Student Loan and Chapter 7

We face this question many times, and still continuously if filing for bankruptcy protection will help discharge student loans. Unfortunately, there is no such provision for each discharge of student loans.

Hardship Test:
However, student loans are difficult, but not impossible, to discharge in bankruptcy. To do so, you must show that payment of the debt “will impose an undue hardship on you and your dependents.”

Brunner Test:
Courts use different tests to evaluate whether a particular borrower has shown an undue hardship. A common test is the Brunner test which requires a showing that 1) the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for the debtor and the debtor’s dependents if forced to repay the student loans; 2) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and 3) the debtor has made good faith efforts to repay the loans. (Brunner v.New York State Higher Educ. Servs.Corp., 831 F. 2d 395 (2d Cir. 1987). Not all courts use this test. Some courts will be more flexible, some less.

Although this does not appear to be a difficult standard to meet, for the most part, most debtors are unable to get their student loans discharged. The same standards apply to both private and federal or state student loans.

Adversary Proceeding:
Additionally, in order to obtain a bankruptcy discharge of student loans, the bankrupt debtor has to file an adversary preceding (or a lawsuit)against the student loan creditor and have a court determine if the student loan debtor/borrower meets the criteria for discharge. Since the adversarial process is usually expensive and time consuming, debtors who may meet the criteria can find themselves barred from exercising their rights due to financial limitations.

Reorganization under Chapter 13:

Some student loan borrowers find that Chapter 13 reorganization is useful as it may stop future interest and penalties from accruing so long as the student loan is paid in full through the Chapter 13 plan of reorganization. To do this, debtors must have sufficient income to meet their regular monthly obligations plus have sufficient additional income to make their Chapter 13 plan payment. Each case is different and if you are interested in exploring if a Chapter 13 bankruptcy is right for your situation, please contact our office for a free bankruptcy consultation.

Notice Required for Service of Garnishment

NRS 31.045 Notice of execution on writ of attachment: Service required; form; contents.

1. Execution on the writ of attachment by attaching property of the defendant may occur only if:

(a) The judgment creditor serves the defendant with notice of the execution when the notice of the hearing is served pursuant to NRS 31.013; or

(b) Pursuant to an ex parte hearing, the sheriff serves upon the judgment debtor notice of the execution and a copy of the writ at the same time and in the same manner as set forth in NRS 21.076.

If the attachment occurs pursuant to an ex parte hearing, the clerk of the court shall attach the notice to the writ of attachment at the time the writ is issued.

2. The notice required pursuant to subsection 1 must be substantially in the following form:

Can the Court do attachment without notice and hearing in Nevada?

NRS 31.017 Issuance of writ of attachment without notice and hearing. The court may order the writ of attachment issued without notice to the defendant only in the following cases:

1. In an action by a resident of this State against a defendant not residing in this State. For purposes of this subsection only, domestic corporations and foreign corporations who are doing business in this State and who have qualified to do business in this State as required in chapter 80 of NRS shall be deemed residents of this State. Alien corporations and foreign corporations who have not qualified to do business shall be deemed nonresidents.

2. In an action upon a foreign judgment for the direct payment of money.

3. In an action for the recovery of the value of personal property, where such personal property is owned by the plaintiff and has been taken or converted by the defendant without the consent of the plaintiff.

4. In an action by a resident of this State, where the defendant is about to remove the defendant’s money or property, or any part thereof, from this State, and the defendant’s property which may remain within this State, if any, will be insufficient to satisfy plaintiff’s claim. For purposes of this subsection only, a foreign corporation qualified to do business in this State as provided in chapter 80 of NRS shall be deemed a resident of this State.

5. Where the defendant is about to give, assign, hypothecate, pledge, dispose of or conceal the defendant’s money or property or any part thereof and the defendant’s money or property remaining in this State or that remaining unconcealed will be insufficient to satisfy the plaintiff’s claim.

6. In an action for the recovery of money or property, or the proceeds thereof, obtained from the plaintiff by the defendant through embezzlement, forgery, larceny or extortion.

7. In an action brought under chapter 112 of NRS.

8. In an action by the State, or a political subdivision thereof, brought under chapter 130 of NRS.

9. In an action where jurisdiction in this State can only be obtained by the attachment of the defendant’s property.

Wage Garnishment in Nevada, Time to Know More

Your wages can be garnished pursuant to a court decree in Nevada or pursuant to a domestication of decree outside of Nevada. Please note that if the judgment has been passed against you outside Nevada (a foreign judgment), it just cannot be executed in Nevada without domestication. Domestication is a term of the law where it can be naturalized in Nevada and the sum effect of it would be like it has been entered by the courts of Nevada. Lately, we had been notified that some of the judgment creditors are executing foreign judgments in Nevada without domesticating them. That is plainly illegal, and should someone try to do it, please bring it to our notice at the Law Office of Malik W. Ahmad http://www.fastbankruptcynevada.com

Again, Nevada law limits the amount that a creditor can garnish (take) from your wages for repayment of debts. It is important to note that the Nevada wage garnishment laws (also called wage attachments) are even stricter than federal wage garnishment laws. This is because Nevada allows debtors a higher minimum income threshold than federal law before creditors are permitted to garnish their wages. 25% is the Standard Garnishment in Nevada:

If your income is high enough to be garnished, for the most part, creditors with judgments can take only 25% of your net wages after required deductions. However, for a few types of debts, creditors can take more.

What Is a Wage Garnishment?
A wage garnishment or wage attachment is an order from a court or a government agency that is sent to your employer. It requires your employer to withhold a certain amount of money from your paycheck and then send this money directly to your creditor.
When Can a Creditor Garnish Your Wages in Nevada?
A court judgment in Nevada is a prerequisite to get execution or garnishment in Nevada. You have to be sued first, and a copy of complaint and summon be sent to your last address. It can be served in various ways. So be careful you may be served and you would not even know it. A default judgment can be entered against you if you not defend this complaint. For example, if you are behind on credit card payments or owe a doctor’s bill, those creditors cannot garnish your wages (unless they sue you and get a judgment). Again, remembers there are three exceptions to execution of judgment (without first going to the court) and they are student loan garnishment, IRS garnishment and possibly alimony delinquent payments.

Limits on Wage Garnishment in Nevada
There are limits to how much money can be garnished from your paycheck. The idea is that you should have enough left to pay for living expenses.
“Disposable earnings” are those wages left after your employer has made deductions required by law.
Special Limits for Child Support, Student Loans, and Unpaid Taxes
If you owe child support, student loans, or taxes, the government or creditor can garnish your wages without getting a court judgment. The amount that can be garnished is different too.

In Nevada, up to 50% of your disposable earnings may be garnished to satisfy an order for the support of any person (such as spousal or child support) if you are currently supporting a spouse or a child who isn’t the subject of the order. If you aren’t supporting a spouse or child, up to 60% of your earnings may be taken. An additional five percent may be garnished for support payments over 12 weeks in arrears.

Student Loans in Default
If you are in default on a federal student loan, the U.S. Department of Education or any entity collecting for this agency can garnish your wages without first getting a court judgment – this is called an administrative garnishment. The most that the Department of Education can garnish is 15% of your disposable income, but not more than 30 times the minimum wage.

According to federal law, your employer cannot discharge you if you have one wage garnishment. However, federal law won’t protect you if you have more than one wage garnishment order.
In Nevada, an employer can’t fire or discipline you solely because of a wage garnishment order.

Student Loans and Bankruptcy

We have written before on this important topic, and we like to revisit this issue one more time. It is very important issue and none of the political parties are addressing this very important issue. The student loans are sky rocketing and default is equally high yet no concerted effort is made to address this very important issue and limit the damage to student and our future generation.

Our Office handles student loans:
Student loans are tough area and there is no easy solution, but we still can offer assistance depending upon various factors either to cut down the principal, interest, delinquent interest and collection charges. In rare case, this can be addressed via filing a bankruptcy also. We help you develop a strategy to help this inflaming issue from many angles.

Garnishment and Tax Withholding:
The government can initiate an Administrative Garnishment. Unlike other creditors, who must first go to court, the government simply fills out the paperwork and sends it to your employer, Social Security Administration and Internal Revenue Service. You don’t like to be embarrassed in front of your employer if these deductions starts taking place.

Lawsuit:
One can also be sued for not paying his/her student loans? The department of justice (DOJ) may file a lawsuit.

Separate or marital property:
A student loan acquired prior to marriage is a separate property. However, student loans acquired after marriage can be a marital property and both spouses are liable to pay this debt.If the student loan debt was acquired during your marriage and you live in a community property state Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.

Lawsuit initiated by DOJ?
Can you defend me against a DOJ lawsuit?
In some typical cases, the DOJ can initiate a lawsuit against student loan delinquency.

Additional penalties by collection agencies.
The Collection Agency added 25% to the balance of my defaulted student loans, can they do this?
Yes. The law allows collectors to add a “collection fee”. However, during our review if we find the collector engaged in illegal behavior or failed to follow specific guidelines, you may be entitled to damages which may include forgiveness of this fee.Also, if the student loan borrowers had joined the national armed forces, they are entitled to a significant cut in the interests rate under SCRA.

Imprisonment:
This is an illegal tactic used by unscrupulous debt collectors. Also, there are laws to prevent illegal and abusive debt collection practices under the FDCPA. Of course, if we see an abuse, we can help you, but simple debt collections tactics are not tantamount to abuse under the FDCPA.

What information do you need from me for the Free Case Review?
We need the names of your creditors and balances owed along with your monthly income and expenses. We will also ask you questions regarding your current employment status.

What is a Consultation and what happens during the Consultation?
One we determine we can help you, we will schedule a consultation between you and one of our attorneys. Most consultations take between one and two hours (depending on the complexity of your case). During the consultation, the attorney will review your case in detail with you. Most importantly he or she will review all of your options. Most clients are very surprised by the amount of information gained through the consultation.

How much does it cost?
The exact fee to resolve your case is based on the total debt amount and the complexity of your case. Keep in mind; we will only take your case if during the case review we determine we are able to help you. If we are not able to help you, we will let you know and there is no charge. If your case requires litigation against a debt collector; you may be able to recover the cost of the consultation. Most of our student loan clients agree it is the best money they ever spent.

Is bankruptcy an option?

Generally speaking, you will not be able to discharge your student loan obligations in a Chapter 7 bankruptcy as the standard required for a student loan bankruptcy discharge, in most jurisdictions, is very difficult for most people to meet. However, there are times where a Chapter 13 bankruptcy will be appropriate for repayment of your student loans. Click here for more detailed information concerning student loans and bankruptcy.

If you fail to pay your student loan(s) your student loan will be considered delinquent. Once you are 270 days (9 months) behind, your student loan is considered in default. Once this occurs, Collection Efforts will begin which may include any or all of the following:

Collection Calls – may be made by either the Servicer or Third Party Debt Collector. Collectors may call your home or place of business. The purpose of these calls are to get you make a payment.

Tax Refund Offset – The Department of Education files documents with the Internal Revenue Service (IRS) in order to intercept (offset) your tax refund. The IRS will remit an amount equal to the defaulted amount up to and including the entire amount of your refund. Many of our clients find out they are delinquent when they do not receive their tax refund and instead receive a letter from the IRS explaining their refund was applied to the client’s defaulted student loan.

Social Security Offset (Garnishment) – The Department of Education files documents with the Social Security Administration. The Social Security Administration will withhold an amount up to 15% of your Social Security (including Social Security Disability Income) check.

Wage Garnishment – The Department of Education serves your employer with an “Administrative” Wage Garnishment for up to 15% on your income. An Administrative Wage Garnishment is different from a standard garnishment. The primary difference is there are no court proceedings. The DOE simply fills out the necessary documents and serves them on your employer.

Department of Justice Lawsuit – This is the most serious Collection Effort. If the actions above fail to resolve the issue or they are unsuccessful, the Department of Justice (DOJ) will file a lawsuit against you. A DOJ lawsuit is almost impossible defend and nearly always results in a judgment against you. Once the DOJ obtains a judgment, they may enforce the judgment by seizing your personal or business bank accounts, retirement accounts and other assets like your home, automobile or other valuables like jewelry. Many self employed individuals (doctors, lawyers etc.) make the mistake of thinking because they can’t be garnished, nothing can happen. The reality could be far worse than a garnishment.

Don’t make the mistake of ignoring your student loans and thinking they will go away. They won’t! The best thing to do is proactively engage the problem. Call us today and ask our help at (702) 270-9100 or email us at malik@lasvegaslawgroup.com.

Can you be arrested in a civil action (garnishment) in Nevada?

The Law Office of Malik Ahmad had been asked this question many times if the defendants can be arrested in a civil action. The answer is yes, but only under the following conditions:

NRS 31.470 Arrest in civil cases. No person shall be arrested in a civil action except as prescribed by this chapter.

NRS 31.480 Cases in which defendant may be arrested. The defendant may be arrested, as hereinafter prescribed, in the following cases:

1. Recovery of Money: In an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the State with intent to defraud the defendant’s creditors, or when the action is for libel or slander.

2. For Fine or Penalty: In an action for a fine or penalty, or for money or property embezzled, or fraudulently misapplied or converted to his or her own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent or clerk in the course of his or her employment as such or by any other person in a fiduciary capacity, or for misconduct or neglect in office, or in professional employment, or for a willful violation of duty.

3. For Personal Property: In an action to recover the possession of personal property unjustly detained, when the property, or any part thereof, has been concealed, removed, or disposed of so that it cannot be found or taken by the sheriff.

4. Guilty of Fraud: When the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention or conversion of which the action is brought.

5. Conversion: When the defendant has removed or disposed of the defendant’s property, or is about to do so, with intent to defraud the defendant’s creditors.

Who would give order of arrest?

NRS 31.490 Order for arrest. An order for the arrest of the defendant shall be obtained from a judge of the court in which the action is brought.

NRS 31.500 Order for arrest made when plaintiff’s affidavit shows a sufficient cause; requisites and filing of affidavit. The order may be made whenever it shall appear to the judge, by the affidavit of the plaintiff or some other person, that a sufficient cause of action exists, and the case is one of those mentioned in NRS 31.480. The affidavit shall be either positive or upon information and belief; and when upon information and belief it shall state the facts upon which the information and belief are founded. If an order of arrest be made, the affidavit shall be filed with the clerk of the court.

NRS 31.510 Undertaking from plaintiff. Before making the order the judge shall require a written undertaking, payable in lawful money of the United States, on the part of the plaintiff, with sureties, to the effect that if the defendant recover judgment, the plaintiff will pay all costs and charges that may be awarded to the defendant, and all damages which the defendant may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least $500. Each of the sureties shall annex to the undertaking an affidavit that the surety is a resident and householder or freeholder within the State, and worth double the sum specified in the undertaking over and above all the surety’s debts and liabilities, exclusive of property exempt from execution. The undertaking shall be filed with the clerk of the court.

NRS 31.520 Order and arrest; return of order. The order may be made to accompany the summons, or any time afterwards before judgment. It shall require the sheriff of the county where the defendant may be found forthwith to arrest the defendant and hold the defendant to bail in a specified sum, naming the money or currency in which it is payable, and to return the order at a time therein mentioned to the clerk of the court in which the action is pending.

NRS 31.530 Delivery of affidavit and order to sheriff and defendant. The order of arrest, with a copy of the affidavit upon which it is made, shall be delivered to the sheriff, who, upon arresting the defendant, shall deliver to the defendant the copy of the affidavit, and also, if desired, a copy of the order of arrest.

NRS 31.540 Arrest of defendant. The sheriff shall execute the order by arresting the defendant and keeping the defendant in custody until discharged by law.

NRS 31.550 Defendant to be discharged on bail or deposit. The defendant, at any time before execution, shall be discharged from the arrest either upon giving bail or upon depositing the amount mentioned in the order of arrest in the money or currency therein named, as provided in this chapter.

NRS 31.560 Defendant may give bail. The defendant may give bail by causing a written undertaking, payable in the money of the contract (if any be named), and in other cases as directed by the judge, to be executed by two or more sufficient sureties, stating their places of residence and occupations, to the effect that they are bound in the amount mentioned in the order of arrest; that the defendant shall at all times render himself or herself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein; or that they will pay to the plaintiff the amount of any judgment which may be recovered in the action.

NRS 31.570 Bail may surrender defendant. At any time before judgment, or within 10 days thereafter, the bail may surrender the defendant in their exoneration; or the defendant may surrender to the sheriff of the county where the defendant was arrested.

NRS 31.580 Arrest, delivery and surrender of defendant by bail; exoneration of bail. For the purpose of surrendering the defendant, the bail at any time or place before they are finally charged may themselves arrest the defendant; or by a written authority, endorsed on a certified copy of the undertaking, may empower the sheriff to do so. Upon the arrest of the defendant by the sheriff, or upon delivery of the defendant to the sheriff by the bail, or upon the defendant’s own surrender, the bail shall be exonerated; provided, such arrest, delivery or surrender shall take place before the expiration of 10 days after judgment; but if such arrest, delivery or surrender be not made within 10 days after judgment, the bail shall be finally charged on their undertaking, and be bound to pay the amount of the judgment within 10 days thereafter.

NRS 31.590 Action against bail. If the bail neglect or refuse to pay the judgment within 10 days after they are finally charged, an action may be commenced against bail for the amount of the original judgment.

NRS 31.600 Bail exonerated by death, imprisonment or discharge of defendant. The bail shall also be exonerated by the death of the defendant, or by the defendant’s imprisonment in a state prison, or by the defendant’s legal discharge from the obligation to render himself or herself amenable to the process.

NRS 31.610 Return of order; plaintiff may except to bail. Within the time limited for that purpose, the sheriff shall file the order of arrest in the office of the clerk of the court in which the action is pending, with the sheriff’s return endorsed thereon, together with a copy of the undertaking of the bail. The sheriff shall retain the original undertaking in the sheriff’s possession until filed, as herein provided. The plaintiff, within 10 days thereafter, may serve upon the sheriff a notice that the plaintiff does not accept the bail, or the plaintiff shall be deemed to have accepted them, and the sheriff shall be exonerated from liability. If no notice be served within 10 days, the original undertaking shall be filed with the clerk of the court.

[1911 CPA § 159; RL § 5101; NCL § 8657]

NRS 31.620 Notice of justification of bail. Within 5 days after the receipt of notice, the sheriff or defendant may give to the plaintiff or the plaintiff’s attorney notice of the justification of the same, or other bail (specifying the places of residence and occupations of the latter), before the judge of the court, or clerk, at a specified time and place; the time to be not less than 5 nor more than 10 days thereafter, except by consent of parties. In case other bail be given, there shall be a new undertaking.

NRS 31.630 Qualifications of bail. The qualifications of bail shall be as follows:

1. Each of them shall be a resident and householder, or freeholder, within the county.

2. Each shall be worth the amount specified in the order of arrest, or the amount to which the order is reduced, as provided in this chapter, over and above all debts and liabilities of the bail, exclusive of property exempt from execution; but the judge, or clerk, on justification, may allow more than two sureties to justify severally in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail.

NRS 31.640 Examination of bail. For the purpose of justification, each of the bail shall attend before the judge, or clerk, at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching the bail’s sufficiency, in such manner as the judge, or clerk, in the exercise of discretion may think proper. The examination shall be reduced to writing, and subscribed by the bail, if required by the plaintiff.

NRS 31.650 Allowance of bail exonerates sheriff. If the judge, or clerk, find the bail sufficient, the judge or clerk shall annex the examination to the undertaking, endorse the judge’s or clerk’s allowance thereon, and cause them to be filed, and the sheriff shall thereupon be exonerated from liability.

NRS 31.660 Deposit by defendant in lieu of bail. The defendant may, at the time of the defendant’s arrest, instead of giving bail, deposit with the sheriff the amount mentioned in the order. In case the amount of the bail be reduced, as provided in this chapter, the defendant may deposit such amount instead of giving bail. In either case the sheriff shall give the defendant a certificate of the deposit made, and the defendant shall be discharged from custody.

What is the Limitation on Garnishment of Earnings in Nevada?

NRS 31.295 Garnishment of earnings: Limitations on amount.

1. As used in this section:

(a) “Disposable earnings” means that part of the earnings of any person remaining after the deduction from those earnings of any amounts required by law to be withheld.

(b) “Earnings” means compensation paid or payable for personal services performed by a judgment debtor in the regular course of business, including, without limitation, compensation designated as income, wages, tips, a salary, a commission or a bonus. The term includes compensation received by a judgment debtor that is in the possession of the judgment debtor, compensation held in accounts maintained in a bank or any other financial institution or, in the case of a receivable, compensation that is due the judgment debtor.

2. The maximum amount of the aggregate disposable earnings of a person which are subject to garnishment may not exceed:

(a) Twenty-five (25%) percent of the person’s disposable earnings for the relevant workweek; or

(b) The amount by which the person’s disposable earnings for that week exceed 50 times the federal minimum hourly wage prescribed by section 6(a)(1) of the federal Fair Labor Standards Act of 1938, 29 U.S.C. § 206(a)(1), in effect at the time the earnings are payable,

Ê whichever is less.

3. The restrictions of subsection 2 do not apply in the case of:

(a) Any order of any court for the support of any person.

(b) Any order of any court of bankruptcy.

(c) Any debt due for any state or federal tax.

4. Except as otherwise provided in this subsection, the maximum amount of the aggregate disposable earnings of a person for any workweek which are subject to garnishment to enforce any order for the support of any person may not exceed:

(a) Fifty percent of the person’s disposable earnings for that week if the person is supporting a spouse or child other than the spouse or child for whom the order of support was rendered; or

(b) Sixty percent of the person’s disposable earnings for that week if the person is not supporting such a spouse or child,

Ê except that if the garnishment is to enforce a previous order of support with respect to a period occurring at least 12 weeks before the beginning of the workweek, the limits which apply to the situations described in paragraphs (a) and (b) are 55 percent and 65 percent, respectively.

(Added to NRS by 1971, 1499; A 1985, 1430; 2005, 1020)

Application required to the court for garnishment

NRS 31.249 Application to court for writ of garnishment.

1. No writ of garnishment in aid of attachment may issue except on order of the court. The court may order the writ of garnishment to be issued:

(a) In the order directing the clerk to issue a writ of attachment; or

(b) If the writ of attachment has previously issued without notice to the defendant and the defendant has not appeared in the action, by a separate order without notice to the defendant.

2. The plaintiff’s application to the court for an order directing the issuance of a writ of garnishment must be by affidavit made by or on behalf of the plaintiff to the effect that the affiant is informed and believes that the named garnishee:

(a) Is the employer of the defendant; or

(b) Is indebted to or has property in the garnishee’s possession or under the garnishee’s control belonging to the defendant,

Ê and that to the best of the knowledge and belief of the affiant, the defendant’s future wages, the garnishee’s indebtedness or the property possessed is not by law exempt from execution. If the named garnishee is the State of Nevada, the writ of garnishment must be served upon the State Controller.

3. The affidavit by or on behalf of the plaintiff may be contained in the application for the order directing the writ of attachment to issue or may be filed and submitted to the court separately thereafter.

4. Except as otherwise provided in this section, the grounds and procedure for a writ of garnishment are identical to those for a writ of attachment.

5. If the named garnishee is the subject of more than one writ of garnishment regarding the defendant, the court shall determine the priority and method of satisfying the claims, except that any writ of garnishment to satisfy a judgment for the collection of child support must be given first priority.

(Added to NRS by 1973, 1181; A 1985, 1012; 1989, 700)

How defendant can request discharge of attachment in Nevada?

NRS 31.200 Grounds for discharge of attachment.

1. The Defendant may also, at any time before trial, apply by motion, upon reasonable notice to the Plaintiff, to the court in which the action is brought or to the judge thereof, for a discharge of the attachment, or the money or property attached through the use of a writ of garnishment, on the following grounds:

(a) That the writ was improperly or improvidently issued.

(b) That the property levied upon is exempt from execution or necessary and required by the Defendant for the support and maintenance of the Defendant and the members of the Defendant’s family.

(c) That the levy is excessive.

2. If the court or the judge thereof on the hearing of such motion shall find that any of the grounds stated in subsection 1 exist, the attachment and levy thereof shall be discharged. If the motion is based upon paragraph (c) of subsection 1 only, and the fact is found to exist, the discharge of attachment shall be only as to the excess.

What kind of execution order required for garnishment in Nevada

Below you will find what an execution or order for garnishment in Nevada looks somewhat like.

NOTICE OF EXECUTION

YOUR PROPERTY IS BEING ATTACHED OR

YOUR WAGES ARE BEING GARNISHED

Plaintiff, ……………….. (name of person, filing garnishment or attachment), alleges that you owe the plaintiff money. The plaintiff has begun the procedure to collect that money. To secure satisfaction of judgment, the court has ordered the garnishment of your wages, bank account or other personal property held by third persons or the taking of money or other property in your possession.

Certain benefits and property owned by you may be exempt from execution and may not be taken from you. The following is a partial list of exemptions:

1. Payments received pursuant to the federal Social Security Act, including, without limitation, retirement and survivors’ benefits, supplemental security income benefits and disability insurance benefits.

2. Payments for benefits or the return of contributions under the Public Employees’ Retirement System.

3. Payments for public assistance granted through the Division of Welfare and Supportive Services of the Department of Health and Human Services or a local governmental entity.

4. Proceeds from a policy of life insurance.

5. Payments of benefits under a program of industrial insurance.

6. Payments received as disability, illness or unemployment benefits.

7. Payments received as unemployment compensation.

8. Veteran’s benefits.

9. A homestead in a dwelling or a mobile home, not to exceed $550,000, unless:

(a) The judgment is for a medical bill, in which case all of the primary dwelling, including a mobile or manufactured home, may be exempt.

(b) Allodial title has been established and not relinquished for the dwelling or mobile home, in which case all of the dwelling or mobile home and its appurtenances are exempt, including the land on which they are located, unless a valid waiver executed pursuant to NRS 115.010 is applicable to the judgment.

10. All money reasonably deposited with a landlord by you to secure an agreement to rent or lease a dwelling that is used by you as your primary residence, except that such money is not exempt with respect to a landlord or the landlord’s successor in interest who seeks to enforce the terms of the agreement to rent or lease the dwelling.

11. A vehicle, if your equity in the vehicle is less than $15,000.

12. Seventy-five percent of the take-home pay for any workweek, unless the weekly take-home pay is less than 50 times the federal minimum hourly wage, in which case the entire amount may be exempt.

13. Money, not to exceed $500,000 in present value, held in:

(a) An individual retirement arrangement which conforms with the applicable limitations and requirements of section 408 or 408A of the Internal Revenue Code, 26 U.S.C. §§ 408 and 408A;

(b) A written simplified employee pension plan which conforms with the applicable limitations and requirements of section 408 of the Internal Revenue Code, 26 U.S.C. § 408;

(c) A cash or deferred arrangement that is a qualified plan pursuant to the Internal Revenue Code;

(d) A trust forming part of a stock bonus, pension or profit-sharing plan that is a qualified plan pursuant to sections 401 et seq. of the Internal Revenue Code, 26 U.S.C. §§ 401 et seq.; and

(e) A trust forming part of a qualified tuition program pursuant to chapter 353B of NRS, any applicable regulations adopted pursuant to chapter 353B of NRS and section 529 of the Internal Revenue Code, 26 U.S.C. § 529, unless the money is deposited after the entry of a judgment against the purchaser or account owner or the money will not be used by any beneficiary to attend a college or university.

14. All money and other benefits paid pursuant to the order of a court of competent jurisdiction for the support, education and maintenance of a child, whether collected by the judgment debtor or the State.

15. All money and other benefits paid pursuant to the order of a court of competent jurisdiction for the support and maintenance of a former spouse, including the amount of any arrearages in the payment of such support and maintenance to which the former spouse may be entitled.

16. Regardless of whether a trust contains a spendthrift provision:

(a) A present or future interest in the income or principal of a trust that is a contingent interest, if the interest has not been satisfied or removed;

(b) A present or future interest in the income or principal of a trust for which discretionary power is held by a trustee to determine whether to make a distribution from the trust, if the interest has not been distributed from the trust;

(c) The power to direct dispositions of property in the trust, other than such a power held by a trustee to distribute property to a beneficiary of the trust;

(d) Certain powers held by a trust protector or certain other persons; and

(e) Any power held by the person who created the trust.

17. If a trust contains a spendthrift provision:

(a) A present or future interest in the income or principal of a trust that is a mandatory interest in which the trustee does not have discretion concerning whether to make the distribution from the trust, if the interest has not been distributed from the trust; and

(b) A present or future interest in the income or principal of a trust that is a support interest in which the standard for distribution may be interpreted by the trustee or a court, if the interest has not been distributed from the trust.

18. A vehicle for use by you or your dependent which is specially equipped or modified to provide mobility for a person with a permanent disability.

19. A prosthesis or any equipment prescribed by a physician or dentist for you or your dependent.

20. Payments, in an amount not to exceed $16,150, received as compensation for personal injury, not including compensation for pain and suffering or actual pecuniary loss, by the judgment debtor or by a person upon whom the judgment debtor is dependent at the time the payment is received.

21. Payments received as compensation for the wrongful death of a person upon whom the judgment debtor was dependent at the time of the wrongful death, to the extent reasonably necessary for the support of the judgment debtor and any dependent of the judgment debtor.

22. Payments received as compensation for the loss of future earnings of the judgment debtor or of a person upon whom the judgment debtor is dependent at the time the payment is received, to the extent reasonably necessary for the support of the judgment debtor and any dependent of the judgment debtor.

23. Payments received as restitution for a criminal act.

24. Personal property, not to exceed $1,000 in total value, if the property is not otherwise exempt from execution.

25. A tax refund received from the earned income credit provided by federal law or a similar state law.

26. Stock of a corporation described in subsection 2 of NRS 78.746 except as set forth in that section.

Ê These exemptions may not apply in certain cases such as proceedings to enforce a judgment for support of a child or a judgment of foreclosure on a mechanic’s lien. You should consult an attorney immediately to assist you in determining whether your property or money is exempt from execution. If you cannot afford an attorney, you may be eligible for assistance through ……………….. (name of organization in county providing legal services to the indigent or elderly persons). If you do not wish to consult an attorney or receive legal services from an organization that provides assistance to persons who qualify, you may obtain the form to be used to claim an exemption from the clerk of the court.

All About Wage Garnishment in Nevada and How Can It be Stopped?

Wage Garnishment and Writ of Execution
(Disclaimer: Some of the information is taken from Clark County Courts. Also, please contact a licensed attorney for all legal questions. Reading this article would not create an attorney/client relationship.)

We have extensively dealt in other articles about Nevada garnishment and how to deal with them. We get lots of calls based on this article. We are suggesting review that article one more time, and read this article only after giving a careful reading to that article because both these articles are inter connected. Today, we are going to discuss what is a Writ of Execution. Still you have questions, call our office at (702) 270-9100. Of course, we prefer you to send us email, as it is more convenient for us to answer via the email. Our email address is: Malik@lasvegaslawgroup.com or visit our websites at http://www.fastbankruptcynevada.com.

What is a Writ of Execution?
Winning a judgment is not the end of the road. Even though one gets a judgment, still he/she is not able to see the money. One has to execute the judgment into a writ of execution. When a Defendant does not voluntarily pay a Small Claim Judgment, the Plaintiff may file a Writ of Execution to collect the Judgment. The simple question is how the judgment creditor (the one who has judgment against you) would like to get hold of your money either from your bank or in the form of garnishment of wages. There may be other ways, and this process is called execution and if they are successful, the whole thing would be considered satisfaction. Now, these are legal words. A satisfaction means translation of the write of execution into money or other kinds of payments.

A Writ of Execution is a Court Order by which the Court authorizes a Constable or Sheriff to collect money or property belonging to the Judgment Debtor (Defendant) so that the Judgment awarded to the Plaintiff may be paid (or satisfied). This attempt to collect the Judgment is called a levy. In the Las Vegas Township, all Executions are now processed by the Las Vegas Township Constable’s Office. You might have heard the latest controversy about the Constable Office, (not the one about the constable drunk driving, but about their areas of jurisdiction, please do not be so judgmental here, they already denied they were little bit off, but legally drunk).

The judgment creditor will provide information needed to prepare and file Writs of Execution and Garnishment to collect a Judgment. Because Writs are financial documents, they MUST be typed and not handwritten. This is because banks and employers will not accept financial documents unless they are easy to read. A Writ of Execution may be filed to seek collection the Judgment Debtor earnings (wages), bank accounts, business income, property, or other items. There are to be no alterations, no white-out, etc. made on the Writ of Execution form.

What are the Execution Costs?
The costs of the Writ is to be incurred by the Plaintiff which are added to the amount of the levy.

To E-File (electronically file) your execution, complete a WRIT OF EXECUTION and NOTICE OF EXECUTION AFTER JUDGMENT. You should also complete the INSTRUCTIONS TO THE CONSTABLE (LVJC-25) and if necessary, also complete a WRIT OF GARNISHMENT (LVJC-3) BUT IS NOT TO BE E-FILED with the Justice Court Clerk’s Office. The INSTRUCTIONS TO THE CONSTABLE (LVJC-25) and if necessary, the WRIT OF GARNISHMENT (LVJC-3) are to be presented to the Constable’s Office after the E-Filed Writ of Execution has been received by you. These documents MUST be typed, signed, and electronically filed (E-Filing) to the Las Vegas Township Justice Court. Documents not completed using this format will be refused. See E-Filing for additional information and instructions.

What is Execution Filing?

Executions in Civil cases may be filed upon earnings (wages), business income, bank accounts, automobiles, homes, property, etc. as follows. For Small Claims cases, the Submitter may only submit one Writ of Execution until the previous Execution has been returned from the Constable or has expired. The Writ of Garnishment Form is used when attaching (seeking to collect) wages or money from bank accounts.

EARNINGS (WAGES) – The name and address of the employer must be known. If possible, the last four digits of the Social Security Number of the person whose wages are being garnished should be shown.

BANK ACCOUNTS - The name of the bank, the branch address, and the account number must be known and provided.

Writ of Garnishment- Employers and banks require a Writ of Garnishment to accompany any Execution. Writ of Garnishment costs are $5.00, payable to the employer or the bank. A separate check or money order is required. DO NOT MAKE THESE OUT TO JUSTICE COURT!

BUSINESS INCOME – The name and address of the business must be known. Proof of an outstanding Judgment is required. Execution must specify money from a ‘cash box’ or ‘cash drawer.’

AUTOMOBILES – The information required includes the automobile description and location, and a printout listing the legal owner and any outstanding liens. This information is available from the Department of Motor Vehicles (DMV). Written Proof of an outstanding Judgment is required before you will be able to get this information from DMV.

NOTE: Local DMV Offices cannot provide this information. The Application for Individual Record Information is only available from the DMV central office in Carson City, or through the DMV website:www.state.nv.us/dmv_ps/

HOMES - You must provide the legal property description, available at the Clark County Assessor’s Office; or through their website: http://www.clarkcountynv.gov/depts/assessor/Pages/default.aspx.

Each Writ of Execution may only state to execute on one item at a time (earnings, bank account, other). For Civil cases, the Submitter may submit more than one Writ for execution. For Small Claims cases, the Submitter may only submit one Writ of Execution until the previous Execution has been returned from the Constable or has expired. To determine the status of an Execution, contact the Constable’s Office. If the Constable’s office indicates the Execution has been returned to the Court, then another Execution may be filed.

An Execution on Wages is in effect for 120 days, unless it has been returned as described above. Wages are collected each payday for 120 days, unless or until the Judgment is paid in full. If attaching property such as an auto or house, or for a money item such as the contents of a cash drawer or bank account, the execution is a one-time action, and must be re-Filed until the Judgment is paid in full or satisfied.

How and where can a Defendant’s assets be located? Is there any way the Court can assist me? Under NRS 21.270, the Court can order the examination of a Judgment Debtor for the purpose of ascertaining the Debtor’s assets. NRS 21.270 states the following:

NRS 21.270 Examination of Judgment Debtor.

1. A Judgment Creditor, at any time after the Judgment is entered, is entitled to an order from the Judge of the Court requiring the Judgment Debtor to appear and answer upon oath or affirmation concerning his property, before:
(a) The Judge or a Master appointed by him; or
(b) An attorney representing the Judgment Creditor, at a time and place specified in the order. No Judgment Debtor may be required to appear outside the county in which he resides.
2. If the Judgment Debtor is required to appear before any person other than a Judge or Master:
(a) His oath or affirmation must be administered by a notary public; and
(b) The proceedings must be transcribed by a Court Reporter or recorded electronically. The transcript or recording must be preserved for 2 years.
3. A Judgment Debtor who is regularly served with an order issued pursuant to this section, and who fails to appear at the time and place specified in the order, may be punished for contempt by the Judge issuing the order.

[1911 CPA § 365; RL § 5307; NCL § 8863]-(NRS A 1983, 17; 1989, 902)

If you wish to use this method to get information about a Judgment-Debtor’s assets, you must submit two documents to the Court: (1) The Motion for Examination of Judgment Debtor; (via E-Filing ) and (2) the Order for Examination of Judgment Debtor (must be filed with the Justice Court Clerk’s Office, 2nd floor for the Judge’s signature .

If the Judge signs the Order, the Court will set a hearing date.

After the Order is signed, it is your responsibility to have the Order served upon the Defendant and submit proof of service to the Court. If no proof of service is provided, the Hearing date is vacated.

Court Filing Fees

Court filing fees are due at time of filing. These fees are separate from any E-Filing fees. Payment may be made by cash, VISA©, MASTERCARD®, ATM and Debit cards (will be processed as VISA© or MASTERCARD® credit cards), personal check, money order, or cashier’s check. Personal and/or business checks must be pre-printed with the customer information of name and address. No filing will be accepted without the payment of the appropriate fee.

There are additional types of fees associated with Writs of Executions. Please see the full Fee Schedule for other types of fees.

The fee to file a Writ of Execution is $6.00, plus the Constable’s charges for serving the execution. There is also a $5.00 charge paid to the employer for a wage garnishment or to a bank to garnish an account. All fees and charges for filing and serving the Execution are added to the amount of the Judgment.

When received by the Court, the Writ will be reviewed for accuracy and completeness. Your execution will be issued and copies of the documents and receipts for the fee will be returned to you between 7 – 21 judicial (working) days. Executions with errors will not be issued, but will be returned for correction.

After-Hours Filing (Effective July 16, 2011, After Hours Filing at the Court Will No Longer Be Allowed)

Customers will ONLY be able to obtain customer service tickets from the Court’s Q-Matic Customer Call System through 3:00 pm.

Effective August 1, 2011, electronic filing (E-Filing) is mandatory for all civil case filings, except Orders needing a Judge’s signature. Court users may E-File from any location with an internet connection for a fee, or may E-File at the Las Vegas Justice Court without an E-Filing fee.

Service

You are responsible for proper service of the Execution. The Las Vegas Township Constable must serve the Execution. You may not do this yourself or have someone other than a Constable serve the Execution. To obtain their fee information, call (702) 455-4099, or to contact the Constable by mail:

Las Vegas Constable’s Office, P. O. Box 552110, Las Vegas, Nevada, 89155-2100.

Please mail service fee’s and all documents to the Constable’s address.

Mandatory E-Filing of All Civil Cases Starting August 1, 2011

Starting August 1st, all documents to be filed with the Justice Court’s Civil Division (except Judge’s Orders for signature) are required to be electronically filed (E-Filing). Users may file through Odyssey E-File & Serve at https://wiznet.wiznet.com/clarknv/ for a charge of $2.50 for each document. This fee is in addition to any applicable Court filing fees. You must have a credit or debit card. The credit card company charges 8 cents (3% as a service charge) to E-File each document outside of the Regional Justice Center.

Users may E-File documents for free (but will still have to pay any applicable Court filing fees) at the scanning stations located in the Self-Help Center on the 1st floor of the Regional Justice Center, 200 Lewis Avenue in Downtown Las Vegas or in the Justice Court Clerk’s Civil Customer Service Office located on the second floor.

Cash, Checks or Money Orders will be accepted for Court filing fees at the Justice Court Clerk’s Office on the 2nd floor of the Regional Justice Center.

An email address is required to receive a file stamped copy of your document. A free e-mail account may be set up at the Clark County Law Library located a 309 S. Third Street. Further information regarding the Law Library is available at 455-4696. You may also establish a free e-mail account through Microsoft at hotmail.com, Yahoo at mail.yahoo.com or Google at mail.google.com.

Additional information about E-Filing including instructions on how to register for and use E-Filing may be found at: E-Filing & Serve

Civil Records

A Register of Actions listing a summary and the dates for case activities with the Court is available online. To use that information, please use the Case Search link on the left panel of this page. Instructions for Ordering Civil Records can be found at this link.

Silent Treatment From Your Lenders—What is the Solution?

Your lender is not talking to you and wants to talk to your only attorney. Is this not strange?

They tell you as such but don’t be offended. You are not on a silent treatment from them. Many times, your online log in does not work and you think there is some discriminatory treatment given to you. You also don’t receive any more loan statements. Don’t be frustrated, your mortgage companies and banks are just following the laws.
You may be thinking your lenders are giving you the silent treatment because they are angry at you for filing bankruptcy, nor are they trying to be rude. Banks have to do this because everything is stayed pursuant to the automatic stay protection of the Bankruptcy Code once you file, it is a violation of the stay to make any effort to collect a debt.

A loan statement could be construed as attempting to collect a debt and customer service reps are not knowledgeable about bankruptcy and may say something improper.

Basically your bank or mortgage company does not want to find itself facing a claim for damages arising from violating the stay so many of these companies simply cut off all communication.

Send them an authority letter signed by your attorney that the bank representatives can talk to you. Send them this authority letter via fax. Many lenders find this type of letter sufficient to ease their concern about potential liability for communicating with a bankruptcy debtor.
Of course, you need to hire your attorney for this particular purpose, unless you are willing to talk to the lenders all the time, and send them lengthy documentation.

Troublesome Bankruptcy Clients and Troublesome Transfers

Bankruptcy is a complex judicial process and quite often even a seasoned attorney has to face very deceptive and often times stubborn clients. Okay, I have transferred all the money and it is in the form of cash and I have saved it. What can you answer to them? Of course, it is troublesome to tell your prospective bankruptcy clients that the recent transfers they have made are illegal and deceptive and violates the bankruptcy laws. How can you convince them? When the answer is always the same, “I don’t have it any more”. Of course, you don’t have it, but you recently transferred it. In another situation, they still have some money on their credit cards left, and want to use that money before they file bankruptcy. How can they be convinced that this is not equivalent to the money in their bank account and it is not their money?
For instance, a transfer of property on the eve of filing bankruptcy is unlawful and illegal. Section 727 of the Bankruptcy Code says that a transfer of property for no purpose other than to frustrate the intent of creditors within a year prior to filing is considered a fraudulent transfer and would prevent such a filer from receiving a discharge.
Another type of troublesome transfer can arise when an elderly parent attempts to transfer assets to an adult child in an effort to qualify for Medicaid. This is writing on the wall. Again, the grandmother had given money for the grand kids and it is in the bank account of mother who is about to file bankruptcy. Okay, this is the money came from grandma. No matter what, it is in your account at this time, and it is non-exempt, unless you want to surrender it. Quite often, we give free advice, but the free spirit from free advice are eaten up if the client does not listen, and not ready to act on a validly provided advice.

Bankruptcy Discharge, Its Implications, Duration and What It Encompasses

Law Office of Malik W. Ahmad, Fast Bankruptcy Nevada. A bankruptcy discharge is a milestone in the bankruptcy proceedings as this discharge releases the debtor from personal liability for certain specified types of debts. Again, those debts which are exempted debts and certain dischargeable debts. Again, please refresh your memory by what debts are dischargeable. The Law Office of Malik W. Ahmad, had given a laundry list in many of the articles as to what debts are dischargeable. Alimony debts, student loans, certain liens, child supports and government fines are not dischargeable. They survive the bankruptcy. In other words, the debtor is no longer legally required to pay any debts that are discharged. The discharge is not temporary but it is a permanent order prohibiting the creditors of the debtor from taking any form of collection action on discharged debts, including legal action and communications with the debtor, such as telephone calls, letters, and personal contacts. This means the debts are wiped out for good, and no one should be calling you as you are under the federal bankruptcy protection. Once you have successfully completed the bankruptcy chapter 7 proceeding, you are under the federal bankruptcy umbrella. Although a debtor is not personally liable for discharged debts, a valid lien (i.e., a charge upon specific property to secure payment of a debt) that has not been avoided (i.e., made unenforceable) in the bankruptcy case will remain after the bankruptcy case. Therefore, a secured creditor may enforce the lien to recover the property secured by the lien.

Timings of Discharge? It all varies, depending on the chapter under which the case is filed. In a chapter 7 (liquidation) case, for example, the court usually grants the discharge promptly on expiration of the time fixed for filing a complaint objecting to discharge and the time fixed for filing a motion to dismiss the case for substantial abuse (60 days following the first date set for the 341 meeting). Typically, this occurs about four months after the date the debtor files the petition with the clerk of the bankruptcy court. In individual chapter 11 cases, in cases under chapter 12 (adjustment of debts of a family farmer or fisherman) and 13 (adjustment of debts of an individual with regular income), the court generally grants the discharge as soon as practicable after the debtor completes all payments under the plan. Since a chapter 12 or chapter 13 plan may provide for payments to be made over three to five years, the discharge typically occurs about four years after the date of filing. The court may deny an individual debtor’s discharge in a chapter 7 or 13 case if the debtor fails to complete “an instructional course concerning financial management.” The Bankruptcy Code provides limited exceptions to the “financial management” requirement if the U.S. trustee or bankruptcy administrator determines there are inadequate educational programs available, or if the debtor is disabled or incapacitated or on active military duty in a combat zone.

How to get a discharge? It is an automatic process and it works smoothly unless there is litigation involving objections to the discharge. The Federal Rules of Bankruptcy Procedure provide for the clerk of the bankruptcy court to mail a copy of the order of discharge to all creditors, the U.S. trustee, the trustee in the case, and the trustee’s attorney, if any. The debtor and the debtor’s attorney also receive copies of the discharge order. The notice, which is simply a copy of the final order of discharge, is not specific as to those debts determined by the court to be non-dischargeable, i.e., not covered by the discharge. The notice informs creditors generally that the debts owed to them have been discharged and that they should not attempt any further collection. They are cautioned in the notice that continuing collection efforts could subject them to punishment for contempt. Any inadvertent failure on the part of the clerk to send the debtor or any creditor a copy of the discharge order promptly within the time required by the rules does not affect the validity of the order granting the discharge.

What does the Discharge Includes? As we stated earlier, not all debts are discharged. The debts discharged vary under each chapter of the Bankruptcy Code. Section 523(a) of the Code specifically excepts various categories of debts from the discharge granted to individual debtors. Therefore, the debtor must still repay those debts after bankruptcy. Congress has determined that these types of debts are not dischargeable for public policy reasons (based either on the nature of the debt or the fact that the debts were incurred due to improper behavior of the debtor, such as the debtor’s drunken driving).

Exceptions to Discharge: Generally speaking, the exceptions to discharge apply automatically if the language prescribed by section 523(a) applies. The most common types of non-dischargeable debts are: – certain types of tax claims, – debts not set forth by the debtor on the lists and schedules the debtor must file with the court, – debts for spousal or child support or alimony, – debts for willful and malicious injuries to person or property, – debts to governmental units for fines and penalties, – debts for most government funded or guaranteed educational loans or benefit over payments, – debts for personal injury caused by the debtor’s operation of a motor vehicle while intoxicated, – debts owed to certain tax-advantaged retirement plans, – and debts for certain condominium or cooperative housing fees. The types of debts described in sections 523(a)(2), (4), and (6) (obligations affected by fraud or maliciousness) are not automatically excepted from discharge. Creditors must ask the court to determine that these debts are excepted from discharge. In the absence of an affirmative request by the creditor and the granting of the request by the court, the types of debts set out in sections 523(a)(2), (4), and (6) will be discharged. A slightly broader discharge of debts is available to a debtor in a chapter 13 case than in a chapter 7 case. Debts dischargeable in a chapter 13, but not in chapter 7, include debts for willful and malicious injury to property, debts incurred to pay non-dischargeable tax obligations, and debts arising from property settlements in divorce or separation proceedings.

Right to Discharge? In chapter 7 cases, the debtor does not have an absolute right to a discharge. An objection to the debtor’s discharge may be filed by a creditor, by the trustee in the case, or by the U.S. trustee. Creditors receive a notice shortly after the case is filed that sets forth much important information, including the deadline for objecting to the discharge. To object to the debtor’s discharge, a creditor must file a complaint in the bankruptcy court before the deadline set out in the notice. Filing a complaint starts a lawsuit referred to in bankruptcy as an “adversary proceeding.” The court may deny a chapter 7 discharge for any of the reasons described in section 727(a) of the Bankruptcy Code, including: – failure to provide requested tax documents; – failure to complete a course on personal financial management; – transfer or concealment of property with intent to hinder, delay, or defraud creditors; – destruction or concealment of books or records; perjury and other fraudulent acts; – failure to account for the loss of assets; – violation of a court order or an earlier discharge in an earlier case commenced within certain time frames (discussed below) before the date the petition was filed. – If the issue of the debtor’s right to a discharge goes to trial, the objecting party has the burden of proving all the facts essential to the objection. In chapter 13 cases, the debtor is usually entitled to a discharge upon completion of all payments under the plan. As in chapter 7, however, discharge may not occur in chapter 13 if the debtor fails to complete a required course on personal financial management.

Can the discharge be revoked? The court may revoke a discharge under certain circumstances. For example, a trustee, creditor, or the U.S. trustee may request that the court revoke the debtor’s discharge in a chapter 7 case based on allegations that the debtor: obtained the discharge fraudulently; failed to disclose the fact that he or she acquired or became entitled to acquire property that would constitute property of the bankruptcy estate; committed one of several acts of impropriety described in section 727(a)(6) of the Bankruptcy Code; or failed to explain any misstatements discovered in an audit of the case or fails to provide documents or information requested in an audit of the case. Typically, a request to revoke the debtor’s discharge must be filed within one year of the discharge or, in some cases, before the date that the case is closed. The court will decide whether such allegations are true and, if so, whether to revoke the discharge. May the debtor pay a discharged debt after the bankruptcy case has been concluded? A debtor who has received a discharge may voluntarily repay any discharged debt. A debtor may repay a discharged debt even though it can no longer be legally enforced. Sometimes a debtor agrees to repay a debt because it is owed to a family member or because it represents an obligation to an individual for whom the debtor’s reputation is important, such as a family doctor.

What can the debtor do if a creditor attempts to collect a discharged debt after the case is concluded? If a creditor attempts collection efforts on a discharged debt, the debtor can file a motion with the court, reporting the action and asking that the case be reopened to address the matter. The bankruptcy court will often do so to ensure that the discharge is not violated. The discharge constitutes a permanent statutory injunction prohibiting creditors from taking any action, including the filing of a lawsuit, designed to collect a discharged debt. A creditor can be sanctioned by the court for violating the discharge injunction. The normal sanction for violating the discharge injunction is civil contempt, which is often punishable by a fine.

Bankruptcy litigation and appeal process

You know when you file bankruptcy, there is a strong chance that there may be some issues which can lead to litigation, and your attorney has to be ready for that. Of course, it is your only chance to get your name cleared and seek a discharge. Litigation in the bankruptcy does not stop in the bankruptcy court. Both parties may appeal the trial court decision. The appeal from bankruptcy court may be appealed either to a district court or bankruptcy appellate panel. By its express terms, 28 U.S.C. Section 158 (a) provide for a review by a district court or bankruptcy appellate panel of certain orders “entered by bankruptcy judges in cases and proceedings referred under 28 U.S.C. Section 157″. The appellate jurisdiction of district courts and bankruptcy appellate panels are limited to proceedings in which bankruptcy courts are authorized to issue binding judicial determination.

Core Proceedings: Bankruptcy courts are authorized to enter binding judgments and orders in “core proceedings,” a term defined in 28 U.S.C Section 157, but only if the preceding otherwise arises under a provision of title 11 of the United States Code or arises in a Title 11 Case.

District Courts have jurisdiction over “final judgments, orders, and decrees” entered by bankruptcy judges, as well as “from interlocutory orders and decrees issued under section 1121(d) of title 11.

A bankruptcy appellate panel is a panel comprised of three bankruptcy judges to hear appeals from bankruptcy court orders. The bankruptcy judges who serve on an appellate panel hear appeals from orders in districts other than the districts in which they serve. Nevada has an appellate panel with its headquarter in Pasadena, California.

Courts of appeals have appellate jurisdiction over all “final decisions, judgments, orders, and decrees’ entered by bankruptcy appellate panels and district courts in their appellate capacity.

New Settlement on Home Loans –Something Good

NY Times in its recent publication has reported that there is a deal expected of a big settlement between regulators and 14 big banks about settlement of 10 billion dollars with 14 banks that would end the government efforts to hold lenders responsible for foreclosure abuses.

“Under the settlement, a significant amount of the money, $3.75 billion, would go to people who have already lost their homes, making it potentially more generous to former homeowners than a broad-reaching pact in February between state attorneys general and five large banks. That set aside $1.5 billion in cash relief for Americans.

Most of the relief in both agreements is meant for people who are struggling to stay in their homes and need the banks to reduce their payments or lower the amount of principal they owe.

The $10 billion pact would be the latest in a series of settlements that regulators and law enforcement officials have reached with banks to hold them accountable for their role in the 2008 financial crisis that sent the housing market into the deepest slump since the Great Depression. As of early 2012, four million Americans had been foreclosed upon since the beginning of 2007, and a huge amount of abandoned homes swamped many states, including California, Florida and Arizona.”

Federal agencies like the Securities and Exchange Commission and the Justice Department are continuing to pursue the banks for their packaging and sale of troubled mortgage securities that imploded during the financial crisis.

Housing advocates were largely unaware of the latest rounds of secret talks, which have been occurring for roughly a month. But some have criticized the government for not dealing more harshly with bankers in light of their lacks standards for making loans and packaging them as investments, as well as their problems with modifying troubled loans and processing foreclosures.

A deal could be reached by the end of the week between the 14 banks and the nation’s top banking regulators, led by the Office of the Comptroller of the Currency, four people with knowledge of the negotiations said. It was unclear how many current and former homeowners would receive money or when it would be distributed.

Told on Sunday night of the imminent settlement, Lynn Drysdale, a lawyer at Jacksonville Area Legal Aid and a former co-chairwoman of the National Association of Consumer Advocates, said: “It’s certainly a victory for consumers and could help entire neighborhoods. But the devil, as they say, is in the details, and for those people who have had to totally uproot their lives because of eviction it may still not be enough.”

In recent weeks within the upper echelons of the comptroller’s office, pressure was mounting to negotiate a banner settlement with the banks, according to people with knowledge of the matter. The reason was that some within the agency had started to realize that a mandatory review of millions of bank loans was not yielding meaningful examples of the banks’ wrongfully evicting homeowners who were current on their payments or making partial payments, according to the people.

Representative of banking regulators did not return calls for comment on Sunday.

The biggest action against the banks for foreclosure-related abuses has been the $26 billion settlement between the five largest mortgage services and the state attorneys general, Justice Department and the Department of Housing and Urban Development after allegations arose in 2010 that bank employees were churning daily through hundreds of documents used in foreclosure proceedings without properly reviewing them for accuracy.

The same banks in that settlement — JP Morgan Chase, Bank of America, Wells Fargo, Citigroup and Ally Financial — are included in the current negotiations.

Under the terms of the settlement being negotiated, $6 billion would come from the banks to be used for relief for homeowners, including reducing their principal, helping them refinance and donating abandoned homes, the people said.

The proposed settlement would also halt a separate sweeping review of more than four million loan files that the comptroller’s office and the Federal Reserve required the banks undertake as part of a consent order in April 2011.

Under the terms of the order, the 14 banks had to hire independent consultants to pour through the loan records to determine whether the banks illegally charged fees, forced homeowners to take out costly insurance or miscalculated loan payment amounts. Consultants initially estimated that each loan would take about eight hours, at a cost of up to $250 an hour, to go through.

The costs of the reviews have ballooned, though, according to people with knowledge of the reviews, in part because each loan file is taking up to 20 hours to review. Since its inception, the reviews have cost the banks about $1.5 billion, according to those people.

Pressure to reach some type of settlement with the banks has been building, particularly within the Office of the Comptroller of the Currency, amid widespread frustration that the banks’ mandatory review of loan files was arduous and expensive, and would not yield promised relief to homeowners, according to five former and current banking regulators.

In private meetings with top bank executives, these people said, regulators have admitted that the reviews had gone awry. At one point this month, an official from the comptroller’s office said the agency had “miscalculated” the scope and requirements of the reviews, according to the people with knowledge of the negotiations.

When the settlement discussions heated up this month, some banking executives said they felt they would be vindicated by the regulators. These executives said that they had raised objections to the reviews early on, but those concerns were largely dismissed by regulatory officials, according to the people with knowledge of the negotiations.

Instead, officials from the comptroller’s office, these people said, have used the loan reviews as a negotiating tool, telling banks that they can either sign on to a large settlement or be forced to pay billions over several more years until the consultants finish the reviews.

When regulators approached the banks to broach a settlement this month, they met first with Wells Fargo and proposed that the banks pay $15 billion, according to the people familiar with the discussions. After negotiations, though, the regulators agreed to $10 billion.

All of the 14 banks are expected to sign on.

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Student Loans—Steps to Stop Accumulating Them

While we had written previously on this topic, we would like to emphasize one more time that there is a proper need and discipline required to get student loan and keep them to the absolute minimum. A student loan should only be taken for education and relating to the direct expenses of education—should not be a mean for income or revenue generating. The consequences of high student loans are atrocious. A word of caution for parent also. Read what you sign, and demand your child’s achievement and accomplishment including his scoring. It is very important you should know everything when you co-sign a student loan because you would be jeopardizing your golden years if you are wrong and sign needlessly. Two-thirds of kids receiving an undergraduate degree this spring will leave campus owing money for their education, according Sallie Mae. These students will have an average balance of about $20,000, and within six months they’ll be required to start making monthly payments of roughly $270.

Again, your education should be goal related, and get education where it is corresponding with your employment and devise a payment plan right away. Don’t wait for later years to pay the banks or Sallie Mae. A marriage or children down the road would make your budget more stringent and lesser payment can be done.

1. Don’t borrow more than what you need.
2. Start paying right away. If you get some surplus money, like personal injury settlement, or inheritance, pay them right away.
3. Try not to take needless forbearance or any other postponement.
4. The student loan agencies would gladly give you forbearance, avoid them.
5. Sign up for automatic payment, even from your payroll.

Apply for loan forgiveness. By volunteering with AmeriCorps, Peace Corp. or VISTA you may qualify to have some or all of your college debt wiped away. Other options include spending time in the military, teaching, and doing social work. Look here for more information.

Should Student Loans Be Discharged in Bankruptcy

The Law Office of Malik Ahmad has already published few articles not only about bankruptcy Chapter 7, but also about student loans. We know this is a painful topic which requires Obama government’s immediate attention, but somehow it has been placed largely on bank benches. This is as high an item as loan modification, foreclosure or health care. This issue has crippled student lives. The student loans debts are rising, and this mountain of debt is crushing students and of course their daily lives. It should be addressed as a priority by the Obama administration.

This is a very valid question. The present standard for discharge of student loans is very strict and very rigorously enforced especially for private student loans. At least the wage garnishment should be based with the judgment from a judicial panel. At this time, no such condition is required, which is making the lives of students very miserable in this very high unemployment time. In California, however, headway is being made where a Bill has been introduced by Assemblyman Bob Wieckowski that would make private lenders unable to use wage garnishment as a method to collect on delinquent student loan debts. This bill is still in the very early stage (AB233). One wonders if such a bill should be passed by Nevada legislature as well because there is a big need for such stoppage. A similar bill has been placed whereby the home foreclosure has been placed in limbo, and that has really worked to improve the home conditions in Nevada. Remember, Nevada used to be numero uno in foreclosure. A few years ago, the private student loans were discharged in bankruptcy. What exactly is a private student loan? This determination should be made by the bankruptcy court and not by the department of education or by the lenders themselves. We also support that at least 50 percent of the principal student loan and 50-70 of late fees, and penalties should be waived from the student loans.

What is the limitation of Garnishment of earnings in Nevada?

We have been asked this question many times as to the what are the limitations of garnishment of earnings in Nevada. WE are pleased to address this question in more details. It is best to send us an email to the Law Office of Malik W. Ahmad at malik@lasvegaslawgroup.com or call us at (702) 270-9100.

NRS 31.295 Garnishment of earnings: Limitations on amount.

(a) “Disposable earnings” means that part of the earnings of any person remaining after the deduction from those earnings of any amounts required by law to be withheld.

(b) “Earnings” means compensation paid or payable for personal services performed by a judgment debtor in the regular course of business, including, without limitation, compensation designated as income, wages, tips, a salary, a commission or a bonus. The term includes compensation received by a judgment debtor that is in the possession of the judgment debtor, compensation held in accounts maintained in a bank or any other financial institution or, in the case of a receivable, compensation that is due the judgment debtor.

2. The maximum amount of the aggregate disposable earnings of a person which are subject to garnishment may not exceed:

(a) Twenty-five percent of the person’s disposable earnings for the relevant workweek; or

(b) The amount by which the person’s disposable earnings for that week exceed 50 times the federal minimum hourly wage prescribed by section 6(a)(1) of the federal Fair Labor Standards Act of 1938, 29 U.S.C. § 206(a)(1), in effect at the time the earnings are payable, whichever is less.

3. The restrictions of subsection 2 do not apply in the case of:

(a) Any order of any court for the support of any person.

(b) Any order of any court of bankruptcy.

(c) Any debt due for any state or federal tax.

4. Except as otherwise provided in this subsection, the maximum amount of the aggregate disposable earnings of a person for any workweek which are subject to garnishment to enforce any order for the support of any person may not exceed:

(a) Fifty percent of the person’s disposable earnings for that week if the person is supporting a spouse or child other than the spouse or child for whom the order of support was rendered; or

(b) Sixty percent of the person’s disposable earnings for that week if the person is not supporting such a spouse or child,

Ê except that if the garnishment is to enforce a previous order of support with respect to a period occurring at least 12 weeks before the beginning of the workweek, the limits which apply to the situations described in paragraphs (a) and (b) are 55 percent and 65 percent, respectively.

(Added to NRS by 1971, 1499; A 1985, 1430; 2005, 1020)

What is the procedure for claiming exempt property in Nevada?

First, there are two kinds of property. One is called exempt, which means you can keep it and the other is non-exempt which you need to surrender it no matter what. If you believe that the money or property taken from you is exempt or necessary for the support of you or your family, you must file with the clerk of the court on a form provided by the clerk an executed claim of exemption. A copy of the claim of exemption must be served upon the sheriff, the garnishee and the judgment creditor within 10 days after the notice of execution or garnishment is served on you by mail pursuant to NRS 21.076 which identifies the specific property that is being levied on. The property must be released by the garnishee or the sheriff within 9 judicial days after you serve the claim of exemption upon the sheriff, garnishee and judgment creditor, unless the sheriff or garnishee receives a copy of an objection to the claim of exemption and a notice for a hearing to determine the issue of exemption. If this happens, a hearing will be held to determine whether the property or money is exempt. The objection to the claim of exemption and notice for the hearing to determine the issue of exemption must be filed within 8 judicial days after the claim of exemption is served on the judgment creditor by mail or in person and served on the judgment debtor, the sheriff and any garnishee not less than 5 judicial days before the date set for the hearing. The hearing must be held within 7 judicial days after the objection to the claim of exemption and notice for a hearing is filed. You may be able to have your property released more quickly if you mail to the judgment creditor or the attorney of the judgment creditor written proof that the property is exempt. Such proof may include, without limitation, a letter from the government, an annual statement from a pension fund, receipts for payment, copies of checks, records from financial institutions or any other document which demonstrates that the money in your account is exempt.

IF YOU DO NOT FILE THE EXECUTED CLAIM OF EXEMPTION WITHIN THE TIME SPECIFIED, YOUR PROPERTY MAY BE SOLD AND THE MONEY GIVEN TO THE JUDGMENT CREDITOR, EVEN IF THE PROPERTY OR MONEY IS EXEMPT.

If you received this notice with a notice of a hearing for attachment and you believe that the money or property which would be taken from you by a writ of attachment is exempt or necessary for the support of you or your family, you are entitled to describe to the court at the hearing why you believe your property is exempt. You may also file a motion with the court for a discharge of the writ of attachment. You may make that motion any time before trial. A hearing will be held on that motion.

IF YOU DO NOT FILE THE MOTION BEFORE THE TRIAL, YOUR PROPERTY MAY BE SOLD AND THE MONEY GIVEN TO THE PLAINTIFF, EVEN IF THE PROPERTY OR MONEY IS EXEMPT OR NECESSARY FOR THE SUPPORT OF YOU OR YOUR FAMILY.

How to submit a claim for claim exemption under garnishment?

How to submit a Claim of Exemption Pursuant to NRS 21.112.

 Let us see if you have received a notice of garnishment from your employer. You should make sure that your exempted income is not garnished by the judgment holder i.e. Plaintiff in this matter. Let us assume you lost the case, did not defend your self, or there is a default judgment against you, and the judgment holder has traced and finally found your employer, and now garnishing your wages. You are also working and just cannot quit your job and be incommunicado again. Now, all of a sudden you receive two things:

 A notice of execution from the Constable’s office

  1. Perhaps, little later, a letter from your payroll department informing you about the impending garnishment. Now, no need to be panicked. You can call and find your attorney, if you like but you can also see if you have assets which are exempted.

        You can file and submit a Claim of Exemption pursuant to NRS 21.112 and state as follows:

  [   ]  I am a Defendant in this case and have had my wages withheld or have received a Notice of Execution regarding the attachment or garnishment of my wages, money, benefits, or property.

[   ]  I am not a Defendant in this case,  but my wages, money, benefits, or property are the subject of an attachment or garnishment relating to a Defendant in this case.  (NRS 21.211(10).)

      My wages, money, benefits, or property are exempt by law from execution as indicated below.  Pursuant to NRS 21.112(4), if the Plaintiff/Judgment Creditor does not file an objection and notice of hearing in response to this Claim of Exemption within eight judicial days after my Claim of Exemption from Execution has been served, any person who has control or possession over my wages, money, benefits, or property (such as my employer or bank, for example) must release them to me within nine judicial days after this Claim of Exemption has been served.

 (Check all the following boxes that apply to your wages, money, benefits or property.)

[  ]     Money or payments received pursuant to the federal Social Security Act, including retirement, disability, and survivor’s benefits and SSI.  (NRS 21.090(l)(y) and 42 U.S.C. § 407(a).)

[  ]    Money or payments for assistance received from the Nevada Department of Health and Human Services, Division of Welfare and Supportive Services pursuant to NRS 422.291).  (NRS 21.090(l)(kk) and 422A.325.)

[  ]     Money or payments received as unemployment insurance benefits pursuant to NRS 612.710.  (NRS 21.090(l)(hh).)

[  ]    Money or compensation payable or paid under NRS 616A and 616D (worker’s compensation/industrial insurance), as provided in NRS 616C.205.  (NRS 21.090(l)(gg).)

[  ]      Money or payments received as veteran’s benefits (38 U.S.C. § 5301.)

[ ]      Money or payments received as retirement benefits under the federal Civil Service Retirement System (CSRS) or Federal Employee Retirement System (FERS).  (5 U.S.C. § 8346.)

[  ]      Seventy-five percent (75%) of my disposable earnings.  “Disposable earnings” are earnings remaining  “after the deduction … of any amounts required by law to be withheld.”  NRS 21.090(1)(g)(I).)  The  “amounts required by law to be withheld” are federal income tax, Medicare, and Social Security taxes.

[  ]      Check here if your disposable weekly earnings do not exceed $362.50 or 50 times the federal minimum wage (50 x $7.25 = $362.50), in which case ALL of your disposable earnings are exempt.  (NRS 21.090(1)(g).)

[  ]    Check here if your disposable weekly earnings are between $362.50 and $483.33, in which case your exempt income is always $362.50.  Your non-exempt income is your weekly disposable earnings minus $362.50, which equals (insert amount here):  $                                                                                                                    per week.  (NRS 31.295.)

[  ]      Money or payments received pursuant to a court order for child support, education, and maintenance of a child, or for the support of a former spouse, including arrearages.  (NRS 21.090 (1)(s)-(t).)

[  ]     Money received as a result of the federal Earned Income Tax Credit (EITC) or similar credit provided under Nevada law.  (NRS 21.090(1)(aa).)

[  ]     $1,000 or less of my money or other personal property, identified as (describe the specific money or property you wish to make exempt)                                                                                                                                                            , which is not otherwise exempt under NRS 21.090 (NRS 21.090(1)(z).)

[  ]      Money, up to $500,000, held in a retirement plan in accordance with Internal Revenue Code, including, but not limited to, an IRA, 401 k, 403b, or other qualified stock bonus, pension, or profit-sharing plan (NRS 21.090(1)(r).)

[ ]      All money, benefits, privileges, or immunities derived from a life insurance policy, if the annual premium does not exceed $15,000.  If the premium exceeds that amount, a similar exemption exists which bears the same proportion to the money, benefits, privileges, and immunities derived from the insurance that the $15,000 bears to the whole annual premium paid.  (NRS 21.090(1)(k).)

[  ]      Money, benefits, or refunds payable or paid from Nevada’s Public Employee’s Retirement System pursuant to NRS 286.670.  (NRS 21.090.(l)(ii).)

[  ]      A homestead recorded pursuant to NRS 115.010 on a dwelling (house, condominium, townhome, and land) or a mobile home where my equity does not exceed $550,000 (NRS 21.090(1)(1).)

[  ]      My dwelling, occupied by me and my family, where the amount of my equity does not exceed $550,000, and I do not own the land upon which the dwelling is situated. (NRS 21.090(l)(m).)

[  ]Check here if the judgment being collected arises from a medical bill. If it does, your primary dwelling and land upon which it is situated (if owned by you), including a mobile or manufactured home, are exempt from execution regardless of the equity (NRS 21.095).

[  ]      My vehicle, where the amount of equity does not exceed $15,000, or I will pay the judgment creditor any amount over $15,000 in equity.  (NRS 21.090(l)(f).)

[  ]Check here if your vehicle is specially equipped or modified to provide mobility for you or your dependent and either you or your dependent has a permanent disability.  Your vehicle is exempt regardless of the equity.  (NRS 21.090(1)(p).)

[  ]      A prosthesis or any equipment prescribed by a physician or dentist for me or my dependent.  (NRS 21.090(1)(q).)

[  ]      My private library, works of art, musical instruments, jewelry, or keepsakes belonging to me or my dependent, chosen by me and not to exceed $5,000 in value.  (21.090(1)(a).)

[  ]      My necessary household goods, furnishings, electronics, clothes, personal effects, or yard equipment, belonging to me or my dependent, chosen by me and not to exceed $12,000 in value.  (21.090(1)(b ).)

[  ]      Money or payments received from a private disability insurance plan.  (NRS 21.090(1)(ee).)

[  ]      Money in a trust fund for funeral or burial services pursuant to NRS 689.700.  (NRS 21.090(1)(ff).)

[  ]      My professional library, equipment, supplies, and the tools, inventory, instruments, and materials used to carry on my trade or business for the support of me and my family not to exceed $10,000 in value.  (NRS 21.090(1)(d).)

[  ]      Money that I reasonably deposited with my landlord to rent or lease a dwelling that is used as my primary residence, unless the landlord is enforcing the terms of the rental agreement or lease.  (NRS 21.090(1)(n).)

[  ]      Money or payments, up to $16,150, received as compensation for personal injury, not including compensation for pain and suffering or actual pecuniary loss, by me or by a person upon whom I am dependent.  (NRS 21.090(1)(u).)

How to Reopen Bankruptcy-Motion?

Debtor’s Motion to Reopen Case

The Debtor, by counsel, requests that the above-captioned case be reopened pursuant to 11 U.S.C. § 350(b) in order to accord relief to the Debtor and in support thereof avers as follows:

1. The Debtor filed bankruptcy pursuant to chapter 7 of the Bankruptcy Code on May 1, 2005, and received a discharge pursuant to 11 U.S.C. § 727 on September 10, 2005.

2. Among the debts listed in the Debtor’s petition and discharged in this bankruptcy case was a debt in the amount of $550 to [hospital].

3. [Hospital] received notice of the discharge on or about September 10, 2005.

4. In January, 2006, the Debtor began receiving calls from [collection agency] which represented that it was collecting the [hospital] debt.

5. The Debtor informed [collection agency] of the discharge by telephone and by letter, but nevertheless continued to receive collection calls and letters.

6. The Debtor has prepared an action against [hospital] and [collection agency] for contempt for violation of the discharge injunction applicable to this case by virtue of 11 U.S.C. § 524(a). A copy of that action is attached hereto and labeled Exhibit A [omitted].

WHEREFORE, the Debtor requests that this case be reopened to allow the Debtor to file and prosecute an action against [hospital] and [collection agency] for violation of the discharge injunction.

Date: [signature]
Attorney for Debtor
[This article is purely for educational purposes]

What Are The Nevada Laws For Bankruptcy Exemptions?

NEVADA
Has state opted out of federal bankruptcy exemptions?
Yes. Nev. Rev. Stat. § 21.090.

Is opt out limited to residents or domiciliaries of the state? Yes. Nev. Rev. Stat. § 21.090: ‘‘Any exemptions specified in [§ 522(d)],
do not apply to property owned by a resident of this State. . . .’’

Do state’s exemptions have extraterritorial application?Homestead: Uncertain.
Personal property: Uncertain.

Wages: Nev. Rev. Stat. §§ 21.090, 31.295 to 31.298.
Scope: Earnings.
Amount: Garnishment may not exceed the lesser of 25% of disposable earnings for the workweek or the amount by which
disposable earnings that week exceed 50 times the federal minimum wage.

Survival after payment/deposit:
Yes. Earnings are defined to include compensation received by the judgment debtor, in the possession of the judgment debtor, held in accounts in a bank or any other financial institution, or, in the case of a receivable, compensation that is due the judgment debtor.
Waiver:
Not specified in garnishment statute.
Homestead: Nev. Rev. Stat. §§ 21.090, 21.095, 115.005, 115.010, 115.040.
Amount:
$550,000 in either land and a dwelling or a mobile home, subject to certain liens; land held in spendthrift trust for debtor is exempt. Unlimited exemption if ‘‘allodial title’’ has been established. (Nevada residents can acquire ‘‘allodial title’’ to their land by buying out the property tax right from the government. Then the landowner does not have to pay property tax on the land.) The primary dwelling, including a mobile home, and land may not be executed upon for a medical bill during the lifetime of the debtor, debtor’s spouse, a joint tenant who was a joint tenant at the time judgment was entered, or debtor’s disabled dependent adult child, or during the minority of any child of debtor. A 2007 amendment added an exemption for sums reasonably deposited with a landlord, to secure the rental or lease of debtor’s primary residence (except not exempt as to landlord’s claims for rent).
Procedural requirements:
Procedure available for filing declaration of homestead. Exemption available even without declaration. Once declaration is filed, spouse must join in any encumbrance or sale.
Special provisions:
None specified.
Waiver: Spouse must join in conveyance or encumbrance of declared homestead.
Tangible personal property:
Nev. Rev. Stat. §§ 21.080, 21.090, 21.100.
Household goods: $12,000 necessary household goods, furnishings, electronics, wearing apparel, other personal effects and yard
equipment.
Motor vehicles: $15,000, no limit if specially equipped for disabled
debtor or dependent.
Tools of trade:
$10,000 tools of trade; $4500 mining equipment; $4500 farm equipment.
Clothing and jewelry:
Jewelry is included in the $5000 wildcard exemption.
Miscellaneous and wildcard:
$5000 in private library, works of art, musical instruments and jewelry, all family pictures and keepsakes; health aids; property held in a spendthrift trust; uniforms debtor is legally required to keep, one gun, a collection of metal bearing ores, geological specimens, art curiosities or paleontological remains if the debtor catalogues them and the catalogue is kept near the collection for the free inspection of all visitors; coin collections are not exempt. $1000 in any property, including accounts in a financial institution.
Waiver: Not specified in exemption statute.
Benefits, retirement plans, insurance, judgments, and other intangibles: Nev. Rev. Stat. §§ 21.080, 21.090, 21.100.
Public benefits:
Social Security benefits, including without limitation, retirement, survivors, SSI and disability. See Nev. Rev. Stat. § 422.291 (assistance awarded pursuant to public welfare administration laws is exempt). Earned income credit or any similar credit pursuant to state law.
Pensions, retirement plans and annuities:
Up to $500,000 (present value) in tax-qualified retirement plan.
Insurance, judgments or other compensation for injury: Money or benefits in any manner growing out of life insurance, if premium not more than $15,000 per year (for higher premium, the proportion that $15,000 bears to the premium paid); $16,500 personal injury judgment; wrongful death judgment for person on whom debtor was dependent; compensation for loss of future earnings of debtor or person on whom debtor was dependent, so far as needed for support; criminal restitution.
Bank accounts:
Not specified in exemption statute.
Alimony, child support:
Court-ordered family support.
Survival after payment or deposit:
Not specified in exemption statute.

What is a Chapter 7 Discharge?

Chapter 7 Discharge releases individual debtors from personal liability for most debts and prevents the creditors owed those debts from taking any collection actions against the debtor. Because a chapter 7 discharge is subject to many exceptions, though, debtors should consult competent legal counsel before filing to discuss the scope of the discharge. Generally, excluding cases that are dismissed or converted, individual debtors receive a discharge in more than 99 percent of chapter 7 cases. In most cases, unless a party in interest files a complaint objecting to the discharge or a motion to extend the time to object, the bankruptcy court will issue a discharge order relatively early in the case – generally, 60 to 90 days after the date first set for the meeting of creditors. Fed. R. Bankr. P. 4004(c).

The grounds for denying an individual debtor a discharge in a chapter 7 law case are narrow and are construed against the moving party. Among other reasons, the court may deny the debtor a discharge if it finds that the debtor: failed to keep or produce adequate books or financial records; failed to explain satisfactorily any loss of assets; committed a bankruptcy crime such as perjury; failed to obey a lawful order of the bankruptcy court; fraudulently transferred, concealed, or destroyed property that would have become property of the estate; or failed to complete an approved instructional course concerning financial management. 11 U.S.C. § 727; Fed. R. Bankr. P. 4005.

Secured creditors may retain some rights to seize property securing an underlying debt even after a discharge is granted. Depending on individual circumstances, if a debtor wishes to keep certain secured property (such as an automobile), he or she may decide to “reaffirm” the debt. A reaffirmation is an agreement between the debtor and the creditor that the debtor will remain liable and will pay all or a portion of the money owed, even though the debt would otherwise be discharged in the bankruptcy. In return, the creditor promises that it will not repossess or take back the automobile or other property so long as the debtor continues to pay the debt.

If the debtor decides to reaffirm a debt, he or she must do so before the discharge is entered. The debtor must sign a written reaffirmation agreement and file it with the court. 11 U.S.C. § 524(c). The Bankruptcy Code requires that reaffirmation agreements contain an extensive set of disclosures described in 11 U.S.C. § 524(k). Among other things, the disclosures must advise the debtor of the amount of the debt being reaffirmed and how it is calculated and that reaffirmation means that the debtor’s personal liability for that debt will not be discharged in the bankruptcy. The disclosures also require the debtor to sign and file a statement of his or her current income and expenses which shows that the balance of income paying expenses is sufficient to pay the reaffirmed debt. If the balance is not enough to pay the debt to be reaffirmed, there is a presumption of undue hardship, and the court may decide not to approve the reaffirmation agreement. Unless the debtor is represented by an attorney, the bankruptcy judge must approve the reaffirmation agreement.

If the debtor was represented by an attorney in connection with the reaffirmation agreement, the attorney must certify in writing that he or she advised the debtor of the legal effect and consequences of the agreement, including a default under the agreement. The attorney must also certify that the debtor was fully informed and voluntarily made the agreement and that reaffirmation of the debt will not create an undue hardship for the debtor or the debtor’s dependants. 11 U.S.C. § 524(k). The Bankruptcy Code requires a reaffirmation hearing if the debtor has not been represented by an attorney during the negotiating of the agreement, or if the court disapproves the reaffirmation agreement.11 U.S.C. § 524(d) and (m). The debtor may repay any debt voluntarily, however, whether or not a reaffirmation agreement exists. 11 U.S.C. § 524(f).

An individual receives a discharge for most of his or her debts in a chapter 7 bankruptcy case. A creditor may no longer initiate or continue any legal or other action against the debtor to collect a discharged debt. But not all of an individual’s debts are discharged in chapter 7. Debts not discharged include debts for alimony and child support, certain taxes, debts for certain educational benefit overpayments or loans made or guaranteed by a governmental unit, debts for willful and malicious injury by the debtor to another entity or to the property of another entity, debts for death or personal injury caused by the debtor’s operation of a motor vehicle while the debtor was intoxicated from alcohol or other substances, and debts for certain criminal restitution orders.11 U.S.C. § 523(a). The debtor will continue to be liable for these types of debts to the extent that they are not paid in the chapter 7 case. Debts for money or property obtained by false pretenses, debts for fraud or defalcation while acting in a fiduciary capacity, and debts for willful and malicious injury by the debtor to another entity or to the property of another entity will be discharged unless a creditor timely files and prevails in an action to have such debts declared nondischargeable. 11 U.S.C. § 523(c); Fed. R. Bankr. P. 4007(c).

The court may revoke a chapter 7 discharge on the request of the trustee, a creditor, or the U.S. trustee if the discharge was obtained through fraud by the debtor, if the debtor acquired property that is property of the estate and knowingly and fraudulently failed to report the acquisition of such property or to surrender the property to the trustee, or if the debtor (without a satisfactory explanation) makes a material misstatement or fails to provide documents or other information in connection with an audit of the debtor’s case. 11 U.S.C. § 727(d).

Frequently Asked Questions About Bankruptcy

Can I still file bankruptcy after the new bankruptcy law ?
Yes. The new law changed the bankruptcy rules, but the law did not eliminate your right to bankruptcy protection.

Do have to take a credit counseling course before I file bankruptcy?

The new bankruptcy law requires all debtors to fulfill two education requirements: a credit counseling course prior to filing and a financial management course after the filing date. Failure to complete either of these courses and file the appropriate certificates with the court will prevent a successful bankruptcy. The Chapter 13 Trustee will offer the required courses to Chapter 13 debtors, but Chapter 7 debtors are required to take the courses on their own. All bankruptcy education courses are available in person, by phone, or over the internet and are approved for the district in which you are filing. Most courses take less than one hour to complete and costs less than $50.
Who can file bankruptcy?
Any person residing, domiciled, or having property or a place of business in the United States may file Chapter 7. A business may also file a Chapter 7. The new bankruptcy law includes a “means test” which applies an income vs. expense test in order to file Chapter 7 bankruptcy. If the means test indicates you have enough disposable income to pay a significant portion of your unsecured debts you have to file under Chapter 13, provided you meet Chapter 13 debt ceilings. There are currently no minimum or maximum income limits or other income requirements or limitations for people whose unsecured debts are primarily non-consumer debts such as investment liability, business losses, taxes, or student loans.

What is a Chapter 7 bankruptcy?
Chapter 7 bankruptcy is the most common type of bankruptcy and is often referred to as a “liquidation bankruptcy.” In Chapter 7, all of the debtor’s assets, other than those types of assets specifically exempt from liquidation by statute, are turned over to a bankruptcy trustee for sale. Sale proceeds, if any, are distributed among the creditors. Most Florida Chapter 7 debtors have little non-exempt personal property because of Nevada’s liberal exemption laws. Chapter 7 bankruptcy is used to eliminate, or discharge, primarily unsecured debts such as credit cards or medical bills. Chapter 7 does not eliminate secured debts, such as vehicles (unless the secured item is surrendered). Chapter 7 will not save a house from foreclosure nor a car from repossession if you are delinquent in payments. Under the new bankruptcy law, only people who pass the “means test” may file a Chapter 7 bankruptcy. People who fail the means test have to file Chapter 13 bankruptcy provided you are under Chapter 13 debt ceilings. The means test is a complicated mathematical formula. Your bankruptcy attorney can run a means test using bankruptcy software after he collects necessary information from you.

What is a Chapter 13 bankruptcy?

Chapter 13 bankruptcy results in a plan to repay all or part of your debt, but it is not designed to discharge or eliminate most debts. Chapter 13 is used most often to save a house from a foreclosure sale. You can use Chapter 13 to “strip” a second mortgage under certain circumstances. Chapter 13 is also useful to eliminate some IRS debt and to establish an affordable plan to pay IRS debt that cannot be eliminated. Chapter 13 bankruptcy is available to debtors with regular income. A business cannot file Chapter 13. In addition, there are upper limits on the amount of the individual’s secured and unsecured debts in Chapter 13 cases.

Who can file bankruptcy in the Las Vegas District?

The Las Vegas District accepts bankruptcy filings from individuals who reside or are domiciled in Las Vegas. If you file bankruptcy in Nevada, however, you can only claim Florida’s asset exemptions if you have resided in Nevada for the previous two (2) years. Otherwise, you must use exemptions of the state where you previously lived for two years or, in some cases, the default set of federal bankruptcy exemptions.

Can married people file bankruptcy jointly?
Married debtors can file a joint bankruptcy petition for a single filing fee, and most attorneys charge the same legal fee for joint cases as they do for individual cases. Married couples who are jointly liable on most debts should file a joint bankruptcy. On the other hand, if only one spouse is liable on most of the debts, the indebted spouse may file an individual bankruptcy, and in most cases, the individual debtor’s bankruptcy will have no adverse effect on the non-filing spouse.

Do I need an attorney to file bankruptcy?

Bankruptcy law does not require that you hire an attorney to prepare a bankruptcy petition or to represent you in your bankruptcy case. If you enjoy doing things yourself, or if you really cannot afford an attorney, you can find forms on the internet needed needed to file your own petition. However, bankruptcy is a complicated area of the law, and the bankruptcy law gives no special treatment to debtors who file their own petition. The new bankruptcy law makes filing bankruptcy substantially more complicated and the practice of bankruptcy law is therefore more specialized. I strongly believe that the financial risk of filing your bankruptcy incorrectly under the new bankruptcy law is much greater than the amount of a reasonable fee paid to a bankruptcy attorney.

How much do attorneys charge for bankruptcy?
In the past, most consumer bankruptcies were relatively simple and legal fees were low. The new bankruptcy law increases the amount and complexity of legal work required to prepare a bankruptcy petition and successfully complete a filing, and as a result, legal fees are higher than they used to be. Also, the amount of work and fees will vary according to the debtor’s income level. As a general guideline, a debtor below Florida’s median income should not have to pay more than $2,000 in legal fees for a simple Chapter 7 bankruptcy. The court charges a $299 filing fee, and there may be other costs for financial education required by the bankruptcy law. A debtor with income above Nevada’s median income will usually have to pay $300 to $500 more as additional paperwork is required. It is possible, but difficult, to file bankruptcy without the help of an experienced bankruptcy attorney.

Chapter 13 cases are more complicated, and legal fees are higher. The Nevada judges expect and approve legal fees of approximately $4,500 (in addition to the filing fee) to file and complete a standard Chapter 13 case. If your Chapter 13 case involves a wholly-owned business, or other complicated legal issues, legal fees will be higher. The good news is that most attorneys require a down payment of approximately $1,500 to $2,500 (plus the filing fee) to prepare and file a Chapter 13 case. The balance is paid through the Chapter 13 plan over a period of several months.

How Many Times You Can File Chapter 7 or Ch 13?

How often can I file for bankruptcy?You can file as many times as you want–that is the technical answer but you may not get the result you want under the new amendment to bankruptcy after 2005.

A debtor cannot obtain a discharge in a Chapter 7 case if the debtor obtained a discharge in (a) a Chapter 7 case filed within the past 8 years, or (b) a Chapter 13 case filed within the past 6 years. The time periods in either case are measured from the commencement dates of the respective cases. Again, the dates of discharge have no bearing on the disqualification.

A debtor cannot obtain a discharge in a Chapter 13 case if the debtor obtained a discharge in (a) a Chapter 7 case filed within the past 4 years, or (b) a Chapter 13 case filed within the past 2 years. The time periods in either case are measured from the commencement dates of the respective cases. The dates of discharge have no bearing on the disqualification.

The stay will last for just 30 days if a bankruptcy case of the debtor was pending within the preceding year but was dismissed. Law would intervene if an abuse is noticed by the bankruptcy court. The stay will simply not come into existence at all if two or more cases were pending within the preceding year but were dismissed. If a Chapter 7 case is dismissed for abuse and the debtor files under a new chapter (such as Chapter 13), however, the stay has its normal duration.

Notwithstanding the above, you can be barred from filing a new case for 180 days after a case is dismissed, if the dismissal (a) is because you willfully failed to abide by an order of the court or to properly prosecute the case, or (b) was at your request after a creditor requested relief from the automatic stay.

What is an adversary proceedings?

Bankruptcy can be very contested and when there is a contested matters, it gives rise to complaint which needs to be adjudicated by bankruptcy court. Contested matters, if they are smaller in nature, can be handled by motion. There is no fee required for motion and a quick hearing can be done by the bankruptcy judge. However, if the contested matters is serious, it can be adjudicated via filing of an adversary proceedings. An adversary proceeding is a separate civil proceeding within the bankruptcy proceeding. Here, the plaintiff files a separate complaint, along with a filing fee, and serves the named defendant via summons and service of summons executed and filed with the court. The responding party or the defendant responds via an answer. The proceedings results in a judgment which can be entered and executed against the losing party. Again, adversary proceedings are handled much more formally and modeled on the federal rules of civil procedure.

How many types of Adversary Proceedings?
Rule 7001 handles matters regarding adversary proceedings. Any proceeding to recover money or property requires filing of an adversary proceeding.

- Any proceeding to decide the validity, priority, or extent of either a lien or some other interest in property requires an adversary proceeding.
- Any attempt to either have the debtor denied a discharge or have the debtor’s discharge revoked requires an adversary proceeding.
- Any attempt to obtain approval to involuntarily sell the interests of both the debtor and a non-debtor co-owner in property free and clear of the co-owner’s interest requires an adversary proceedings.
- Any proceedings to determine whether a debt is dischargeable requires filing of an adversary proceeding.
- A proceeding to obtain a declaratory judgment with respect to any of the matters which goes to the core of bankruptcy requires filing of an adversary proceeding.

The Complaint
One can say that an adversary proceeding is inherent in a trial. It is a civil litigation conducted within the context of a bankruptcy case. An adversary proceeding is commenced with the filing of a complaint. The complaint must be accompanied by a filing fee.

The Summons and Other Pleadings The summons are issued by the clerk and the plaintiff is required to serve the summons issued by the clerk and a copy of the complaint shall be served on all the defendants. The summons must be served or mailed within 14 days of the time it is issued or a new summons must be obtained.

Answer
The Answer in an adversary proceedings should be ready in the same way as an answer in any other federal civil proceedings.