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October 2010 Archives

Debt Settlement

Debt settlement often sounds like an attractive option.  Especially when you sit down and figure out how much you are being charged in interest each month.  One problem with debt settlement is that it can damage your credit report for quite a long time.  Another problem is that you have to come up with quite a bit of money in a short period of time.

Stopping Lawsuits in Texas

If you have unsecured debts that are not paid on time, then the creditor will probably eventually sue you.  When the creditor sues you, you should be served with a copy of the lawsuit telling you that you have a limited amount of time to file an answer.  If you do not file an answer timely, then a default judgment can be taken against you.

Texas Child Support

Child support in Texas is largely determined by the Child Support Guidelines in the Texas Family Code.  It is typically calculated by multiplying the appropriate paying percentage according to the number of children the obligor has and the paying parent's net income.

SAPCR

A SAPCR is a Suit Affecting the Parent Child Relationship.  If there are children involved in a divorce proceeding between the mother and father then the child custody and child support must be addressed in the SAPCR divorce.

Assault in Texas

There are many serious consequences to an assault conviction in Texas.  One, you cannot possess a firearm.  Two, it may cause you to have to pay spousal support (alimony) where you would not ordinarily have to.  Three, you might lose your rights to child custody and visitation in certain circumstances.

Business Bankruptcy

The great recession has led to many small business owners realizing that their attempts at starting their own business just are not going to work.  Small businesses often depend on customers to spend their disposable income with the small businesses' service or product.

Conversions in Bankruptcy

If you are in a Chapter 13 or Chapter 7 bankruptcy and your situation changes, then you have the option of converting to the other chapter.  For instance, if you are in a Chapter 13 bankruptcy, and you lose your job or have a reduction in income then you can convert to a Chapter 7 if you cannot afford the Chapter 13 Plan payments.

You must file the conversion prior to the case being dismissed if the trustee files a Motion to Dismiss for failure to make payments.  If you are in a Chapter 7 and you fall behind on your house or car payments, then you can convert into a Chapter 13 to help you get caught up.

341 Meeting

The first meeting of creditors is also referred to as the 341 meeting because section 341 of the Bankruptcy Code is the statute which refers to this meeting held by the trustee.  The trustee is not a judge, but rather a trustee appointed by the Bankruptcy Court to search for problems that the debtor might have with their case.

First, the trustee is looking to see if there are any non-exempt assets that can be liquidated.  Typically, there are not.  The trustee is also looking to see if there are any preferences or fraudulent transfers.  There is a trustee appointed for all Chapter 7 and Chapter 13 cases.

Typically, the meeting is very short.  In a Chapter 7 case the debtor almost always receives their discharge from their unsecured debt, including credit card debt 60 days after the meeting.

Collin County Large Marital Estates

Divorces can be a very nasty situation.  Especially when one party is trying to hide assets in a divorce where the estate turns out to be higher than what was disclosed.  There are situations where there is real estate or money that was hidden from the spouse before or during the marriage. 

In these high asset divorces, the attorney who represents the party who came into the money when they were married needs to be an experienced trial attorney who understands how to find out about the assets.  Texas is a community property state, and that means that the lawyer must know about the ins-and-outs of those intricate laws.

Probation

In Texas, there are standard terms and conditions of probation.  One is that you must follow the law.  If you violate the law, then the probation office will file a Motion to Revoke your probation if you are on regular probation.  If you are on deferred adjudication probation, then your probation officer will file a Motion to Adjudicate.  

If you violate one of the other standard conditions of probation then the probation officer may also file a Motion with the court to send you to jail.  The state has the burden of proving that you violated a term or condition of probation by a preponderance of the evidence.  That is a much lesser burden than the state is held to at trial where it is beyond a reasonable doubt.

However, there are defenses to alleged violations.  For instance, there is the defense of impossibility.  Also, sometimes a plea agreement can be negotiated to reinstate the probation.

Liquidation Proceedings

A Chapter 7 bankruptcy is called a liquidation bankruptcy or "straight bankruptcy."  However, the name is typically a misnomer because it implies that someone's assets would be automatically liquidated if they filed bankruptcy.  There are exemption lists that allow almost all debtors to retain all of their property.

The Texas exemption schedules allow almost all debtors to retain their homestead, their personal property, and their retirements.  Chapter 13 bankruptcy is called a "Wage Earners Plan."  The exemption schedules also apply in a Chapter 13 bankruptcy.  Most people are able to discharge their credit card debt in either a Chapter 7 or Chapter 13 bankruptcy.

Stop the Phone Calls!

Creditors who harass people about their outstanding obligations just do not seem to get it sometimes.  If someone does not have the money to give them, they cannot pay the creditor even if they wanted to.  Thankfully, there is a solution to stopping the phone calls all together.  Once you file a bankruptcy, the automatic stay provision in the Bankruptcy Code goes into effect immediately.

Filing a Chapter 7 or Chapter 13 bankruptcy stops the phone calls.  The creditor is prohibited from taking any further action against the debtor without first getting permission from a federal bankruptcy judge.  If the creditor fails to obey the automatic stay, then the court can sanction the creditor.  

Adoption in Texas

There are several options in Texas to get an adoption.  You need to be at least 21 years of age, financially stable, and must complete a home study.  Just like in every area of Texas Family Law the primary concern is what is in the best interest of the children.  The paramount concern of the Texas legislature and the court system is to make sure that our children are safe.

The home study will be an inspection of your ability to properly raise the child.  There will be an inquiry as to whether it is financially feasible for you to adopt and raise the child and whether or not you will be able to raise the child in a safe environment.

Burglary of a Habitation

Typically, stealing from someone else's house is a second degree felony.  It has a range of punishment of 2-20 years confinement and up to a $10,000 fine.  Theft is a crime of moral turpitude, and burglary fits in that category.  

Double jeopardy does not preclude prosecution for burglary following a family violence incident for which the defendant was also found in contempt for violating a protective order.  Also, an indictment for burglary should allege a culpable mental state.  In an indictment for burglary the allegation of the required particular intent suffices also to allege the more general culpable mental state.  

An indictment for burglary that alleges that the act was done without the effective consent of the owner need not specify which of the subsections of the definition of "owner" is being relied upon.

Credit Card Debt

Credit card debt haunts many families in the U.S. these days.  Once you incur the debt, it is very hard to pay off because of high interest rates, late payment fees, and other penalties.  For example, if you have $30,000 of credit card debt then it may seem like if you just paid $500 a month for 5 years you could pay it off.  Right?  Wrong. 

If you have an average interest rate of 20% on your cards then that is costing you $6,000 per year in interest.  There are 12 months in a year.  So, dividing $6,000 by 12 means that in that scenario you are being charged $500 per month in interest!

You do have options to help you relieve your debt problem.  Filing for a Chapter 7 or Chapter 13 bankruptcy can help you eliminate debt and stop the interest from continuing to accrue.  Also, you may want to consider your debt settlement or debt consolidation options.

IRS Debt in Bankruptcy

Most of the time the IRS debt is not dischargeable in bankruptcy.  There are exceptions to that general rule, however.  If all the prior years' tax returns are on file, the taxes are income taxes, the taxes are three years old, and there is no equitable lien filed by the IRS then an adversarial proceeding may discharge the IRS debt in a Chapter 7 bankruptcy.  The taxes should also be discharged in a Chapter 13 bankruptcy.

However, if you do not fall within the exception to the general rule that the taxes are non-dischargeable then a Chapter 13 bankruptcy can help you to stop the penalties and interest that the IRS is assessing against your unpaid taxes.  Although the IRS is typically non-dischargeable, they are an unsecured creditor.  As such, they are not allowed to charge you interest in a Chapter 13 plan.

Texas Divorce Requirements

One of the requirements to filing divorce in Texas is that you have lived here long enough.  The court would not have jurisdiction if you do not meet these residency requirements.  You have to be a domiciliary of Texas for the preceding 6 months prior to filing the divorce and a resident of the county in which you file for the prior 90 days.

The divorce court has the power to change the name of the person back to what it was before the marriage.  Since Texas is a community property state, there will have to be a determination of the nature of the assets of the marital estate.  Community property consists mainly of property acquired during the marriage unless a pre-marital or post-marital agreement states otherwise or if a separate property asset appreciates.  The appreciation is a community asset.

In high asset marital estates, the community property is a highly litigated issue.

Searches and Seizures and Miranda Rights

The 4th Amendment protects against unreasonable searches and seizures.  The framers of the Constitution wanted government not to be able to search and/or seize places and persons without a warrant except in certain limited exceptions that were developed throughout case law over time.

Likewise, back in the 70s in Arizona a man named Miranda was arrested and interrogated.  The Miranda Warnings came out of that case and determined that citizens cannot be interrogated after they are in custody without being read and waiving their Miranda Rights.  Fundamental amongst those rights are the right to remain silent and the right to have an attorney present.

If someone is arrested without a warrant then an evaluation of their 4th Amendment and Miranda Rights needs to be done to determine if there is a way to have the charges dropped.

Medical Bills in Chapter 7

Medical bills can mount after a major illness or medical event.  Sometimes medical emergencies occur and there is no choice whether or not expensive medical attention must be sought.  Medical bills are unsecured debts.  Unsecured debt is debt that a creditor would have to sue you before they took any of your property away from you, generally.

The IRS is also ordinarily an unsecured creditor.  However, the IRS is typically not dischargeable because they are a priority unsecured creditor.  Medical bills are not priority creditors.  They are non-priority unsecured creditors much like credit cards.  

Unsecured non-priority debts is usually dischargeable in a Chapter 7 or Chapter 13 bankruptcy.

Bankruptcy Timelines in a Chapter 7 Case

When you file bankruptcy the Bankruptcy Code sets out a number of deadlines.  In a Chapter 7 bankruptcy, the 341 meeting is typically held around 30-45 days after the date that the bankruptcy is filed.   The date that the bankruptcy is filed is a very important day in the case, because the automatic stay goes into effect that day.  That means that no creditor can sue you in a lawsuit, pursue a foreclosure, repossess your vehicle, garnish your wages or continue to harass you without first getting permission from a federal bankruptcy judge to do so.

The deadline for an objection to exemptions is 30 days after the date of the 341 meeting.  The deadline for objections to discharge in a Chapter 7 is 60 days after the date of the 341 meeting.

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