North Carolina Bankruptcy Legal Questions

What kind of arrears are these? For what? Whatever you have written makes no sense. If you are talking about child support, arrears cannot be modified or reduced. Child support is a money judgment - once owed, it cannot be modified. And because it is like a money judgment it never goes away even if the child is now well into adulthood. That support money is owed. Why would a case be transferred from PA to VA? Child support is based on where the child lives or where the arrears accrued. There would be no reason to transfer this to VA unless transfer would be warranted under the child support enforcement act. The order or proceedings arise in the child's home state. The order can be transferred to any state where the obligor parent owns property for enforcement purposes only but it cannot be modified by the other state unless the child has left the home state. Are you the obligee or the obligor?... Read More

Get a lawyer. I am not being cute, glib or snarky. Just because the car was repossessed does not mean that you do not owe a deficiency. When a car is repo'd, you have 10 days to get the car back. Most people are not in a position to redeem the car and don't file bankruptcy. If the car is not redeemed, it is taken to the auto auction and sold for pennies. Such sales do not bring in what the car is worth or anywhere near what is owed. The sale proceeds (minus sale costs) are applied to the balance owed on the loan, plus the collection/repo costs. This is the deficiency for which you are responsible. The deficiency continues to earn interest so it is not hard to see how the debt grew to $13,000. The statute of limitations can vary - its probably 6 years but it could be 4 and if 4, then the action may be barred by the statute of limitations. An attorney can review the complaint and situation with you and see if you have a valid statute of limitations or other defense. If you do, then the attorney can file an answer on your behalf which must be filed no more than 30 days after the complaint has been served on you (date of service is date on which you received the complaint; if you are not sure then check with the court). If you have no defenses, then you need to decide what you are going to do to resolve the debt. Litigating is not really an option if this is a debt for which you are responsible and there are no defenses like the statute of limitations. You would be better off in such case either filing bankruptcy or saving your money to settle the debt depending on your circumstances. However, this can be discussed with a lawyer at the time the complaint is filed. I would look for a lawyer who either handles settlement of consumer debts or possibly a bankruptcy lawyer. If you have the funds, it may be possible to settle the debt for far less than what they are asking for. An attorney can help with that too.... Read More

Why are you paying fees for a timeshare? You indicate that your father died. Did your father have a will? If so, to whom did the timeshare go? If the timeshare passed to your mother, then it is her responsibility to pay the fees. Your post otherwise makes no sense. Why would a timeshare company send correspondence to your mother that relates to you and your name and ask her to sign something about your name? Was the timeshare company aware of the fact that your father died? They may have been confused if you were a "Jr." and they kept getting payments. You need to speak to a real estate lawyer who handles timeshare law in Wisconsin. However, its my view that if there is no contract between you and the timeshare company and you did not inherit the timeshare, then you have no duty to keep paying the fees. If that is the case then you need to send a dispute letter to the collection agency and explain that you have no legal duty to pay these fees and that you are disputing the debt. Demand that the timeshare company produce validation/verification of your financial responsibility for the debt.... Read More

A voluntary surrender is the same as an involuntary surrender (repossession). From the creditor's standpoint there is no difference. The only possible difference might be if you get the creditor to waive some of the collection costs. Let me understand - you have a personal loan but not an auto loan. However, as security for the loan the lender accepted title to your car and/or put a lien on the title? The maximum rate is 6% 41 P.S. ? 201.Maximum lawful interest rate (a) Except as provided in Article III of this act, the maximum lawful rate of interest for the loan or use of money in an amount of fifty thousand dollars ($50,000) or less in all cases where no express contract shall have been made for a less rate shall be six per cent per annum.(b) The maximum lawful rate of interest set forth in this section shall not apply to:(1) an obligation to pay a sum of money in an original bona fide principal amount of more than fifty thousand dollars ($50,000);(2) an unsecured, noncollateralized loan in excess of thirty-five thousand dollars ($35,000); or(3) business loans of any principal amount. But the above statute does not appear to apply to certain kinds of loans that are collateralized. The statute says: 41 P.S. ? 1 Interest as agreed on advances on collateral loans In any case hereafter, in which advances of money, repayable on demand, to an amount not less than five thousand dollars, are made upon warehouse receipts, bills of lading, certificates of stock, certificates of deposit, bills of exchange, bonds, or other negotiable instruments, pledged as collateral security for such repayment, it shall be lawful to receive, or to contract to receive, and collect as compensation for making such advances, any sum to be agreed upon in writing by the parties to such transaction. Without looking at the loan documents, I cannot tell whether this truly falls within the exception for collateralized loans or whether this violates the usury law. If the loan does violate the usury law, then you need not pay the excessive interest. What I think you should do is go to a consumer law attorney and pay the attorney to review your documents to determine if the interest rate is usurious or whether you may have any other defenses here. If the loan is ok with the outrageous interest, then I would look to filing bankruptcy perhaps. You do not indicate what the car is worth and that may also have some bearing here as to your best course of action.... Read More

Yes and no. Its not a question of the statute of limitations being extended. Putting a seal on a document does not extend the statute. Rather, a totally different limitations period applies. Since this is in GA, GA statute says: 9-3-23. Sealed instruments Actions upon bonds or other instruments under seal shall be brought within 20 years after the right of action has accrued. No instrument shall be considered under seal unless so recited in the body of the instrument. An agreement is not under seal merely by having a notary stamp. As noted in the statute, the contract has to have words in the body of the document before its signed and notarized. Whether a document is under seal requires examination of the document. Usually, it contains words above where you signed that say something like "Wherefore, I have set my hand and seal this.... Read More

The short answer is to file bankruptcy. You indicate that the judgment was entered against you and your wife. Therefore, you both are liable for the judgment. Where was the judgment entered? NC? Or Minnesota? If the judgment was entered in Minnesota, the attorney would have to have the Minnesota judgment transferred to NC and enforced like an NC judgment. If it was entered in NC then its is an NC judgment already. To enforce, the creditor would have to serve both you and your wife with exemptions. The NC exemptions are very generous and there is no wage garnishment in NC. From what you relate, your disability and other money/benefits would be exempt from any creditor's claims. You do not indicate what other assets you have, although you state that you are poor (many folks are - nothing to be ashamed of). Any property that you would own in Minnesota would be at risk. You have a terminal illness. I am sorry for that. In such case, it might not make sense for you to do nothing and not file bankruptcy. However, your wife should consider it if she does not want this hanging over her head. While there is no wage garnishment in NC, it is sometimes possible for an out of state creditor to get wages garnished depending on the employer and where they are located. I think I would take a wait and see approach. I would wait and see if the lawyer makes a move to transfer the Minnesota judgment to NC providing that you have no assets at all in Minnesota. I would get separate bank accounts and do not commingle your SSDI with any other income. The food stamps should be on an EBT card and could not be garnished either. If you pass, your wife can then see about filing bankruptcy once she gets back on her feet somewhat. If the attorney does try to move the judgment to NC and enforce it, make sure that you see a lawyer to help with the exemptions so that you and your wife fill them out correctly.... Read More

The problem is that this is an LLC. LLC stands for limited liability company. Unless the LLC has assets, you can spend money and sue all day long but you will not recover anything. If there are no assets, any new LLC can be formed. If there were assets, you would have to get the judgment and prohibit them from disposing/transferring any assets. You can get pre-judgment attachment if it appears that a transfer is really imminent. However, this is a web-development company. What kinds of assets would they have really? A couple of laptops in some guy's apartment? Forget recovering loss of work because you are depressed. This is a contract case - no personal injury. You do not recover for this. You can recover either expectation damages (the difference between what you paid to them and had to pay to someone else to get the job done) or status quo (since they did not perform at all you are asking for all of your money back and to be put in the same position as you were in prior to the start of the contract). If the LLC is in Atlanta, then you need to sue where the LLC either maintains its principal place of business or registered office. You can look up this information at the Georgia Secretary of State's office. Georgia small claims only goes up to $12,000. If you paid out $20,000, then you will want to hire an attorney in Georgia to sue. There are many many litigation attorneys in Atlanta - you will need a business litigation/contract attorney. You do not contact the registered agent. You can have the complaint served on the registered agent or an officer of the LLC. Once a lawsuit is filed, it is possible to get a pre-judgment attachment as I said. However, again, you do not know what assets, if any, the LLC has. Lawsuits are a gamble. There are no guarantees that you will be paid ever. If the company has no assets, they could simply dissolve or go bankrupt. In either case, you get nothing except a judgment. Any new business that buys there assets, if they are legitimate and an innocent purchaser, only buys the assets - not any prior lawsuits or litigation problems. Depending on how the LLC was set up it may be possible to try to attach the personal assets of the owners. If you succeed in getting a judgment against the owners individually, then you can get wage garnishment and go after their bank accounts or other assets owned free and clear. Again, before you do anything, you need to sit down with a business litigation attorney and pay him/her to review the correspondence and contracts here.... Read More

Do you owe money to the attorney? Its going to sound snarky, but think about this with some common sense. If you owed money to the attorney for legal work and did not pay, what did you think was going to happen here? If you owe the money, then the option is to pay it or work out some kind of agreement. If the lawyer sues and you do nothing, the lawyer will get a judgment against you and be able to garnish your wages and seize any assets owned free and clear. If you have any valid defenses to the charges (example, the attorney over-billed or did not credit some payments) then you should get a lawyer and file an answer to the complaint. You only have 30 days to answer. If you have a lot of debts and just cannot pay, then you may want to consider bankruptcy. If you work out any agreement, then you should get it in writing. The lawyer may send you a consent order or agreement if a lawsuit has been filed. Get clarification on whether any interest will be charged and if you make a payment plan stick to it. Keep track of all your payments.... Read More

Is it legal? No, not unless the debt collector can legally take the action they are proposing Example - there is no wage garnishment in North Carolina so a debt collector cannot tell you they will garnish wages because it does not exist for most kinds of debts (it does for child support or student loan debt). Same is true for freezing your bank account. A debt collector can take no action to levy on your bank account until the creditor gets a judgment against you. And even then they cannot garnish your bank account right away. The creditor first has to serve you with a notice of rights to have exemptions designated and motion to claim exempt property. Only if you did not take steps to protect your bank account could it be seized. However, I have questions as to whether the debt collector here could legally take any action at all against you to sue, let alone levy your bank account. What kind of bill collector is this? You indicate that the debt was sold off 5 years ago? Is this an NC debt? When did the debt become delinquent? The statute of limitations is 3 years in NC for most debts. You indicate that the bank (do you mean credit card issuer) sold the debt off. I presume this was to a junk debt buyer. If so, then the rules in NC make it impossible for a junk debt buyer to sue you once the statute of limitations expires as per NC law. I would recommend jotting down the number and doing an internet search on it. Just type the number in the search box and see what pops up. You should find the name of the collector and once you have that you can go to the company website and get their address. In the letter, I would tell the creditor not to bother you anymore about the debt as the statute of limitations has expired (assuming that the debt was last paid 3 or more years ago and that this was an NC debt). I call these letters "drop dead" letters because you are basically telling the junk debt buyer to drop dead because you are not paying. If you do an internet search for "drop dead" or "cease and desist" letters you will probably find free samples. I would send the letter via certified mail return receipt requested and keep a copy for you. The other thing that troubles me about this is that it could be somebody like a payday lender. Payday loans are not legal in NC but most of the payday lenders are overseas and could care less about violating federal and state debt collection laws. In such case, a letter will not work. Under no circumstances though should you make any kind of agreement to pay on this debt. If you do, you run the risk of reviving the statute of limitations, thus paving the way for the debt collector to sue you.... Read More

I typically do not handle real estate liens by HOAs. However, below is the general statute. I have highlighted the relevant text for you in blue. As per the statute, liens expire within 3 years unless the HOA files suit to foreclose the lien. So the HOA has to file suit within 3 years. ? 47F-3-116. Lien for assessments.(a) Any assessment levied against a lot remaining unpaid for a period of 30 days or longer shall constitute a lien on that lot when a claim of lien is filed of record in the office of the clerk of superior court of the county in which the lot is located in the manner provided herein. Prior to filing a claim of lien, the association must make reasonable and diligent efforts to ensure that its records contain the lot owner's current mailing address. No fewer than 15 days prior to filing the lien, the association shall mail a statement of the assessment amount due by first-class mail to the physical address of the lot and the lot owner's address of record with the association, and, if different, to the address for the lot owner shown on the county tax records and the county real property records for the lot. If the lot owner is a corporation, the statement shall also be sent by first-class mail to the mailing address of the registered agent for the corporation. Unless the declaration otherwise provides, fees, charges, late charges, and other charges imposed pursuant to G.S. 47F-3-102, 47F-3-107, 47F-3-107.1, and 47F-3-115 are enforceable as assessments under this section. Except as provided in subsections (a1) and (a2) of this section, the association, acting through the executive board, may foreclose the claim of lien in like manner as a mortgage on real estate under power of sale or under Article 2A of Chapter 45 of the General Statutes, if the assessment remains unpaid for 90 days or more. The association shall not foreclose the claim of lien unless the executive board votes to commence the proceeding against the specific lot.(a1) An association may not foreclose an association assessment lien under Article 2A of Chapter 45 of the General Statutes if the debt securing the lien consists solely of fines imposed by the association, interest on unpaid fines, or attorneys' fees incurred by the association solely associated with fines imposed by the association. The association, however, may enforce the lien by judicial foreclosure as provided in Article 29A of Chapter 1 of the General Statutes.(a2) An association shall not levy, charge, or attempt to collect a service, collection, consulting, or administration fee from any lot owner unless the fee is expressly allowed in the declaration. Any lien securing a debt consisting solely of these fees may only be enforced by judicial foreclosure as provided in Article 29A of Chapter 1 of the General Statutes.(b) The lien under this section is prior to all liens and encumbrances on a lot except (i) liens and encumbrances (specifically including, but not limited to, a mortgage or deed of trust on the lot) recorded before the docketing of the claim of lien in the office of the clerk of superior court, and (ii) liens for real estate taxes and other governmental assessments and charges against the lot. This subsection does not affect the priority of mechanics' or materialmen's liens.(c) A lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within three years after the docketing of the claim of lien in the office of the clerk of superior court.(d) This section does not prohibit other actions to recover the sums for which subsection (a) of this section creates a lien or prohibit an association taking a deed in lieu of foreclosure.(e) A judgment, decree, or order in any action brought under this section shall include costs and reasonable attorneys' fees for the prevailing party. If the lot owner does not contest the collection of debt and enforcement of a lien after the expiration of the 15... Read More

If the vehicle lender refuses to voluntarily return the vehicle, you need to file a Complaint for Contempt against them for violation the automatic stay and demanding turnover of the vehicle. If they contest it, it may require a trial.  If you don't have an attorney, this would be a good time to consider hiring one. Mark Markus has been practicing exclusively bankruptcy law in California since 1991.  He is a Certified Specialist in Bankruptcy Law by the State Bar of California Board of Legal Specialization,  AV-Rated by martindale.com, and A+ rated by the Better Business Bureau.  ... Read More

No. The state of NC does not take anything. If child support is owed, the state has a child support central collections unit for support set up by court order. The collection unit can garnish your disability check on behalf of the child. If the child received welfare benefits then the welfare agency also can garnish your disability to recoup some of the money expended by the state for the care of your child. Child support is governed by the child support guidelines (if your child lives in NC; if the child does not, then support would be governed by the state laws of where the child resides or a child support order was entered). The website for NC is www.ncchildsupport.com. Child support is based on the combined monthly income of the parents. Both parents have a duty to support their child until the child turns 18 or graduates from high school, whichever is later. So child support cannot take 100% of your disability. If an order was established and you are in arrears but there is an ongoing support order, then your SSDI check will be garnished in a set amount but some will go towards arrears and some towards the ongoing support. If your child is over 18 now and you just owe arrears, child support can still be garnished but the amount will go to arrears. The garnishment is a monthly amount from each check. I don't quite understand what you mean by your check being garnished without notice. That is not really possible. To establish a support order there would have had to be an application for support filed by your wife or an action to recoup filed by DHHS. So there would have been some proceeding somewhere. There would have to be a garnishment order sent to Social Security and Social Security would send you a letter advising of the garnishment in advance of the garnishment too. So this is not done in secret. Your post contains no information about this so its not possible for me to know where things stand. If I were you, I would either talk to a family lawyer in the county/state where the support order was entered or, if you cannot afford a lawyer, then talk to the child support authorities for that county. The contact information for child support enforcement can be found at the link I sent you if the support is based in NC. You can voluntarily arrange for garnishment. I also don't know exactly what you mean by back child support. A parent can seek retroactive support for a child for the 3 years preceding the filing of a support complaint. Otherwise, support starts on the day a support complaint is filed. Or was an order already established and you did not pay creating arrears? If an order was established and then you became disabled, rather than allow arrears to continue, did you seek to modify the support order based on the change in your income? If not, I would seek to do it now so it will help reduce the child support you owe.... Read More

No, alimony and domestic support obligations are not dischargeable in bankruptcy.  Plus, a failure to pay postpetition (after filing) obligations in a Chapter 13 case is grounds for dismissal of the case. Mark Markus has been practicing exclusively bankruptcy law in California since 1991.  He is a Certified Specialist in Bankruptcy Law by the State Bar of California Board of Legal Specialization,  AV-Rated by martindale.com, and A+ rated by the Better Business Bureau.  ... Read More

Discharge rules of bankruptcy require that your "late-filed" tax returns be completed at least two years prior to your bankruptcy filing. The years in question (10, 11, and 12) are non-dischargeable because they are not at least three (3) years old or older, so they would have to be paid thru your Chapter 13 Plan (at "0" % interest as long as there is no tax lien). Many times, potential debtors wait to file to discharge their taxes until those tax years become dischargeable in bankruptcy.... Read More