Interestiong phone call from a collector.

[optimistic1]

So, I live in a community property state, each spouse supposedly is liable for the debt incurred during a marriage, blah, blah, blah.

This is a highly debated issue, and most dont understand the specifics of it, including some attorneys that practice here in my home state.

According to the BK Code, a non-filing spouse can receive a hypothetical discharge of a filing spouses debt.

But, there are many specifics to that code, many, that I dont even understand myself.

But, lets get to the phone call.


CITIBANK ATT UNIVERSAL CARD.


They ask for my wife, I tell them, they can speak to me, I am the husband.



The first sentence that comes next is.


"Please understand that you are NOT legally responsible for this debt."


So, with that being said, some creditors, simply do not understand, that I could be legally responsible for the debt, according to "some" specifics of the code.


This is a subject that still baffles me, as to no one, including attorneys, and creditors can get this thing understood.

[AngelinaCatHub]

At that point, I would have said, "this is a community property state. "You speak to me or you speak to no one at all, and not call here again." Then ask name. You won't get bothered again, I'll bet. 'Hub

[optimistic1]

Well, see, thats the thing, they still spoke to me, but what was ironic, is that they told me that I wasn't legally responsible for the debt, this goes against what many websites and people state about a community property state.

That, the creditors can "go after the non-filing spouse" a common phrase I see on lots of posts and websites.

The creditor themselves told me Im not legally responsible.

Although, this is simply a collector contacting me, not someone that actually knows the laws.

So this is all speculation at this point.

But I still thought that it was interesting nonetheless.

[treehugger1]

Collection agncies can be very tuned into the various state laws. I live in Oregon and over the past several months I have informed the caller that I am recoding the conversation and very clearly tell them not to make calls to the number again. Nowhere that I have found in my state statutes is there a requirement that requires I notify them to C&D by USPS mail. I never hear from the CA's again. I'm guesing they have "some" access to state laws, and will abide by them. In terms of community property states, I have to wonder if all states consider "debt" a community issue betwen husband and wife. It could be that only assets are shared. Just thinking out loud.

[optimistic1]

No, if you live a non-community property state, you are one of the lucky millions. The rest of us that live in one of the 9 community property states. The BK laws get all complicated. And the lenders that live out of state, for some reason, think they know the law and try to sue a non-filing spouse for the filing spouse's debt. Which, they can, but only under certain specific circumstances. But, for the most part, they cannot sue, I have asked about 5 attorneys this very question, and they told me that the majority of the credit card lenders simply put the account in the Discharged stack of paperwork.

But, I have read of some people having to deal with this issue. Although, I cannot find much information on it.

[optimistic1]

Its not up to the collector to decide if your responsible or not for the debt a judge will do that. In a community property state your going to be held liable until you can prove why you shouldn't be. And I am not about go into all the reasons here.

Please read my post below

[optimistic1]

Its not up to the collector to decide if your responsible or not for the debt a judge will do that. In a community property state your going to be held liable until you can prove why you shouldn't be. And I am not about go into all the reasons here.

Sorry but that is absolutely false, and your wrong.


The NOLO Chapter 7 Bankruptcy clearly states that the non-filing spouse in a community property state is not held liable for Marital Debt.

In addition, the IRS website has a Discharge Provisions page, which clearly states that a non-filing spouse does in fact receive a hypothetical discharge of marital debt in a community property state.

In addition, I have spoken with 7 attorneys within the last two weeks, all have practiced here in Arizona for more than 20 years. They have all reaffirmed me that in fact a creditor cannot and would not even win in court if in fact they tried to sue based upon that misinterpreted premise.

I have done lots of homework on this very subject.

Please, dont add to the confusion.

Now, under certain circumstances they could sue me for some of the marital debt, if, my spouse was to die, or we divorced one another. And there are some other parts of the code that state they can collect from me, any pre-marital property, like if I own a boat and such.

But I am talking about 100% Marital Credit Card Debt. And under those circumstances they have no right to collect from or sue me.



Read all the way at the bottom, your telling me the IRS has it wrong?

http://www.irs.gov/irm/part25/ch13s04.html

Second paragraph, your telling me this attorney that practices in a community property state is wrong too?

http://www.krmbankruptcy.com/PracticeAreas/Bankruptcy-Divorce-Community-Property.asp

Pages 2 through 9, your telling me that the State of Idaho has it wrong as well?

http://www2.state.id.us/ISB/sec/bnk/BNKNewsletterMay08.pdf

And last but not least
Please read page 250 in the NOLO Chapter 7 book, under, Postbankruptcy Attempts to Collect Debts. Third paragraph.


I hope this puts this topic to rest, if its Marital Debt, that was incurred during the marriage, they could sue the non-filing spouse, but they would lose.

[danaf]

One of the mods should make this a sticky under c. prop. for bk.

[lrprn]

Community property law, divorce laws, and the IRS laws make for a very uneasy threesome with significant differences between states in how the three interact, especially when bankruptcy is involved.

There is no one right answer when you live in a community property state and want to file bankruptcy alone without your legal spouse. This is a situation where sound legal counsel from a very experienced bankruptcy lawyer familiar with the community property law and case law regarding community property and bankruptcy in your state is essential to understand if your spouse will indeed be held responsible for debts incurred while you were married (including credit card debt) if only you file.

See http://www.************************/...nity-property/ to understand the impact of a recent court decision involving bk and community property in California.

[danaf]

Right. I read a lot of Cathy Moran's stuff when I was trying to sort out the impact of filing. That is how I learned my bk would protect both of us going forward. Again - this thread should be made a sticky. The c. prop. stuff does come up often.

[optimistic1]

What is frustrating is that it is often misinterpreted, I see lots of posts and websites saying things like " the creditors will come after the non-filing spouse ". It just wont happen under normal circumstances, and if they did try to, they would lose in court. Several attorneys I spoke to said, that the creditors will just stick the account in the stack of discharged, and that will be the end of it. They treat it like it was a non-community property state. But in the likelihood that they would try to challenge it, they would lose.

[danaf]

well - I would think the original creditors aren't so worrisome but rather the zombie collectors. No doubt the original creditors sell bk'd debt. But all one has to do is ask for validation from a zombie collector and they won't have it. But still, I can imagine it would be a hassle and hope it doesn't happen to us.

[optimistic1]

I see you just were discharged, well, update on the forum if they do try and start to collect from the non-filing, and reference to the Section in the NOLO guide, (Postbankruptcy Attempts to Collect Debts), there is a blank template that you can fill in the blanks and send to Third Part CA's that should put them out cold.

[optimistic1]

Ok, I just wasted 2 minutes of my life reading your post. Do you always attack people on here?

And no, I didnt JUST read a book, I consulted with 7 attorneys, so, talk about firing up a flame gun, I would check your own self. And I never posted a question, I posted a conversation about a collector, so again, you have a problem with reading comprehension.

You misinterpreted what my original post intended. If you actually read it instead of just insulting me on this forum, you would have seen the part where I very clearly stated.

"So, with that being said, some creditors, simply do not understand, that I could be legally responsible for the debt, according to "some" specifics of the code."


Keyword being "some"



And I'm NOT sorry if I offended you, considering you used the phrase "biotch slap" in your last post.

Please dont be mad that the original quote of mine now sticks 100%

"Sorry but that is absolutely false, and your wrong."

You stated

"In a community property state your going to be held liable"

That is false, and wrong, you don not have to defend yourself as to why you are not liable. The community is seen as 1 entity, not two.

Based on some of your sentences, I can see that you are still, very clearly confused about community property states.

[optimistic1]

Done.