Brad Weil Law > Blog > 2016 > February

Marriage and debt indemnity

If you were married during your husband’s bankruptcy and you are still married now your community assets are protected by his discharge. If you were separated or are now divorced you would have to file your own individual Chapter 7 in order to discharge your personal liability on the debt. You might be able to sue your husband on the debt in the event you are forced to pay it if the court view’s your legal liability on the debt as a domestic support obligation that was not discharged as to your husband. As to the creditor he has every right to go after you for the money because your liability was not discharged as to the creditor.


Is there any State that allows you not to show up to court in a Chapter 7 bankruptcy?

The only way for one of you to show up is for only one of you to file. If you file a single Chapter 7 then your husband will not have to appear at the 341 hearing but that means that he will still be individually liable for his debts. The community will receive a discharge so his creditors cannot collect from community property assets but if you ever divorce he and his single property will be liable for his debts. If you choose to file jointly you both have to show up.

My lawyer botched my Chapter 13 and second mortgage stripping case. The LAM motion was never filed.

File the LAM motion (or motion to value depending on your judge) right away. Make sure you have an appraisal of the home’s value as of the date of the filing of the bankruptcy. There is nothing you can do about the money the trustee has already paid to the second mortgage, however if you are able to make it through your Chapter 13 case to discharge you will still be able to strip the lien. You may need to do a motion to modify your plan depending on the percentage that is supposed to be paid to the unsecured creditors and the amount of your arrears on the first. As for the disbarment issue you need to hire a new lawyer to represent you for the remainder of your case and make sure you get your Chapter 13 discharge and properly strip your lien. You also may want to file a complaint with the state bar or you can file a malpractice action but you may not be able to collect.

Can I enforce a default judgment for fraud in a bankruptcy court?

If the debts were incurred before you filed the Chapter 7 BK and you did not reaffirm them then they are discharged and you do not have to pay them. If you incurred the debt after you filed your Chapter 7 or you did reaffirm them then you are still legally liable for those debts. There is an 8 year bar to refilling a Chapter 7 and obtaining a discharge after having received one. There is a 4 year bar to filing a Chapter 13 and obtaining a discharge after having filed a Chapter 7 and obtained a discharge. The earliest you would be able to file a Chapter 13 in which you could obtain a discharge would be 2017. If you need immediate relief you should file the Chapter 13 anyway even though you are not eligible for the discharge. Otherwise you may be judgment proof and have no assets to collect against so just don’t pay it (if that is the case). Realize if you do not pay it your credit will suffer and you may face a lawsuit.