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Roger
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26126
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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This is a foreclosure question. I live in Florida and the

Resolved Question:

This is a foreclosure question. I live in Florida and the property is in Michigan. If I allow my property in Michigan to foreclose:

1. Can the mortgage holder try to get a judgment against me to garnish wages?, if so which state - Florida or Michigan?
2. I do have a car I own outright valued at about $2000 and a mobile home I own outright valued at $1,000. Car is in Florida, Mobile home is in Michigan.
3. I receive unemployment and VA disability compensation monthly. I also receive what is called Voluntary Separation Incentive (VSI) from the USARMY in a lump sum every October terminating in 2023. The VSI payment is taxable for federal income but not state (MI). Which of those wages would be subject to garnishment?

I do not want to go short sale route because the bank is requiring information form me that I do not feel comfortable providing (bank statements every month until sale complete, 3 years 1040, IRA/401K statements, etc). I do not trust banks.....thanks
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  Roger replied 1 year ago.
Hi - my name is XXXXX XXXXX I'm a Bankruptcy litigation attorney. Thanks for your question.

1. Michigan law would apply to the FORECLOSURE because it's the location of the property. Yes, the lender can sue for a deficiency judgment if the foreclosure doesn't generate enough money to pay off the mortgage. If a judgment is obtained in Michigan, FLORIDA law would apply to the collection if you're a resident of that state. In Florida, the lender can try a wage garnishment, but there are exemptions that would protect your income. Here's a good link you can read: http://www.floridalegal.org/pages/debtrghts.htm

2. As for the car, if it is titled in Florida, then Florida law would apply, and there is an exemption of $1000 for your vehicle. (see the same link above). If the mobile home is located in Michigan, Michigan law would govern it. Michigan law also has a few exemptions that may help. Here's a link: http://www.uschambersmallbusinessnation.com/toolkits/popup/P98_12_assettables_MI

3. Most retirement and disability wages are not available for garnishment. Also, if you live in Florida, it is very likely that you can protect most - - if not all - - of your income from wage garnishment. The link above outlines those facts as well.

You've got a complicated situation because you're dealing with property and laws of two different states. However, I think I've covered what you asked. But, if you have another question, or if you need something further, please let me know.

Also, another good thing is that MOST lenders don't pursue a deficiency judgment unless they're fairly certain that they will recover.
Customer: replied 1 year ago.

You must be the night guy because you seem to be the one I get after normal hours!


If the mortgage bank gets a judgment to attach my checking account, is that a one time thing, or can they always get what is in there over time?


 


If they do actually get a judgment to garnish wages, and there is not enough to garnish, does the threat continue. In other words, if I do end up getting a job in the future (doubtful since I am 59) can they still garnish?


 


I have 2 mortgages on this house. It is probable that most of that one will be satisfied with foreclosure since market value is very close to payoff. But the second mortgage bank will suffer although that payoff is only about 25K. Are there are special rules for second lien holders?


 


 


 


 

Expert:  Roger replied 1 year ago.
Hi Philip - thanks for the additional information.

IF the lender obtains a judgment and issues a bank garnishment, the lender can only take the money in the account at the time the garnishment is served. Also, if there are exempt funds in the account, you can claim those and the lender can't take those funds from you.

Under Florida law, a judgment is good/enforceable for 20 years, so the lender could come after you in the future.

No, there aren't special rules for second lienholders - - they have the same rights to sue/collect as a first lienholder. The only difference is their priority rights.

Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26126
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
Roger and other Bankruptcy Law Specialists are ready to help you
Expert:  Roger replied 1 year ago.

Hi - thanks for allowing me to assist you. I'll be glad to answer any additional questions you have regarding this or any other issue. If the need arises, please let me know.

Customer: replied 1 year ago.

When is the appropriate time to file the papers to claim exemption from bank garnishment in Florida? There is not yet a judgment against me.

Expert:  Roger replied 1 year ago.

Hi - thanks for looking me up again!

There's no need to do anything until/unless a judgment is rendered against you. At that point, you could notify the creditor of your exemptions. This would put them on notice of your exemptions BEFORE the creditor attempts to levy your bank account.

Customer: replied 1 year ago.


Thanks once again! I am concerned because I do have about $6000 in my checking account which I am keeping there to keep up with my current mortgage payments and IRS installment debts. I was informed (perhaps by you), that if my bank account is attached, I would get no notice, it would just be frozen and I would be notified after the fact. I want to make sure I do not lose the ability to keep up with these payments. I am considering withdrawing the money now and then just depositing what I need each month as I write checks.

Expert:  Roger replied 1 year ago.

That's right - - you likely would not be given any notice before your bank account is frozen.

You are much better to deal in cash while this is going on instead of leaving a large amount of money in your checking account. The creditor can still seize the account even if you have exemptions, and you would then have to fight with the creditor and go to court regarding your exemptions. So, you would/should be able to retain any exempt funds, but going through the hassle could take weeks/months.

So, your thoughts are good ones.

Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26126
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
Roger and other Bankruptcy Law Specialists are ready to help you

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