Many of us have aging parents and as adult children we find ourselves in the position to advise and assist our parents when they have financial troubles they might not be able to handle on their own. For purposes of this article we are focusing on the scenario involving a question we received and addressed on our recent monthly Bankruptcy FAQ podcast show – click/tap here to listen to the program.
Our hypothetical parent is your widowed mother who does not work but collects Social Security. She has some cash savings but not so much a creditor is likely to sue her to collect and try to enforce a money judgment. Mother obtained a reverse mortgage and the current equity in the home is less than its fair market value in the real estate market. Over time mother has almost $25,000 in credit card debt and fell behind on payments after she had an unexpected and expensive car repair. Mother was researching bankruptcy online and learned that filing for bankruptcy can stop the annoying creditors from calling during her favorite programs. Mother does not have cable recording or DVR so she cannot pause her favorite programs when the phone rings. What can we do to help her?
Note that you have some concerns about mother’s capacity to handle a bankruptcy case own her own and you are afraid she is going to need your help if she decides to file for bankruptcy.
You may need to be a court-appointed guardian if you want to help mother.
Most of us on a good day are nervous hiring lawyers or appearing in court for something like a bankruptcy case. The good news is that unlike some other types of court actions, a bankruptcy does not require the petitioner to attend frequent court appearances. Once you meet with your bankruptcy lawyer and they file the case, you must appear at one court appearance and that is all. Of course there could be more required appearances if the case ends up in contested litigation; not a concern for most people.
If mother cannot sign the documents or appear in court, you may be appointed by the court as a guardian to represent your mother’s interests as the bankruptcy petitioner. The guardianship appointment is an additional step, but it is not a difficult process.
Mother might be considered judgement proof and may not need to file for bankruptcy.
Creditors take action against debtors, suing and collecting money judgments when there is a likelihood of successful collection. The amount of resources necessary to sue and collect a judgement from someone who does not have money to collect simply does not make sense for most creditors. If mother does not have wages to garnish or significant assets, it is unlikely mother will ever get sued on the outstanding credit card debt; more likely the creditor may write it off as a loss.
With the reverse mortgage and mother’s house being worth less than the fair market value there is nothing for a creditor to pursue. Also, in many instances it may be difficult for a creditor to sue to foreclose on a property to collect a debt, especially with a reverse mortgage in place to be repaid before any following creditors.
Even if mother qualifies for a Chapter 7 bankruptcy, it might not be necessary, although it can stop those annoying phone calls.
Depending on the equity in the home, mother may or may not qualify for a Chapter 7 discharge – the means income testing might show that she only qualifies for a Chapter 13 reorganization bankruptcy where she repays the credit card debt over a three to five-year payment plan. Even based on the facts set forth in this situation, the bankruptcy attorney may need additional information to determine which chapter, 7 or 13, would be available to mother.
Mother is probably judgment proof and does not need to file a bankruptcy. She may tell you she wants to file one anyways, simply to stop the credit card companies from calling during her shows. At her age, you might just want to indulge her wishes and help however you can.
Joseph Wrobel, Ltd., works with clients to find out if they qualify for Chapter 7 or 13 bankruptcy, and their options and rights under the law. The firm will also advise and assist clients with questions and concerns about their aging parents.
Joseph Wrobel, Ltd. helps people get control of their finances and a fresh start at financial freedom. The firm’s website contains informative videos about financial issues as well as bankruptcy protection for families who want a fresh start.