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LEGAL INFORMATION ONLINE ANYTIME 24 hh u r s a d a y www.nolo.com AT THE NOLO.COM SELF-HELP LAW CENTER, YOU’LL FIND • Nolo’s comprehensive Legal Encyclopedia filled with plain-English information on a variety of legal topics • Nolo’s Law Dictionary—legal terms without the legalese • Auntie Nolo—if you’ve got questions, Auntie’s got answers • The Law Store—over 200 self-help legal products including Downloadable Software, Books, Form Kits and eGuides • Legal and product updates • Frequently Asked Questions • Our ever-popular lawyer jokes Our “No-Hassle” Guarantee Quality Return anything you buy directly from Nolo for any reason and we’ll cheerfully refund your purchase price No ifs, ands or buts • NoloBriefs, our free monthly email newsletter • Legal Research Center, for access to state and federal statutes Law Books & Software for Everyone Nolo’s user-friendly products are consistently first-rate Here’s why: • • • • A dozen in-house legal editors, working with highly skilled authors, ensure that our products are accurate, up-to-date and easy to use We continually update every book and software program to keep up with changes in the law Our commitment to a more democratic legal system informs all of our work We appreciate & listen to your feedback Please fill out and return the card at the back of this book Read This First T he information in this book is as up to date and accurate as we can make it But it’s important to realize that the law changes frequently, as fees, forms and other important legal details If you handle your own legal matters, it’s up to you to be sure that all information you use—including the information in this book—is accurate Here are some suggestions to help you this: First, check the edition number on the book’s spine to make sure you’ve got the most recent edition of this book To learn whether a later edition is available, go to Nolo’s online Law Store at www.nolo.com or call Nolo’s Customer Service Department at 800-728-3555 Next, because the law can change overnight, users of even a current edition need to be sure it’s fully up to date At www.nolo.com, we post notices of major legal and practical changes that affect a book’s current edition only To check for updates, go to the Law Store portion of Nolo’s website and find the page devoted to the book (use the “A to Z Product List” and click on the book’s title) If you see an “Updates” link on the left side of the page, click on it If you don’t see a link, there are no posted changes—but check back regularly Finally, while Nolo believes that accurate and current legal information in its books can help you solve many of your legal problems on a cost-effective basis, this book is not intended to be a substitute for personalized advice from a knowledgeable lawyer If you want the help of a trained professional, consult an attorney licensed to practice in your state 9th edition Money Troubles: Legal Strategies to Cope With Your Debts by Attorney Robin Leonard Ninth Edition AUGUST 2003 Editor PEG HEALY Illustrations MARI STEIN Cover Design JALEH DOANE Book Design TERRI HEARSH Proofreading JOE SADUSKY Index ELLEN DAVENPORT Printing CONSOLIDATED PRINTERS, INC Leonard, Robin Money Troubles : legal strategies to cope with your debts / by Robin Leonard p cm Rev ed of: Money Troubles / by Deanne Loonin & Robin Leonard 8th ed 2002 Includes index ISBN 0-87337-975-6 Debtor and creditor United States Popular works Credit Law and legislation United States Popular works I Title KF1501.Z9 L46 2003 346.7307'7—dc21 2003051012 Copyright © 1991, 1993, 1995, 1996, 1997, 2000, 2001, 2002 and 2003 by Nolo All Rights Reserved Printed in the U.S.A No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without prior written permission of the publisher and the authors Reproduction prohibitions not apply to the forms contained in this product when reproduced for personal use Quantity sales: For information on bulk purchases or corporate premium sales, please contact the Special Sales Department For academic sales or textbook adoptions, ask for Academic Sales Call 800-955-4775, Nolo, 950 Parker Street, Berkeley, CA 94710 Acknowledgments I gratefully acknowledge the following people for their support and creative contributions: My delightful research assistants: Karen Chambers, who actually understands U.C.C § 1-207; Lisa Guerin, who spent many hours breathing the fumes of her law school library; Annie Tillery, a researcher par excellence; David Freund, for his work on debtors’ prisons; and Tricia Bernens, the funniest and most capable attorney in the state of Indiana For help with the sixth edition, thanks to Ella Hirst My original editors, Steve Elias and Jake Warner, whose insights make Nolo books as great as they are My editor for later editions, Shae Irving, with whom it was a joy to work All the Noloids who shared their debt problems with me Barbara Kate Repa, Marcia Stewart, Mary Randolph and Albin Renauer, my cohorts in the editorial department, whose support was more important to me than they will ever realize Sherri Conrad, Amy J.D Markowitz, Leslie Landau, Randy Michelson and Wendy Hannum, friends from my lawyering days, who answered a never-ending string of questions, and offered lots of advice and good cheer —Robin Leonard Table of Contents I Being in Debt Is Not As Bad As You Think Secured and Unsecured Debts A Secured Debts 1/2 B Unsecured Debts 1/3 How Much Do You Owe? A How Much Do You Earn? 2/2 B How Much Do You Owe? 2/4 If You’re Married, Divorced or Separated A Who Owes What Debts in a Community Property State? 3/2 B Who Owns What Property in a Community Property State? 3/3 C What Property Is Liable for Payment of Debts in a Community Property State? 3/4 D Who Owes What Debts in a Common Law State? 3/5 E Who Owns What Property in a Common Law State? 3/5 F What Property Is Liable for Debts in a Common Law State? 3/6 Debts You May Not Owe A The Seller Breaches a Warranty 4/2 B Your Car Is a Lemon 4/5 C You Are the Victim of Fraud 4/7 D You Want to Cancel a Contract 4/9 E Canceling Goods Ordered by Mail, Phone, Computer or Fax 4/11 I/12 MONEY TROUBLES Reverse mortgages, 7/7–9 Right to cure laws, 8/10, 8/11 S Sallie Mae (Student Loan Marketing Association), 13/4 Savings accounts bank setoffs, 8/17 to repair credit, 18/20 Savings and loans, reporting credit violations, 12/2 Scammers, pending foreclosures, 8/3 School closures, and cancelation of student loans, 13/6–7 Secured credit cards, 10/5, 18/19–20, A1/3 Security agreements consequences of defaulting on, 8/10–15 Security interest defined, 1/2 examples, 1/3 purchase vs nonpurchase money, 1/2–3 state protections, 11/8–11 Separate property in common law property states, 3/6 in community property states, 3/4 Separation, marital debts incurred after, 3/3–4, 3/5 debts incurred before, 3/2–3 See also Divorce Service of court papers, 15/4, 15/14, 15/16, 15/17 Settlement agreements, sample, 15/7 Settlement conferences, 15/18 Sex discrimination, 19/2 Sexual orientation, discrimination based on, 19/3 Short sales, 6/5, 6/7, 6/17, 8/4 Slamming, phone, 4/15–16 Small claims court, 15/3 Social Security Administration (SSA), 7/5, 18/11 Social Security benefits anti-alienation clauses, 14/9 bankruptcy and, 16/5, 16/7 bank setoffs, 8/17 child support payments and, 14/8, 14/9 to find debtors, 9/8 student loans and, 13/10 Spending plans, 7/4, 18/2–5 Spousal support See alimony SSI (Supplemental Security Income), 7/5, 7/8 Stafford loans, 13/3, 13/6, 13/7 State laws bankruptcy exemptions, 17/3, 17/14–15, 17/26, A2/2–28 child support payments, 14/5, 14/10, 14/13 contract cancelation, 4/10, 4/12 credit bureau regulations, 18/8 credit discrimination prohibitions, 18/16, 19/4 credit repair clinic regulations, 18/22–28 deficiency balances after foreclosure, 8/7–9 deficiency balances after repossession, 8/13–14 evictions, 8/2 fraudulent business practices, 4/7–9 homestead exemptions, 17/27 interest rates collection agencies can charge, 9/16–17 lemon laws, 4/5–7 online information, 20/9–10 researching, 20/2–7 right to cure notification, 8/10, 8/11 secret warranties, 4/7 security interest protections, 11/9–10 unfair debt collections, 9/19–28 utility shut-offs, 6/7–8 wage assignment limitations, 11/12, 17/6 See also Common law property states; Community property states; specific states statutes of limitations about, 15/9–10 extending or reviving, 15/10, 15/13 reporting negative information in credit files, 18/7, 18/11 of specific states, 15/11–12 on stale checks, 6/16 on student loans, 13/2, 13/10 time-barred debts, 9/6, 9/15 waiving, 15/10 Stock options, seized by creditors, 17/6, 17/10 Student Loan Marketing Association (Sallie Mae), 13/4 Student loans assistance, 13/3, 13/10 canceling, 13/5, 13/6–7, 13/9 collection tactics, 13/2, 13/9–10 consequences of ignoring, 13/2, 13/4, 13/9–10 consolidation of, 13/5–6, 13/9 default, getting out of, 13/9 deferments, 13/7–8 Direct, 13/3, 13/6, 13/7 discharging in bankruptcy, 13/8–9 federal, 13/3, 13/5 forbearances, 13/7–8 Guaranteed, 13/3 guaranty agencies, 13/3 holders, locating, 13/4 interest rates, 13/6 lenders, 13/3 National Defense, 13/3 National Direct, 13/3 negotiating reduced payments, 6/12 ombudsman office, 13/4, 13/10 Perkins, 13/3, 13/6 PLUS, 13/3, 13/6, 13/7 private, 13/4 repayment plans, 5/4, 13/4–5, 13/9 school transcripts and, 13/8, 19/4 Stafford, 13/3, 13/6, 13/7 state, 13/4 statistics on, 13/2 tax concerns, 13/5 tax refunds and, 7/10, 8/19, 13/2, 13/10 as unsecured debt, 1/4 wage attachments, 13/2, 13/10, 15/24 Students, targeted by credit card companies, I/1 Subpoenas, defined, 15/18 INDEX Subpoenas duces tecum, defined, 15/18 Supplemental Security Income (SSI), 7/5, 7/8 U T I/13 Unconscionability, contract cancelation due to, 4/11 Undue hardship, defined, 13/8 Unemployment benefits bankruptcy and, 16/7 bank setoffs, 8/17 as income source, 7/5 Unfair and deceptive acts and practices (UDAP) laws about, 4/7–8 force placed insurance and, 8/19 reporting violations of, 4/8–9 U.S Code, 20/7 U.S Postal Service to find debtors, 9/8 reporting fraudulent practices to, 4/8, 4/14 Usury laws, 10/5 Utility bills automatic stay protection, 16/4, 16/5 cost-cutting strategies, 7/4 credit scoring role, 11/5 as essential debt, 5/3 failure to pay, consequences, 8/19–20 help in clarifying, 6/8 negotiating reduced payments, 6/7–8 special rates, 6/7 as unsecured debt, 1/4 Utility companies credit checks by, 18/7 to find debtors, 9/8 Utility conservation assistance programs, 6/8 Tax-deferred accounts, withdrawals from, 7/4–5 Taxes bankruptcy and, 6/12, 6/17, 6/19, 16/11 on debts settled with creditors, 6/17–19, 9/3, 9/11, 13/5 deferral loans to pay, 7/9 deficiency balances and, 8/6–9 as essential debt, 5/3 home equity loans and, 7/7 jailing for nonpayment, 8/17 mortgage interest deductions, 7/12 negotiating reduced payments, 6/12 on personal loans, 7/10 on short sales, 6/17, 8/4 student loans and, 5/4, 7/10, 13/5 on withdrawals from tax-deferred accounts, 7/4–5 See also IRS Tax liens about, 1/3 bankruptcy and, 16/4 in credit file, 18/11 order of payment, 15/25 property tax, 8/16 reported to credit bureaus, 18/6 Taxpayer Advocate Program (IRS), 7/10 Tax refunds anticipation loans, 7/11 interception of, 8/19, 13/2, 13/10, 14/9–10, 17/9 to pay off debts, 7/10 Teachers, student loan cancellation for, 13/7 Telemarketers (phone solicitors) canceling goods ordered from, 4/11–12 computer-generated calls, 4/12, 4/14 Do Not Call registry, 4/13 Telephone bills help in clarifying, 6/8 negotiating reduced payments, 6/8 slamming charges, 4/15–16 used to track debtors, 9/8–9 Telephone Consumer Protection Act, 4/13, 4/14 TeleZappers, 9/9 Tenancy in the entirety (joint property), 3/6, 17/8, 17/12 Third party collectors See collection agencies Time-barred debt, 9/6, 9/15 Tolling, statute of limitations, 15/10 Tools of trade, as exempt property, 15/32 Trans Union credit bureau, 11/5, 18/6, 18/10, 18/11, 18/13 Travel and entertainment cards See Charge and credit cards Trust payments, seized by creditors, 17/6, 17/9 Truth in Lending Act (TILA) contract cancelation, 4/9–10 as foreclosure defense, 8/6 home equity loan cancelation, 7/7 reporting violations, 12/2 required disclosures, 10/5–6, 11/2–3 V VersusLaw, 20/10 Visa (BankAmericard) cards, 10/2, 10/5–6, 10/11–12, 18/17 Visitation rights, and child support, 14/3, 14/11–12 Volunteer programs, student loan cancellation for, 13/7 Voter registration records, to find debtors, 9/8 W Wage assignment, attachment, and withholding bankruptcy and, 16/6, 16/7, 17/9, A2/2 clause in loan agreements, 11/11 firing due to, 15/25 foreclosure and, 8/6 by judgment creditors, 9/12, 15/24–25, 17/6 objecting to, 15/24 state laws limiting, 11/12, 17/6 stopping, 15/31 for unpaid child support, 14/12–13, 15/24 for unpaid student loans, 13/2, 13/10, 15/24 for unpaid taxes, 15/24 Waivers of exemptions, in loan agreements, 11/11 Warranties bonded companies, 4/5 breaches by seller, 4/2–5, 15/13 distinguished from guarantees, 4/2 enforcement of, 4/4–5 I/14 MONEY TROUBLES expiration of, 4/5 express, 4/2, 4/3–4 extended (service contracts), 4/5 implied, 4/2–3 lemon laws, 4/5–7 secret, for motor vehicles, 4/5, 4/7 Welfare bankruptcy and, 16/5, 16/7, A2/2 bank setoffs, 8/17 and child support, 14/9 and credit report access, 18/8 Westlaw database, 20/10 Wild card exemptions, 17/14, 17/28, 17/29 Withholding payment for credit card billing errors, 10/10 for defective merchandise, 4/4–5, 4/12, 10/10–11 for disputed phone service charges, 6/8 World Wide Web, resources on ATM and bank fees, 10/14, 18/20 BenefitsCheckup, 7/6 case citations, 20/9–10 child support, 14/3, 14/4, 14/6, 14/9, 14/10, 14/13 choosing credit cards, 10/5 court and government agency websites, 20/9 credit counselors, 13/6 credit discrimination, 19/5 credit scoring, 11/4 Do Not Call registry, 4/13 FTC, 9/3 IRS, 7/10, 7/11, 20/9 legal research, 20/8–10 lemon laws, 4/6 Medicaid information, 7/6 mortgage payment calculations, 6/6 payday loan laws, 7/12 people locators, 9/9 poverty line levels, 13/7 property sales, online, 7/3 secured credit cards, 18/20 Social Security Office Locator, 7/5 student loans, 13/2, 13/4, 13/10 unemployment benefits, 7/5 Writs of attachment, 8/15 ■ CATA L O G more from Nolo PRICE CODE BUSINESS The CA Nonprofit Corporation Kit (Binder w/CD-ROM) $59.95 CNP Consultant & Independent Contractor Agreements (Book w/CD-ROM) $29.95 CICA The 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Bad credit can damage your chances of qualifying for credit cards or a mortgage and it can even get in the way of renting a home In this helpful, clear-cut book, personal finance and credit expert Attorney Robin Leonard shows you how to get out of debt, avoid overspending, establish a realistic budget, build a financial cushion, read and understand your credit report, get credit report errors fixed, and more! Credit Repair is chock full of sample credit reports, texts of state and federal laws that provide additional protections, and 30 forms and form letters to make repairing your credit as easy as 1-2-3 $24.99/CREP Take Control of Your Student Loan Debt by Attorneys Robin Leonard & Deane Loonin What’s black and blue and scared all over? A graduate student facing a student loan! Fortunately, there are simple and effective ways for students to get out of debt—all of which are detailed in Take Control of Your Student Loan Debt This book presents simple, effective ways for you to get out of student-loan debt Find out about repayment options, how to postpone repayment, how to avoid or get out of default, how to handle collection efforts and when to choose bankruptcy Includes sample forms and letters $26.95/SLOAN 0 - 728-3555 o r w w w n o l o c o m m o r e f r o m N L O O Law for All Bankruptcy Is It the Right Solution to Your Debt Problems? by Attorney Robin Leonard Trying to decide whether or not to file for bankruptcy? This book answers questions and discusses concerns that may be keeping you up into the wee hours, such as whether you’ll lose your house or lose your job An excellent introduction to a complex problem $19.99/BRS How to File for Chapter Bankruptcy by Attorneys Stephen Elias, Albin Renauer, Robin Leonard & Kathleen Michon Chapter bankruptcy allows you to get rid of most of your debts, and it forces creditors and collection agencies to stop their collection efforts the very day you file In plain English, How to File for Chapter Bankruptcy takes you through the filing process, giving you practical advice and all the forms you’ll need $34.99/HFB Chapter 13 Bankruptcy Repay Your Debts by Attorney Robin Leonard If Chapter bankruptcy can’t help you, and you’re at risk of losing property, Chapter 13 can help It enables you to reorganize debts into a repayment plan you can afford, without losing property Chapter 13 Bankruptcy guides you through the process, providing you with the necessary forms and sample letters $34.99/CH13 0 - 728-3555 or w w w n o l o c o m About the Author Robin Leonard graduated from Cornell Law School in 1985 She came to Nolo in 1987 after practicing law in San Francisco She is the author of Nolo’s Chapter 13 Bankruptcy: Repay Your Debts, Bankruptcy: Is it the Right Solution to Your Debt Problems? Take Control of Your Student Loan Debt and Credit Repair She is also co-author of How to File for Bankruptcy, A Legal Guide for Lesbian and Gay Couples and Nolo’s Pocket Guide to Family Law ... consult an attorney licensed to practice in your state 9th edition Money Troubles: Legal Strategies to Cope With Your Debts by Attorney Robin Leonard Ninth Edition AUGUST 2003 Editor PEG HEALY.. .9th edition Money Troubles: Legal Strategies to Cope With Your Debts by Attorney Robin Leonard bout Nolo A esti Have a legal qu and online lp yo e Nolo can... FICA; union dues; and money your employer takes out of your paycheck toward your retirement plan or health insurance, to pay your child support or to repay a loan To figure out your monthly net income,