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Ask WALLSTREETESQ Your Own Question

WALLSTREETESQ
WALLSTREETESQ, Attorney
Category: Bankruptcy Law
Satisfied Customers: 15991
Experience:  14 years exp., CH 7 AND 13 Bankruptcy cases, AFL-CIO UNION PLUS, UFT NYSID AND ALL MAJOR UNIONS
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my attorney gave me advice to withdraw my bankruptcy filing

Customer Question

my attorney gave me advice to withdraw my bankruptcy filing as my soon to be ex-husband was filing for bankruptcy. Now I have a judgement against me and money has been deducted from my account. Is there anything I can do to protect myself? Is there anything I can do to hold the attorney responsible?
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  WALLSTREETESQ replied 1 year ago.

WALLSTREETESQ :

Hello I am a licensed attorney here to help you with your question, please review my response and do not hesitate to ask for clarificati on

WALLSTREETESQ :

this is an unfortunate situation, if you are still married and your spouse in CA filed bankruptcy,

WALLSTREETESQ :

the garnishment should not have happened, if he did not file a bankruptcy, you should consider filing a bankruptcy now to stop the levy and garnishments,

WALLSTREETESQ :

In terms of the action against your attorney, you can file a grievance with the bar association, complaining of his actions, and it may be possible for the bat to force him to pay your fees,

WALLSTREETESQ :

You should write a letter to the attorney and advise him you will file such a complaint, he may try to settle with you.

Customer :

thank you for the reply. we are still married, and since the garnishment did occur how do I fight it? additionally, the attorney in question picked up the phone when I was in the office and he called my soon to be ex-husband's attorney to tell him to pull me out...I did not stop him from calling, but he took charge and I allowed him, as a layperson and I feel like I was given horrible advice now...and I am worried that any debts incurred during my marriage may suddenly be taken from my accounts.

WALLSTREETESQ :

to fight a garnishment after a judgment is difficult, since CA is an common law state even if you did not sign on the original debt the lender can collect on a spouse,

WALLSTREETESQ :

so unless you file a bankruptcy or go to Civil Court and try to vacate the original judgment the garnishment will continue.

WALLSTREETESQ :

A creditor can only garnish you if they received a Court judgment,

WALLSTREETESQ :

so you would have to overturn the court judgment, by claiming you never owed the debt, or were never served with the lawsuit.

Customer :

how would i go about filing a claim? I have moved several times and I don't believe I ever received a judgement, or notice to appear or anything like that. Also, he did file bankruptcy and our divorce has not been finalized. Since his bankruptcy I have received an inheritance, and this is what triggered the garnishment. i was advised that i could not file bankruptcy now which would jeopardize my inheritance.

WALLSTREETESQ :

the inheritance is an issue,

Customer :

in what way? please explain...

WALLSTREETESQ :

however if your spouse did file bankruptcy creditors should have been stopped from collecting on you as a spouse,

WALLSTREETESQ :

in terms of trying to reopen the case,

Customer :

so now what?

WALLSTREETESQ :

you need to find out where the judgment came from,

WALLSTREETESQ :

and hire an attorney to reopen it, or when you receive your inheritance, pay the debt to satisfy the judgment,

WALLSTREETESQ :

Indiana law does not require employers to pay employees for any accrued vacation when that employee is terminated. However, courts in the state have often ruled that there is a presumption that terminated employees are entitled to vacation pay, unless there is a written company policy that states otherwise.

WALLSTREETESQ :

Ignore the above

Customer :

we have the notice of levy, and the money has been deducted from my account already and is being held. from what i understand it will be held for 10 days and then handed over to the plaintiff unless i fight the judgement. what can i do to fight this and get this money back? do i have to have an attorney do this for me? can i do it myself?

WALLSTREETESQ :

You should have an attorney, however it may be possible to do yourself, you need to know which Court the original judgment was filed, and go to that court, and file a motion to reopen and vacate the judgment,

WALLSTREETESQ :

this is not easy but possible.

WALLSTREETESQ :

You can also contact the lender or collection agent and try to work out a payment plan to settle the debt.

Customer :

let me clarify one thing...based on the fact that my soon to be ex husband filed a BK the garnishment should never have happened in the first place so shouldn't I be able to vacate the judgment based on that?

WALLSTREETESQ :

if the debt is your husbands, or was listed in his bankruptcy it should be stayed,

WALLSTREETESQ :

If it was never listed in his bankruptcy, they would have no notice, and his filing would not affect him

WALLSTREETESQ :

His bankruptcy attorney should have listed the creditor if the debt was acquired during the marriage,

Customer :

additionally, i believe that the statute of limitations applies as well...all of the debts in question are very old and should be beyond the 4 years...

Customer :

My ex is very uncooperative, can i call his BK attorney directly for information?

WALLSTREETESQ :

that may be an issue, you should contact the attorney and ask for a copy of his petition, since it is public record you should have access to it,.

WALLSTREETESQ :

You can also review the CA garnishment laws linked above

WALLSTREETESQ :

If you have any further questions please do not hesitate to ask.

WALLSTREETESQ :

Also, in your divorce proceeding, you can force your spouse to pay the debt, or have it included in his bankruptcy

WALLSTREETESQ :

If you have any further questions please do not hesitate to ask.

WALLSTREETESQ :

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