Can this be done?

[CindyLou]

My friend is in trouble with a garnishment from her ex's car. She passes the mean test but doesn't qualify again for a 7 again until October of this year.

Can she file a 13 to stop the garnishment and then convert to a 7 once she qualifies? Or can she file the 13 just to stall and then wait and see if they file a relief from stay and then let the 13 be dismissed?

In other words does filing a 13 now keep her from filing that same debt on a 7 come october?

They have an order to garnish 800 per month starting next week and she has two kids to raise and gets not child support! GEEZ!!!!!!!!!

[AngelinaCat]

Hi CindyLou:

Go look at posts by JustBroke and then possibly PM him if he doesn't see your question first. He is very knowledgeable; filed Ch13 pro se, and then converted to a Ch7 on 2-19-1010.

My very best wishes to your friend!!

[justbroke]

I'm not sure that filing a Chapter 13 and converting it to a Chapter 7 will work. The majority opinion is that you must wait 8 years from filing date to filing date in order for a discharge to be entered in a new Chapter 7 case. The problem is, that if you file a Chapter 13 and convert, the date of the Chapter 7 case, will be the date the Chapter 13 was actually filed.

If she's head of household, she can make a claim in most States, and protect a certain amount of her wages from garnishment. Has she even looked at that?

Why isn't she just filing a Chapter 13 and sticking with it? The relief from stay isn't the kicker in the Chapter 13. That would just allow them to go after the vehicle, which, if they are garnishing, already repossessed and are trying to now collect on the deficiency. In other words, what relief from stay? It's immaterial anyhow.

So if she did let the Chapter 13 dismiss, they'll come back after her. She won't be able to file the Chapter 7 (or refile under any Chapter) for 180 days from that dismissal. So I don't know what that bought her.

Also, it's difficult to file a Chapter 13 in less than a week. Many attorneys won't touch them except on an emergency basis. Besides, how much you'll spend on the attorney, may negate some of this.

Definitely a rock and a hard place. Your friend should be talking with a California asset protection attorney and looking at CCP 706.051 regarding how much of a judgment debtor's money that is used to support a family can be touched.

[SMinGA]

http://www.fair-debt-collection.com/state-wage-garnishments.html#5

Says CA's garnishment says up to 25% of net pay.

Filing ch. 13 would stop the garnishment, but would require that she can afford a monthly payment. One can file an emergency petition with just the basic info & list of creditors and take up to 2 weeks to file the plan, but rushing in without having time to consult attorneys, etc. could be bad. Would mean she'd have to go with the first attorney she can get an appointment with, good or not.

[justbroke]

Says CA's garnishment says up to 25% of net pay.

Read the rest of the Statutes around garnishment. Even if you read that website it reads "net disposable income". If it's a head of household and the money is necessary for support... it can be deemed untouchable. That's why I suggested they read CCP 706.051 and seek an attorney.

I want to add what SMinGA wrote, and what I wasn't specific about. If you file Chapter 13 just to stave off judgments, only to have it dismissed and then file a Chapter 7 (because you now qualify)... don't think some creditor or the US Trustee won't file a "bad faith" dismissal on you. Be very careful when you "play" the system, because it could play you back.

[optimistic1]

WTF, how did your payments change JB?