New Pro Se Chapter 13 Filer with questions

[justbroke]

I don't know what you're asking. Filing for bankruptcy is different than my statement of actually filing and receiving a discharge. You did not follow through with the bankruptcy, and that would have stopped the lawsuit. Unfortunately you are where you are now at.

You do know that you don't need money to file? If you are below poverty (150% I think), you can file In Forma Pauperis. I would have hoped the clinic attorney would have told you that. If you are granted to file as fee waived... no money required. If it is rejected, you can file in installments instead.

To me, and you have permission to yell at me if you want, you are not really trying to get this done. You want it done, but I see no fire in the belly.

As for the Judge, it depends on so many things. When you go before a judge and seek a reconsideration, you have to tell them legal reasons that they should reconsider or reinstate the case. Because you waited so long, you lost the opportunity to file a Motion to Reconsider or a Motion to Reinstate Case and then list that you contemporaneously filed the required documents, paid any required fees, and that the case should be reinstated. Judges give some leeway to Pro Se debtors, but they are not there to actually walk you through the case (providing legal advice). You have to know this stuff cold turkey, or seek help everytime from the Pro Bono clinic.

[Dopey]

I realize I waited a long time. The reason being I didn't want to waste any more money on dismissed cases. I'm thinking of moving to LA county and filing there instead. I honestly don't feel I'm going to get a fair shake in Riverside county.

[Dopey]

One last question about my filing. I have a secured Visa rewards card that I use for my monthly expenses and pay off every month. It's from Lan Airlines which gives me air miles so my wife can use them to visit her family in Peru. I have $1,000 deposited in a secured savings account to secure the credit line. My question is do I need to list this card as a debt even though it's secured? Also, do I need to list the savings account linked to it as an asset? If I do list it then would I just re affirm the debt if I wanted to keep the account open? Not sure how to handle this.

[LadyInTheRed]

To me, and you have permission to yell at me if you want, you are not really trying to get this done. You want it done, but I see no fire in the belly.

That really does seem to be a big issue. Not only in the BK case, but in the Ford case. Have you tried to do anything about that since November? There are procedures for getting a default judgement vacated. But, the longer you wait, the more difficult it is. Not only do you have a statute of limitations defense, but it sounds like they sued you in the wrong county. But, that's getting a little ahead of the game. You first need to get rid of the judgement.

If it was a small claims case, here is info on how to have the judgement vacated: http://www.courts.ca.gov/12726.htm

If it wasn't a small claims case, you really should consult with an attorney or go to a legal clinic for help. If you decide to try to do this on your own, I did an internet search and found some links they may help.

California Code of Civil Procedure 473.5 discusses a motion to set aside a default when you weren't served: http://www.leginfo.ca.gov/cgi-bin/di...0&file=469-475

Sacramento County Superior Court has a guide on how to file a motion to set aside a judgement, including a sample motion: http://www.saclaw.org/pages/motion-relief-default.aspx. Some of the procedures will probably vary from Los Angeles, but much of it is based on state law. Anytime there is a reference to a local rule, you need to check the local rules in the L.A. court and make appropriate revisions. Keep in mind that there often will not be an equivalent local rule.

Here's another helpful link: http://www.justanswer.com/law/14b0k-...e-default.html. The suggestion to go to a law library and use Rutter's Civil Procedure Before Trial is a good one. You may even find a helpful librarian who will point you to other sources of help.

You may find other help in an internet search. Beware of doing this based on information you find on the internet. You need to read and understand the relevant law and court rules to make sure you know what you are doing.

Getting the judgement vacated/set aside is only your first step. The Plaintiff will likely serve you in which case you will have to file an answer to assert your affirmative defenses. If they serve you in the LA case, a motion to dismiss may be more appropriate. Then they would have to file a new case in Riverside County and serve you again and you would file an answer asserting the statute of limitation as an affirmative defense, in addition to whatever other defenses are appropriate.

You might also try finding a legal document assistance service for help with a motion to set aside the judgement. I don't usually recommend such services because they are not a substitute for legal advice. But, this motion is so procedural that they could be useful. Just remember that if they help you, you will still be acting as your own attorney and responsible for the content of anything you file.

[LadyInTheRed]

First, don't file a Chap 7 just to get rid of that Ford judgment. If it really is past the statute of limitations, you should be able to deal with it without filing BK.

One last question about my filing. I have a secured Visa rewards card that I use for my monthly expenses and pay off every month. It's from Lan Airlines which gives me air miles so my wife can use them to visit her family in Peru. I have $1,000 deposited in a secured savings account to secure the credit line. My question is do I need to list this card as a debt even though it's secured? Also, do I need to list the savings account linked to it as an asset?

If you are going to file another pro-se BK petition, please do a lot of reading and better educate yourself first. This is a pretty basic question that shows you are not ready to file BK pro se.

If there is a balance on the credit card when you file it, it is a secured debt. The savings account is your asset.

If I do list it then would I just re affirm the debt if I wanted to keep the account open? Not sure how to handle this.

It is very rare for credit card accounts to survive BK, even secured cards. If you file BK, the account will likely be closed. But, there are always exceptions. You could call the credit card company and ask their policy.

[Dopey]

I know it's a pretty basic question but I'm guessing there aren't a lot of people with secured credit cards filing BK. It's something you usually get after a BK, not before. I have an accounting background so I understand assets and liabilities. Probably best to close the account before filing. I just don't want to loose the air miles I've acquired.

I haven't done much with the judgement due to a lack of time and resources. I just finished working 12 days in a row and start another 12 in a row tomorrow. My evenings are spent doing the chores around our apartment including cooking and laundry. Then I get to check my son's homework. Then I get to spend time keeping my 92 Jeep with 300,000 miles on it maintained and running since I can't afford to pay someone else to do it. Then when we run out of groceries I get to go to the dumpster behind Stater Bros. and or Albertsons to dig for something to feed my family and hope the homeless haven't taken everything edible already. Then I get to come home and cook it and hope no one gets sick from it because even though I pay $400 a month for health insurance which is now required by law, I don't have the $20 co pay to actually use it.

In other words I'm between a rock and a hard place. The thing that's really killing me is the support ($750/month) I'm paying to my son's mom while he's living with me. That's another problem for another forum.

The problem with the waivers is they go by your gross income, not your take home. I make around $60,000 a year gross which puts me just under the median income level for my family size. I'm no where near the poverty level. The problem is what I take home after tax, benefits, child support, arrears, and this new garnishment. It just covers our rent on the cheapest apartment I can find and the utilities and usually gas for the Jeep so we can get around. There's literally nothing left for groceries let alone attorneys.

The funny thing is, Ford's lawyer came after me after my Chapter 13 was dismissed. Had I not tried filing BK, they probably would have never come after me for such an old debt. Is mine the only case where bankruptcy has actually made things worse?

I'll take your advice Lady in Red and try fighting the garnishment first. Hopefully it will go smoothly with my limited resources. I don't know which court it's in because I never received it. Originally it was in small claims in Indio back in 2001 and it was around $13,000. Now it's over $40,000 with 14 years of interest so I'll have to try to get a copy from the court in LA where the garnishment order came from.

I'm planning on taking a day off next month and going to the courthouse to start the fight. I'd go sooner, but they're not open on holidays or weekends and we have several projects going at work right now so a day off is impossible at the moment. Thanks for all your help.

[Drazil65]

Side note: you have a wife that does not work and a 17 yr old son at home and you are cooking, doing laundry and chores when you get home? Also, if you have a secured cc with $1000 to secure it but get your meals from a dumpster then rethink those priorities. Just Saying.....

[Dopey]

The dumpster diving just started in November when my son moved in, his mom refused to close her case and or send us any money, and also when I received the latest garnishment from Ford. We had no cash and no groceries so it was our only choice. My wife just got her documents last month and has been actively looking for work.

The chores I agree are pretty ridiculous with a non working wife, I totally agree. The thing is she disagrees. She says her mom didn't raise a maid. Believe me, I've thought of throwing her out. My son helps out but stays pretty busy with school, homework, and currently wrestling.

$1,000 deposit to secure card doesn't mean anything. I just took the $1,000 I was going to spend on bills one month, used it to open the account, then used the card to pay the bills. Next month, I used my bill money to pay off the card then used the card again to pay the bills. Haven't paid a penny in interest and I've racked up a lot of air miles.

We were living check to check up until November but the change of custody and the garnishment pushed us over the edge. The good thing is we still have a roof over our heads and our lights are still on. I'm doing every thing I can to hold it together.

I work in HVAC and our company is slammed at the moment. Multiple projects at the same time. Believe me, I've asked for time off but I'm the senior tech so it's just not possible at the moment.

[LadyInTheRed]

The chores I agree are pretty ridiculous with a non working wife, I totally agree. The thing is she disagrees. She says her mom didn't raise a maid. Believe me, I've thought of throwing her out.

Does she think your mother raised a maid? Or maybe she just thinks your mother raised a push over. Tell her that she must contribute to the household and that the contribution of the person cooking and cleaning is just as valuable as the person working to bring home a pay check. If she thinks it is right for you to work all day and come home and do all the cooking and cleaning, then yes, you should throw her out. And you are worried about having a credit card so she can fly to Peru!? You really need to stand up for yourself!

You need to take charge of your life, both personal and financial. Things don't just happen to you. You can't control the actions of others, but you can decide how to react. Take some responsibility for your situation and do what needs to be done.

There is no reason you should let your wages be garnished for a debt that is past the SOL and when you weren't properly served. It is amazing that you have let that happen since November. Figure out what court the judgement is in. Then follow the procedure in the first link I provided. If you don't have a copy of the documents regarding the garnishment, ask your employer for a copy. You don't need to take time off work to file a motion to vacate the judgement. File the papers by mail or have your wife go to the court and file them for you. Or, go during lunch. If you need help, call the small claims advisor: http://www.courts.ca.gov/selfhelp-advisors.htm. You will have to take time off to go to a hearing. Somebody may have to wait a day to get their air conditioner fixed.

[Drazil65]

Ditto to EVERYTHING LITR just said...and then some!!!!

[Dopey]

This is turning in to more of a marriage counseling forum than bankruptcy. I realize I have marital problems as well. Believe me, it's better to do the dishes myself than trying to get my wife to do them. She has a lot of mental problems and go's in to fits of rage frequently. When she does the dishes she deliberately breaks them then slams pots on the sink denting it. Then she goes around the apartment trying to get me or my son to come to the kitchen to lecture us on why the dishes got dirty in the first place.

It is safe to say that my financial problems are directly related to relationship problems.

[justbroke]

Dopey, we are full service. Seriously though, we try to find the things that are affecting your financial condition and then try to offer personal experience and advice based on similar situations. This is definitely not a marriage forum and it is definitely not a relationship forum. However, many times a person's finances are a direct mirror of the relationship that is maintained. The reason everyone is laying it on you is that they actually feel bad for you and the position that you are in. We are only asking you to take charge and get things done.

I know it has been tough for you based on the things that you have posted. You are tired, run down, and feel like the entire world is against you. We are not. This forum is a "support" forum first! We just happen to specialize in bankruptcy. I know from experience that this Bankruptcy support forum, BKForum, has prevented at least 3 suicide attempts since I have been here. Your financial life is not the end of your life. You can get through this and we are here to help you in whatever manner we can based on the tools and information available to us.

[Dopey]

So I've done a little digging into the garnishment case. It turns out they filed an application for renewal of judgement in Indio last June. Apparently it was granted. Their proof of service was by mail and had my current address on it. I don't remember receiving it but it's quite possible. LA County is only enforcing the garnishment because I work in LA county. The problem I see is that although I returned the vans to the dealer in 2001, they didn't sue me until 2004. So when they filed for their renewal of judgement it was within the 10 year statute of limitations. So at this point I'm not sure what my next course of action will be. It looks like their proof of service is legit and the judgement has been legally extended another 5 years.

It looks like I may be back to the Chapter 7 filing. I also have some tax debts to work on as well. I owe the IRS $25,000 still and was thinking of trying an Offer in Compromise. But I also owe the State Board of Equalization $10,000 for a disputed return from around 2001 as part of the failed business. According to the Board of Equalization, the statute of limitations doesn't apply to them and they say they will continue trying to collect from me until I pay them or die. I settled up with the Franchise Tax board already.

The thing is I can't put any money toward any of these debts because everything I can spare is going towards interest on the child support arrears. The child support interest is one of my largest expenses at around $8,000 a year. It;'s also the main reason I filed the chapter 13. I was hoping to work out a 5 year payment plan reducing or eliminating the interest. The child support office will not drop the interest. They leave it up to the ex wives who will never agree to stop collecting from me.

Chapter 13 I was told by the judge is impossible and Chapter 7 will only address the garnishment. So what's next?

[Dopey]

As a side note the only way I will be able to afford filing BK again will be to not pay my March rent which will put me in danger of being out on the streets. Pay day loans at 600% percent aren't even an option because they only go up to $300 and take the interest out up front and I need at least $400 to file. I have no assets left to sell and have to way of getting any kind of loan. I really need some good advice.

As another side note, my wife keeps getting calls from jobs she's applied for. The thing is, the people calling her are recruiters, not the actual employers. They keep giving her tests, interviews in person and skype, and always want her to sign an agreement saying she will work for them, not the employer. One recruiter even tried conning her into a pyramid scheme. They said "Do you want to own a job or be financially free?" I guess job hunting isn't what it used to be. She hasn't even been offered any jobs yet and the recruiters are telling her that they can only get her $11/hour for a temp accounting job (with a degree in business and finance) which is what she used to make as a tax preparer. Plus they want her to commute to down town LA where the parking alone is $25 a day, plus gas, and two hours in traffic each way. Not even worth it. Where are the real jobs???

[LadyInTheRed]

The problem I see is that although I returned the vans to the dealer in 2001, they didn't sue me until 2004. So when they filed for their renewal of judgement it was within the 10 year statute of limitations. So at this point I'm not sure what my next course of action will be. It looks like their proof of service is legit and the judgement has been legally extended another 5 years.?

The way I read your earlier post, I thought the judgment was recent. The statute of limitations stopped running once they filed the lawsuit, which it sounds like they did do before the SOL ran. A judgment in California is good for 10 years but can be renewed every 5 years until it is paid. If I am reading the law regarding renewing judgments correctly, the judgment would have been renewed for another 10 years, not 5.

According to the Board of Equalization, the statute of limitations doesn't apply to them and they say they will continue trying to collect from me until I pay them or die.

I don't think that is really accurate. It sounds like they have recorded a lien against your property, in which case it is true that the statute of limitations no longer applies. If there is a lien, it is good for 10 years and can be renewed twice, according to this SBOE Publication: http://www.boe.ca.gov/pdf/pub54.pdf

So what's next?

You really should sit down with an experienced bankruptcy attorney or two or three. Because the child support and taxes are your real problem, it very well may be that BK won't help you. But, you should get some expert advice to make sure. Yes, the judge is a BK expert, but it is not his job to advocate for you.

Have you done anything more about the support issue since posted? That seems to be your real problem. If your wife is getting child support for a time when your kids lived with you and you can prove it, then there must be something that can be done. You act as if your ex wife has all the power. Don't wait for her to go to the support office and tell the truth. Take legal action to oppose her.

Your wife should not be so picky about the job she takes. The recruiters are responding to her applications because they are placing ads to fill the jobs they have been hired to fill. Yes, she should stay away from the scammers. But, taking a temp job where you work for the agency can lead to a permanent position. Many employers prefer to hire temps so that it is easy to get rid of somebody that doesn't work out. It is a very common way to try somebody out before hiring them permanently. She can also work with a recruiter to find a permanent job. The employer pays the recruiter, so she might as well let them help her find a position while she continues to work on her own. Many people have to take jobs that don't fully utilize their degrees. We do what we have to do to survive. My sister lives in OC and after a long period of unemployment just took a job in LA with a 2 hour round trip commute for not enough pay. But at least she is making more than zero. She knows it is easier to find a job when you are already employed. Things are tough, but they are getting better. Your wife should take what she can get for now and keep an eye out for something better.

Absolutely do not take a payday loan! That will only make your situation worse.