Your Frequently Asked Questions about Debt and Bankruptcy in Houston

Although you may feel very alone right now, you should take solace in the fact that we didn't just invent these questions—we hear them frequently from individuals just like yourself. Consumer debt is a nationwide problem and with a little legal guidance, you can be well on your way to living a fulfilling life.

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  • Can I be sued in Texas for a consumer debt like a credit card in a county where I don't live?

    As a general rule, no. You must either be sued in the county where you live or the county where you entered into the contract.

    If you are sued in the wrong county, hire an attorney to file a motion to transfer venue to the proper county and/or dismiss the case. It may also be a violation of the federal Fair Debt Collection Practices Act and other consumer protection laws for someone to sue you in the wrong county.

  • Should I wait to file my bankruptcy in Houston, Texas?

    No. In most cases, waiting to file bankruptcy, without a legitimate reason, can backfire on you.

    It's natural for people to put off unpleasant things like filing bankruptcy. But if you know that you need to do it, don't wait. Get it over with. Why should you not wait? Several reasons:

    1. You may start making more money and no longer qualify to file chapter 7 bankruptcy if you wait to file bankruptcy.

    2. A creditor may sue you, get a judgment and seize your money or property if you wait to file bankruptcy.

    3. You could lose your home to foreclosure or your car or truck to repossession if you wait to file bankruptcy.

    4. One or more of your creditors could decide to declare the debt uncollectible and send a 1099-C Cancellation of Debt form to the IRS so you may owe income taxes on the amount forgiven if you wait to file bankruptcy.

    5. Finally, if you wait to file bankruptcy you are just putting off the day that you are debt-free, and can re-establish your credit and get on with your life.

  • Can I file a joint bankruptcy case with my common-law spouse and just pay one bankruptcy lawyer fee and one filing fee?

    Yes.

    In Texas a "common law" or informal marriage can be just as valid as a regular formal, ceremonial marrage. It is even "codified" or made into a Texas law as Section 2.401 of the Texas Family Code, Proof of Informal Marriage. 

    So it is permissible to file a joint bankruptcy case with your common law spouse and save money over filing two separate bankruptcy cases, so long as you have an agreement to be married, you hold yourself out to others as married, and you are living together or have lived together. As an alternative, you can sign and file a "Declaration of Informal Marriage" as provided by the Family Code.

  • If I transfer property to a friend or relative to keep it out of bankruptcy, how long do I have to wait so it is safe from seizure?

    Possibly up to ten (10) years, at least if you also owe an unsecured debt to the I.R.S.

    Court cases are holding that a bankruptcy trustee can "step into the shoes" of the I.R.S. in such a case, and use the 10 year I.R.S. statute of limitation to extend the normal state statute of limitation that would otherwise apply (4 years in Texas, for example). In re Kipnis, US Bankruptcy Court, SD Fla 2016.

  • I'm a contractor and when I could not complete a project, I got sued under Texas Construction Trust Fund Act. Are there any defenses?

    Yes.

    You may be able to use the affirmative defense that all the trust fund money was used to pay overhead expenses. See Texas Property Code Sec. 162.031(b) and TAG Investments, Ltd v. Monaco, 5th Cir. 2016.

  • Can my Texas car or truck registration be denied if I owe delinquent child support?

    Yes. The Texas Office of the Attorney General (OAG) will deny vehicle registrations for those child support obligors that are more than 180 days delinquent, starting in 2016. This is only for child support cases being handled by the OAG.

    To avoid denial of your car or truck registrations, the OAG has a dedicated phone line for all denial of motor vehicle registration renewal issues. Parents can call (866) 646-5611 to make payment arrangements.

    Or if you also have other serious debt issues, you may want to consider filing chapter 13 bankruptcy, and repaying the delinquent child support over a 3- to 5-year chapter 13 plan. If you live in the Houston, Texas metropolitan area or surrounding counties, call our office at 713-772-8037 for your complimentary consultation.

  • Can I file chapter 13 bankruptcy just to stall foreclosure?

    No, it is not a proper use of chapter 13 bankruptcy to file a case just to get the protection of the "automatic stay" without the intent to complete the case. 

    Some people file bankruptcies over and over (multiple or "serial" filers) to repeatedly stop foreclosures on their property. Not only is it wrong to do so, but it causes a lot of unnecessary legal expense to the mortgage companies that are foreclosing, and also a lot of unnecessary trouble and expense to the court system. The bankruptcy court can punish people or their attorneys through contempt of court or other means for filing multiple bankruptcies without the intent to make them work.

    As happened to seven individuals in the Houston, Texas area, filing a bankruptcy repeatedly just to invoke the stay and stop foreclosures led them to be charged with bankruptcy fraud in federal criminal indictments by the U.S. Attorney's office. Also, they allegedly made false statements in their bankruptcy paperwork, so they were also charged with perjury. These can be serious, federal felonies with punishments of up to 5 years in prison and $250,000 fine.

  • If I lost my job in the oilfield, can a Texas bankruptcy give me a fresh start?

    Yes, filing a bankruptcy case can eliminate debts or in some cases allow you time to catch up house and car notes and keep needed property. Consult for free with Mr. Black, an attorney who is Board Certified in Consumer Bankruptcy Law by the Texas Board of Legal Specialization.

    Mr. Black can review your options with you, and explain your options clearly. He will also explain how much a bankruptcy costs, how it can affect your credit, and how long it takes to recover your good credit. Call our office anytime, 24 hours a day 7 days a week, to either make an appoinment with Mr. Black or if you are not ready for that yet, to request one of our publications.

  • Can I be jailed in Texas for not paying my debts?

    Not legally, but it has been known to happen. Some circumstances where it could happen:

    (1) If you are sued for a debt, and you ignore the lawsuit completely. A judgment is entered against you, and the opposing lawyer sends you "discovery," questions about what you own, and requests for you to produce documents like tax returns which would show the lawyer where your income comes from. If you ignore all of this, and eventually the lawyer has a judge order you to answer, but you still refuse, you can be held in contempt of court and jailed, not for owing money but for not obeying the court order and responding to the discovery questions. You can be jailed until you answer the questions, or up to six months as punishment for not obeying the court order.

    (2) Also, if you fail to pay certain fines such as traffic fines, a judge may order you to jail in lieu of paying the fines. This is not legal in Texas, if you are "indigent," i.e. broke and you can prove it, and judge must give you the opportunity to do community service instead of paying the fine or going to jail.

  • How much of my property do I get to keep if I file a Texas bankruptcy?

    If you qualify to file a chapter 7 bankruptcy and you live in Texas, you likely will get to keep most or all of your property. How come? Texas was founded by people who were in debt trouble, and we have very liberal exemption laws.

    Not only that, but as of September 1, 2015, the amount of personal property that can be claimed as exempt in Texas (safe from creditors or a bankruptcy trustee) was increased to $50,000 for a single adult, and $100,000 for a family, both after deducting the amount of any liens on the property. Texas Property Code Section 42.001 is the Texas law that was amended. That is in addition to an unlimited homestead exemption, an exemption for life insurance and retirement plans, and much more.

    So if you live in the Houston, Texas area or surrounding counties and you are in serious debt trouble, give us a call at 713-772-8037 and make an appointment to meet with Mr. Black or his associate attorney about your situation. We'll discuss all of your options with you. If you are not ready to do that yet, request one of our free publications.

  • My vehicle registration is blocked due to unpaid HCTRA toll road fines. Will filing bankruptcy release the block?

    Yes.

    If your vehicle registration is blocked because of unpaid Harris County Toll Road Authority fines, HCTRA is currently releasing the block if you file bankruptcy. Why?

    Because the filing of a bankruptcy case causes an "automatic stay" or a federal court order to go into effect, which prevents among other things, "an act to exercise control over property of the estate," which is prohibited by 11 U.S.C. Sec. 362(a)(3). So they cannot block the registration of your car or truck if you file bankruptcy because of unpaid HCTRA fines.

    This does not necessarily mean that the fines are discharged or cancelled in bankruptcy, although our understanding is that is how HCTRA is currently treating them.

    Part or all of the toll road fines could be determined to be non-dischargeable in bankruptcy pursuant to a different section of the Bankruptcy Code, 11 U.S.C. Sec. 523(a)(7). See In re Holder, 376 B.R. 802 (S.D. Tex. 2007) (traffic violation surcharges by Texas Department of Public Safety found to be non-dischargeable). So we encourage you to pay your tolls!

  • Is it legal for my mortgage company to send me demand letters after I surrender the property in bankruptcy?

    No. Unless you had signed a reaffirmation agreement, when you surrender a property in bankruptcy your "personal liability" is discharged or cancelled by the court.

    If your mortgage company continues to try to collect the debt (as opposed to foreclosing), they are likely violating the bankruptcy court's discharge order. You may have a lawsuit or claim against your mortgage company if they make efforts to collect a discharged debt.

    It IS legal for them to foreclose on the property after a bankruptcy, and they are required by law to send you certain letters to accomplish that. But they are not allowed to seek collection of the debt as your personal liability after the debt has been discharged in bankruptcy.

  • Do I have to pay the Obamacare penalty for not having health insurance if I filed bankruptcy in last 6 months?

    No.

    Filing bankruptcy in the last 6 months is one of the "hardship exemptions" that allow the Obamacare penalty of fee to be waived. One of my clients said she will save almost $700 because of the bankruptcy hardship exemption.

    To apply for the hardship exemption for bankruptcy, you have to fill out an application, attach a copy of your bankruptcy documents, send it in, and if approved, you will receive a "unique exemption certificate number" (ECN). You put your ECN on your tax return to claim the exemption.

  • Does filing bankruptcy stop you from being prosecuted for a crime, like collecting T.W.C. benefits that you are not entitled to?

    No. The bankruptcy "automatic stay" does not stop you from being prosecuted for crimes, like theft. 11 U.S.C. Sec. 362(b)(1).

    You can be prosecuted, for example, for continuing to receive unemployment benefits after you have gone back to work, and not informing the Texas Workforce Commission that you have gone back to work.

    You could be prosecuted for theft for this, or even a federal crime like mail fraud, if the mails were used in the commission of the crime.

    Of course, if it was the government's mistake, or just inadvertence and you had no intention of defrauding the government, and can repay the funds immediately, you may be able to avoid any criminal trouble. In fact we have successfully discharged overpayments in bankruptcy many times.

    But if a criminal charge is filed against you, the filing of a bankruptcy won't stop it.

  • Can I file bankruptcy on my ex-spouse's attorney fees for a child custody case that I was ordered to pay?

    No, not likely.

    In a bankruptcy case decided on October 22, 2014, U.S. Bankruptcy Judge Marvin Isgur in Houston ruled that over $100,000 in attorney fees and costs incurred in a child custody dispute would not be discharged in the husband's chapter 13 bankruptcy case.

    Even worse for the ex-husband, the court decided that the attorney fees and costs were a priority claim, and had to be paid in full during the bankruptcy plan because they were in the "nature of support" and therefore a "domestic support obligation" or DSO. The court allowed the priority proof of claim as a domestic support obligation. In re Beacham, Bankr. Court, SD Texas 2014.

  • I have online payday loans. Can they be discharged if I file bankruptcy?

    Yes, online payday loans can be discharged in bankruptcy, assuming that you qualify to file bankruptcy.

    Online payday loans are unsecured debts, and can be discharged in bankruptcy just like credit card debt, bank loans, medical debt, broken leases on apartments and cell phones, and other unsecured debt.

    If you have bogus online payday loans that you cannot pay, by all means dispute them, don't pay them. We have clients that get phone calls from "fake payday loan" debt collectors trying to get them to pay, and it is just ridiculous. They threaten them with arrest and having the sheriff come immediately and serve them with a lawsuit, it just doesn't work like that. You don't need to file bankruptcy on scam artists.

    But if you have payday loans that you owe and you cannot pay, and/or other debt problems and you live in the Houston, Texas area or surrounding counties, call our office at 713-772-8037 and make an appointment to meet with us.

    We will review your situation at no charge to determine if filing a bankruptcy case will solve your debt problems. You can either seek to cancel your debts in chapter 7, or at least pay them at a level that you can afford in chapter 13, depending upon your circumstances. But just to be clear: payday loans, including online payday loans, can be discharged in bankruptcy just like any other unsecured debt.

  • Do you accept Texas Legal Protection Plan (TLPP or legal insurance) for your bankruptcy attorney fees?

    Yes. 

    Members of the Texas Legal Protection Plan, now known as Texas Legal, can have their attorney fees paid by the Plan. It's like medical insurance for legal services. Many teachers and Texas state employees have Texas Legal to cover their legal expenses.

    For the cost of less than one hour of attorney's time, you can enroll and be entitled to a wide range of legal services performed by participating Texas attorneys.

    Our law firm accepts Texas Legal, for both chapter 7 and chapter 13 bankruptcy cases. Instead of paying $2500-$3500 for attorney fees, you can be covered by Texas Legal and have these fees paid for you!

    You are responsible for and must pay the "costs" for the bankruptcy such as the filing fee, credit briefing and debtor education, but the attorney fees are covered by the plan.

    To make an appointment to review your situation and determine if a bankruptcy filing is right for you, give us a call at 713-772-8037 anytime. If you're not ready to take that step yet, call and request one of our publications, or download one from this website.

  • How many people in Houston have bad debts on their credit reports?

    According to a report entitled Delinquent Debt in America by the Urban Institute, almost 44% of the population of Houston has collection accounts on their credit report. These are debts that have gone unpaid so long that they have been "charged off" by the original creditor and referred to debt collectors or sold to debt buyers. You can even be sued for bad debts by the creditor or debt buyer.

    If you have debt troubles, call us at 713-772-8037 anytime, and make an appointment to come in to see us at our law office in west Houston. We will review your options with you.

    In some cases, you may want to consider filing a bankruptcy case to get a fresh start. For more information or to instant download our free publications, go to www.jthomasblack.com, or just give us a call.

  • What can happen if I destroy or throw out evidence in my Houston, Texas bankruptcy case?

    According to a recent Houston bankruptcy court case, spoliation is “‘the destruction of evidence [or the] destruction, or the significant and meaningful alteration of a document or instrument.’” And under Texas law, a party seeking a finding that spoliation of evidence has occurred must establish: “(1) whether the accused party had a duty to preserve the evidence; (2) whether the accused party negligently or intentionally spoliated evidence; and (3) whether the spoliation prejudiced the other party's ability to present its case or defense.” In re Michael Glyn Brown, Bankr. SD Texas 2014.

    If you intentionally throw away or destroy what would have been evidence in a court proceeding, including a bankruptcy case, you can get in serious trouble. The court may sanction or fine you, and the judge could enter an "adverse inference" against you.

  • If I have a Texas home equity loan, can my loan modification be denied because of it?

    It shouldn't be any longer. It has been a problem for some of my clients because of the many consumer protection provisions of the Texas Constitution, as they relate to home equity loans.

    On certified questions from the 5th Circuit Court of Appeals on a pending class action, the Texas Supreme Court delivered an opinion on May 16, 2014 that it is NOT a violation of the Texas Constitution to modify a Texas home equity loan, so long as "the original note is not satisfied and replaced, and there is no additional extension of credit, as we define it, the restructuring is valid and need not meet the constitution requirements for a new loan." Sims v. Carrington Mortgage Services, LLC, Tex. Sup. Ct. 2014.

    This is wonderful news for several of my clients, some of whom will now be able to get their home equity loans modified, keep their homes from foreclosure, and in some cases reduce the interest rates from 10% to 2-5%, for example.