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He has a debt collection towards him right now because of a recent accident that happened in 2017. His insurance failed to pay out all the vehicles involved and progressive came after my dad personally with 19, and counting debt. I am his POA. Do I need to get guardianship over my dad?
Like stated before there are 3 people on the deed. Can the debt collection agency take the property away as an asset even if there are three people on the deed?

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Hmmm so is it that he has no income that is available for that judgement to do a wage garnishment (like he’s getting joy like SS & that’s protected income from a wage garnishment), so the debtor is instead wanting a judgement lien on the house which is his asset?

If im not mistaken, & GardenArtist you know this stuff better than I do, but isn’t it that they can place the judgement on the property but it basically can flat just sit there.. it can’t go anywhere or become a value paid to the judgement holder unless the property gets sold and the judgement is current on it (so the judgement is a valid debtor against the property). Most states require a judgement to be time limited and then they have to pay to reinstate it. Like every 5-8 years. Thats work for a law firm to pay & keep up with.

if house still has a mortgage or other securitized lending on it, those have to be paid off & in full before any judgement paper can get paid. Unless you 3 are planning on selling the place in the near future, the judgement can be placed on house but just sits there till it “falls off” or gets reinstated.
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igloo572 Aug 27, 2019
Tacy, I bet that ability varies by state laws; like not allowed if owners would be homeless or elderly or adversely affected as disabled. To force a sale, It, imo, would need to be pretty, pretty valuable and without any other encumbrance. Personally I’ve only heard of that happening on commercial property.

I’m basing my thoughts on what happened to folks post HurrKatrina ... lots lost jobs or displaced or mail not forwarded easily and went delinquent on debts of all types. The debt collectors who went to court to get judgements got them pretty easily as the individuals never showed up. Lots of Folks were on FEMA $ or disaster recovery unemployment, which are judgement proof income. Now the Creditors could place judgement on property but it required court costs, atty fees and then eventually would need to pay to renew. Once folks started realizing this, what tended to happen was that owners had no real incentive to do anything increase its property value. Maybe repair to be habitable but keeping it to what had to be done. Between the scattershot of judgements and all those homes who were passed down generationally with fuzzy title, its why still almost 15 yrs later there’s land left fallow or still with debris’s along coastal LA or MS.
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finishing up...

I'm not current on this, so this is just what I've seen happen, years ago.

A debt collector used to be able to file against your father's personal assets.   I've seen this done.  Nasty is an understatement for what happens.


Finally:   I think I would look for a firm that has these practice areas:   elder law, with litigation, individual (not corporate) bankruptcy practices, and insurance litigation.     If you get a firm with those and other practices, you can keep the issues all together in house, w/o having to get 2 different firms.  

I apologize for all the questions and issues, but I'm hoping that you can take some time to sort out the situation and then respond.    This is a very complicated situation; it's hard for me to follow, and I'm sure I missed something.

And it  must be so distressing for you.   Are there others in the family who can help with management of your father's care?
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First, stop right now in terms of thinking about removing your father's name from a collectible asset.  It could be illegal, or at least considered an attempt to avoid payment of a legitimate debt.   You could find yourself in legal trouble.

Could I first clarify some of your statements?

1.  "Debt collection towards him", and you write that it's a legal judgment, signed by a court clerk.   This suggests that either (a) there was litigation and a judgment entered, or (b) the company awarded the judgment "properly perfected" the lien.  

Perfection is critical for validation; & essentially means the company followed all the correct legal procedures to validate and secure its claim.

 So, could you explain how the lien was obtained and "perfected", i.e., was  a suit filed, and a judgment entered?    Or was the judgment obtained in some other manner?

2.   "His insurance failed to pay …".   I'm assuming:
(a) his coverage wasn't sufficient to meet a judgment rendered through litigation, or
(b)  his insurance carrier erred in not paying all claimants. 

3.     My experience from decades ago in auto neg & judgments was that an insurance company, when paying agreed on claims, required a Release (of Lien), or something similar.  Anyone who received compensation had to acknowledge that it was a FULL and FINAL release of any claims.   No further action could take place.  

Did this occur, if you know?   Or, did his insurance company fail to pay all claimants?    

If his insurance company erred (made a mistake) in not paying all the claimants, there may be a cause of action against it.  

This makes a BIG difference in what action came next, and in whether or not liability arises from an insurance company's failure to properly address all potential liens.

4.    "progressive came after my dad personally with 19, and counting debt".   Are there 19 claims, or 19 debts?    Or a $19,000 judgment?      And what specific action did Progressive take?  Did it sue your father, obtain a judgment, then filed the the lien arising from that unpaid judgment?  

This addresses what happened and what didn't, how the claims were or weren't paid off.

5.    Your profile indicates your father has dementia and continues to decline.   I think it's probably too late for him to grant any power to you.  But before you take any action toward guardianship, you really need to discuss the whole situation with an estate planning, elder law attorney, and possibly a litigation and/or bankruptcy attorney.    

Any litigator should have experience in litigating against your father's original insurer, and possibly against Progressive, depending on all the as yet unknown factors.   

As to handling his assets, you could be liable for action from others if you don't muster your father's assets appropriately.    In fact, one of my concerns in getting guardianship is the role you would have to play in asset allocation and management and how that interacts with the judgment liability.   

A bankruptcy attorney can explore the option of filing for bankruptcy based on your father's health, and whether or not the lien could be discharged through that filing.

6.   The debt collector, assuming its debt is "perfected" (legal term for following all the required steps to perfect the lien), will look to any and all assets your father has, but ONLY those assets of your father.

Family interests in the assets cannot be garnished or taken by the debtor, unless you specifically owe it funds.    What a debt collector would probably due is file a lien against the property, so that if and when it's sold, the collector will get a portion of the proceeds.  

Bear in mind that debts used to be, and perhaps still are (I'm not current on this) able to accrue interest at a state defined rate.   The total would be the share a debt collector gets if the property is ever sold.

(out of space)
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AlvaDeer Aug 27, 2019
Garden Artist: So that would be in the end where you ran out of room, would they get the portion belonging to the FATHER only. Not the portion of the home belonging to the others not involved in the suit?
You are a gem with your knowledge!
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Are you being harassed by collection agency? Are they threatening you or dad? There are illegal ways of trying to collect debt. Get an appointment with an attorney for help.

How long has there been all three of you on the deed?
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Marina373737 Aug 26, 2019
Ever since the property was bought in 2013.
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Go to a bankruptcy attorney, I do not think that guardianship would be of any benefit now, the horse is already out of the barn.
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What does your attorney say? I wouldn't think they could take 2/3 of the house. That portion is not dad's asset.

So many variables.

Dad must have been determined to be responsible?
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