Equable Ascent seeking judgement, but.....

[Naptime]

Recently I had a process server present me with a small stack of paperwork. An Attorney on behalf of Equable is apparently going to file suit for unpaid balance on an old WAMU card. The amount appears somewhat inflated but it's been years since I've paid on it so it might be correct.

I am unemployed. Have not had any official employment or filed a tax return in 20 years. Own nothing but an old SUV, and have no bank accounts. Personally, I'm judgment proof.
But I live in a community property state and am technically married, did so nearly 20 years ago. My wife has never listed me on any document, files taxes as single, and I have never listed her on any document either.

I realize the chances of someone connecting these dots are extremely slight. But should it happen, could her wages be garnished? I suppose they could also threaten a lien on the house (in her name) but any equity is exempt.

[jacko]

If the last payment on account is 6 yrs and one day old, than you have a statue of limitations defense. Some states are 3-4 yrs, so check with your states SOL. Pull up your credit report which will tell you how old. You might want to let them know you are judgment proof and have no assets.

[Naptime]

It's not that old, more like the 3 year range. I would probably not contest this thing at all. My only real concern is for possible liability on her part.

[HHM]

In a community property state, you will likely have a problem. The default position is that all property is communal and if the debt was incurred "during" marriage, it is assumed communal debt, as such, any communal property (pretty much anything acquired during marriage and your wifes income) are at risk.

The burden is typically on the couple to prove otherwise.

[Naptime]

Here's another twist. I know I can file before, during or after to kill the matter. But another problem is she filed a 7 a few years ago.
I'm guessing she would still be vulnerable even if I filed.

[optimistic1]

Here's another twist. I know I can file before, during or after to kill the matter. But another problem is she filed a 7 a few years ago.
I'm guessing she would still be vulnerable even if I filed.

Make sure that when you file your Chapter 7 (if you qualify based on both of your incomes, and keep in mind that anything she owns is up for grabs), that you list the debt as "C", for community, in fact, list everything as "C". Then you wait, and ride out your case, and if no one objects to the fact that the community is not allowed to receive a discharge, based on her previous filing, then the community will in fact receive a discharge, and it will be too late for any creditor to collect the debt from either of you. See http://www.furlonglawaz.com/docs/married.pdf

This works, I can speak from experience, its a loophole and a hail mary, but there is so little case data on it and bapcpa messed with the laws that the courts are still figuring it all out, hopefully your in a state where 'they" (trustees, creditors, creditor attorneys) are still confused as to the intricacies of the collision of family and bankruptcy law. A 30 minute read through of the bkforum.com's community property sticky would highly educate them, but lets keep that our little secret though.

A 13 would work too, keep that on backup if it all fails, you still win.


You will have almost every attorney try to talk you out of it, entertain them with some of this information and see if they are willing, or go Pro Se, or certified document preparer.

[Naptime]

Nice angle.
Maybe I'm naive, but I'm hoping they wont find out about the marriage. Different last names and never any joint accounts.

[optimistic1]

Nice angle.
Maybe I'm naive, but I'm hoping they wont find out about the marriage. Different last names and never any joint accounts.

I find it far-fetched to assume that you have absolutely no trace of her whatsoever within a 20 year period. Besides, they will find out when you file for a Chapter 7, you will be asked a series of questions before and during your 341, your either going to lie under oath with a big banner looming over your head that says F.B.I., or you will tell the truth.

[optimistic1]

Nice angle.
Maybe I'm naive, but I'm hoping they wont find out about the marriage. Different last names and never any joint accounts.

Double-post, bkforum is not friendly to firefox. =(

[Naptime]

Trust me. There has never been anything listing us as married other than the wedding license.
Might be a good idea to try and do some public record searches to see what comes up....

[Naptime]

See "furlonglawaz.com/docs/married.pdf"

From the link...
4. CREDIT UNION LOAN.
During the marriage Joe borrowed $5,000 from
the Credit Union for living expenses for Joe and Sally. Only Joe
signed the loan agreement. Sally never signed anything to be
responsible for this debt. The Credit Union debt is a community
debt.
A. Sally’s liability for the community debt Credit Union loan
is discharged because of her bankruptcy.
B. The marital community receives a type of discharge also.
The Credit Union cannot collect the loan out of Joe’s future
wages because those wages are community property. The Credit
Union cannot collect out of any community property owned by
Joe and Sally.
C. The Credit Union can collect out of Joe’s speed boat,
certificate of deposit, and the $400 interest, because those
are Joe’s sole and separate property, and Joe incurred the
Credit Union loan. Arizona law provides that the sole and
separate property of a spouse that incurs a community debt is
liable for that debt.

This is exactly what happened with the exception of the state.

[Naptime]

AN UPDATE.
Spoke to the Attorney that handled the wife's chapter 7. She is in the clear because of her previous filing even if the creditor was not listed, (Beezley 9th circuit). So there's that. Also it appears they, so far, do not know I am married. I've searched the state recorder and there is no record of the marriage license under my name. Searching under the wife's name though does yield a hit. Weird.

Plan is to let them get their judgment against me. If they try to attach her assets, worse case would be the "nuclear option" of reopening her BK to add them. The Attorney thinks it's highly unlikely though.

[optimistic1]

Just cross your fingers they dont automatically list a "Jane Doe" as the possible spouse on the suit, I read that they do that, but cannot confirm.