How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Timothy D. Smith Your Own Question

Timothy D. Smith
Timothy D. Smith, Attorney
Category: Legal
Satisfied Customers: 1981
Experience:  10 years practicing IP law and general litigation
12711280
Type Your Legal Question Here...
Timothy D. Smith is online now
A new question is answered every 9 seconds

I have a state of NJ pension that is still with the state from

Resolved Question:

I have a state of NJ pension that is still with the state from my deceased wife who passed away in Sept. 2011. I am about to go into foreclosure and was told not to touch it until 6 months after I file for bankruptcy. If I take it out of the pension, can I put it in my sons name so the bank can't touch it.

Also can I sell all of the items such as furniture, TV's etc to my son so the bank can't touch them also.

Also, if I apply for and get my wifes SS Survivors benefits. Can the bank have that garnished
Submitted: 1 year ago.
Category: Legal
Expert:  Timothy D. Smith replied 1 year ago.
I hope this message finds you well, present circumstances excluded. FIrst off, just because the bank forecloses on your home for defaulting on the mortgage payment does not mean that the bank can get to or liquidate your other personnel possessions such as TVs, furniture, etc. The only way they could go after any of your other possessions would be if they financed those possessions too, and there is some deficiency in the liquidated amount of the property relative to what is owed on the property. In short, do not worry about losing your personal possessions or having to sell those possessions to your son. To that point, if by some chance the creditor could get to those possessions, the court would likely void the sell of those items unless they were sold for fair market value or more.

Different pensions plan have different rules relative to transfer. However, as a general rule the pension proceeds can be first inherited by the primary beneficiary and when the primary beneficiary passes away, it can be inherited by secondary beneficiaries, such as your son. That said, we are hoping you are not going anywhere soon and you cannot simply pass the pension on to your son by signing over unless the original pension contract would allow such a move...which is unlikely (possible if he was originally named as a beneficiary - but unlikely). There may be other ways to handle the situation though. You may be able to establish a living trust in which the pension in placed on behalf of your son. You need to speak with the pension administrators about your ability to assign the inherited pension to a trust in your son's name.

The bank cannot garnish Social Security Survivors benefits. If they attempt to do so, they will be violating Section 207 of the Social Security Act (42 U.S.C. 207).

I would also advise against filing for bankruptcy protection over the foreclosure of your home. One reason for this is that the court will likely try to liquidate the home to pay off debt anyway. In other words, filing for bankruptcy may only be a temporary fix for a long term issue.

Let me know if you have any other questions or comments. I want to make sure you are completely satisfied.

Best wishes going forward.



Customer: replied 1 year ago.

I thought that if I filed for bankruptcy, the bank wouldn't be able to come after me and garnish any earnings that I make in the future. If I don't file can they garnish any earnings from me in the future, or is it just l;ike I'm leaving and that's it. They just sell the house and get what they can.


 


Also when leaving my house. I've been told that I can just take what I want and leave the house. In other words I can leave whatever I want and just take what want and don't have to clean up or make any repairs.


 


My sheriff sale date is 8/15/13, that means that I will have to be out by 9/15/13. I thought that bankruptcy would give me more time in the house.

Expert:  Timothy D. Smith replied 1 year ago.
If you file bankruptcy, they will be barred from garnishing your wages until the bankruptcy is complete. You will likely end up on some form of payment plan if the sale of the house is not enough to cover the debt. As stated before, filing may only be a temporary fix to a long term issue. In most cases, the bank takes the proceeds from the sale and does not go after anything else from the debtor. They will write off any additional loss between the sale proceeds and what is owed.

You can just walk away, although they could try to come after you for clean-up costs if the sale proceeds aren't enough to cover those costs. You can take all of your possessions but cannot remove permanent attachments to the house, such as, lights that are hardwired to the home, ovens, stoves, etc. You can take refrigerators, washer and dryer, etc.

Customer: replied 1 year ago.

Thanks, 1 more thing.


 


If I take the pension now and roll it over to an IRA or some other retirement account. Can the bank take that from me. This really has me scared. My business is not good and will be going out of business. This money is the only thing that I have to fall back on and want to make sure that I have it in the future.

Expert:  Timothy D. Smith replied 1 year ago.
No. Pensions and/or IRAs cannot be touched by garnishment. You should be good to go on that front. However, IRAs are subject to levies. A levy works similar to garnishment allowing a creditor to grab an amount of the account. However, in a large majority of the cases, levies are only used by the IRS and other governmental entities. It is less likely your creditors would take this approach. The reason private entities don't attempt to levy as often is because they have the ability to write off losses and courts give more deference to the defendant in explaining circumstances than in a garnishment situations in most cases.
Timothy D. Smith, Attorney
Category: Legal
Satisfied Customers: 1981
Experience: 10 years practicing IP law and general litigation
Timothy D. Smith and 3 other Legal Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it. Lee Michigan
 
 
 

Meet The Experts:

 
 
 
  • Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
< Last | Next >
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    19941
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Attorney

    Satisfied Customers:

    8189
    25 years of experience helping people like you.
  • http://ww2.justanswer.com/uploads/jespoag/2008-12-17_222355_jessepic.jpg JPEsq's Avatar

    JPEsq

    Attorney

    Satisfied Customers:

    2132
    Experience as general attorney, in house counsel, SSDI, Family Law attorney, and law professor
  • http://ww2.justanswer.com/uploads/gsenmartin/2008-04-22_214950_me1.jpg Guillermo J. Senmartin, Esq.'s Avatar

    Guillermo J. Senmartin, Esq.

    Attorney

    Satisfied Customers:

    110
    7+ years of experience handling various legal matters.
  • http://ww2.justanswer.com/uploads/PA/PaulmoJD/2013-10-10_195858_JAImage.64x64.jpg Law Educator, Esq.'s Avatar

    Law Educator, Esq.

    Attorney

    Satisfied Customers:

    31621
    JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    15975
    Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.