Is there hope for an appeal?

[Gracie3787]

What is the name of your state? TN

This question is for my sister. 4 years ago she married a man who had lost his home in foreclosure a few months before they married.

They were married for 3 years, during that time the finance company did NOT attempt a lawsuit against my BIL. After 3 years of marriage my BIL passed away from cancer. Since he didn't own any assets, my sister was told that his "estate" didn't have to be probated. The only "asset" was a life insurance policy with my sister as benficiary.

Recently, a full year after his passing, the finance company sued my sister. My sister could not afford an attorney so she was pro-se. The court issued an order for her to pay the debt, even though she has a severly disabled child and cannot work. The Judge told her that if she did not pay as ordered that she would definately be going to jail.

My question is this- since she was never a party to the debt, her name was never on the title, and the debt was incurred BEFORE thier marriage, does she have any recourse for trying to appeal this order?

If not, does it have anything to do with the fact that his "estate" (consisting of debts with no assets) was not probated?

Another related question- today my sister recieved a letter from SSA informing her that my nephew's SSI has stopped because my sister had earned a few dollars too much. Since this order is based on her having her son's SSI as household income, would it be possible for her to file to have the order modified to a smaller payment? (If the order is not appealable?)
Any answers wil be appreciated.What is the name of your state?

 

[Gracie3787]

I have 2 more questions-

Is this type of judgement/court order dischargable in either chapter 13 or 7 bankruptcy?

Also, since this is a civil court order, will the same standards apply to contempt for non payment as in family law cases?
I know that an obligor cannot be found in civil contempt without there being a finding of ABILITY to pay, so does the same apply to all civil court orders?

My sister's only income at this time is $800 per month in CS and $31 food stamps. This certainly doesn't show any "ability" to pay. I'm just hoping to find some help for her, like me with my FEMA problem, she's almost at her breaking point.
Thanks for any help

 

[Debt Guy]

OK. I am going to try to answer this. I am not an attorney.

The story as you relate it makes no sense. I suspect there is some confusion when the story is related from one person to another.

First, I have never heard of a spouse being held by a court to be liable for a debt that the spouse did not sign (there are some exceptions which do not apply here) -- especially a debt that was incurred by the other spouse prior to the marriage.

Second, your sister may have gotten bad advice regarding the estate of her deceased husband. Debts of the deceased should be paid out of the estate prior to distribution to heirs. If I had to make a guess, my guess would be the basis for the suit was the "inheritance" of assets from the deceased which should have gone first to the creditors.

Third, I have never heard of a judge who told the defendant they would go to jail if they did not pay a debt. Debts are civil matters. Debtor's prisons where abolished in this country shortly after the Civil War. All I can think of is if there was some issue related to fraud if the matter related to an attempt by your sister to hide assets -- which could come back to the probate thing.

Fourth, I don't know anything about SSI. Perhaps someone else can chime in on that matter. She should talk to the Social Security Administration. If that fails, she should call the local office of her US Congressman -- they have staff for such problems.

Fifth, yes, most judgments can be discharged in bankruptcy. Your sister needs to speak to a bankruptcy attorney. Most will give a free consultation to help her determine if bankruptcy makes sense for her in her situation.

Finally, your sister should not have tried to represent herself in court since she is clearly in over her head. There are agencies that can help her. She should call the local United Way office and ask if they have a member agency that provides legal help to those who cannot afford it. If not, call the County Bar Association and ask for a referral to a pro bono attorney. If that does not work, call nearby law schools and ask if they have legal clinics for people who cannot afford an attorney.

Your sister needs competent legal help. She has a very messy situation here that looks like it is only going to get worse if she does not do something.

 

[moburkes]

I'm not disputing any of the above. However, if the only "asset" was a life insurance policy, then there was nothing to probate. A life insurance policy with a named beneficiary passes outside of the estate.

When you say finance company, do you mean the mortgage lender?


This makes absolutely no sense.

 

[Debt Guy]

if the only "asset" was a life insurance policy, then there was nothing to probate. A life insurance policy with a named beneficiary passes outside of the estate.

You are absolutely correct. I missed that in my original read of the OP post. Thanks for catching it.​

 

[Gracie3787]

Thank you for the replies.
My sister did get some good news through an agency she works with for help for my nephew. According to thier lawyer it is appealable, however it would cost alot to appeal. His advice was the same as I recieved on another site, she should make a small "good faith" payment every month, then if they try to take it back to court they have to be able to prove an ability to pay before she can be found in contempt. She's also checking into the possibilty of bankruptcy, but either way things are looking up for her.