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**bcohen** · 01-09-2014, 10:45 PM

I also live in Arizona, and filed for Chapter 7 last year. Like you, I am also a married university student, and graduating soon (this May, actually). Also like you, all of the debts were in my name alone, and incurred and defaulted long before we were married. I filed when I did due to being sued in October of 2012 by Gurstel Chargo for a Discover card which I quit paying back in March of 2009. I fought the lawsuit vigorously, and successfully had my wife dismissed from the suit (based on the fact that the debt was incurred and defaulted before the we were married) however they ultimately won a summary judgment for $8500 on a credit card with an original limit of $3200.

The main reasons why I filed were to protect the wages from my summer job (I make about $9000 in the summer and we need that money during the school year) and because employers in my field of study made it clear to me that they do a credit check, and that any defaulted debts must be paid, settled, or discharged in bankruptcy.

In my case, my wife does not own anything of value (no cars, no real estate, no fancy electronics) and is not employed either. We live in a small apartment in a relatively poor neighborhood. When I filed, I listed all of the property which we both own (required because this is a "community property" state) and asserted the exemptions for a married couple filing jointly even though I only filed alone. The only thing which I was worried that the trustee might challenge was the claimed exemption of $600 for money in a bank account (we actually had about $650) because for one person filing alone, you are technically only entitled to a paltry $300. Fortunately, the trustee did not try to squeeze $350 or so out of us, and let me be a "no asset" case.

In your case, you have to be extremely sure that neither you nor your wife have any property which cannot be covered by the exemptions for one person filing alone. The fact that you and her own real estate and vehicle(s) means that the trustee will scrutinize your case much more than he would for a person who rents and owns nothing but household belongings. You will probably need the assistance of an attorney to make sure that you will not lose anything as a result of filing for bankruptcy.

Furthermore, even though the debts were incurred before the marriage, if you were sued while you were married, then you should be aware that the complaint probably named you and "unidentified ex-spouse" and "unidentified spouse" as co-defendants. Thus, if you allowed a default judgment to be granted, the judgment could be enforced against your wife as well. Therefore, if any of these lawsuits or judgments took place after you were married, you need to check with the county recorder to make sure that there is no judgment lien attached to your home, and if so you will need to file a motion to avoid said lien during your bankruptcy. This is something which would be difficult to do without an attorney.

One final concern, which I did not have was the possibility of creditor objections. In my case, I quit paying ALL of my debts back in March of 2009, because my employer at the time started cutting our hours and shorting us on our pay. I feared that I might lose my job, and wanted to set aside money to pay my living expenses if that happens (which it did, 5 months later) so it ended up being a good financial decision. All of my debts were incurred from 2004 to 2009, and were for run-of-the-mill living expenses, so when I filed for bankruptcy in 2013, I knew that none of my creditors would have any legal basis to object. In your case, since you admit to purchasing thousands of dollars worth of gold coins for resale, and costly jewelry, it is possible that a creditor might object, but not likely since this allegedly happened 4 years ago. Again, this is something that you should discuss with your attorney.

**bluediamond2077** · 01-10-2014, 08:25 PM

Hello Bcohen, Thank you for the comment. I was sued and allowed them to get judgments on me before me and my wife got married legally. Just today I received my student loan check $5700 and that is what we need to live on until August. I'm concerned they will try and take it, so I'm thinking of just cashing it or putting it into a family members name like I did in the past. What has me worried though is they may not let me file unless I let it sit in my bank or unless I turn over the student loan money to them. It really is the bare minimum me, my wife and two kids need to live on so it would be really bad if that loan money was lost.

I was diagnosed with degenerative disc disease back in 2010 and it makes it so I cannot stand more then 30-45 mins. It was the main cause of why I lost my job and If I don't finish college it would be pretty disastrous being I am unable to work a standing job. When I had a feeling I was going to lose my job I went charging about $8,000 in supplies like toilet paper,lots of food ,foil,gas gift cards, silver and gold coins. I went into a prepper mode thinking of every thing that would be needed over the years. The old debts were from lawyer fees, court fines, speeding tickets and a ex girlfriend who thought using my credit card was fun.

How would you go about it if you were givin student loan money? Part of me is saying put the check into my account and right away take money and pay the power,gas,water,home taxes, internet for 8 months. Then take the rest and cash it out to use for gas and small things. I have about ($1200) silver and gold coins left and ($300 cash) to pay for a lawyer.

The degree I am working on is a Public administration (BS) so I should have a income once again. My wife is going for the same degree. We are going to have about $100,000 in student loans. I have joked about just leaving america to get away from it all, but am thinking we should be able to pay it back if together we are bringing in $80,000 - $100,00 a year. In the mean time I hate having the credit card and apartment collectors calling my family many times a day looking for me. I hate picking up the phone hearing them going on and on and then telling me they are going to throw me in jail and take me to court. This is a bump in life that I would never wish to go over again .

Thank you for taking the time on your last post. Me and my wife read it last night and it gave us some thing to think about.

**bcohen** · 01-10-2014, 08:55 PM

Hi. If you are absolutely certain that the judgment was granted BEFORE the two of you were married, then the solution is simple: deposit the student loan check into a bank account with ONLY your wife's name on it--so that your judgment creditors can't levy the funds--and don't file for bankruptcy at this time. You do not appear to have anything to gain from filing now, as there is nothing for a judgment creditor to take from you at this time! Even if one of your judgment creditors realizes that you are part-owner of a house, and attempts to record their judgment as a lien against the property, you can have that lien removed when you file for bankruptcy in the future, because it would impair your homestead exemption.

I suggest that you wait to file until you begin your final semester, because by then you will have spent down/sold any non-exempt property (such as the gold and silver coins and other items which you purchased for resale) and will be starting to work soon. Also, filing for bankruptcy now could impact your eligibility for student loans, and if you have any private student loans, some lenders such as Key Bank will consider the loan to be "in default" merely because you filed for bankruptcy, and start hounding you for payment in full. Finally, if you receive a significant tax refund (such as if you receive the Earned Income Tax Credit for your children) then you must wait to file until AFTER the money has been received and spent. Otherwise, the trustee can and will expect you to turn over everything in excess of the state's paltry exemption of $300 cash on hand/bank account for one person!

That being said, you have a legal right to get these debt collectors to leave you alone. The easiest way is to simply cancel whatever phone service you are using, and get a home phone with an unlisted number, and NEVER use that number on any application for credit or for a debt which might go to collections (such as if you have to go to the hospital, and know that you likely won't be able to afford the bill). If changing your phone number is not feasible, then you can always pursue your FDCPA rights against the debt collectors. Even with a judgment, they must abide by your written request to cease and desist from calling you at any time on any number if you send a letter to that effect.

**LadyInTheRed** · 01-11-2014, 12:18 PM

Originally posted by bluediamond2077 View Post

Hello Bcohen, Thank you for the comment. I was sued and allowed them to get judgments on me before me and my wife got married legally. Just today I received my student loan check $5700 and that is what we need to live on until August. I'm concerned they will try and take it, so I'm thinking of just cashing it or putting it into a family members name like I did in the past.

Do not give that money to a family member. If do that and file BK, the trustee can go after the family member for whatever you transferred to them. Depositing the cash in an account in your wife's name will help keep it out of the hands of creditors, but could be an issue in BK. AZ is a community property state, so it may be that depositing it in an account in her name doesn't make a difference. Ask a BK attorney about that.

Selling items on ebay should not be an issue since you sold them to strangers on the open market. Selling your remaining coins will not be an issue as long as you sell them for fair market value.

I'm assuming that since you stopped paying on your cc's in 2010, that all of the charges were made before that. Nobody is likely to try to claim that debt incurred that long ago is non-dischargeable. They would have to prove that you did not intend to pay the debt at the time you made the charges. That is pretty hard to prove. But, I wouldn't tell anyone other than your lawyer that you started charging supplies because you were going to lose your job.

Here's a list of Arizona asset exemptions: http://www.azb.uscourts.gov/document...exemptions.pdf It looks like your car and home are exempt. You can exempt $300 in bank deposits, but I don't see any exemption for student loan proceeds. You may have to time a BK so that you file after you have spent most of your loan. Food for 6 months is exempt. So, stocking up on non-perishables is an option.

I don't necessarily agree that if you don't have anything for the creditors to take, you don't need to file BK. It is not easy to live your daily life if you can't have a cash account in your name. Hiding from creditors isn't how I would want to live. But, that's me. Some have no problem with it.

It may be premature to file BK at this point because you have no income right now. Are you certain you will be able to get a job after graduation? For BK to help you, you will be able to support your family after discharge.

I suggest you sit down with several BK attorneys to see what they recommend.

ETA: I've never used it myself, but a very common recommendation for dealing with calls from creditors is to use Google Voice.

**bcohen** · 01-11-2014, 12:26 PM

Originally posted by LadyInTheRed View Post

Do not give that money to a family member. If do that and file BK, the trustee can go after the family member for whatever you transferred to them. Depositing the cash in an account in your wife's name will help keep it out of the hands of creditors, but could be an issue in BK. AZ is a community property state, so it may be that depositing it in an account in her name doesn't make a difference. Ask a BK attorney about that.

The key words here are "if you do that and file BK". My advice was to NOT file for bankruptcy at this time, as the OP has nothing to gain from doing so. He can protect his minimal assets much more easily outside of bankruptcy by simply putting the money in his wife's (or possibly another family member's) bank account, where it will be out of reach of judgment creditors. Of course, in bankruptcy, one CANNOT legally hide assets in this manner, and in a "community property" state, money in the wife's bank account would be property of the bankruptcy estate, and taken by the trustee--hence why I suggested that he NOT FILE at this time!

**LadyInTheRed** · 01-11-2014, 01:46 PM

Originally posted by bcohen View Post

The key words here are "if you do that and file BK".

Yes, that was a very intentional choice of words because the OP has not decided whether to file BK right now. I would have told him the same thing even if nobody had responded yet.

Originally posted by bcohen View Post

My advice was to NOT file for bankruptcy at this time, as the OP has nothing to gain from doing so. He can protect his minimal assets much more easily outside of bankruptcy by simply putting the money in his wife's (or possibly another family member's) bank account, where it will be out of reach of judgment creditors.

Your advice was very clear and could be the right answer for the OP, but also may not be. My advice anticipated that even if he doesn't file now, he probably will in the future and he shouldn't do something that might cause difficulties for his family members when he does eventually file. Transferring student loan proceeds to his wife may or may not be a problem. Making a transfer to another family member within 2 years of filing BK, could definitely be a problem.

Originally posted by bcohen View Post

Of course, in bankruptcy, one CANNOT legally hide assets in this manner, and in a "community property" state, money in the wife's bank account would be property of the bankruptcy estate, and taken by the trustee--hence why I suggested that he NOT FILE at this time!

I know you were not suggesting hiding assets from the BK trustee. Money in a wife's bank account is not necessarily community property and it may not be part of the BK estate. It depends on where the money came from and state law. I do not know whether student loan proceeds is community property. A transfer of the loan proceeds to his wife may not make any difference in a BK. Like I said, the OP should ask an attorney about that. Even if the OP does not file now, it sounds very likely that he will file within 2 years of receiving his last student loan payment. He needs to consider the effect of his actions on his future filing.

The fact is that any transfer of an asset to another person in order to hide it from a judgment creditor is a fraudulent transfer, whether you file BK or not. If a judgment creditor finds out about a fraudulent transfer, they can go to court and get an order to turn the asset over. I'm not saying it's likely to happen, but it can. The best way to keep the loan proceeds from creditors is to cash the check and keep the money at home. Even that is not 100% safe. If a creditor finds out about the cash, it could get an order requiring that the cash be turned over. If the creditor conducts a debtor's exam, the debtor must disclose the cash under the mattress, just like he would in BK.

**bluediamond2077** · 01-11-2014, 03:54 PM

Thank you all for the replies. Unfortunately I didn't read them all before rushing out to the bank this morning. We had a stack of bills to pay so I put the student loan money into my wifes account just like I did 6 months ago. They won't let me cash the check at chase because I owe them for a credit card and car repo. I have to use an account at another bank that I and my wife bank with. Not sure of this but I don't know if they would allow me to walk out with that kind of cash being the check is issued by Chase and my college.

The main reason I wanted to file sooner then later is because we no longer want to live in Arizona. We are planning on moving after college to a state with lower unemployment and a better family atmosphere. According to some Apartments I've spoken to in the other state it will require me to have the bankruptcy 1 year done with. Also eventually we are going to need another car and home. I was going to file first thing spring or summer break. I then will do as my wife is doing now by getting secured credit cards to build up credit.

I hope they don't see student loan money as income. It really isn't because it needs to be paid back.

"It may be premature to file BK at this point because you have no income right now. Are you certain you will be able to get a job after graduation? "

Nothing is guaranteed, But I sure hope I'll be able to find a job after college. The jobs outlook for my degree are pretty good. My wife going for her bachelors as well makes it twice as likely one of us atleast land a job.

Thank you!

**bluediamond2077** · 01-11-2014, 05:22 PM

I found this online

----------------------------

"Can I Lose My Student Loan Money In My Bankruptcy Case?"

by Craig Andresen, Minneapolis, MN, Bankruptcy Attorney

January 28, 2008
If you are considering bankruptcy and happen to have the proceeds of your recent student loan sitting in your bank account, what happens to this money? Is it subject to being taken by the trustee to pay your creditors? If so, your education plans could be derailed: you could be unable to pay tuition, or to pay for books or important living expenses.

Fortunately, however, there is a federal non-bankruptcy exemption law protecting student loan proceeds from garnishment. If you select the state, or non-bankruptcy, exemptions in your bankruptcy case, this federal exemption ought to prevent the loss of your student loan proceeds, even if you file bankruptcy while the funds are still on deposit in your bank account. This exemption also contains no dollar limit, so it shouldn’t matter how much of your student loan is still on deposit.

This exemption is known as 20 USC section 1095a(d). It says quite simply that student loans, grants or work awards made under Subchapter IV of Title 20, or Part C, Chapter 34, of Title 42, cannot be taken by creditors of the student receiving the assistance. As a non-bankruptcy federal exemption law, it can be used by anyone filing bankruptcy if they select the state, or non-bankruptcy, exemptions in their bankruptcy case.

Although some states have “opted out” of the federal bankruptcy exemptions, every state must allow use of the state and federal non-bankruptcy exemptions. This means that no matter what state you live in, you can exempt student loan proceeds from the bankruptcy trustee if you so choose.

Claiming your student loan proceeds as exempt pursuant to 20 USC section 1095a(d) could save you from the significant problems which would arise if student loan proceeds were not exempt, and you were forced to quickly spend the money before filing the bankruptcy.

------------

Another site

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Is Student Loan money protected in Bankruptcy? Can you still go to school?
Posted on September 27, 2011 by admin • 0 Comments
Some debtors recently have inquired as to whether the money sitting in their bank account that was received from student loans can be liquidated by the trustee in a Chapter 7 Bankruptcy? If the trustee can take the money, it wouldn’t make much sense to file bankruptcy then if you would then be forced to delay your education, because you could be unable to pay tuition, or to pay for books or important living expenses.

Even if the loan proceeds are still in a bank account, by selecting this Federal Non Bankruptcy Exemption, you ought to be able to protect that money. There also is no dollar limit. The exemption is found at 20 USC section 1095a(d) and it says that student loans, grants or work awards made under Subchapter IV of Title 20, or Part C, Chapter 34, of Title 42, cannot be taken by creditors of the student receiving the assistance.

Claiming your student loan proceeds as exempt pursuant to 20 USC section 1095a(d) helps preserve your right to your education. Be prepared to answer the trustee’s question as to whether you are still enrolled in an institution. If you are not currently enrolled, I would expect the trustee to object to the exemption.

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John Addison Vos
San Rafael Bankruptcy Attorney
Contributor Level 15
5
Lawyers agree
Answered 2 years ago. Yes. Student loan proceeds are exempt. List the funds on Schedule B and write the following code section on schedule C.

20 U.S.C. Ch. 28 Sub Ch. IV Part F 1095a(d):
(d) No attachment of student assistance

Except as authorized in this section, notwithstanding any other provision of Federal or State law, no grant, loan, or work assistance awarded under this subchapter and part C of subchapter I of chapter 34 of Title 42, or property traceable to such assistance, shall be subject to garnishment or attachment in order to satisfy any debt owed by the student awarded such assistance, other than a debt owed to the Secretary and arising under this subchapter and part C of subchapter I of chapter 34 of Title 42.
(That is subchapter Letter "I", not subchapter #1.)

There are many exemptions available in bankruptcy beyond those you might normally thing of, beyond what is listed in the bankruptcy code and california ccp.

-------------------

So it looks like the loan money is not a issue? Do you think it would matter not being in my account but my wifes who is also a student?

**LadyInTheRed** · 01-11-2014, 06:22 PM

This info looks promising. As long as you can trace the money, I would think it is okay to have it in your wife's account. To avoid any tracing problems, it should go into an account that no funds from other sources goes into.

The U.S. Trustee does not consider loan proceeds as income for the means test. Here's a link to a PDF of the U.S. Trustee's Positions on Legal Issues Related to the Means Test: http://www.justice.gov/ust/eo/bapcpa...ne_by_line.pdf

**Blossoms** · 01-11-2014, 09:09 PM

Don't move to Ohio, lol! Seriously, I have a B.A. in a very similar major as yours, and have been unemployed off and on since the spring of 2011. I have yet to find a job actually using my degree, since graduating over 10 years ago. I have essentially been underemployed since then. It's a terrible job market here.

The little job growth here is in medical and manufacturing. My husband actually earns more working at a factory, then I can reasonably expect to earn with my degree. We're in our second bankruptcy in 10 years, largely due to my unemployment. Thank God for income based student loan repayment plans.

If you're working on a degree in public administration, your best bet, in my opinion, is to move to a state capitol, where there's a lot of government jobs. Or a city with a high number of federal government jobs. There's a public service forgiveness provision for federal student loans.

**bluediamond2077** · 01-16-2014, 04:05 PM

thanks for the info blossoms

--
I got the one year free of protectmyid that target paid for. For anyone who doesn't know about the deal targets paying for everyones Protectmyid membership. I had my wife join as well and every time some thing goes on with my credit they e mail me. If you have no idea what I am talking about just search in bing "protectmyid target" It will come up.

Anyways I am going to wait a little. I'm thinking of filing during spring break in 7 weeks. I got a message from protectmyid that American express put on my credit report "CHARGE OFF" $10,114" today.. What does this mean? Why all most 4 years later? They went to court got a judgement on me many years ago in mesa. The judgement is no longer showing up on my credit report. How can this be?

Also I see my credit report is now showing my new adress. For years it was showing my old adress. It also shows the adress of where my ex moved to in another state. Odd. Me and her got a car together she paid the car payment so I told her to keep the car. I was the main owner and she a co owner. She made all the payments and has the car paid off. Wonder if they will come after me for it? I don't even talk to my ex and have no idea if she still has the car.

On my credit report it is showing this as well. They are near by, so I guess the days of hiding is over. What are the chances of being taken to court here in tucson? They were trying to take me to court in my old city of mesa when I wasn't even living there any longer.

This is also new

BURSEY & ASSOCIATES PC

Business Name BURSEY & ASSOCIATES PC
Inquiry Date 11/12/2013
Business Type Collections Attorney
----
You have 1 new derogatory eventDerogatory Account Jan 15, 2014
The following derogatory event reported:
Account Amount Status
AMEX $10,114 Charge Off

**bcohen** · 01-16-2014, 07:07 PM

Originally posted by bluediamond2077 View Post

I got a message from protectmyid that American express put on my credit report "CHARGE OFF" $10,114" today.. What does this mean? Why all most 4 years later? They went to court got a judgement on me many years ago in mesa. The judgement is no longer showing up on my credit report. How can this be?

On my credit report it is showing this as well. They are near by, so I guess the days of hiding is over. What are the chances of being taken to court here in tucson? They were trying to take me to court in my old city of mesa when I wasn't even living there any longer.

They are reporting the ongoing charge-off status in an effort to intimidate you into paying by deliberately torpedoing your credit scores. Before I filed for Chapter 7 in 2013, I had a charged-off Discover Card, among other debts. Discover Bank made sure to post a new charge-off status on my credit reports every other month, so that my credit scores would creep up slightly and then go back down when the new charge-off was posted. For years, my credit scores oscillated between 515 and 525 because of this.

In Arizona, a judgment only lasts for 5 years, and can only be renewed once--which must happen BEFORE the judgment has expired. If this law firm files a motion to renew the judgment, you will receive a copy in the mail, however you would not benefit from responding unless they waited past the 5 years. It is not clear that the judgment creditor can do anything to you anyways at this point, even if they have you summoned into court for a debtor's exam, which I would consider highly unlikely after this much time has passed.

**bluediamond2077** · 01-22-2014, 11:25 PM

Originally posted by bcohen View Post

They are reporting the ongoing charge-off status in an effort to intimidate you into paying by deliberately torpedoing your credit scores. Before I filed for Chapter 7 in 2013, I had a charged-off Discover Card, among other debts. Discover Bank made sure to post a new charge-off status on my credit reports every other month, so that my credit scores would creep up slightly and then go back down when the new charge-off was posted. For years, my credit scores oscillated between 515 and 525 because of this.

In Arizona, a judgment only lasts for 5 years, and can only be renewed once--which must happen BEFORE the judgment has expired. If this law firm files a motion to renew the judgment, you will receive a copy in the mail, however you would not benefit from responding unless they waited past the 5 years. It is not clear that the judgment creditor can do anything to you anyways at this point, even if they have you summoned into court for a debtor's exam, which I would consider highly unlikely after this much time has passed.

So 5 years and they can renew. ouch that's 10 years. I guess waiting for SOL to pass isn't going to happen.

Look what I just found below.. I wonder what they are doing right now with the Notice Of Appearance? I mean it sat for a very long time with nothing and now NAR? I take it maybe they sold the debt and some new lawyer is taking it over? I checked with tucson to see if there is anything going on here with the courts and nothing. The only thing I can find here is when me and my now wife bought the home. I wonder if they still think i'm living in mesa being they have not gone to court down here.

I posted over at property transfers & gifts about 1 acre of land I gave to my wifes mother on 7/6/2010 before we were married. Some good members said the trustee can recover the transfer for 4 years

so I want to wait it out. 4 years will be here 7/6/2014. I'm hoping i'll be able to make it till then and they dont go after the home some how.

Anyone see the Affidavit Of Service below. Does that mean they gave me the paper work? There is no way they could have as I was living 130 miles from my old address.

Case Documents
Filing Date Description Docket Date Filing Party
1/17/2014 NAR - Notice Of Appearance 1/17/2014
NOTE: Notice of Appearance
12/7/2011 ORD - Order 12/8/2011
NOTE: ORDER DISCHARGING GARNISHEE
10/24/2011 ORD - Order 10/27/2011
NOTE: DISCHARGING GARNISHEE
10/13/2011 MTQ - Motion To Quash 10/14/2011
NOTE: MOTION TO QUASH GARNISHMENT AND DISCHARGE GARNISHEE
10/6/2011 ANG - Answer Of Garnishee 10/6/2011
NOTE: Answer to Writ of Garnishment
9/28/2011 AFS - Affidavit Of Service 10/5/2011
9/28/2011 WGS - Writ Of Garnishment and Summons 9/29/2011
9/22/2011 AWG - Application For Writ Of Garnishment 9/23/2011
5/5/2011 ORD - Order 5/12/2011
NOTE: DISCHARGING GARNISHEE
5/3/2011 MTQ - Motion To Quash 5/5/2011
NOTE: GARNISHMENT AND DISCHARGE GARNISHEE
4/25/2011 AFS - Affidavit Of Service 5/4/2011
4/25/2011 WGS - Writ Of Garnishment and Summons 4/28/2011
4/18/2011 AWG - Application For Writ Of Garnishment 4/19/2011
11/30/2010 DFJ - Default Judgment 12/8/2010
NOTE: Copy mailed/provided to non-defl. parties on date of filing
11/4/2010 MAJ - Mot/Aff Entry Def Jud W/O Hear 11/10/2010
11/4/2010 SOC - Statement Of Costs 11/10/2010
NOTE: AND NOTICE OF TAXATION
10/6/2010 AFF - Affidavit 10/13/2010
NOTE: IN SUPPORT OF APPLICATION FOR DEFAULT
10/6/2010 ADE - Application For Default 10/13/2010
9/3/2010 AFS - Affidavit Of Service 9/10/2010
NOTE: My name ##### 08/25/10
9/3/2010 SUM - Summons 9/9/2010
8/20/2010 COM - Complaint 8/23/2010
8/20/2010 CCS - Cerificate Arbitration - Subject To 8/23/2010

**bcohen** · 01-24-2014, 10:27 AM

The case history which you have posted shows that the creditor has tried--unsuccessfully--to garnish your wages or bank accounts at employers or banks which you no longer work for/use. I have no idea what the Notice of Appearance is for.

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