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Roger
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26108
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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HiMy husband and I filed for a bankruptcy in February, it

Customer Question

Hi
My husband and I filed for a bankruptcy in February, it was a chapter 13. Last August we did a loan modification on our house, to save it from Foreclosure. Our home is underwater by 70,000. When we did the loan modification, could we have asked the banks to wipe off the underwater part of the loan?
Now we are receiving from our Mortgage company, they want to collect the fees when we accepted in a loan modification.
Now we are having troubles keeping the house payment up with our CObRA benefits. My husband has progressive MS, and the house payment and the Cobra are causing financial distress again.
Could the amount the house was underwater, been included in the Chapter 13
Submitted: 11 months ago.
Category: Bankruptcy Law
Expert:  Roger replied 11 months ago.

Kirk Adams : Hi - thanks for looking me up!
Kirk Adams : Loan modifications usually DO NOT involve a reduction in the amount owed.
Kirk Adams : Instead, the loan modification usually involves a reduction in the interest rate, an extension of the repayment terms, a different type of loan, or a combination of all three.
Kirk Adams : But, the amount owed usually isn't reduced - - so it's unlikely that the bank would have wiped away the underwater amount of the loan.
Customer:

How do we deal with the part of where the house is underwater?

Customer:

Could the underwater amount be included in the Chapter 13, to wipe it away

Kirk Adams : No, not in a 13.
Customer:

How do we deal with the underwater amount?

Kirk Adams : If you were to convert to a chapter 7, you could have the debt wiped away, but you would also likely lose hte property to foreclosure.
Customer:

So what are our options to wipe away this debt?

Customer:

hello , are you still on line?

Kirk Adams : Chapter 7 is the only sure way, but like I said, you would lose the home if you were to do that.
Customer:

Do you think a bank would agree to do a short sale with 70,000 in shortage.

Kirk Adams : The only other possible thing you could do is apply for another loan modification and ask the lender to reduce the principal (underwater amount), but it's not likely that is will happen.
Kirk Adams : If faced with foreclosure, the lender certainly could agree to a short sale with that amount being wiped away as that's what would happen in a chapter 7 anyway.
Customer:

In the beginning you stated a loan modication, is to change the interest rates, extend the payment plan or there was another issue. I am not confused bc you are saying to do a loan modification, and in the beginning you said the loan modification is not used to deal with an underwater property.

Kirk Adams : I said reducing the principle USUALLY isn't reduced in a loan modification.
Kirk Adams : And it usually isn't.
Kirk Adams : There are rare circumstances where the lender may do this, but it is very, very rare.
Customer:

I think we are locked into this loan modification, is that possible? Can we go to the bank now and ask for a different type of loan, or do we have to stay the course with the loan modification, and we can not change it

Kirk Adams : Lenders are not under an obligation to do this, so they usually don't.
Kirk Adams : Yes, a loan modification is a PERMANENT change to your mortgage loan, and you are obligatied under those terms == unless another modification occurs.
Customer:

Ok, I will come back to this issue.

Kirk Adams : Usually, a lender will not agree to explore a loan modification for at least a year from the last loan modification.
Customer:

We had a 2nd mortgage on the home, which is deemed predatory, the interest rates were like 17% and proper evaluation of us the client, did not happen, so we got another loan for 118,000.

Customer:

So you are saying it is a rare case to be approved for another loan modification. The reason this happened with borrowing against the house, is we were involved in a medical treatment, that was totally fraudulent. I have to go to the state attorney's office to do the investigation, that fraud did indeed happen. That is why we borrowed against the house so much. It is a rare sitution, however do you think the bank would then

Kirk Adams : It would be rare to get another loan modification within a year from the last one, but I suppose it is possible. The worst thing the lender could tell you is no - - so there's no harm in asking.
Customer:

What about the 2nd loan, should this loan have been wiped out with the bankruptcy.

Kirk Adams : Yes, a second (third or forth) mortgage can usually be "Stripped" in your Chapter 13 filing.
Kirk Adams : This means that the second mortgage is treated as an unsecured debt and generally isn't paid back OR is paid back at pennies on the dollar.
Kirk Adams : Here's a good link you can read about that: http://www.nolo.com/legal-encyclopedia/rid-second-mortgage-chapter-13-bankruptcy.html
Customer:

Our bankruptcy attorney, did not do this? Now he is saying he has to file an amendment to the original plan. And it is going to cost alot of money to do it.

Kirk Adams : He can file a modification to your plan and include the second mortgage in your filing and try to strip the loan - - which would help you gain relief from having to pay at least that back.
Customer:

Our bankruptcy lawyer is telling us to go to the Elder Lawyer, and ask alot of questions, like if my husband dies, will I be able to afford to live in the house? And before he will do a lien strip, I have to let him know what the elder lawyer says about income if my husband were to die?

Kirk Adams : The reason for this could be that unsecured debts (which is what the 2nd mortgage would be if it were stripped) are paid back based on how much disposable income you have after making plan payments.
Kirk Adams : If your spouse were to pass away, your disposable income would likely change.
Kirk Adams : However, that doesn't change the fact that you can strip the loan.
Customer:

So to reiterate what you are saying, if we were to petition the courts to include the 2nd mortgage, it would change the plan repayment schedule and is there a formula the courts say to use to see what discretionary income we have left over and could we afford

Customer:

Is this what you meant, if we could afford the increase in making plan payments

Customer:

My husband is on permanent disability, and do you think this would help us to ask for a special consideration to the bank to remodify the loan.

Kirk Adams : If you strip the second mortgage, it should actually reduce your payments.
Customer:

We are not making the payments on the 2nd mortgage.

Kirk Adams : Your payments shouldn't increase with the stripping unless you have a significant amount of disposable income.
Kirk Adams : Every bank has internal criteria regarding loan modifications, so there's no way to predict what the lender may do. All you can do is ask.
Customer:

We do have a significant amount of income, 72,000 per year on disability. However about 80% of our income is to the mortgage company, the repayment of the chapter 13, and the cost of our cobra benefit

Kirk Adams : Ok. In that case, there's not likely much to pay unsecured creditors.
Customer:

I am in a quandry, as i feel the lien strip should of been included in the original plan.

Kirk Adams : It certainly could have, but the good news is that the plan can be modified.
Customer:

should we pay the lawyer additional fees to file this with the courts?

Kirk Adams : You certainly can complain to your lawyer that he should have included this and you shouldn't have to pay to have this done as it should have been taken care of in the first place.
Kirk Adams : But, I can't say how the lawyer will react.
Customer:

he absolutely reluctant on filing the lien strip.

Kirk Adams : I really don't know why -- unless he's worried that he should have done it initially. I don't know why he would not want to do this for you.
Customer:

Now our 1st mortgage company has filed with the bankruptcy courts a petition, to charge the fees on the original loan modification for appraisal fees, attorney fees,

Customer:

I do not understand how the mortgage company can now come back to us and ask for the bankruptcy courts to amend the plan to include these fees.

Kirk Adams : If the fees were part of the loan modification, and the loan modification was done during the bankruptcy, and the bankruptcy court approved the modification, the fees have likely already been approved and you're probably going to be stuck with that.
Customer:

we also got notification from a collection lawyers office, regarding us not making the 2nd mortgage payment, and the second mortgage company is asking for 40,000.00. The loan modification was approved in August 2012. Our plan was approved in February of this year

Kirk Adams : If you didn't include the 2nd in your bankruptcy, that's why the lender is coming after you.
Kirk Adams : Thus, filing a motion to modify would stop the 2nd mortgage lender from pursuing you.
Customer:

so would it be best to file the amended plan now, and our lawyer is just wanting to put it off? this does not make sense, to me.

Kirk Adams : It would be best to file to modify the plan ASAP to stop the 2nd lender in its tracks and strip the loan.
Customer:

so is there a time frame in which we have to remodify the plan, so we can stop the mortgage lender coming after us?

Kirk Adams : You can generally modify a plan any time.
Kirk Adams : However, if the 2nd mortgage lender is demanding money, etc., then it would be a good time to address and resolve this.
Customer:

Yes, the 2nd mortgage company is using a collection agency under a law firm.......so how much time do we have from the date we received this correspondence?

Kirk Adams : There's no definite timeframe, but if they're informed that you're in bankruptcy, it is likely that it would seek permission to proceed against you even if the loan isn't included - - which can take a few months. So, you've got time, but the quicker you address this, the better.
Customer:

so would the 2nd mortgage company have to seek approval/petition from the bankruptcy to proceed with action against us and then that has to be approved by the federal bankruptcy

Kirk Adams : Because you've filed bankruptcy, you should be protected under Section 341 of the bankruptcy code (automatic stay), which prohibits any creditor from pursuing you without getting leave of court to proceed with collecting against you.
Customer:

So on the underwater part of the loan, you are saying to ask the bank to reconsider us for a new loan modification and what would be my best arguement for us.

Kirk Adams : BUT, the 2nd lender likely doesn't know you filed IF they haven't been noticed of the bankruptcy if they weren't included.
Kirk Adams : Thus, notifying it would invoke your rights and the lender then should have to file a motion for relief from the stay before proceeding.
Kirk Adams : As for the underwater part, the argument would be something along the lines that the most the lender could expect to recover is the current value, and that if the lender can't approve a modification that allows for a reduction in the principle due, then you will have to let the property go and the foreclosure will likely produce less than what you're willing to pay.
Customer:

in your response, the last sentence confuses me, so we tell the bank we will let the house go into foreclosure, and the foreclosure will likely produce less than what you're willing to pay. I am not sure I am following this, an example of what I understand is this............this is an example....... the foreclosure of the house would go for 265.00, and the loan amount is 345,000........so the banks stand to lose the difference between 345,000(loan amount)- 265,000(price to sell it)= -120,00

Customer:

Would the bank lose more in a short sale or a foreclosure?

Kirk Adams : The bank would likely lose more through foreclosure than a short sale.
Kirk Adams : But, both are going to produce a loss.
Customer:

what is in our best interest? to use this argument of foreclosure to the loan modification department of the lender.....

Kirk Adams : Either way - loan modification, short sale or foreclosure - the lender is going to lose money, but it will cost least to do the loan modification because there will be practically no legal fees; with a short sale or foreclosure, there are many more expenses and fees.
Kirk Adams : If you want to keep the property, your best interest is the loan modification.
Kirk Adams : In order to have a chance at this, you're going to have to try and convince the lender that the cheapest way out for it would be do the loan modification and avoid the time and expense of a forelosure.
Customer:

The cheapest way for the bank is to do a new loan modification with a principle loan reduction. there is a new hamp 2 program that considers a principle loan reduction.............so by this new Hamp2 program, would the banks be required to do another loan modification? do you know anything about this Hamp 2 program, and if not, who would I contact to get more information on the Hamp 2 program

Customer:

what about the fees our 1st mortgage company is trying to collect on a loan modification that was approved last year.

Kirk Adams : Yes, you would have to try and sell that it's best for the lender (and you) to do the loan modification.
Customer:

with the loan modification, we received no documents that said we need to pay for fees, so how can the lender for the 1st loan modification, now ask us for these fees?

Kirk Adams : The fees assessed for the first would likely be either absorbed by the new modification or wiped away with part of the debt. (
Kirk Adams : If the lender approves it, of course.
Customer:

so our lawyer has to file an amended plan for the1.) fees charged by the 1st mortgage company, and 2.)also the 2nd mortgage.

Customer:

Also, my husband has progressive MS, and his cognitive abilities have been greatly diminished. Before we filed for the bankruptcy in January and plan approved in February, he took out a pay day loan like the week before the bankruptcy was filed. and the payday loan people took money out of our checking account after we filed for bankruptcy. they have sent us to a collection agency and part of the collection agency is trying to say they are going to put a warrant out for my husband's arrest, if we do not pay back the loan amount.

Kirk Adams : It would be a motion to modify to include the 2nd mortgage.
Kirk Adams : The fees should be addresses in the loan modification.
Customer:

We did not get a copy of the loan modification papers, if we did, I have misplaced them. So do I call the bank and ask for reconcilation paper of the loan modification.

Kirk Adams : Also, your attorney can respond to the lenders recent motion for these fees and ask that any payment be stated until a later date to see if you can get another modification.
Kirk Adams : Yes, the lender can give you a copy.
Customer:

Do you know anything about the New Hamp 2 program?

Kirk Adams : I am not very familiar with it.
Customer:

do u know who I can call to get more information about it?

Customer:

It seems almost illegal for a bank to not write off the amount the house is underwater? It would appear there was something wrong with the 1st mortgage, allowing us the consumer to take out loans that would put the house under water?

Kirk Adams : The best place to start would be with the government agency who administers the program: http://www.makinghomeaffordable.gov/programs/lower-payments/Pages/hamp.aspx
Kirk Adams : Here's a good article that provides a snapshot of what the new parts of the program are: http://m.huffpost.com/us/entry/1578415
Customer:

should I talk to a real estate attorny, about this amount the house is underwater, and see knowledge he has about getting this house from underwater

Kirk Adams : I also deal with real estate matters of this type, and the options are really the same with or without the bankruptcy in play.
Kirk Adams : Chapter 13, loan modification, short sale or foreclosure are really the only options one has in a situation like this.
Kirk Adams : Chalter 13 is the only sure way to keep the house, but you usually must keep all the debt as well (except for a second mortgage).
Kirk Adams : A loan modification can also produce good results IF you can get it approved. But, again, the principal balance usually isn't reduced.
Kirk Adams : A short sale and foreclosure will allow you to get out from under the debt, but you also will lose the property.
Customer:

I am unemployed and it says something about the Hamp tier 2 unemployment loan. Maybe this would be another option to increase our chances of being requalified for a loan modification

Kirk Adams : Maybe so. There are several loan modification options, so maybe you can get help finding one to best suit you AND also get the lender to approve.
Customer:

We are having problems making the 1st Mortgage payment, we are now 1 month behind. would this help plead our case or make it a stronger case for loan modification

Kirk Adams : It will certainly show that you're having problems making the payment and that you're in need of a modification.
Customer:

It says something about Principal Mortgage reduction in this link you sent to me.

Kirk Adams : Like I said, I'm not all too familiar with loan modification procedures under HAMP 2, but it would be worth checking into that possibility.
Customer:

With our bankruptcy, it will be dismissed in 3 years. In the meantime is there something we can do to improve our credit worthness?

Customer:

Thanks Kirk, I appreciate the links you sent me and how can I pull up what you have said to me? do I type in the web address, and then will this chat come up with you and me.

Kirk Adams : The only real thing to so under a 13 is to try to stay current on your plan.
Kirk Adams : When you come out of the 13, you can continue your payments to creditors and begin rebuilding your credit.
Customer:

We have, we send the payment in the mail, and we are very faithful to that issue.

Kirk Adams : Also, as a general matter, chapter 13 looks better to creditors than a 7 because you're actually repaying debts.
Customer:

I thought at the end of three years, we had no obiligation to continue to pay them anything, it was suppose to be included in the plan.

Customer:

when I apply for a job, should i bring up the bankruptcy?

Kirk Adams : You will pay off many creditors under the plan, but many loans can stretch last the term - such as your mortgage.
Kirk Adams : Most employers do credit checks these days, so it's likely they'll find out - so if they ask, you certainly should be truthful.
Customer:

Do you think that the Hamp tier 2 was designed for people who did struggle with the Hamp Tier 1 program?

Customer:

Is the goverment by doing or introducing Hamp tier 2 program is designed to fix some of the problems Hamp Tier 1?

Customer:

Because of the Hamp Tier 2, are lenders required to reconsider people bc of this new program? by the goverment?

Kirk Adams : Hamp 2 was created for those who couldn't qualify under Hamp1.
Kirk Adams : Hamp 2 is also for people who failed on a Hamp 1 loan modification.
Customer:

Ok, thank you again for your services you were very helpful. I will give you an excellent for your servies

Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26108
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
Roger and other Bankruptcy Law Specialists are ready to help you
Expert:  Roger replied 11 months ago.
Here's a good link you can review on this: http://mandelman.ml-implode.com/2012/06/hamp-2-is-here-some-say-its-the-best-hamp-yet-and-theyre-probably-right-about-that/
Customer: replied 11 months ago.

Kirk


I did have another question and now let me think of it. Our loan modification was done in august of last year, and our bankruptcy was filed in Febuary this year, how can they come after us for these fees?

Expert:  Roger replied 11 months ago.
Hi - the fees should be part of the loan modification amount, and if this were a pre-petition debt, the expense could be discharged in the bankruptcy if you let the property go. Otherwise, you will likely have to pay it if you try to reaffirm the debt.
Customer: replied 11 months ago.

I did pay the 30.00 when I initially talked with you, will I be billed again for talking to you again?


 

Expert:  Roger replied 11 months ago.
No, you won't be charged UNLESS you rate/accept my later posts.
Customer: replied 11 months ago.

This was a pre debt before the bankruptcy was filed. However, we never received any of these so called fees when the loan modification was processed and accepted. So I am not sure if we can say this was a pre Position Debt, as we never received notice of these fees. So , it is as if we filed the bankruptcy and now the 1st lender is asking us for these fees. Do you think they are asking for these fees as we are now 1.5 months behind in our mortgage and this would be part of the foreclosure process if we were to foreclose on the property. We do want to stay in the house, and we do have a friend who is helping us out. so I think it will stay a foreclosure from happening.

Expert:  Roger replied 11 months ago.
It's likely that the fees are outlined in the loan modification documents. You should review those documents in order to determine this. However, I would think that the fees have to be identified somewhere in the documents, otherwise the lender would have no valid basis to request payment of them from you.
Customer: replied 11 months ago.

What is the document called for the loan modification, that would outline these fees?

 

I do understand, under what circumstance, would we have to pay these fees, ? If these fees did exist, would they have been wrapped up in the loan amount by the lender, which was an extension of payments for the loan.

 

I am not sure where or how we could be responsible for paying these fees?

Expert:  Roger replied 11 months ago.
There's not a specific page or document, but the fees are usually outlined in the promissory note, and may say upon default, these fees are required, etc. Or the provisions could appear in some other agreement you signed.

The quickest way to find this out is to ask the lender for the authority it claims makes you responsible for the fees.
Customer: replied 11 months ago.

Thanks Kirk, that makes better sense now, I do appreciate you explaining this to me, I was so frustrated trying to understand why and what happened to make this request to generate. Do you think potentially it got generated bc we were behind on the note, like 2 months, and then that is what kicked this request out?

Expert:  Roger replied 11 months ago.
That certainly could be the reason. It's likely that if you default, there are fees assessed, But your lender should be able to tell you this and point you to the relevant portions of the agreement.
Customer: replied 11 months ago.

I am soooo sooo thankful. I had called my bankruptcy attorney about that notice and no answer in regard to what it is, or what probably happened. Nothing.


I went to this lawyers office and asked for the petition and copy of the bankruptcy and only then did he bother to answer my question. It worries me so when I do not know what is happening and why it happens.


You have given me some peace just to that question alone.

Expert:  Roger replied 11 months ago.
No problem. Glad to help!
Customer: replied 11 months ago.

Our 2nd mortgage which is still out there, many people have told us it is a predatory loan, the interest rate charged was 17%, and well outside of the acceptable levels to be able to afford that loan. Someone said, we could sue the original lender for the interest rates charged. For 6 years, we paid that loan $1900 and our primary loan which was around $3,000 per month. Our house payment was $5,000 per month. There is a story of why we had a $5,000 loans, I will not go there right now. I am just trying to unpack the mess we have before us.


Can we sue the lender of the 2nd mortgage for being predatory.


Also, I have a sister in law that they lost their house to foreclosure and now the federal goverment, is sending them a refund for $25,000

Expert:  Roger replied 11 months ago.
Without reviewing documents, I can't say one way or the other whether or not the loan appears to be predatory. However, you can consult a local attorney to advise you as to whether or not this is viable.

However, because of the bankruptcy, the claim would be the trustee's and not yours - - so it may not be something you want to pursue.
Customer: replied 11 months ago.

This second mortgage was not included in the bankruptcy, so is it something we would even have time to consider, before we do the lien strip. Right now we have correspondence from a umm real time solutions, which is a collection agency asking for the amount for that loan from February forward.to today?


Is this something that should of been discussed with the bankruptcy lawyer before he filed the bankruptcy?

Expert:  Roger replied 11 months ago.
You may still have time to pursue a claim if you act on it soon. Talk to your bankruptcy attorney and see if this is something that is worth pursuing.

Also, you and your bankruptcy attorney should have discussed how to handle the second mortgage before filing, but if you didn't you can still discuss it now.
Customer: replied 11 months ago.

We made the payment of 1400-1500 per month for 6 years, had no idea it could of been a predatory loan and what that meant. It was a friend who helped us with the loan modification, told us this 2nd loan was predatory. Another person in the banking industry said the same thing. If we pursue it, it might have to go through the consumer courts.


Do you think it would go through the consumer courts?


 


We made almost 100,000 payments on this loan.


There is alot of baggage to why we needed this loan, and so if I can get rid of it, or have money returned, it would help so much.


 


Now I am talking with the bankruptcy lawyer about the 2nd lien and he said hemmed and said it would be alot of paper work and it could take up to 6 months to complete.


 

Expert:  Roger replied 11 months ago.

Since you're in bankruptcy, the matter would likely have to go through bankruptcy court via adversary proceeding unless the court allowed the case to be pursued in another venue.

 

It sounds like your bankruptcy lawyer was maybe paid a flat fee to take your case and doesn't want to do anything extra! This is not a difficult procedure (usually) and generally doesn't take 6 months. You may want to discuss this issue with him/

Customer: replied 11 months ago.

We paid our bankruptcy attorney 700.00, and then the bankruptcy courts paid him i think like 2500 on top of that money. So maybe this is why he is reluctant to do more. What do you think?

Expert:  Roger replied 11 months ago.

I obviously can't say for sure, but many bankruptcy attorneys want to run a "rubber stamp" process where the content is basically the same and all that changes are the names of the debtors - - this allows them to do the work for less money, which is a saving that is ultimately passed to the client. Thus, the resistance you're getting may be because this additional work is going to cut into his profit margin.

 

However, the client's well-being is the main concern and your case should be handled with detailed attention.

Customer: replied 11 months ago.

Thank you so much Kirk for your help, going through the bankruptcy was a very bittersweet story. Very sad reason. Unfortunately, my husband was diagnosed with a aggressive form of MS, three years ago. He received totally inappropriate care for 2 years, and we were not able to address the original reason why we had to take the bankruptcy. Our focus was getting him to the right medical care..........we are on that road now, with more issues to resolve, still with his medical care.

Expert:  Roger replied 11 months ago.
I'm sorry for your situation, and most people end up having to file bankruptcy due to circumstances they cannot control. However, I do wish you luck and hope things begin to turn around.

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