Credit card debt after the death of the cardholder Question pertains to United States: California. I am including as much information as may be pertinent. My mother died a few weeks ago. I was estranged from her as my parents divorced when I was a child and grew up with my father. Because of the estrangement I knew nothing of her finances, and only by going through paperwork to clean out her apartment did I learn any financial information. Because she rented an apartment there is no house to be considered. Her vehicle was stolen a few months before her death so no assets there. To the best of my knowledge/research she had no land ownership. She did have an IRA from her employer before she was let-go/fired/no-longer-employed. I am listed on the IRA account as beneficiary. Outside of the IRA there is, that I know of, 1 account with her name on it. She left no written will or living trust, that I know of, and no Power of Attorney (PoA) paperwork. As living descendant (I'm assuming I become defacto estate executor) I called all financial institutions and CC numbers I could find and informed each of them that she is dead. A few weeks have passed since calling and so far one Credit Card (CC) company has called about estate payment. As CC are unsecured debts does the balance, ~$1,000 for this card, die with her? PS: Anything I ought to be aware of and know? Never done this before and prefer to know legal rights/requirements.
Debts do not just die with debtors. The creditors have legal rights to wet their beaks in whatever monies/valuables are left from the deceased. Expect the $1k CC debt to be deducted from the IRA and/or the account left it her name.
Two people can have an equal interest in real property without being married, and being incarcerated doesn't affect a person's property rights. What matters is that now your ex-wife has a legal interest in the property. As a separate issue, she presumably also has a legal obligation w.r.t. the mortgage (otherwise the quitclaim deed makes no sense). The easiest solution is for the other party to voluntarily transfer their interest in the property to you via a quitclaim deed. A difficult solution is to use the judicial process to remove a person from the title. This could be done if there was fraud involved in the property transfer process, for example if the quitclaim deed was forged (presumably not the case here). You might sue to correct an error which doesn't reflect the terms of the transaction, via a reformation action, but that doesn't seem to be the case (a party not understanding the consequences of transferring an interest isn't an error in the relevant sense). You need to hire an attorney to solve the problem (he will look at all of the documentation relevant for your case for a possible solution).
To add to user6726's answer: In general, you can only collect a judgement if there are assets or income available to be collected (i.e., owned by the debtor, and not protected from collection, such as personal items or part of the wages). If you suspect the debtor has assets you do not know about, you can formally ask the debtor to declare their assets. In Nevada (and in many other US states), this is called an Examination of Judgment Debtor (or just Debtor's examination). The basic idea is: You ask the court to order a debtor's examination. The court (after checking your judgement) orders a hearing where the debtor must appear (or they may be imprisoned for contempt of court). In the hearing, you can ask the debtor about their assets, and they must answer truthfully (usually under oath). Details vary, as usual. See for example this page from the Las Vegas Justice Court: Examination of a Judgment Debtor. As a practical note: The whole process, as usual, means additional work and possibly legal cost for the creditor - so it only makes sense if there is a realistic possibility of finding previously unknown assets. As usual, this is a decision the creditor must make.
Yes, the second home will be part of the New York bankruptcy estate. Congress broadly defined property within the bankruptcy estate as all property, "wherever located and by whomever held," subject to limited exemptions. Florida's homestead exemption is among the broadest in the Unite dStates; the value of the property that can be protected is unlimited. See Florida Constitution, Article X, Section 5. As such, I have broken down your question into two parts: May the debtors use the Florida homestead exemption for their Florida home even if they are domiciled in New York? If not, may the debtors use either the Federal or New York state homestead exemptions to protect their Florida home? Exemption Eligibility The debtors can choose between either the federal exemptions of section 522(d) or the exemptions available under New York state and nonbankruptcy federal law; the debtors may not choose the exemptions available under Florida state law. Section 552 of the Bankruptcy Code is the operative statute. To take advantage of a state's exemption scheme, the debtor must either: Be domiciled in the state for the 730 days immediately prior to filing its petition; or If the debtor has not been domiciled in a single state for such period, the state in which the debtor was domiciled for the 180 days immediately preceding the 730-day period (or for the longer portion of that 180 day period). 11 U.S.C. § 522(b)(1)(A): . . . any property that is exempt under Federal law . . . or State or local law that is applicable on the date of the filing of the petition to the place in which the debtor’s domicile has been located for the 730 days immediately preceding the date of the filing of the petition or if the debtor’s domicile has not been located in a single State for such 730-day period, the place in which the debtor’s domicile was located for 180 days immediately preceding the 730-day period or for a longer portion of such 180-day period than in any other place; As a result, the debtor may only utilize either the Federal or New York homestead exemptions. Federal Homestead Exemption Section 522(d)(1) provides a homestead exemption in the amount of $22,975 in value for the debtor's residence. (1) The debtor's aggregate interest, not to exceed $ 22,975 in value, in real property or personal property that the debtor or a dependent of the debtor uses as a residence, in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence, or in a burial plot for the debtor or a dependent of the debtor. (The linked statute says that the federal homestead exemption is capped at $15,000. But pursuant to 11 U.S.C. § 104, the amount is adjusted every three years to account for changes in the cost of living. Effective April 1, 2013, the cap is $22,975). Essential to the right to a homestead exemption is designation and occupancy of the property as a residence. Residence and domicile are not necessarily the same thing. Courts seem to be split as to whether a debtor may hold multiple "residences" at the same time. For example, the court in In re Lawrence, 469 B.R. 140 (Bankr. D. Mass. 2012) held: By choosing not to limit the residence qualified for exemption under § 522(d) to a principal or primary residence, Congress presumably intended to encompass a broader category than principal residences, namely any residence . . . . To sum up, on the date of their bankruptcy petition the [debtors] owned two residences, one in Massachusetts and one in Maine. They used them both. They were entitled to exempt either one, but only one, under § 522(d)(1). See also In re Demeter, 478 B.R. 281 (Bankr. E.D. Mich. 2012); In re Gandy, 327 B.R. 807 (Bankr. S.D.Tex. 2005). But the New Jersey Bankruptcy Court in In re Stoner, 487 B.R. 410 (Bankr. D.N.J. 2013) read the term "residence" in a manner "requiring some measure of permanence." I couldn't find any cases from New York discussing this issue, making it difficult to determine whether a New York bankruptcy court would allow the debtors to apply the federal homestead exemption to their Florida home. But given that the exemption is capped at only $22,975, it is unlikely to have a significant impact on the bankruptcy. New York Homestead Exemption The New York homestead exemption is more generous than the federal exemption. It provides exemptions capped between $75,000 to $150,000. However, it is limited to property located within New York and used as a primary residence. As such, the Florida property is not subject to the exemption. New York Civil Practice Law and Rules § 5206: Property of one of the following types, not exceeding one hundred fifty thousand dollars for the counties of Kings, Queens, New York, Bronx, Richmond, Nassau, Suffolk, Rockland, Westchester and Putnam; one hundred twenty-five thousand dollars for the counties of Dutchess, Albany, Columbia, Orange, Saratoga and Ulster; and seventy-five thousand dollars for the remaining counties of the state in value above liens and encumbrances, owned and occupied as a principal residence, is exempt from application to the satisfaction of a money judgment, unless the judgment was recovered wholly for the purchase price thereof: a lot of land with a dwelling thereon, shares of stock in a cooperative apartment corporation, units of a condominium apartment, or a mobile home.
They don't have to inform you that they are a debt collector. Because that can be a violation of 15 U.S.C. Section 1692b(2) by exposing that the person they are attempting to collect from has a debt. They are required to: identify himself, state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer -- 15 U.S.C. Section 1692b(1) They also may not use any language indicates that the debt collector is in the debt collection business or that the communication relates to the collection of a debt 15 U.S.C. Section 1692b(5) What they do not have the right to do is harass you. They can not attempt to contact you again 15 U.S.C. Section 1692b(3) unless they have reason to believe you lied. I would contact the company back and inform them that you wish to have your number removed from their calling list, and that future calls may be a violation of 15 U.S.C. Section 1692b(3). Also, send them a notice in the mail. If they continue to attempt to contact you, report them to the FTC. You may also be entitled to monetary damages as well. See FTC The judge can require the debt collector to pay you up to $1,000, even if you can’t prove that you suffered actual damages. You also can be reimbursed for your attorney’s fees and court costs. To file a claim with the FTC, go to there online claim for debt collectors Its worth it to show that you won't joke with them. I had a "debt" with T-Mobile (really, I had a billing error in their favor, and they admitted to it, but would not stop the debt collectors) and they violated the rules. I tried to work with them, 6 months later, they damaged my credit. I contacted FTC about it and T-Mobile with in 3 days had the debt cleared and reversed on my credit. They also paid for my damages. All I wanted was the debt cleared. Note: for calls being recorded, always make sure you follow local laws and inform the other party that the call is recorded. If they have a right to record you, you have a right to record them. You must always infrom them as well.
The easiest way would be to hire a collection agency to collect the debt (for a fee of course), because collection agencies routinely include debts that they are collecting in credit reports. Credit reporting agencies differ in what other kinds of debts they will report. Recording a judgment lien in real property records will trigger a credit report entry with some agencies, but not others. Some agencies report all judgments entered in courts, but others don't. You could also contact a credit reporting agency and ask it if it will simply report your judgment without further action if you send them a copy.
We don't want this issue to adversely affect our credit and got legal consulting which suggested we should pay the debt collector to protect our credit score, and then sue the landlord for the money back in small claims court. I'm a little worried about this strategy since it requires to hand away the money first, and am trying to get second opinions. The debt collector is probably either the owner of the claim against you, if it is an assignee of the claim, or an agent of the landlord for purposes of collection. Thus, payment to the debt collector is equivalent to payment of the landlord. The law varies from jurisdiction to jurisdiction regarding whether payment constitutes of waiver of a right to sue over the debt. Sometimes it is necessary to designate the payment "under protests" or "reserving all rights", but that is not a uniform rule of law that applies in all jurisdictions, and I do not have the time and familiarity with that state's law to research Massachusetts case law on that point accurately.
She could refer this to the Cyrpriot Commissioner for Personal Data Protection, but I would try contacting the company first and telling them to remove her Personal Data from the public website - or delete it completely. If they don't give a satisfactory response, mention the CPDP. This could lead to the data being removed within a few days, while an official complaint is likely to take longer. She may have grounds for legal action which would result in the company being compelled to take down the data (or to close the website), but if your friend is thinking in terms of compensation, what compensation would she seek? If she can demonstrate and quantify financial losses that occurred specifically because of this disclosure there might be a possibility, but I suspect that would be difficult to prove.