Conversion and garnishment question

[TMC72]

My husband and I filed Ch 13 in 2007. In April 2010 we decided to convert to a 7 as we no longer had the home we were trying to hold on to. However, in Jan. 2010 our wages were garnished for a post-petition debt. The creditor was an individual (former landlord) without an attorney.

Our attorney told us that this would be a very hard thing to get resolved because it was an individual and not an attorney. They gave the woman one week to file a release of the garnishment and to return the money being held by the employer for the creditor.

They did not respond for the first 3 days. On the 4th day, the woman (creditor) responded and said she would take care of this that following Monday. Our attorney gave her 5 days to file the release and then she informed the creditor if it wasn't filed by then that they would be filing sanctions against them in court and they would be out more money.

As of last Friday, there were no papers filed.

Our attorney stated last Friday at 4pm that first thing Monday morning she would be filing for an emergency hearing or motion or something on this creditor because she is in violation of the automatic stay.

Our attorney told us that no one could remove the garnishment on the paychecks except for the creditor .....

Does this sound familiar to anyone??? Does anyone know what this emergency hearing or motion deal is? My husband and I are both confused and frustrated. After paying almost $700 dollars to this attorney we still have no relief on the garnishment.

[Tweeby]

Have you actually filed the ch7?

It can take a couple of weeks to get the word out to all of the creditors and stop the garnishment. Any money that has been garnished AFTER you file a ch 7 will be returned to you.

We had a problem getting a garnishment stopped. We have a hearing coming up this week in regards to the violation of the automatic stay.

[frogger]

The debt is post filing, so it is not going to be discharged. The chapter 13 does place an automatic stay on the garnishment action, however you statute of limitations is also placed on hold for this debt. You need to contact whatever court system allowed the garnishment on you with copies of your bk and they can/will cancel it.

Once you're discharged, the game is back on and the debt is still due.

[TMC72]

Yes, the debt is post petition on the Chapter 13, but it is a dischargeable debt in the Ch. 7 case. We are in a Chapter 13 but have filed for a Ch. 7 conversion as of a few weeks ago.

Our attorney states that we have to wait on the woman that got the judgment and put the garnishment on our wages to release the garnishment before it can be stopped, however, I was under the impression that the bankruptcy paperwork would stop the garnishment right away.

I just can't figure out why we can't get this garnishment stopped when we've already filed for the Ch. 7 conversion.

[SMinGA]

Something to clarify with your attorney: convert to ch 7, or dismiss the 13 and then file a new ch 7?

If you convert, the original file date stays. So debt incurred after the date of filing the 13 might not be dischargable if you convert to a 7. I don't know how that works, its a question for your atty.

But it would be eligible for discharge if you dismiss and file a ch. 7 (new) case.