Asset case?

[eddiep]

I have a couple questions! And I have to say this is the BEST forum I have ever seen, everyone is so supportive! Thank god I have a place to talk about this! I would have gone crazy with fear if not for this site!

We are hopefully filing chapter 7 soon and my husband was in a motorcycle accident last year. His lawyer is seeking $65,000 in damages from the person who hit him. We will declare any money we get as a settlement as an asset of course. So I guess that means we will be an asset case. How is this different? Is it going to be more of a pain in the butt or will the trustee be psyched to get that from us and leave us alone?

I have notified all of my credit cards that we are filing chapter 7 as my attorney advised, but we do not have a case number and do not have a date set yet. I know they can't call me anymore (right?) but can they do anything else to me, like garnish wages, take me to court, etc before the date gets set?

I have my mortgage, checking account and two BIG credit cards with Bank of America. I am afraid they will take money out of our account to pay on the credit cards or close my account. Can they do this now that I have notified them of my intention to file? I have also heard of others here having their checking account closed, at what point does that happen?

[Duke89]

You would be very, very wise to move your checking account and any savings accounts you have to a bank that you're not planning on screwing over with your bankruptcy filing. Do this ASAP like now! If you read the very fine print in a lot of your credit card agreements you will notice that most of them have something in there called the "right of offset" which basically means that if you stop paying them the money that is owed to them they have the legal right to settle the debt by taking any funds that you have deposited with them in a checking or savings account. I speak from experience here as I found myself in the same position that you're in. I asked my attorney about this and she told me that if I wanted to keep the money I'd better find a bank to play nice with. If you have a lot of credit card debt it can be challenging to find a bank that will meet your needs. If you're in this boat look for a local community bank as opposed to the large national or regional banks.

[eddiep]

They don't have to have a court order to do this?

[Duke89]

A court order is not usually needed as it is part of the contract you agreed to when you agreed to the terms and conditions of the credit card. I worked at a bank for a number of years and I was always amazed at how many rights people give up when they sign up for credit cards. The banks are very sneaky and they have invested heavily in attorneys to help mitigate the fact that not everyone pays back what they've borrowed (regardless of the circumstances). Do yourself a favor and take the appropriate steps to protect yourself and put your family in the best possible postion to take control of your financial life.

As far as calling you........they can still call you unless you've taken steps under the Fair Debt Collections Practices Act (FDCPA) which you can research online. Telling the creditors that your are GOING to file bankruptcy is not the same as actally filing for bankruptcy. You have to file the paperwork before the automatic stay goes to work which is why most creditors will ask you for the case number. Once you have that case number the calls stop pretty quickly.

[eddiep]

Thank you Duke89!
Thank you so much for the advice! I spoke with an attorney that represents one of my cc this morning. He informed me that he is going to continue to pursue our case until we file, apparently alot of people say they are going to file but never do. So I called my lawyer and he confirmed this and told me that they may or may not attempt to bring us into court over this but not to worry becasue the court is so back logged that it would take him 4 to 6 months and we will have already filed by then. I also asked him if BoA can take money from my checking like you said and he said "You still have money in there? You need to get to the bank this morning and take it out right away, they most certainly can and will take it without any notice." He appologized and said he always warns clients about this and thought he had told me at our meeting. My hands were shaking all the way to the bank, I thought I was going to have a heart attack! I'm waiting in line at the bank thinking there could be someone sitting at a computer at BoA taking all my money right this very minute! Every cent we have was in the bank! I would not have been able to pay my mortgage this month and with money so tight I would never have been able to catch up. I called and cancelled the automatic withdrawal for my mortgage payment, so I dont get hit with an overdraft charge. It is due tomorrow and will go to the branch tomorrow and pay in cash. YOU MAY HAVE SAVED MY HOME!!!! Thank god for this forum!

I also asked my lawyer about what is considered income on the median test. he said my 401k loan is considered income but the loan from my parents is not. Someone else here had told me it would count as income. Is it different state to state? Who is right? Hopefully my lawyer is... I hope he is not an idiot!

[Duke89]

I'm glad I could be of assistance to you. Best of luck to you.

[ready2puke]

Oh you guys...I love this forum..