BK Judgment possible for one or both

[caquestion]

What is the name of your state? CA I have $4k judgment against the debtor who is a convicted criminal, on probation, working a series of temp jobs .His wife works fulltime at a regular job. I strongly suspect that he,the debtor, is making decent cash under the table in addition to his temp job(s)**************My question is,if I also garnish the wife's wages,does this strengthen my position if the debtor tries to file BK? Would the wife at that point also have to file BK in order to get out from under the judgment?If I don't garnish the wife's wages would it matter to the court whether the wife is on the BK or not? Also, how does one "qualify" for a BK? Thank you.

[Ladynred]

if I also garnish the wife's wages,does this strengthen my position if the debtor tries to file BK?

Not in the least. I don't think you CAN garnish the wife's wages unless you also named her in the lawsuit.

Would the wife at that point also have to file BK in order to get out from under the judgment?

That depends on whether or not she was also named in the lawsuit and the judgment. Filing bankruptcy would definitely put an end to your judgment.

If I don't garnish the wife's wages would it matter to the court whether the wife is on the BK or not?

What do yolu mean ?? If they BOTH file bankrutpcy, there is absolutely nothing either you or the lower court can do about it, the automatic stay prevents all collections.

Also, how does one "qualify" for a BK?

Technically there is no 'qualification' for bankruptcy. Whether or not you qualify for a Chapter 7 is the big question these days under the new law.

If the judgment against the criminal comes from criminal or illegal acts, the debt will not be dischargable.

[caquestion]

Thanks for your reply and I'll clarify the situation.....California does allow the garnishment of the spouse's wages even if he/she was not named in the original suit.This was a civil(small claims ) judgment against the husband who happens to be a convicted felon,still on probation for another 2 years . If he happens to declare BK would it matter to the court if the wife's wages were garnished or not?Would she also have to BK? If I can prove (through debtor's exam,etc.) he/she/they can pay this off within 36-48 months can they still declare any form of BK? Thanks.

[toughluck73]

Originally Posted by caquestion

Thanks for your reply and I'll clarify the situation.....California does allow the garnishment of the spouse's wages even if he/she was not named in the original suit.This was a civil(small claims ) judgment against the husband who happens to be a convicted felon,still on probation for another 2 years . If he happens to declare BK would it matter to the court if the wife's wages were garnished or not?Would she also have to BK? If I can prove (through debtor's exam,etc.) he/she/they can pay this off within 36-48 months can they still declare any form of BK? Thanks.

First of all, if this is a civil judgment then it will likely be discharged in a bk. The way bk works is if he(and perhaps she) file for bk, then they will have to go to a creditors meeting, at which point you can attend. After this meeting you will have 60 days to object. Now assuming you challenge the debt owed to you, you will need to prove that he tried to defraud you. The burden of proof is on you. He doesn_t have to prove his innocence. The fact that he is a bad character is of little to no concern to the court, unless there were direct illegal actions tied to this judgment. Now, what are possible consequences for taking such an action? Well, if you can somehow prove that he defrauded you, you could uphold your judgment. On the other hand, if you were to lose it, and you likely would, you would be responsible for his legal fees, which in CA I am sure would run into the thousands. As for you proving whether he could repay the debt, that is irrelevant. Even if you did prove that he could repay it, it would hold no bearing. The truth is, that is the court_s job. If he really can pay, the court will push him into a Ch 13, and you would possibly see some of your money. Now if he really is hiding income and you can prove it, then that is another different can of worms. Part of the difficulty in answering your questions is that you don_t provide much information, we don_t even know what the judgment is for, but from my perspective, it_s nothing more than money owed from a loan or for services rendered, or something of that nature.

[Ladynred]

If he happens to declare BK would it matter to the court if the wife's wages were garnished or not?

It might. If the debt is considered a community debt, then the non-filing spouse gets the SAME protections of the automatic stay as the spouse that filed.

Would she also have to BK?

Not necessarily, but if she wants her paycheck and doesn't want to have to pay HIS debts she would certainly be free to do so.

If I can prove (through debtor's exam,etc.) he/she/they can pay this off within 36-48 months can they still declare any form of BK?

Absolutely, their ability to pay or not would not preclude them from filing for bankruptcy. It might keep them from filing a Ch 7 if the income was above the state median. Then they would be stuck in a Ch 13 for 5 years and only those unsecured creditors who file claims against the estate would get paid some percentage.