homestead is $175,000 for individuals over 65
  • Social Security is exempt everywhere

It’s not hard to see that a California senior with home and retirement income might have nothing that a creditor with a judgment could reach.

That doesn’t mean that creditors will stop trying to collect.  They can bug a retiree, using shame, fear, and annoyance to get them to voluntarily pay a debt they owe.

But there may be no way for the creditor to compel payment of its claim at the present.

Is bankruptcy necessary

So, one of my tests for do you need to file bankruptcy  looks at whether bankruptcy would allow you to keep something that you might otherwise lose to a creditor who gets a judgment against you.

If the answer is yes, bankruptcy may be appropriate.

If the answer is no, it may be different.  If that creditor-with-a-judgment can’t tap your bank account or intercept your pension check, functionally, bankruptcy doesn’t make your situation any better.

You’re safe from your creditors.

Is bankruptcy helpful

But life isn’t all about money.  Peace of mind has a value not measured in dollars and cents.

For some seniors, the fact that they owe money they can’t pay is a source of stress.  Even when they know that the pushy, threatening collector can’t take anything from them, they lose sleep and emotional security.

Bankruptcy might have a benefit to those stressed out seniors, not because it’s necessary to preserve their assets, but because it’s necessary to for their peace of mind.

Bankruptcy and the next generation

Lots of elders are intent on leaving something financial to their heirs.

I hear it repeatedly from those getting along in age:  they want to leave their home to their kids.  They want to keep paying on a life insurance policy, even though no one is dependent on them for their care.  They are stretching themselves financially to give some value to their heirs.

Here’s where bankruptcy makes it possible to leave an inheritance to the next generation.

The exemptions that are available in bankruptcy are not available to a probate estate.  Probate will protect the homestead if there is a surviving spouse.  No surviving spouse who  needs the home to live in, and the home may be sold to pay the elder’s debts before anything goes to the offspring.

Most revocable trusts direct the successor trustee to pay the debts of the person who has passed away before distributing the trust estate to the beneficiaries.

Neither probate nor revocable trusts make it possible to avoid judgment liens that attach to homes.  Bankruptcy does.

So, by eliminating debts and perhaps liens as well, a senior intent on leaving a financial legacy to their survivors maximizes their gift by wiping out their debts during their life time.

Not a bad thing, perhaps.

More

Passing a home to kids without probate or risk

Image courtesy of Ed Yourdon and Flickr.

Marital Separation Doesn’t Require Two Homes

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Split the sheets in California, and your wages are no longer community property.

That’s because property acquired during marriage but after a marital separation isn’t community property.

That’s been California law for a long while.

The sticky wicket has been drawing the line when the marriage has broken down and the couple has separated.

“When” they separated determines whether the estranged spouses have to split their earnings with each other.  It determines whether the creditors of one spouse can reach the wages of the other to pay the other’s debts.

Can estranged spouses live under the same roof and be living “separate and apart”?

Supreme Court makes separation expensive

In 2015, the California Supreme Court ruled that a couple isn’t “separated” when they live in the same house.  Even when they  shared little else besides the address.

In the Bay Area,  land of ruinous housing prices, I’ve seen many estranged couples continuing to share a house for a long while because neither can afford to move out.

Yet, according to the Davis decision, a couple is not separated and they continue to acquire community property until they no longer live in the same dwelling.

New law looks beyond common address

The justices kinda invited the legislature to change the law if they didn’t like the Davis result.  And they did.

New California law provides that spouses can live “separate and apart” under the same roof for purposes of California community property law.

Seven things you probably didn’t know about community property

The new law makes determining the date of separation messier, but more in conformity with economic realities.

A court trying to determine whether assets are community property has to look beyond the residence address.  Other indicators, not just where the spouses live, can show that there is no intention to resume the marriage.

Why this matters

Assets acquired during marriage and before separation are community property.  Simplest example is wages.

But suppose one spouse starts a business or writes a best seller when the marriage is rocky.  If there has been no separation, the business or the book royalties must be divided equally.

If STBX files bankruptcy

If the spouses have separated, different result.  The new asset is the sole property of the spouse who created it.

Or, more prosaically, suppose one spouse buys an expensive new car.  If they’ve separated, the debt is exclusively the responsibility that of the borrower.  If they aren’t living “separate and apart”, the debt is payable from the community.

Dividing debts in divorce

The new look at what it means to live “separate and apart” will inject more reality in the the “when” question, at the expense of making the determination more complex.

Image courtesy of  John Getchel  under a Creative Commons license.

Wage Garnishment Survival Guide

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Gavel and money in wallet isolated on white“Your wages have been garnished, ” reads the letter from your employer.

Do nothing and twenty-five percent of your after-tax earnings will be sent to your judgment creditor.

So, do something:  keep reading this action guide for Californians subject to a wage garnishment.

This guide has three parts:

  • the short run guide for minimizing the hit to your income,
  • the medium range attack on the judgment, and
  • the long run look at the bigger picture of your personal finances.

Wage garnishment explained

A wage garnishment is a legal order that a creditor with a judgment against you can obtain from the court to collect on its judgment.

10 things you need to know about judgments

The existence of a judgment means that a court has already issued its order finding that your creditor is entitled to a sum of money from you to satisfy a debt.

If the system has worked as it’s supposed to, you should have been served with a copy of the complaint when it was filed.

Due process requires that before a judgment is entered, you get notice of the lawsuit and a chance to defend against it. Increasingly, these days, that doesn’t happen as it is supposed to.  More about that in our discussion of medium range survival tactics.

California is among the majority of states that allow a judgment creditor to intercept your wages at the source, your employer, to collect on its judgment.  Both federal law and state law impose a cap on how much of each paycheck the creditor gets.  State law can protect more than the federal law does;  it can’t protect less.

Here, we are looking at the garden-variety judgment for credit card debt or medical bills.  There are different rules governing collection of taxes and support that we won’t deal with today.

1.  Protect Your Paycheck From Garnishment

The wage garnishment entitles the judgment creditor to 25% of your paycheck, after mandatory deductions are subtracted.  But that’s the maximum the creditor gets.

You get a chance to show that you need more than 75% of your earnings to support yourself and your dependents. Cal. C. of Civil Procedure 706.051.

But to exercise that chance, you’ve got to fill out a form.  Are you game for that?

Claim exempt funds for support

With the notice of garnishment, you should have been served with a form to claim the exemption for money necessary for support.  To claim the exemption in wages, you need to also complete the form financial statement.

Note that the financial statement asks for your monthly income.  That’s easy if you are paid once a month, or twice a month. Watch out, though, if you are paid weekly or every two weeks.  There are 4.3 weeks in a month.  Figure your weekly income, then multiply by 4.3.

The claim of exemption and the financial statement get sent to the levying officer, not the court, and not your employer.  That information is shown on the notice of levy.    The back of the notice form has instructions for the judgment debtor; read them carefully.

Creditor can agree to allow exemption

The levying officer delivers your claim of exemption to the judgment creditor, who can accept your claim of exemption, or can request a hearing before a judge.

If a hearing is required, you will get a completed copy of the notice with the time and place of the hearing.  It will look like this.

If there will be a hearing, you need to appear, with evidence in hand about other sources of income, if any; proof of your expenses; and any other documents that support your need for all or nearly all of your wages.

You can also negotiate directly with your creditor for some alternative way to pay the judgment.

2.  Attack The Judgment

Wage garnishment is available only if a court has properly determined that you owe the money in question.

If you participated in the lawsuit, lost, and didn’t appeal, the matter is closed.  It’s a done deal.

But if the judgment supporting the wage garnishment was news to you, if it was entered because you didn’t appear in the suit, you may have a chance to fight back.

California law allows you to move to set aside a judgment that was improperly entered.  “Proper” here refers to the procedures involved, not the merits of the claim.

Grounds to set aside a default judgment include excusable neglect, lack of actual notice, or lack of subject matter jurisdiction.

Setting aside a judgment requires an understanding of the issue, attention to detail, and prompt action.  Sit on your hands and you may be barred from available relief because you waited too long.

The Sacramento County Public Law Library has a great guide to setting aside judgments.  If doing it yourself looks too difficult, a lawyer can help you.

Setting aside the judgment is probably only worth the effort if you have a defense to the substance of the lawsuit.  It’s a lot of work if at the end of the day, you are still liable for the debt.

3.  Assess Your Finances As A Whole

Your time and energy are precious commodities and come in limited supply.  Before spending a passel of time and energy defending yourself from this judgment creditor, take a look at all your financial obligations.

Ask yourself: Will managing this debt leave me able to pay everyone else I owe money to?

If not, get some help looking at the big picture.  Reputable credit counselors can help you with alternative payment plans.

I don’t recommend debt settlement schemes, however.  The concept is appealing, but in practice, it seldom works to solve the entire problem.

Bankruptcy lawyers are experienced in looking at debts and assessing whether you can dig yourself out of a financial hole without the help of available bankruptcy laws.  A bankruptcy filing stops a wage garnishment and usually eliminates your liability for the debt for all time.

Read more about bankruptcy and the alternatives.

 

Image:  © Africa Studio – Fotolia.com

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Redwood City, CA 94063
Phone: (650) 694-4700

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