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

my deceased wife who passed...
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
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Answered in 16 minutes by:
6/19/2013
Delta-Lawyer
Delta-Lawyer, Attorney
Category: Legal
Satisfied Customers: 3,546
Experience: 10 years practicing IP law and general litigation
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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.



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Customer reply replied 4 years 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.

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.

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Customer reply replied 4 years 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.

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.
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