Total Pageviews

Monday, March 30, 2015

1346 The Alameda # 7-156, San Jose, CA 95126 closing

If you want to snail-mail something to Mark Shapiro, email Mark@GoGuys.com; because as of 4/15/2015, the address of  Mark Shapiro/JudgmentBuy, 1346 The Alameda # 7-156, San Jose, CA 95126 is closing. The main address of JudgmentBuy is in GA, see http://www.judgmentbuy.com/
Thanks all.

Should I keep posting to this blog?

I took a few days off from writing here, it seems like I'm talking to the wind most of the time.....

Monday, March 23, 2015

Levying Every Bank

Some “experts” have suggested that one way of finding out where a debtor banks, is to serve every bank near the debtor with an information subpoena, asking them to disclose any information they may have on the judgment debtor.

One of many judgment-related articles: I am not a lawyer, and this article is my opinion based on my experience in California, please consult with a lawyer if you need legal advice.

Subpoenaing every bank near your debtor is usually an obsolete and expensive way to discover mostly old information. What you want is the bank account(s) with available cash in them, owned by your judgment debtor.

While bank signature cards do not tell you everything, some judgment enforcers ask for them. Even if the card does not tell you anything about how much money is currently in the account; they do show if an account did exist, and what accounts they had/have. It will also show their social security number, and other signers on the account. Signature cards are often kept for 5 years after the customer closes their account.

The styling of a bank signature card account is the name(s) and Social Security Number(s) it is in, as well as each of their capacity.

In some states, sneaky judgment debtors put their own kids names on bank accounts, sometimes for the sole reason of making the bank account immune to most creditors.

Another variable in whether funds are available is the source of funds. Some funds are exempt from levy, at least to some extent - ERISA insured pension income, Social Security, SSI Disability, to name a few.

In only some states, if you have a judgment against only one person on the signature card that makes the account shared and protected from a levy of one of the names.

It is not uncommon for elderly parents to add a child to their account to assist in their financial affairs, however in some states; if that child is a judgment debtor a creditor can reach all the money in the bank account. If the child is only added as a signer, their lack of ownership will protect the account from levies against them.

One trick I have seen judgment debtors take advantage of the Uniform Transfer to Minor's Act. They will open a checking account in minor child's name, but debtor is the only signer. Then they can use that account freely, knowing that it is protected from levy by the account's ownership (the minor child).

———

Mark D. Shapiro - Judgment Expert - http://www.JudgmentBuy.com - where judgments get Recovered.
Q: My rental tenant that is moved out and very mad it me for not returning
all their security deposit. Their pet stained the carpet so badly I had to replace
much of the carpeting, and did other damage as well.

A: I am no lawyer but I recommend offering to give them half the security deposit as a way of compromising that might avoid future hassles.


————

Mark D. Shapiro - Judgment Expert - http://www.JudgmentBuy.com - where judgments get Recovered.

Wednesday, March 18, 2015

Debtors Forgetting To List Property In Their Estate

What if you have a relatively small judgment, and have recorded an abstract of judgment already recorded, the judgment’s renewal already renewal recorded, and the debtor is on title of the home, and has filed for Chapter 7 bankruptcy and they live in the home, however it is not listed on the mortgage?

If your debtor files for BK protection, and fails to list their home on their BK petition they are violating federal laws. The BK Trustee does not know already about the property because it was not listed as an asset on the petition. The Trustee was ready to close up, and have the court discharge the debtor’s debts.

I am no lawyer, however I believe your lien (recorded a year ago) is well cured. With such a small judgment, you do not want to spend a lot of money in BK court attempting to fight your debtor. Because they failed to list their real property, have not tried to avoid the lien. It is hard to imagine them trying to go back to the BK court later to attempt to get it avoided, because that will raise the issue that they failed to disclose all their assets.

Should you notify the US Trustee that you believe there was fraud, or shut up, and let your lien continue to grow with interest and wait until the debtor tries to sell the house? Especially if you have many years before your lien expires; should you raise the possibility of the fraud, at the risk of them coming clean before it is discharged, and moving to avoid your lien.

Because the mortgage is not in their name, it is hard to tell if there is enough equity for them to even attempt to avoid your lien. Your choices are to notify the US Trustee or just take no action and see what happens.

Things work a bit different in each state. For example in Texas, a garnishment action requires a completely different lawsuit, usually in the same court as the judgment. The bank (or other garnishee) is sued with the debtor listed as a party to the lawsuit. Once the citation is served on the garnishee, it immediately places a lien on any money or assets the garnishee owes to the debtor.

The lawsuit is then litigated usually by the lawyer for the bank, who will probably contact the creditor with the amount owed and a discussion on how to move forward. Usually, an "agreed judgment in garnishment" is filed when both the bank and creditor agrees to final attorney costs and payment. In Texas, the bank is allowed to deduct their costs of responding to the judgment from the amount in the debtor account.

The Federal law that applies is US CODE 547:

(5) that creates a perfected security interest in inventory or a receivable or the proceeds of either, except to the extent that the aggregate of all such transfers to the transferee caused a reduction, as of the date of the filing of the petition and to the prejudice of other creditors holding unsecured claims, of any amount by which the debt secured by such security interest exceeded the value of all security interests for such debt on the later of:

(A)(i) with respect to a transfer to which subsection (b)(4)(A) of this section applies, 90 days before the date of the filing of the petition; or (ii) with respect to a transfer to which subsection (b)(4)

(B) of this section applies, one year before the date of the filing of the petition; or the date on which new value was first given under the security agreement creating such security interest;

(6) that is the fixing of a statutory lien that is not avoidable under section 545 of this title;

(7) to the extent such transfer was a bona fide payment of a debt for a domestic support obligation;

(8) if, in a case filed by an individual debtor whose debts are primarily consumer debts, the aggregate value of all property that constitutes or is affected by such transfer is less than $600; or

(9) If, in a case filed by a debtor whose debts are not primarily consumer debts, the aggregate value of all property that constitutes or is affected by such transfer is less than $5,000.

I think since the BK debtor came in pro-per. the trustee will help them.

If the debtor threatens to take you to small claims court; it is obvious they do now know what they were talking about. They would have to go back to Federal court, and I doubt they would do this for under $600.

It would not take any time or cost anything to notify the trustee of the missing property. The trustee would probably bounce them out of the BK for you. Or, make the debtor list the missing asset on their petition. I would get a copy of the deed, and send it to the Trustee with your comments.

That will turn it into a Chapter 7 Asset BK. If the debtor drops out go BK, your lien remains valid and the property probably increases in value, as well as the judgment.

If the debtor does not drop out of BK, then their interest in the property will probably be sold by the court. However, probably no one will want to buy it because they would be obtaining an interest in a home where someone else is living and has some interest in it.

However, you could purchase it, even credit bidding on it using your judgment; and become the new owner of that interest in the property. That might not be a bad position to be in.

--------

Mark D. Shapiro - Judgment Expert - http://www.JudgmentBuy.com - where judgments get Recovered. Save big money, visit http://GoGuys.acndirect.com

Tuesday, March 17, 2015

California Bail Bonds

What if you attended a bench warrant hearing where the judge issued a warrant for the arrest of your judgment debtor, for not showing up for a debtor examination hearing. For an example, the bail gets set at $2,500. If the judgment debtor gets arrested and pays the bail, who gets to keep that $2,500? Does the judgment creditor get any of it?

I am no lawyer, and my opinion is if your debtor paid a cash bond, you may be able to get your hands on the money. However, if the judgment debtor puts up the bail through a bail bondsman, you will be out of luck.

If an individual has a bail warrant to pay, they can post cash or bond to insure their court appearances. If the individual posts cash, you may have a shot at the cash; now that the court now holds it; if it was the debtors.

The chances of the debtor having cash in their pocket equal to the bail amount is unlikely. The defendant can call someone and they will post bail. That bail money will belong to the person who posts it, not the debtor. Your chance of grabbing such money not coming from the debtor is almost zero, unless it was their spouse.

If the debtor posts a bond, 10% is given to the bail bondsman, when they walk out of jail. Sometimes if the debtor can post bond out of custody, they can avoid court or jail time.

Could the debtor post bail using a credit or debit card, or a check? Does it need to be cash? An individual can post bail with debit or credit card if the court or jail is set up to do that. If the full amount is posted by the debtor, it is likely the court will simply credit their card back, minus the fees; or write them a check and mail it to them. If they post (pay) bail by credit card or check; the court will have their money, which you could probably ask for it. If it was not their credit card, you would most likely be out of luck.

If the debtor offers you a credit card or check, you might ask them if it is good. Then, try to cash it at their bank or your bank. Some debtors have occasionally contacted the judgment enforcer who is paid their bail payment have asked to get the (e.g.) 10% back on the bond. One can usually calm them down by saying that their car insurance premium was not refundable, even if they had no crashes, there are no refunds, sorry.

Bench warrants and bail works differently in each state. In California, each county can work differently. In some counties, if the debtor finds they have a warrant, they simply go to court where the judge scolds them mildly, and only sets a new date for the new debtor exam.

Of course, you have to pay the sheriff to serve the warrant, which they often cannot get done, however they keep your money.

--------

Mark D. Shapiro - Judgment Expert - http://www.JudgmentBuy.com - where judgments get Recovered.

Sunday, March 15, 2015

11 U.S.C. 108(c) And ORAP Liens

Certain BK judges in California have argued that ORAP liens are not tolled, pursuant to 11 U.S.C. 108(c), due to a judgment debtor exam not being a commencement or a continuation of a civil action.

One of many judgment-related articles: I am not a lawyer, and this article is my opinion based on my experience in California, please consult with a lawyer if you need legal advice.

One could argue that in (e.g.) the Hunters Run, Burns, and Hilde; are all part of the 9th circuit. cases where ORAP liens are still tolled pursuant to 108(c). Also, one could argue that Title 9 of the California Code of Civil Procedure is the (continuation of) civil enforcement actions available to hold the debtor accountable to the terms of the judgment. This means the Trustee will allow ORAP liens to expire at one year.

11 U.S.C. section 108 reads:

(c) Except as provided in section 524 of this title, if applicable non-bankruptcy law, an order entered in a non-bankruptcy proceeding, or an agreement fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor, or against an individual with respect to which such individual is protected under section 1201 or 1301 of this title, and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of—

(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or

(2) 30 days after notice of the termination or expiration of the stay under section 362, 922, 1201, or 1301 of this title, as the case may be, with respect to such claim.

Good reads on the subject are Jeffrey Golden’s “Liens Gone Wild”. Also, check out Wind Power Systems, Inc., 841 F.2d 288, 292.

Another funny California thing, is some judges deny extending ORAP liens based on no existing authority other than CCP 708.110(d) and 708.120(c).

--------

Mark D. Shapiro - Judgment Expert - http://www.JudgmentBuy.com - where judgments get Recovered.