WVSLA’s Commitment to Oppose Racism

December 27, 2016: In response to recent statements published on social media by the senior services provider in Clay County, WV, the Board of Directors and staff of West Virginia Senior Legal Aid wishes to reiterate our commitment to serving senior West Virginians of color and reaffirm that we do not condone racism in any form. Using the law to promote equality is an essential part of our mission and any examples and/or perceptions of discrimination on the basis of race in our state deserve our focused attention.

Given that the Older Americans Act, by law, targets its services to those in the greatest economic or social need, with particular attention to low-income minorities, rural residents and those with limited English proficiency, it is imperative that ALL providers within the network offer and provide services without actual or the perception of, discrimination. We do not and will not support any action in the senior services network that is inspired by racism or that sends the message that seniors of color are not welcome and deserving of all the services our network has to offer. Our message is that West Virginia Senior Legal Aid seeks to reach out to and serve with excellence the legal needs of our state’s seniors of color. Our doors are especially open to seniors whose rights have been violated, and we promise to zealously advocate for the individual rights of every senior West Virginian of color who seeks our services. You are important to us.

We welcome your input about how we can do a better job reaching out to and serving seniors of color in our state. We seek to partner with anti-racist groups around the state to enhance our capacity and learn how to deliver the best possible services to minority seniors.

As we enter a new year, the Board of Directors and staff of West Virginia Senior Legal Aid wish to assure ALL West Virginia Seniors that we are here to serve you, regardless of your race, gender, religion, sexual orientation, socio-economic, educational or disability status AND we uphold your right to receive services from other senior service providers without prejudice.

If I file for bankruptcy, which Chapter is best for me, Chapter 7 or Chapter 13, am I eligible to file under either, and what are the differences between the two?

Since 2005, your ability to choose between Chapter 7 and Chapter 13 bankruptcy has been tightened. To be eligible for Chapter 7 protection, you have to pass a two-part means test. The test compares your income with the median income for a family with the same number of individuals and with your expenses and debt. If you do not pass the test, you cannot file Chapter 7 bankruptcy and must file Chapter 13. A Chapter 13 plan is a reorganization that provides for payments of a portion of some debts and all of certain debts such as home mortgages. You must have a regular income to qualify for a Chapter 13, and some other requirements must be met as well.

A Chapter 7 plan involves liquidation and no payment is made on most debts. There are some debts that must be paid such as taxes, some support obligations, some student loans, and some intentional torts, which are debts that arise because you have injured someone intentionally or while driving drunk. These are only general rules of thumb, and what will or will not be paid depends on your specific case.

For more information, see: 11 U.S.C. §§ 101–112 (2010); The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 109 P.L. 8 § 707 (2005); U.S. Department of Justice, U.S. Trustee Program, Census Bureau Median Family Income by Family Size, http://www.justice.gov/ust/eo/bapcpa/index.htm (last visited July 17, 2012).

My spouse suffered a stroke and he/she doesn’t respond to anything, and the doctor says he/she never will. I know my spouse wouldn’t want to live like this. What does the law say about keeping him/her alive?

A competent person has a right to refuse any form of medical treatment. An incompetent person can be protected from unwanted medical procedures as well if that person has executed a living will or has appointed a medical power of attorney. A living will is a document the person writes that says life-prolonging intervention is not to be used if that person is ever in a persistent vegetative state. A medical power of attorney is a document that designates a person to make health care decisions for you if you are unable to make those decisions for yourself. Living wills and medical powers of attorney help ensure you have control over your health care decisions even after you are unable to make those decisions for yourself. These documents can remove the stress of decision making during what can be a very difficult time for family members. 

The situation is more complicated when there is neither a living will nor a medical power of attorney and the individual is in a persistent vegetative state. However, West Virginia law helps safeguard against potential conflicts. If an individual is terminally ill or in a persistent vegetative state and determined as incapacitated by the attending physician, the physician can name a health care surrogate. The surrogate has authority to make all health care decisions on the person’s behalf without court order or judicial involvement. The physician must make a reasonable inquiry to determine who the most qualified person is. Usually the health care surrogate is a close family member. If there are no close family members available, then your physician may consider any other person or entity, including, but not limited to, public agencies, public guardians, public officials, and corporations. Health care providers, unless related to the patient, may not be the surrogate.  

The health care surrogate makes decisions based on the incapacitated individual’s expressed values and wishes, or, if unknown, the individual’s best interests. The surrogate can request that the nursing home withhold or withdraw life-prolonging intervention. Life-prolonging intervention is any medical procedure or intervention that serves only to artificially prolong the dying process or maintain the person in a persistent vegetative state. Among other things, it can include artificial respiration and artificial nutrition and hydration (often called a feeding tube). It does not include the administration of medicine or the performance of any other medical procedure deemed necessary to provide comfort or alleviate pain. Before the decision to withhold or withdraw life-prolonging intervention is carried out, at least one other qualified physician must examine the person and determine that the person is incapacitated.  

For more information, see: West Virginia Health Care Decisions Act, W. Va. Code §§ 16-30-1 to -25 (2015); Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S.Ct. 2841 (1990); In the Matter of Conroy, 486 A.2d 1209 (1985); Betancourt v. Trinitas, 1 A3d. 823 (2010); Joan M. Krauskopf et al., Elderlaw: Advocacy for the Aging §§ 13.11, 13.16, 13.19, 13.20, 13.23, 13.24 (2nd ed. 1993).

How can I pay for long-term nursing home care?

Nursing home care is generally paid through one of four ways: Medicare, private insurance, Medicaid, or private payment.

Medicare 

Medicare coverage for nursing home care is quite limited. Medicare only covers skilled nursing care for a limited period of time. Skilled nursing care is performed in a Skilled Nursing Facility (SNF). Federal law designates only certain facilities as SNFs. In addition, there are several criteria that you must meet to qualify for Medicare coverage of an SNF. You must:

•be a Medicare recipient,
•be hospitalized for three consecutive days,
•be admitted to the nursing home within 30 days of discharge from the hospital.
•require the services of the SNF and the treatment there must be related to your hospital stay, and
•receive approval by a Medicare Peer Review Organization (PRO) to stay in the nursing home for the reasons you have claimed.

If you meet the above criteria, then Medicare will pay all or a portion of your care for up to 100 days. During the first 20 days of care, Medicare will pay for the entire cost. From the 21st day to the 100th, you must pay a co-payment, which means you pay a portion of the cost and Medicare pays the rest. The patient co-payment for 2015 is $157.50 per day. Medicare does not cover any nursing home care after day 100 of your stay.

You may be able to obtain supplemental insurance to pay what Medicare will not pay. This type of insurance is called a Medicare Supplement or Medigap insurance policy because it covers the “gap” that Medicare does not cover. This insurance is only available if you have Medicare Part A and Part B.

Private Insurance 

You may obtain private long-term care insurance to cover the cost of nursing home care. Long-term care insurance premiums are generally lower the earlier you purchase them, and premiums can be several thousand dollars annually for elderly people. Even with high premiums, long-term care insurance can be a good value because the cost of nursing home care is typically several thousand dollars a month. When choosing a policy, carefully evaluate coverages as well as costs.

Medigap policies can be used to supplement Medicare coverage. A Medigap policy would pay a portion or all of whatever Medicare would not pay. Medigap policies usually rely on partial coverage from Medicare. Thus, a Medigap policy will not generally provide any coverage of a cost that Medicare does not cover. Before purchasing any insurance policy, evaluate the strengths and limits of the policy. Medigap offers standardized policy types from which to choose and a variety of companies offer these policies. Medigap coverage is only available from private insurance companies, not from the government.

Medicaid 

Medicaid can pay for long-term nursing home care for people who cannot afford to pay for the care themselves. Medicaid is a form of welfare, so applicants must have very limited income and assets to qualify for the program.

If you are already receiving Medicaid coverage, whether as part of a full Medicaid coverage group or as a QMB recipient then you are automatically eligible for nursing home coverage if you qualify medically. If you are not receiving Medicaid coverage, then you can qualify by satisfying the income and asset requirements. You may meet Medicaid income requirements if your countable income is less than 300% of the maximum Supplemental Security Income (SSI) monthly amount. If you do not meet the income requirement, you may be able to spend down your income to be eligible for Medicaid. Determining your spend down amount can be complicated, so you may want to consult an attorney to help you determine if you can meet the income requirement this way.

It is important also to realize that this is an eligibility requirement only. How much you will have to actually spend on your nursing home care is determined in the post-eligibility process only after you meet the eligibility requirements.

After it is established that you meet the income requirement, your assets must be considered. Medicaid will look only to countable assets. The rules for asset determination are different for married couples than they are for single people. If you are married your spouse’s assets will be counted together with yours in the initial asset consideration. But spousal impoverishment protections designate a portion of the couple’s total assets for the community spouse (one who is remaining at home while the other spouse enters the nursing home). The maximum amount of countable assets you may have to qualify for Medicare to pay toward your nursing home expenses is $3,000 for two people if both spouses are in the nursing home, and $2,000 if a single individual (or one spouse) is in the nursing home (after the community spouse’s share is calculated and attributed to him or her). The assets that are not countable in this part of the eligibility process include your home, one car, your household furnishings, an irrevocable burial trust, and others. If your countable assets are above the limit, they must be spent down until you meet the asset requirement before Medicaid will pay toward your nursing home care.

Finally, if you meet both the asset eligibility requirement and the income eligibility requirement, then nursing home care must be medically necessary. A physician must fill out a Medicaid form that states that nursing home care is medically reasonable and necessary.

After you are admitted to the nursing home, and you obtain Medicaid coverage, you may have to contribute some of your monthly income to your care. The amount you must pay is determined in the post-eligibility process. You will be allowed to keep a very small amount of your monthly income for your personal needs, like haircuts, and your spouse and other dependents may be entitled to some of your income. Everything else will go to pay for your care, with a few exceptions in special circumstances.

Private payment 

If you cannot finance nursing home care in any of the ways above, then you will have to pay for the care out of your pocket by making private payments. Because nursing home care is considered necessary care, spouses may be liable for support. Relatives, including adult children, may also be liable for support.

For more information, see: 42 U.S.C. §§ 1396r, 1396r-5(f)(2)(A), 42 U.S.C. § 1382(e)(1)(B)(i) (2015); W. Va. Code § 48-29-303 (2015); 20 C.F.R. 416.414(b)(1), 42 C.F.R. §§ 409.20, 409.30-34, 409.85 (2015); West Virginia Department of Health and Human Resources, Income Maintenance Manual, §§ 11.3, 11.4, 11.4(BB)(1), 11.6(C)(1), 17.9, 17.10(A)(1), 17.10(C), 17.11, http://www.wvdhhr.org/bcf/family_assistance/policy.asp (last visited May 27, 2015) ; Joan M. Krauskopf et al., Elderlaw: Advocacy for the Aging §§ 10.47-.52, 12.5 (2nd ed. 1993).

The nursing home says they are going to discharge me next week. Can they do this?

Maybe. A nursing home must have a legitimate reason for discharging or transferring a resident. Involuntary transfers may be harmful to elderly residents. Transfers often involve separation from family, friends, and familiar surroundings. 

The Nursing Home Reform Act (NHR) addresses this problem. This law lists the only permissible reasons an individual may be discharged from a nursing home. It is possible that the nursing home may tell you that you are being discharged for one of the permissible reasons when in fact the discharge is not permissible. 

Before discharging you, the nursing home must give you a written notice listing the reason(s) you are being discharged. The notice must tell you that you have a right to request a fair hearing. Adequate notice must be given to allow you and your family to plan for your discharge. The nursing home must provide you with sufficient preparation and orientation to ensure a safe and orderly transfer or discharge. If your nursing home has decided to discharge or transfer you, and you do not agree with that decision, you may contact: 

Erika H. Young Chairman of the Board of Review DHHR Phone: (304) 558-0955 

Bldg. # 6  Fax: (304) 558-1992  

Capitol Complex http://www.wvdhhr.org/oig/bor

Rm. 817-B e-mail: Erika.H.Young@wv.gov

Charleston, WV 25305   

You may also contact your regional Long-Term Care Ombudsman. Every nursing home is required to post the name and contact information for the regional ombudsman. If you do not know who your Ombudsman is you may contact: 

State Ombudsman, West Virginia Bureau of Senior Services Phone: (304) 558-3317 

1900 Kanawha Boulevard, East Toll-free: (877) 987-3646 

Charleston, WV 25305 http://www.wvseniorservices.gov

fax: (304) 558-5609 

For more information, see: West Virginia Department of Health and Human Resources, Income Maintenance Manual, § 17, Appendix C(D), http://www.wvdhhr.org/bcf/family_assistance/policy.asp (last visited May 27, 2015); Toby S. Edelman, National Senior Citizens Law Center, Nursing Facilities (March 1997).

I reside in a nursing home but I have to go to the hospital for surgery. The nursing home told me I must prepay in order to return after my hospital stay. Do I have to pay?

Yes, you must pay to reserve your bed while you are in the hospital. This reservation is called bedhold and the charge is legal. The nursing home is allowed to charge you if you temporarily leave for medical treatment or for other reasons with the intent of returning. This charge is different from the illegal practice of requiring prepayment. Prepayment refers to duration of stay contracts where a nursing home may ask you to pay privately for a room before you apply for Medicaid. Medicaid will pay the bedhold rate for a maximum of twelve days in a calendar year if you must leave for medical reasons. Medicaid will also fund six bedhold days per year if you leave for other reasons, such as visiting family.

Nursing homes are required by law to give you a copy of the Medicaid bed reservation policy prior to medical leave. They must also notify you if your hospital stay exceeds the number of days Medicaid will pay the bedhold charge. If you must stay in the hospital for longer than twelve days, the nursing home can charge you to reserve your bed only if there are no vacancies in the facility and there is a waiting list for admission.

For more information, see: Medicaid Program Instruction, MA-92-30, Memorandum from Ann Stottlemyer, Director, Office of Medical Services, WV Department of Human Resources to Nursing Home Facilities (September 17, 1992); Medicaid Bedhold Policy, The West Virginia Long Term Care Ombudsman (Legal Aid Society of Charleston), Vol. 2 No. 2, Summer 1999.

Must nursing homes provide special meals for residents with special dietary needs?

Yes. Under federal regulations, a nursing home facility must provide each resident with a diet that meets his/her daily nutritional and special dietary needs. If, for some reason, the nursing home only offers limited services as a general policy, it must notify the patient or his/her family before admission.

For more information, see: 42 C.F.R. § 483.35 (2015).

Can a nursing home require that I have a responsible party co-sign my admission contract before admitting me to the nursing home?

Probably not. A nursing home receiving Medicare or Medicaid cannot require a responsible party to co-sign the admission contract. This practice is forbidden by federal law. The law is called the Nursing Home Reform Act (NHR). The NHR states clearly that a nursing home cannot require a third party to guarantee payment as a condition of admission to the nursing home. This law applies to all nursing homes that receive Medicare or Medicaid. If the nursing home does not receive Medicare or Medicaid, it may require a co-signature.

For more information, see: 42 U.S.C. §§ 1395i-3(c)(5)(A)(ii), 1396r(c)(5)(A)(ii) (2015); Joan M. Krauskopf et al., Elderlaw: Advocacy for the Aging §§ 12.10, 11 (2nd ed. 1993).

Equal Opportunity and Diversity Policy

Purpose

The goals of this policy are:

1) to more effectively achieve our mission as a legal services program by creating a diverse and supportive environment for all WVSLA personnel, including Board, staff, interns, volunteers,
2) to include and foster the uniqueness of people of all abilities and disabilities, ages, class backgrounds, colors, faiths, genders, job categories, class statuses, national origins, races and sexual orientations in our program,
3) to create an environment that allows for open communication about differences and empowers each individual to do his or her best work on behalf of clients,
4) to increase the representation and diversity of members of protected groups among both our employees, our clients, and the organizations with whom we do
business, and
5) to ensure that staff are not discriminatory in their treatment of each other and of clients as individuals, and in the acceptance or handling of cases.

Equal Opportunity Employment Policy

This legal services program is an Equal Opportunity Employer, and does not discriminate on the basis of age, class, color, disability, faith, gender, job category, national origin, race, or sexual orientation in hiring, supervision, training opportunities, promotion and transfer, work conditions, or termination.

WVSLA’s commitment to equal opportunity, diversity, and anti-discrimination is ongoing. WVSLA will periodically analyze the representation of under-represented groups in our Board membership, employees, and clients, and will make efforts to remediate discrepancies.

APPENDIX C: Advance Directives Forms

If you are interested in having a Medical Power of Attorney or a Living Will: 

  • You may obtain statutory forms from your health care provider.
  • The forms are also available online at WVU’s Center for End of Life at www.wvendoflife.org.
  • You and two witnesses (not your relatives) sign and date the forms in front of a notary.

To revoke either a Medical Power of Attorney or a Living Will you may use the revocation forms that follow. 

  • Date the form
  • For Revocation of Medical Power of Attorney be sure to write in the name of the person you had chosen to be your agent
  • Sign your name and print your name
  • Give the revocation form or forms to your physician immediately

For more information see the West Virginia Center for End of Life Care on the web at www.wvendoflife.org or by phone 1 (877) 209-8086. 

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REVOCATION OF MEDICAL POWER OF ATTORNEY 

Dated: ___________________, ________ 

I hereby revoke the Medical Power of Attorney in which I named ______________________________________________________ as my agent, effective immediately upon receipt of this instrument by my attending physician. My attending physician shall please record this revocation in my medical record upon receipt of this instrument. 

_____________________________________ 

(sign name) 

_____________________________________ 

(print name) 

REVOCATION OF LIVING WILL 

Dated:____________, _______ 

I hereby revoke my living will, effective immediately upon delivery of this instrument to my attending physician. My attending physician shall please record this revocation in my medical record upon receipt of this instrument. 

_________________________________ 

(sign name) 

_________________________________ 

(print name)

 

 

APPENDIX A:How to File A Consumer Complaint

(Taken from: http://www.ago.wv.gov, last visited June 15, 2015) 

If you have a complaint about a product or service and have been unable to resolve the dispute yourself, you may file a complaint with the Consumer Protection Division of The West Virginia Office of the Attorney General.

(A) Complete all pages of the attached consumer complaint form, use additional paper if necessary. Answer all questions fully, correctly, and truthfully. Please print clearly in ink or type.  

(B) Please send COPIES – front and back – of all documents or other papers that may relate to your complaint. DO NOT SEND ORIGINALS. Examples of papers you should copy and send are: contracts, financial disclosure statements, payment receipts, credit card receipts or statements, canceled checks, sales slips, order blanks, warranties, repair records or estimates, letters between you and the business, and any papers you have signed. 

(C) When describing your complaint, please explain all the important events in the order in which they occurred. Please provide dates whenever possible. Tell us the facts about your complaint rather than your feelings about what happened. If you need additional space to tell what happened, please continue on a separate page and attach it to your complaint. 

(D) Return or mail the completed Consumer Complaint form and copies of your papers to: 

Office of the Attorney General 

Consumer Protection Division 

P.O. Box 1789 

Charleston, WV 25326-1789 

(E) If you have any further questions about how to file your complaint, 

Toll free: 1 (800) 368-8808 

Telephone: 1 (304) 558-8986  

E-mail: consumer@wvago.gov

Find us on the web at: http://www.ago.wv.gov

APPENDIX B: Filing Complaints with State Licensing Authorities

Anyone may file a complaint with regard to licensed practitioners in West Virginia. Below is a list of state licensing authorities that consumers may contact with inquiries and complaints. Each individual licensing authority may have its own specific procedure for filing a complaint. You will likely be asked to send copies of all documentation, names of alleged violators, and your name and address.

List of State Licensing Authorities

 

I can’t find a state law about my neighbor problem, but there must be a remedy. What can I do?

If there isn’t a statute that covers your problem, don’t give up. There may be local laws (called ordinances), a restrictive neighborhood covenant, or judicial rulings (common law) that may help resolve your particular issue.  

One of the first places to start looking for local laws is on your county’s website. Many of West Virginia’s counties maintain a website using the following format: http://www.countywv.org. For example, if you are searching ordinances for Jefferson County, you would use the address http://www.jeffersoncountywv.org. If your county does not have a website, you can also access the information at the county law library or most public libraries, or by asking at your local representatives’ offices. 

If your neighborhood has an association governed by a particular set of rules, called Covenants, Conditions, & Restrictions, you may be able to get help from your homeowner’s association. Often these rules are much stricter than the local laws and may help with a neighbor problem. If you live in a community governed by a restrictive covenant and your neighbor is in violation of the covenant, you can complain to the homeowner’s association through the specified process (found in the covenant). Usually the association will then intervene and demand the neighbor correct the violation or be penalized.  

If there are no written rules that address your situation, you may look to the common law for help. Common law is law that has been created by judges over centuries through their court decisions. To find out whether a problem like yours has been ruled on, you will have to research the case law. This involves reading the actual cases that have interpreted related statutes or addressed the problem. For this type of research, you will probably have to begin at a law library.  

For more information, see: Jordan, Cora, Neighbor Law: Fences, Trees, Boundaries & Noise, Chapter 17 (4th ed. 2002); Warda, Mark, Neighbor vs. Neighbor, 9-21 (2nd ed. 1999).

My neighbor dug up some of my shrubs and flowers. Can I recover damages from him/her?

Yes. In fact, your neighbor can be liable for three times the value of your plants, even if her actions were accidental. If your neighbor intended to enter your property to dig up the plants, she also committed a trespass. A trespass is entering another person’s property without permission. Trespasses include things such as walking through someone’s yard, throwing things onto someone’s property, or even putting an arm over a property line without permission. A person can be liable for trespass regardless of whether any damage was done to the property. If the trespass was done with malice or aggression, the victim may be able to recover punitive damages as well.  

For more information, see: W. Va. Code § 61-3-48a (2014); W. Va. Code § 61-3B-1(8) (2013); Jopling v. Bluefield Water Works & Improvement Co., 70 W. Va. 670, 74 S.E. 943 (1911); Chesser ex rel. Hadley v. Hathaway, 190 W. Va. 594, 439 S.E.2d 459 (1993); Bullman v. D & R Lumber Co., 195 W. Va. 129, 464 S.E.2d 771 (1995); 18 Michie’s Jurisprudence Trespass § 2, 25 (2009); Doyle, D., Smith, D., Ferrise, A., Real Property: Landowners’ Rights and Responsibilities in West Virginia, http://www.wvu.edu/~agexten/forglvst/Bulletins/rd726.pdf (last visited June 15, 2015).

I live below my neighbor, and when it rains the water flows down onto my property causing flooding. Can I build a dam or other drainage system to prevent this?

West Virginia follows the “common-enemy” rule, where water is considered a common enemy of landowners and each landowner has the right to fight surface water as he chooses. However, the landowner must exercise this right reasonably. The landowner must act in good faith, with care to avoid injury, and with no purpose to infringe on another landowner’s rights. This means you may make reasonable efforts to drain water off of your property if you take care to avoid causing harm to your neighbor. However, you may not divert or dam the water unreasonably without regard to your neighbor’s property. Also, you may not dig ditches or other drainage systems that collect surface water and dump it onto someone else’s property or you may be held liable.  

For more information, see: Gillison v. Charleston, 16 W. Va. 282 (1880); Morris Assocs. v. Priddy, 181 W. Va. 588, 383 S.E.2d 770 (1989); 1A Michie’s Jurisprudence Adjoining Landowners § 10 (2007); Doyle, D., Smith, D., Ferrise, A., Real Property: Landowners’ Rights and Responsibilities in West Virginia, http://www.wvu.edu/~agexten/forglvst/Bulletins/rd726.pdf (last visited June 15, 2015).

My neighbor is doing some excavation work on his property. What happens if the foundation of my house slips because of the lack of support?

It is a common law principle that a landowner has a duty to maintain lateral support to adjoining properties, which means your neighbor may not legally dig a hole that causes your land to collapse. However, the exception to this rule is that the neighbor is only responsible for providing enough support to the land in its natural condition and not for any of the buildings on it, unless you can prove that the land in its natural state was strong enough to support the structures. As long as your neighbor exercises reasonable care in supporting only the land itself, he will not be responsible for your damages. The limits of “reasonable care” here means the neighbor does not need to take extreme or burdensome precautions, but only a level of ordinary care and prudence. So, if your neighbor takes reasonable care to reinforce your land during the excavation and was not negligent, he will not be liable for your foundation slipping. 

For more information, see: Walker v. Strosnider, 67 W.Va. 39, 67 S.E. 1087 (1910); McCabe v. Parkersburg, 138 W.Va. 830, 79 S.E.2d 87 (1953); Beaver v. Hitchcock, 151 W.Va. 620, 153 S.E.2d 886 (1967); Noone v. Price, 171 W.Va. 185, 298 S.E.2d 218 (1982); 1A Michie’s Jurisprudence Adjoining Landowners §§ 5-9 (2007); Restatement (Second) of Torts § 821D (1979); Doyle, D., Smith, D., Ferrise, A., Real Property: Landowners’ Rights and Responsibilities in West Virginia, http://www.wvu.edu/~agexten/forglvst/Bulletins/rd726.pdf (last visited June 15, 2015).

My neighbor blasts music at all hours. Is there anything I can do to make him stop?

Every property owner is entitled to the right of enjoyment and exclusive use of his or her property and may do with it what he or she pleases. However, concurrent with this right is the obligation to use the property with respect to the health, safety, and enjoyment of others’ use of their own properties. This means you must use reasonable, ordinary care to protect from injuring your neighbor’s exclusive use and enjoyment of his property. Something that causes a substantial and unreasonable interference with the private use and enjoyment of one’s land is called a private nuisance. Also, anything done willfully or maliciously to annoy may be considered a nuisance. Things such as unpleasant odors, smoke, debris, vibrations, irregular fences, dogs, and noises have all been found to be nuisances if they seriously interfered with another’s use of property from the viewpoint of an “ordinary and reasonable person.”  

If you can prove that your neighbor’s music makes living on and enjoying your property nearly impossible, you may be able to sue in court for money damages and/or an injunction. An injunction is basically a restraining order issued by the court against the particular nuisance. However, a faster, cheaper, and sometimes more effective alternative is to talk to the neighbor first. Perhaps he doesn’t realize how loud his music is or how much it annoys you. Just talking to him as a concerned neighbor may encourage him to act more considerately and make for a more positive neighbor relationship than taking him to court would.  

For more information, see: Medford v. Levy, 31 W. Va. 649 (1888); Harless v. Workman, 145 W. Va. 266, 114 S.E.2d 548 (1960); Hendricks v. Stalnaker, 181 W. Va. 31, 380 S.E.2d 198 (1989); Booker v. Foose, 216 W. Va. 727 (2005); 14A Michie’s Jurisprudence Nuisances §§ 3-13 (2007); Restatement (Second) of Torts § 821D (1979); Doyle, D., Smith, D., Ferrise, A., Real Property: Landowners’ Rights and Responsibilities in West Virginia, http://www.wvu.edu/~agexten/forglvst/Bulletins/rd726.pdf (last visited June 15, 2015); Jordan, Cora, Neighbor Law: Fences, Trees, Boundaries & Noise, Chapter 2 (4th ed. 2002); Warda, Mark, Neighbor vs. Neighbor, 21-23 (2nd ed. 1999).

My neighbor wants to build a fence and he/she expects me to pay for half of it. Do I have to share the cost?

Maybe. It depends whether the fence is on the actual boundary lines between the properties or whether the fence is constructed entirely on your neighbor’s land. It also depends on the way you and your neighbor intend to use your separate properties. Generally, a landowner has a right to build a fence on her own property at her own expense. Even if it is close to the property line, as long as it is not on the boundary this type of fence is not a true partition fence and you have no rights to it nor any duties to maintain your neighbor’s fence. If you and your neighbor desire a true partition fence to divide the properties, you can voluntarily agree to share the costs if you think the fence would also be to your benefit. This would ensure that you have a say in how it is constructed and maintained, and that it is not removed without your consent.  

West Virginia has statutes that govern partition fences in rural areas. Owners must share the cost of a partition fence if the land is used for “agricultural, horticultural, grazing, or livestock purposes.” This includes all construction, repair, and maintenance costs. If your neighbor builds a fence at her own cost because you were not using your land for the listed purposes at the time of the construction but you later decide to use your land in such a way, you are responsible to your neighbor for half of the cost of the partition fence. These laws can be overridden by a contractual agreement with your neighbor.  

Additionally, West Virginia has a special statute for hedge fences. A hedge fence may not extend more than 18 inches over the dividing line of a neighbor’s property or into a public road. A violation of this statute could result in a 10 day notice to correct the problem. If the hedge is not trimmed after the 10 days, it is considered a misdemeanor and the owner can be fined up to $1.00 every day until it is trimmed.  

For more information, see: W. Va. Code § 19-17-3 to -8 (2015); Cutright v. Sexton, 99 W. Va. 69 (1924); Doyle, D., Smith, D., Ferrise, A., Real Property: Landowners’ Rights and Responsibilities in West Virginia, 

http://www.wvu.edu/~agexten/forglvst/

The branches from my neighbor’s tree are growing into my yard. Do I have a right to cut them?

You have a right to cut off branches or roots that stray into your property, but you may not harm the tree. You are responsible for the cost of trimming. There are some limitations to this right of self-help. You may only trim to the boundary line, you may not enter your neighbor’s yard without permission (this is considered a trespass), and you may not remove the tree or injure it in any way. If you don’t follow these guidelines, you may be liable for damages and/or trespass. If the job is a big one, it might be wise to hire a professional to make sure it is done correctly and to avoid harm.  

Because it can be costly to trim a tree, you may want to first try to resolve the problem with your neighbor. Perhaps the neighbor will split the cost with you, or will take care of it himself/herself to ensure the tree is not damaged. If the neighbor objects after you speak with him, it is a good idea to write a letter explaining the situation, your rights, and your intentions. You usually cannot sue because someone does not trim a tree. If it is a case of substantial damage or a serious impairment in using and enjoying your property, you may have some cause of action. 

Ownership of a tree is determined by the location of its trunk. If the trunk grows entirely on your neighbor’s property, it is his tree no matter how far the branches protrude or the leaves fill your yard. If the trunk grows on the boundary of the properties you and your neighbor are both owners and are jointly responsible for the tree. You may not remove a boundary tree without permission from the co-owner.  

For more information, see: Jordan, Cora, Neighbor Law: Fences, Trees, Boundaries & Noise, Chapters 3-6 (4th ed. 2002); Warda, Mark, Neighbor vs. Neighbor (2nd ed. 1999).

Workers from the power company came onto my land without my permission and cut down tree branches because they said the branches were in the way of the electric lines. Do they have to pay me for the damage?

Utility companies often have a right to access a part of your property in order to maintain and repair lines and equipment as necessary. This right is called an easement, which is a legal right to use part of someone’s land for a specific purpose. A property owner is able to enjoy the use of this land, such as planting trees or shrubbery, as long as he does not obstruct the utility company’s access. If the vegetation does obstruct the access to the easement, the utility company generally has the right to trim the plants as necessary for the safety and operation of the lines and equipment. However, a utility company must do the trimming reasonably and not inflict unnecessary damage to the land. If the company damages your property beyond what is reasonable and necessary, it may be held liable for damages.  

For more information, see: Kell v. Appalachian Power Co., 170 W. Va. 14 (1982); Larew v. Monongahela Power Co., 199 W. Va. 690 (1997).

The utility company came onto my land to run power lines. Does the company have a duty to repair the damages it did in the process?

A utility company has a right to travel over the lands of a private land-owner for the purpose of building and maintaining power lines, pipelines, or any other structure necessary for the operation of the utility. This right is granted by the state through the power of eminent domain.  

This right of way is known as an easement. Generally the utility company will pay for the easement, but if the landowner refuses to contract for the easement, the utility company can take the easement through a condemnation proceeding. Regardless of the manner in which the utility company gains the easement, it still has the same rights and duties. 

The utility company has the right to enter land to repair and maintain its lines and structures. This right is limited to such use as will be “reasonably necessary” to achieve these ends. However, if any damages are caused by the negligence of the utility company, the property owner will be able to recover damages from the utility company. In such a case, the landowner will have an action in magistrate court or circuit court to recover the fair market value of the damages. 

If the damage is to a road the utility company has used and damaged, whether you can recover from the utility is unclear because no case law exists on that point. However, the law discussed above should still apply, and the landowner should be able to recover for any damages done. 

For more information, see: Wheeling Elec. Co. v. Gist, 154 W. Va. 69, 173 S.E.2d 336 (1970).

The utility companies are about to shut off my utilities because I cannot pay the bills. What should I do?

First, contact the utility company and request an installment payment plan. Certain utility companies, like gas and electricity, are required by law to work with you to develop a reasonable installment plan if you request it. Electric companies, for example, may consider factors including the amount of the bill, the customer’s ability to pay, payment history, how long the balance has been outstanding and why, and other relevant factors. If you are not able to get the company to offer you a plan you can afford you can appeal the decision to the Public Service Commission and as long as you pay the current bill they cannot terminate your service pending the appeal. 

If you are not able to pay any amount of your utility bills, you may be eligible for low-income energy assistance. The federal government provides funds to West Virginia under the Low Income Energy Assistance Program (LIEAP). The West Virginia Department of Health and Human Resources (DHHR) distributes this federal money. Energy assistance only applies to utilities that are related to heating your home: gas, electricity, oil, wood burning, etc. 

You can submit an application for low-income energy assistance at any Senior Center or local DHHR office. If you meet certain eligibility requirements, DHHR will make payments directly to the gas or electric company. 

The state Public Service Commission (PSC) regulates electricity and gas utility companies. If one of these utilities wants to shut off your service, it must follow certain regulations. First, the utility must mail you a notice that it is shutting off service within 10 days of the cut-off date. Then, it has to attempt to make personal contact with you by telephone 24 hours before service is cut off. 

In certain instances, the utility company may not be allowed to cut off your service. The utility company cannot cut off service without letting you work out an installment plan if doing so would jeopardize the safety of someone in your household. The Public Service Commission has the following list of circumstances when the health or safety of someone would be in danger:  

•during the winter months, 
•if someone in your home is using a dialysis or life-supporting machine, or 
•if a doctor states in writing that cutting off the electricity would be dangerous to your health. 

If you are over 65 years old or you are disabled, the utility company is supposed to contact a relative before cutting off your service. In addition, the utility company has to allow you to pay your bill before it cuts off the service. If a utility worker comes to your house to cut off your service, and you pay the worker the bill, he cannot cut off your service. In addition, the utility company cannot cut off service during non-working hours or on a Friday, Saturday, or Sunday. 

If you cannot work out an installment plan, you can request a hearing with the utility company. During this hearing, you can try to convince the utility company that your service should not be turned off. 

If you do not agree with the final decision of the utility company, you can appeal the decision to the Public Service Commission. You must do this within seven days of the utility company’s final decision. You can contact the Public Service Commission of WV at 1 (800) 642-8544. As long as the Public Service Commission is looking at your case, the utility company cannot cut off your service. 

If your service does get cut off, you can pay the bill and the utility company has to turn your service back on within eight hours. However, the utility company may charge you a re-connection fee (usually five dollars). 

Keep in mind that these rules and regulations only apply to gas and electric companies. They do not apply to water, phone, or cable television. If you believe you are being treated unfairly by a utility company, contact the Public Service Commission of WV at 1 (800) 642-8544. 

For more information, see: 42 U.S.C. §§ 8621-8629 (2015); 45 C.F.R. §§ 96.80-96.89 (2015); W. Va. C.S.R. §150-3-4(4.8) (2015); W. Va. Public Service Commission, http://www.psc.state.wv.us (last visited June 12, 2015); West Virginia Low Income Energy Assistance Program, http://www.wvdhhr.org/bcf/family_assistance/utility.asp (last visited June 12, 2015).

My spouse gave me a life estate in our home. Am I responsible for paying insurance premiums and taxes on the property? Am I responsible for paying the mortgage?

In general, the life tenant is not required to keep the property insured, unless there is a specific agreement to do so. However, a life tenant does have an insurable interest in the property. An insurable interest is a substantial economic interest in the safety or preservation of the property. Because you live there, you have an insurable interest; therefore, you can insure the property if you want to. It may be a good idea to do so in order to protect both yourself and your interest in the house.  

Under West Virginia law, a life tenant is responsible for paying all ordinary taxes on the property. If the life tenant fails to pay the taxes, the state can foreclose on the property. In this situation, the remainderman’s interest will be seriously affected, and the life tenant will be liable to the remainderman. The remainderman is the person who will own the home after your life estate ends. However, you are only responsible for the taxes accrued during your possession of the property. Past-due taxes must be paid by the estate. 

If your spouse took out a mortgage on the property which is not paid off, you are responsible for paying the interest on the mortgage. However, you are not responsible for paying the principal of the mortgage. Furthermore, you will not even be responsible for paying the interest if it exceeds the fair rental value of the property.  

For more information, see: W. Va. Code § 11-3-8 (2015); Boggess v. Scott, 48 W. Va. 316, 37 S.E. 661 (1900) (questioned by Bailey v. Baker, 137 W. Va. 85, 68 S.E.2d 74, 70 S.E.2d 645 (1951)); McDougal v. Musgrave, 46 W. Va. 509, 33 S.E. 281 (1899); Irwin v. Zane, 15 W. Va. 646 (1879); 31 C.J.S. Estates §§44-46 (2009); 7A Michie’s Jurisprudence Estates §27 (2009).

Before my spouse died he/she set up his/her affairs so that I can live in our home as long as I live, but when I die, my stepchild will own it. What does that mean, and who is responsible for repairs?

First of all, it is important to understand that what you have is called a life estate and what your stepson has is a remainder. Generally, a person holding a life estate in a particular piece of property has the right to possession of that property for as long as he/she lives. The life tenant can use, occupy, and enjoy the property while he/she is alive. The very idea of a life estate is that you have present and free enjoyment of the property. Your stepchild is the remainderman, which means that he will own the property after your life estate ends. Conflicts may arise between life tenants and remaindermen because both people have valid but distinct interests in the property. 

As a life tenant, it is your responsibility to preserve the property and care for it by keeping your stepchild’s interest in mind. You cannot do anything which causes permanent injury to the property. You can enjoy the land and use it as much as you want–that is your right as a life tenant. But you are responsible for making sure that no damage occurs that would affect your stepchild’s interest. For example, you may cut timber for your own firewood or make minor repairs to the property, but you are not permitted to timber the entire property or begin selling firewood for profit.  

The life tenant is also responsible for ordinary repairs necessary to preserve the property. Ordinary repairs are generally ones that do not exceed the fair rental value of the property. You are obligated to keep the property in as good a condition as it was when you received the life estate, minus ordinary wear and tear. If the roof begins leaking, you will probably have to patch it, but you probably do not have to go buy a new roof. As a life tenant, you are not responsible for extraordinary or unusual repairs. You will not be held responsible for the repairs if there is a flood or a tornado, for example.  

You must also be very careful in making any major improvements to the property. You will be expected to keep the house in more or less the same condition as it was when you received the life estate; therefore, what may seem like an improvement to you may not be an improvement to the remainderman. Also, if you do make improvements, generally you cannot charge them to the remainderman. A few exceptions apply to this general rule. For example, you may be able to share the costs or have the estate pay for the work to the property if you are obligated under statute or municipal order to make the improvements, or because the property would become unmanageable if the improvements were not made.  

For more information, see: Kanawha Banking & Trust Co. v. Alderson, 129 W. Va. 510, 40 S.E.2d 881 (1946); University v. Tucker, 31 W. Va. 621, 8 S.E. 410 (1888); McDougal v. Musgrave, 46 W. Va. 509, 33 S.E. 281 (1899); Callwood v. Virgin Islands National Bank, 221 F.2d 770 (1955); Lynch v. Johnson, 196 Va. 516, 84 S.E.2d 419 (1954); Livesay v. Boyd, 164 Va. 528, 180 S.E. 158 (1935); 31 C.J.S. Estates §§29,41-43 (2009).

What is the difference between co-ownership and co-ownership with the right of survivorship?

When property is owned by more than one person, it may be owned with or without the right of survivorship. Persons who own property without the right of survivorship are called tenants in common. Each tenant in common owns a percentage of the property. For instance, if you and your spouse own your home as tenants in common, you each own half, or 50%. Persons who own property with the right of survivorship are called joint tenants, or joint tenants with the right of survivorship. Spouses who own as joint tenants are sometimes called tenants by the entirety. Each joint tenant owns an undivided interest in the whole property. This means that each person actually owns the whole property at the same time.  

When a joint tenant dies, the surviving owner automatically owns the whole property. When a tenant in common dies, his or her interest transfers according to his or her will. This is important because property can avoid probate if owned as joint tenancy with right of survivorship. However, property jointly owned may still be considered for tax purposes. 

In West Virginia, property that is acquired by a married couple is not automatically considered a joint tenancy or tenancy by the entirety. The deed must expressly state that the right of survivorship is intended. If there is any question as to whether ownership is a joint tenancy or tenancy in common, the court will presume that the parties held ownership as tenants in common. That presumption can only be overcome by clear and convincing evidence showing that the intention of the parties was to create a joint tenancy with the right of survivorship.  

Furthermore, if one joint tenant transfers or sells his or her interest, survivorship is destroyed. The property then is held as a tenancy in common. 

For more information, see: W. Va. Code §§ 36-1-19 to -20 (2014);W. Va. Code §§ 44-1-14 (2014); Lieving v. Hadley, 188 W. Va. 197, 423 S.E.2d 600 (1992) (abrogated in part by State v. Mckinley, 764 SE 2d. 303 (2014) but only relating to “the footnote” issue); John W. Fisher, II, Joint Tenancy in West Virginia: A Progressive Court Looks at Traditional Property Rights, 91 W. Va. L. Rev. 267 (1989), available at http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/wvb91&div=20&id=&page= (last visited June 12, 2015); 5A Michie’s Jurisprudence Cotenancy §§ 2, 3, 7 (2009).

I am a landlord and one of my tenants left his apartment and all of his things and hasn’t returned. Can I re-enter the apartment? What should I do with his property?

You must be sure that the tenant has abandoned the property. If he is current on his rental payments, he is entitled to possess the apartment and may leave for extended periods of time. However, if he has not paid rent and you know that he has left the apartment without plans to return, or if there are strong indications of such, there are steps you can take to repossess the property.  

First, post a notice in a conspicuous place stating that the tenant must pay rent within one month. This notice should be placed where the tenant would be sure to see it if he returned to the apartment. You may also include in the notice that if the tenant does not respond within a month, you will re-enter and re-let the property. If, after a month, the tenant has not responded and it does not appear that he has returned, then you may re-enter the apartment.  

It is a good idea to keep the tenant’s belongings until a Magistrate judge authorizes you to dispose of them. After you re-enter the apartment, go to the Magistrate and request a court order allowing you to dispose of the property. The general rule is that the clearer the indications of abandonment, the less of a duty the landlord has to safeguard the tenant’s property. If the tenant returns and demands his things after a long period of absence, you will be protected from liability for the value of the tenant’s belongings by the court order. Another way to protect your rights is to include a clause in the lease allowing you to discard of the tenant’s belongings if he or she has not paid rent and has not resided on the premises for a specific length of time.

See also our publication Tenants & Landlords: Rights and Responsibilities

For more information, see: W. Va. Code §§ 37-6-5 to -8, -12 (2015); State ex rel. Payne v. Walden, 156 W. Va. 60, 190 S.E.2d 770 (1972) (questioned by Union Barge Line Corp. v. Marble Cliff Quarries Co., 374 F. Supp. 834 (1974)).

I rent an apartment that needs a lot of repairs. What are my landlord’s duties, and what can I do if he does not fix the apartment?

When you lease an apartment or other dwelling, you are guaranteed that the property will be habitable and in good condition. This guarantee is called the warranty of habitability. Even if those words are not expressly stated in the rental agreement, the landlord is required by law to ensure the property meets certain standards. To maintain the property, the landlord must ensure that the following duties are fulfilled: 

•The apartment must meet health, fire, and housing codes; however, the landlord is released from this responsibility if failure to meet the codes’ standards are due to your conduct or an invited guest’s conduct; 
•The common areas such as hallways, entrances, and laundry rooms must be clean, safe, and in good repair; 
•All electric, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances, including elevators, must be kept in good repair;  
•In multiple housing units, the landlord must provide and maintain appropriate conveniences for garbage removal;  
•There must be a supply of running water with an adequate amount of hot water at all times, and reasonable heat between October 1st and April 1st, unless the dwelling is constructed so that installation of heat and running water is under the exclusive control of the tenant; 
•The landlord must fulfill any additional obligations contracted to in the rental agreement. 

If your landlord has not upheld his part of the lease agreement or has violated the warranty of habitability, you may be able to sue for damages or vacate your apartment without being held to the lease. To obtain a legal remedy, the violation must be substantial and affect basic living requirements. For example, heating, running water, garbage, and sometimes a working elevator are considered essential living requirements. However, a cracked wall, a water leak, or not painting a room are only considered minor violations unless the problem is of such proportion that it affects the habitability of your home.  

You also have certain duties to the landlord to fulfill before you are entitled to a legal remedy. Before a court will award damages or release you from the rental agreement, you must show that you gave the landlord notice of the problem and a reasonable opportunity to repair the defect. Also, you must be up to date on paying rent. If you have not been paying rent to your landlord and have not been reserving rent in an escrow account–even if it is because the apartment is in poor condition–it will look like you are bringing a suit against your landlord to avoid payment. This will severely affect your credibility in court.  

If you choose not to pay rent in an attempt to pressure your landlord to improve the apartment, it is vital that you put the money in an escrow account and not use it. That way, your credibility will be preserved, and if your case is not successful, you will be able to quickly pay back any rent you owe to the landlord. If the court finds that you do not owe any rent, the money will be returned to you.

See also our publication Tenants & Landlords: Rights and Responsibilities

For more information, see: § 37-6-30 (2015); Teller v. McCoy, 162 W. Va. 367, 253 S.E.2d 114 (1978).

I live in government-subsidized housing. How do I file a complaint against my landlord?

You may complain to the U.S. Department of Housing and Urban Development (HUD). HUD is responsible for all government-subsidized housing, whether it be “Section 8,” public housing, or privately owned housing. Landlords are required to deal fairly with tenants and provide safe and decent housing. To report a bad landlord, call toll-free at 1 (800) 685-8470/ TTY 1 (800) 432-2209. Or, you may call the Charleston HUD office at 1 (304) 347-7000. 

You can also file a complaint with HUD if you believe you have been denied government-subsidized housing based on age or disability. To report housing discrimination, you may fill out a complaint form online; call toll-free, 1 (800) 669-9777; or write a letter. In the letter be sure to include all of the following: 

•your name and address; 
•the name and address of the person your complaint is about; 
•the address of the house or apartment you were trying to rent or buy; 
•the date when this incident occurred; and 
•a short description of what happened.  

Mail the letter to either the regional office or the local field office : 

Philadelphia Regional Office of FHEO 
U.S. Department of Housing and Urban Development 
The Wanamaker Building
100 Penn Square East, 12th Floor
Philadelphia, PA 19107-3380

OR 

Charleston Field Office of FHEO
U.S. Department of Housing and Urban Development
405 Capitol Street, Ste. 708
Charleston, WV 25301-1795

See also our publication Tenants & Landlords: Rights and Responsibilities

For more information, see: The U.S. Department of Housing and Urban Development, Homes and Communities, Housing Discrimination, http://www.portal.hud.gov/hudportal/HUD?src=topics/housing_discrimination (last visited June 12, 2015).

What happens if I die during the course of my residential rental lease?

Based on new legislation for all leases signed on or after July 1, 2012 an heir, personal representatives, devisee, or assignee may terminate your lease if you die prior to its expiration. The termination of the lease will be effective on the last day of the second month after the request to terminate is either hand-delivered or post-marked to the landlord. The estate is still responsible for any rent owed prior to the tenant’s death and for the two months after the request to terminate is made. The estate will also be responsible for any costs of bringing the rental property back to its condition when the rental began, except for ordinary wear and tear. A landlord is not allowed to require a longer than two month notice period to terminate after a tenant’s death.

See also our publication Tenants & Landlords: Rights and Responsibilities
For more information, see: W. Va. Code §37-6-11 (2015).

Can I get all or part of my security deposit back if I break my lease but I leave the premises clean and in good shape?

Probably not. Landlords may use your security deposit to act as a buffer if you move out of your rental before your lease ends. The deposit ensures that the landlord has some income until he/she can find another person to fill the rental. Your landlord is required to take steps to re-rent the place, but if that takes more than one rent period after you leave your deposit may be used to pay the rent due for that month. Thus, if you break the lease you may not necessarily have a right to get your deposit back. But if your landlord keeps any or all of your deposit he or she is required to provide an itemized list of the charges within 60 days of the end of our tenancy or 45 days from the time the place is re-rented, whichever is shorter.

See also our publication Tenants & Landlords: Rights and Responsibilities

For more information, see: W. Va. Code §§37-6A-1 through 6 (2015); Russell v. Pineview Realty, 165 W. Va. 822, 272 S.E.2d 241 (1980).

How do I get security deposit back at the end of my lease?

A landlord may collect a security deposit in order to pay for potential damages to the property or failure to pay rent. If you have not caused any damage or fallen behind in your rent you are entitled to get your security deposit returned to you. 

The landlord has either 60 days from the end of your tenancy or 45 days from the time the property is re-rented (whichever is shorter) to return your security deposit minus any costs for damages beyond normal wear and tear or other charges. If the landlord keeps any of the security deposit, an itemized list of damages and charges must be supplied at the time that the remainder of the deposit is returned. 

These rights are not waivable, so language in your lease that would take away these rights is not valid.

See also our publication Tenants & Landlords: Rights and Responsibilities

For more information, see: W. Va. Code §§37-6A-1 through 6 (2015), 63 A.L.R. 4th 901

Can I break my lease before the term of the lease has expired?

Yes, but you will probably be liable to your landlord if he/she loses money because you broke the lease. When you sign a lease, you are agreeing to the provisions of that lease. Some landlords will allow you to break a lease if you give them sufficient notice. In that case, the landlord may just keep your security deposit if there is one. Your lease may also have provisions that allow you to break the lease. A common clause is that a lease may be broken if your job transfers you out of the area. Check the lease carefully to see if there is an escape clause. 

If there is no way to get out of the lease, you may be able to sublet or assign the premises. When you sublet your portion of the lease, someone else (called the subtenant) takes over your lease for a specified period of time, after which you usually return to finish the lease. If, for example, you are planning to go somewhere warmer for the winter, for example, you could sublease your apartment during the months you are gone. During that time, you are still responsible to the landlord if the subtenant breaches the lease. For example, if the subtenant breaches the lease by not paying rent, you may be responsible for the unpaid rent. 

If you do not intend to return to your apartment and you want someone to take over the remainder of the lease, you could assign your interest in the lease. Once you assign your interest in the lease to someone, you are released from all obligations to the landlord. For this reason, assignments must be in writing.  

If your lease does not say anything about subleasing or assignments, then it is allowed. However, many leases require the landlord’s approval before you can sublet or assign, and some leases prohibit subletting or assigning completely. But as a practical matter, if the landlord is confident that the new tenant will be suitable, he or she may not object to the sublease. Besides, the landlord may still be able to get the rent from you if you sublease and the new tenant does not pay. 

If you cannot find a suitable new tenant, you will be responsible for the rent for the remainder of the lease term. If you leave the premises, and do not pay further rent, the landlord has two choices. First, he or she can re-enter the property and accept your surrender. This means that the landlord is ending the lease agreement, you cannot live there anymore, and you no longer have to pay rent. There is a special procedure that the landlord must go through to be able to re-enter the premises. 

A landlord will generally only re-enter if he or she has a new tenant lined up. If the landlord does get a new tenant, and the new tenant will not pay the same rent as you did, the landlord can make you pay the difference. 

If a landlord does hold you responsible for the rent, then the only question is whether the landlord will pursue you to try to collect the rent due. Some landlords will not bother tracking down skipping tenants to make them pay, but many do. It is not wise to assume that your landlord will not bother with trying to get you to pay the rent if you break your lease. It is better not to sign a lease if you think you cannot stay for the entire lease term.

See also our publication Tenants & Landlords: Rights and Responsibilities

For more information, see: W. Va. Code §§ 37-6-6 to -9 (2015); Teller v. McCoy, 162 W. Va. 367, 253 S.E.2d 114 (1978); 11B Michie’s Jurisprudence Landlord and Tenant §§ 57-60 (2009); Bowyer v. Seymour, 13 W. Va. 12 (1878).

May I keep a pet in public housing?

Yes, depending on the type of pet. There are many health benefits associated with the ownership of pets. Because of this, the federal government specifically provides that the elderly and disabled are permitted to keep pets in any public housing. A public housing landlord cannot discriminate against you because you have a pet nor is the manager or landlord of public housing allowed to prevent you from owning a pet. The pets that are covered by law are common household pets, such as dogs, cats, birds, rodents, fish, and turtles. Landlords, however, may prohibit you from keeping an exotic pet such as an iguana or a snake. Landlords may also impose reasonable regulations concerning common household pets. 

See also our publication Tenants & Landlords: Rights and Responsibilities

For more information, see: 24 C.F.R. §§ 5.306, 5.309, 5.312, 5.315 (2015).

Is public housing equipped for the needs of senior citizens?

The majority of residents in public housing are senior citizens. As a result, the federal government has passed laws to ensure that the elderly have suitable public housing. Public housing for the elderly and the disabled must be equipped with special accommodations. Such accommodations include railings in hallways, wheelchair cabinets, lower cabinets, elevators, and railings in showers. These facilities are designed to make life easier for elderly and disabled residents. Your current home may not have many of these features, and so as a result, your move to public housing might even improve the quality of your housing.

See also our publication Tenants & Landlords: Rights and Responsibilities

For more information, see: 24 C.F.R. § 945.101 (2015); Joan M. Krauskopf et al., Elderlaw: Advocacy for the Aging §§ 19.2, 19.4 (2nd ed. 1994).

A member of my family makes me feel scared and unsafe. What is a family protective order, how can it help me, and how do I get one?

Everyone deserves to feel safe at home, but sometimes the people we thought we could trust will hurt or scare us. It is never acceptable for a member of your family or household to hit you, threaten you, confine you in an area, or make you afraid that he or she will hurt you. The law calls this behavior domestic violence. To help protect you from domestic violence, West Virginia law gives you the ability to file a family protective order. 

A protective order can help you when a family or household member does any one (or more) of these things: 

•Tries to cause you harm, whether it is intentional or reckless. It makes no difference whether that person uses a weapon or not; 
•Puts you in fear of bodily harm; 
•Makes you fear physical harm by threatening, harassing, or psychologically abusing you; 
•Forces you to have sex, makes you touch him or her in a sexual way, or touches you in a sexual way against your will; or 
•Holds, confines, detains, or abducts you against your will. 

A protective order can help protect you by forbidding another person from abusing, harassing, stalking, threatening or intimidating you or your children, or doing other things that would place you or your children in reasonable fear of bodily injury. 

Family protective orders are available when the person who is hurting or scaring you is someone in your family or household. A “family or household member” is a person who is now (or used to be): (1) your spouse, (2) a sexual or intimate partner; (3) someone you are dating (not just a causal or business acquaintance); (4) someone you live with; (5) someone you had a child with (whether or not you were married); or (6) many people you are related to.  

In addition to protecting you from harassment, the protective order can require other things that might help you. For instance, the order may give you temporary custody of your children or animals. The order may state that you can have possession of your home and your family member must find another place to stay. The order may forbid an abusive person from coming near your home, work, or places that you frequent or even require that person to undergo counseling. Finally, an order may prohibit the abuser from contacting you by phone or verbally harassing you in public places, as well as protect you in other ways that the court sees as necessary. 

You must first file a petition to get a family protective order. Your local courthouse will have forms you may fill out in order to do this. Any victim of abuse, or any family or household member on behalf of a minor child or a physically or mentally disabled victim of abuse, can file the petition. There is no up-front court fee for filing. If you cannot afford the fees that are due when the matter is brought before the court for a final resolution, you can ask for the fee to be waived by filling out a Pauper’s Affidavit, which is a form you can get from the court clerk. 

If the court finds that it is clear you were abused, the court will issue a temporary protective order and set a hearing date. If the court is unable to determine whether the abuse has clearly occurred, then the court will just set the hearing date. 

If a temporary order is granted, it is effective immediately. It will state that the abuser is not to make contact with you until the hearing date. The hearing date must be set within five days by the court. The abuser must get an official notice of the temporary order and the hearing date if he or she is not present when you file the petition. The police will take the temporary order and the notice of the hearing date to the abuser. If the police cannot reach the abuser, the hearing date will still occur as scheduled, at which point the matter will be continued until he or she can be officially notified. If you, the petitioner, do not show up for the hearing, the court may drop the matter.  

At the hearing, you will have to produce evidence that you were abused, confined, or threatened. If the judge or magistrate believes that it is more likely than not that you have been abused, he or she will issue a final family protective order. Once issued, it is important to keep your protective order with you at all times.  

A family protective order is issued for a specific time period and may be extended at the court’s discretion. If the abuser violates the protective order, he or she can be arrested. You can either call the police if the abuser is violating the order, or you can go to the courthouse and file a criminal complaint.  

If you are the victim of domestic violence, you have many options. You may report abuse or neglect to the West Virginia Elder Abuse Hotline at 1 (800) 352-6513. If you need assistance to file for a family protective order, you can contact an attorney with Senior Legal Aid, another attorney, or the local shelter service in your area. The Elder Abuse Hotline might have contact information for your local shelter service.  

If abuse is immediate, you can call the police and ask them to take you to a shelter or straight to court to file a petition for a family protective order. If the abuse is not immediate, you can go to the circuit or magistrate court as soon as you are able to file a petition for a protective order. If you are ever in an emergency, call 911.  

West Virginia Elder Abuse and Neglect Hotline 1 (800) 352-6513 

For more information, see: W. Va. Code §§ 48-27-101 to -209 (2015); W. Va. Code §§ 48-27-304 to -308 (2015); W. Va. Code § 48-27-401 (2015); W. Va. Code §§ 48-27-501 to -505 (2015); W. Va. Code § 48-27-702 (2015); W. Va. Code §§ 48-27-901 to -903 (2015); W. Va. Code §§ 48-27-1001 to -1004 (2015); WV Coalition Against Domestic Violence, http://www.wvcadv.org (last visited June 11, 2015). WV Dept. of Health and Human Resources Adult Protective Services, http://www.wvdhhr.org/bcf/children_adult/aps/report.asp (last visited June 11, 2015); Domestic Violence Protective Order Stages, http://www.courtswv.gov/lower-courts/pdfs/domviolence.pdf (last visited June 11, 2015).

Is there a legal responsibility for adult children to support their parents?

In some situations, yes. West Virginia law states that relatives of indigent persons must provide support for necessities and burial costs. However, a relative is not required to let an indigent person live in his or her home.  

The law also creates a priority listing for which relatives of an indigent person are liable for support. Children of an indigent parent are first in priority. The priority list is as follows: 1st, Children; 2nd, Father; 3rd, Siblings; 4th, Mother. When a relative is only able to partially contribute, the Department of Health & Human Resources (DHHR) may go down the priority list to collect the rest of what is necessary from other relatives.  

If a child assumes responsibility for a parent in a written contract to a third party, those obligations are enforceable. In addition, if an adult relative is a caregiver sharing actual physical possession or care of the individual on a full-time or temporary basis, the relative may not neglect the incapacitated individual, regardless of whether the relative is under contract or not. Among other things, neglect includes the failure to provide the necessities of life to an incapacitated adult. 

The DHHR Division of Human Services is responsible for enforcing this law. West Virginia does not provide criminal penalties for failure to support an indigent relative. In addition, statutes similar to West Virginia’s statute have been criticized and are said to be rarely enforced. However, when a care giver neglects or abuses an incapacitated adult, whether or not the care giver is under a contract to provide support, criminal penalties are enforced. 

Federal law allows income of a spouse or parent to be considered in determining eligibility for Medicaid. Federal law does not allow the state to consider the income of any other relative in determining your Medicaid eligibility. As such, children, siblings and other relatives of an applicant cannot have their income counted against the applicant. 

However, when a relative actually does provide support to an indigent person, that support may be considered in determining eligibility for public programs. In such cases, the actual support provided is counted, not the relative’s total income. 

For more information, see: 42 U.S.C. §1396a(a)(17)(D) (2015); W. Va. Code §61-2-29 to -29b (2015); W. Va. Code § 9-5-9 (2015); W. Va. Code § 9-5-18 (2015); Joan M. Krauskopf et al., Elder Law: Advocacy for the Aging § 25.48 (2nd. ed. 1993).

Can I be considered as a permanent placement for my grandchildren if their parents’ rights are terminated?

Probably. The West Virginia Code offers a preference to grandparents when deciding upon an adoptive placement for children whose parents’ rights have been terminated. A grandparent who is interested in adopting his or her grandchildren under these circumstances must be determined by DHHR to be suitable as adoptive parents. Although there is a presumption that placement with a grandparent is in the child’s best interest, this does not mean that placement with a willing grandparent is an absolute certainty. The home evaluation, which includes a series of home visits and interviews by a licensed social worker, will determine the safety and suitability of the grandparents’ home. If DHHR determines that the grandparents’ home is suited to the best interests of the child, they are to be offered the placement before any other adoptive parents are considered. 

For more information, see: W. Va. Code § 49-3-1(a)(3) (2015); Napoleon S. v. Walker, 217 W. Va. 254, 256 (2005); WVDHHR Adoption Policy §7.3.

Do I have a legal right to see my grandchildren?

Unfortunately, you do not necessarily have a legal right to see your grandchildren, but you have a legal right to petition the court for visitation privileges. This right was granted as of June 13, 1998, when the West Virginia State Legislature significantly expanded grandparents’ visitation rights.  

The 1998 statute eliminates preconditions for a grandparent applying for visitation with a grandchild. This means that visitation can be granted even when the parents of the grandchild are not separated or when the grandparent is not related to the custodial parent.  

The court considers many different factors and situations when deciding whether to accept the application and grant grandparent visitation. A grandparent can receive ordered visitation if the grandparent has been a significant caretaker of the child, regardless of whether the child lived in the grandparent’s home or not. Further, if the child has lived in the grandparent’s home, it is irrelevant whether the parent or parents lived in the grandparent’s home at the same time as the child. 

The court will typically not grant visitation rights to a grandparent when the parent to whom the grandparent is related has not extended those same rights to that grandparent. However, a grandparent may be able to receive visitation if he or she can prove through clear and convincing evidence that the it would be in the best interest of the child and would not substantially interfere with the parent/child relationship. If those two criteria are not met, the court will probably not grant visitation. Courts are generally unwilling to reduce the time a parent has with the child by awarding visitation to a grandparent who has been denied visitation by the parent. 

The word “grandparent” can mean a few different things. A grandparent can be a biological parent of the minor child’s parent, or someone who is now or used to be married to the biological parent of the minor child’s parent. Also, anyone who has been awarded custody of a child is considered to be a parent. A child is defined as a person under the age of 18 years who has not been married or otherwise emancipated. 

When the Department of Health and Human Resources (DHHR) is given custody of a minor child and is seeking adoptive parents, DHHR must first consider the suitability and willingness of a grandparent to adopt the child. If the Department determines that the grandparents would be suitable adoptive parents, DHHR must offer placement to the grandparents before considering any other prospective adoptive parents. 

For more information, see: W. Va. Code §§ 48-10-101 to -802 (2015); W. Va. Code § 49-3-1(a)(3) (2015); In re Nearhoof, 178 W. Va. 359, 359 S.E.2d 587 (1987), In Re Hunter H., 231 W. Va. 118, 744 S.E. 2d 228 (2014).

How do the changes made to bankruptcy law in 2005 affect my decision to file for bankruptcy?

In April 2005, President George W. Bush signed into law the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). This Act is the first substantial change in bankruptcy law for more than 25 years. According to the bill’s framers, the legislation is aimed at preventing consumers from abusing bankruptcy laws. Meanwhile, consumer advocates argue that the bill merely assists creditors, especially credit card companies, in their collection of debt. Regardless of its purpose, the new law makes numerous changes that will affect consumers wishing to file bankruptcy.  

The 2005 law made a variety of changes in bankruptcy law, so things you had always heard about how bankruptcy works may no longer be true. The new law includes some significant changes: 

•stricter income requirements for filers for both Chapter 7 and Chapter 13 bankruptcies, so fewer people will qualify; 
•required fiscal management classes before filing permitted, delaying the relief of bankruptcy; 
•increased costs associated with increased obligations and paperwork for bankruptcy attorneys; 
•fewer kinds of debt are eligible for bankruptcy relief, so bankruptcy filers will still owe them; 
•allowable amounts for living expenses permitted for Chapter 13 filers are now dictated by regulation rather than actual, possibly higher costs; 
•homestead exemption amounts, which currently vary widely from state to state, are limited; 
•less protection from creditors, because there is no longer an automatic stay for evictions, for actions against various licenses, or for certain family law actions; 
•harder for some Chapter 13 filers to keep their cars. 

For more information, see: 11 U.S.C. §§ 101-112 (2015); Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Public Law No. 109-8 (2005); FindLaw, New Bankruptcy Law: 2005 Bankruptcy Law Changes, http://bankruptcy.findlaw.com/chapter-7/faq-bankruptcy-law-changes.html (last visited June 10 , 2015).

I co-signed my daughter’s mortgage and she defaulted. Now I am constantly getting calls and letters from creditors. I am poor and live in low-income housing. Should I file for bankruptcy?

If you are collection-proof, no. You are collection-proof if, by law, all of your assets and income are protected from a creditor trying to enforce a court judgment. This means that even if you are sued and lose in court, a creditor cannot collect anything, garnish your income, or repossess any property.  

If your only income source is social security or other government benefits, that income is collection-proof. Creditors are not allowed to seize government benefits. State exemption laws protect a certain amount of your property from seizure. Federal law also limits the amount of wages that a creditor can seize.  

If you are collection-proof, first talk with the creditor, explain the situation, and ask the creditor to stop contacting you. If you continue to get unwanted calls and letters demanding payment, you can write the collector a cease letter. A cease letter is a written request asking the creditor to stop contacting you. West Virginia law requires collection agencies and creditors to stop all contact once they receive a written request to stop.  

In the letter, explain your situation and why you are unable to pay. You might also describe the abusive tactics, if applicable, that the collector’s employees have used and the distress it has caused you. It is important to keep a copy of the letter for your personal records.  

If the calls and letters do not stop after you send the cease letter, contact a lawyer. Usually a letter from a lawyer will stop the harassment.  

For more information, see: 15 U.S.C. § 1673 (2015); National Consumer Law Center, Surviving Debt: A Guide for Consumers (5th ed. 2005); Thomas v. Firestone Tire and Rubber Company, 164 W. Va. 763, 266 S.E.2d 905 (1980).

What assets would form the bankruptcy estate when only one spouse files for bankruptcy?

The bankruptcy estate includes everything that the debtor owns at the time bankruptcy is filed. This would include property you own jointly with your spouse. However, there are restrictions on how jointly owned property can be liquidated (sold to produce cash). The federal bankruptcy laws allow the trustee (person who is responsible for distributing all the assets of the bankruptcy estate) to sell jointly owned property only if all of the following conditions are met: 

•the property cannot be easily divided; 
•selling just the debtor’s part of the property would produce significantly less money; 
•the benefit of selling the property outweighs the harm it will cause the owner who is not bankrupt; and 
•the property is not used to produce electricity, or natural or artificial gas.  

All jointly owned property must meet this test to be sold when only one spouse files for bankruptcy. For example, if you and your spouse owned a checking account, it would be easy to take out half the money. On the other hand, it would not be as easy to split the house in which you both live. That would require you to move out of your house and find a new home with only half the money. But if you both jointly owned a car, the trustee could probably sell the car, and give your spouse his or her interest in cash. 

For more information, see: 11 U.S.C. §§ 363(h), 541 (2015).

My spouse is filing for bankruptcy. Should I file for bankruptcy with him? Do I have to?

Often people incorrectly assume that if their spouse files for bankruptcy, they have to file, too. However, a person can file for bankruptcy individually, separate from his or her spouse. Even though you may file a joint petition for bankruptcy with your husband, you are not required to do so.  

In some circumstances, it is not desirable to file a joint petition. When one or both of the spouses were previously married, for example, only one spouse may be in debt. In this situation, there is no need for both people to file for bankruptcy. If the debts are shared, however, it may be in your best interest to file a joint petition with your spouse. If you are jointly responsible for the debts, the spouse who does not file for bankruptcy remains liable as a co-debtor, and may be pursued by creditors. Also, it costs the same amount to file individually or jointly, so by filing a joint petition, you will save money on fees, such as filing fees and lawyers’ fees. Federal bankruptcy laws provide special circumstances for spouses who wish to file jointly for bankruptcy. 

For more information, see: 11 U.S.C. §§ 109(a), 302 (2015); National Consumer Law Center, Surviving Debt: A Guide for Consumers (3rd ed. 1999); James W. Martin Jr., Bankruptcy, in The West Virginia Practice Handbook Vol.1 (The West Virginia State Bar, Young Lawyers’ Division, eds., 4th ed. 1996).

Is there a way to stop foreclosure on my house by filing for bankruptcy?

Bankruptcy may provide relief if you find that your income cannot support your bills. Sometimes, filing for bankruptcy may in fact have the effect of stopping a foreclosure on your home. 

When you file for bankruptcy, most creditors must stop trying to collect their debts from you because of an order called an automatic stay. An automatic stay is entered as soon as the bankruptcy court receives your papers. If a bank is threatening foreclosure, the bank may have to wait for the bankruptcy proceeding if the automatic stay has begun, or the bank may have to ask the court’s permission to continue collection efforts. 

The following is a common scenario: You may have a lot of bills from various sources. You may have large credit card bills, and also car and house payments. As the credit card bills mount, you begin to feel anxious about them. As a result, you choose to skip some house or car payments to pay the credit card bills. Then the bank threatens to foreclose on your home. Until you pay off your loan, the bank owns your house and has the right to sell it if you fail to make payments. If you stop paying your mortgage payments, the bank may threaten to foreclose. 

When you file a Chapter 13 bankruptcy, the bank may be reassured that you will pay your house payments. That way, they will not need to foreclose on the home. Chapter 13 bankruptcy allows you to keep your property while making installment payments to your creditors. 

The bankruptcy proceeding will set the amounts that you have to pay to some of your creditors, like credit card companies. This amount is often significantly less than what you had been paying them. It can be as little as 10%. This set amount is all you have to pay your creditors and it may leave you more money to pay your house payments. A foreclosure on your home may be prevented this way. Of course, if you do not have the income for this type of arrangement, the bankruptcy court will not approve your Chapter 13 plan and you may be unable to stop foreclosure. 

Depending on your personal financial situation, bankruptcy may be the answer to a pending foreclosure. If your bank threatens to foreclose your first step is to try to work out an arrangement with the bank to avoid foreclosure. If no satisfactory arrangement can be made a consultation with a bankruptcy attorney can help you determine how a Chapter 13 bankruptcy might help protect your interests. 

For more information, see: 11 U.S.C. §§ 109(e), 502, 507, 522, 1303, 1322, 1325, 1328 (2015); W. Va. Code § 38-10-4 (2015).

Will I lose my home if I file for bankruptcy?

To answer this question, we should first explain the process of bankruptcy. The two types of bankruptcy are Chapter 7 and Chapter 13. Chapter 13 bankruptcy is often called a “reorganization.” You can file for Chapter 13 bankruptcy only if you have a source of regular income. This includes any regular type of income: wages, government benefits, alimony or support payments, for example. When you file for Chapter 13 bankruptcy, you create a written plan to show how you will pay off your debts over a set period of time, usually from future income. In Chapter 7, or liquidation bankruptcy, you may have to sell off some of your assets to pay your debts. Under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, an individual’s ability to file for Chapter 7 bankruptcy has been tightened, thus forcing more people to file Chapter 13. 

Understanding the two different types of creditors is also important when considering bankruptcy. Your creditors are grouped into two categories: secured and unsecured. A secured creditor is one who has an ownership interest in property until you pay your debt. The classic example of this is a bank that holds the mortgage or deed of trust to your home. The bank actually owns your home until you pay back the money it loaned you. If you do not pay the loan, the bank can force the sale of your house. This procedure is called a foreclosure. 

An example of an unsecured creditor would be a utility company. This type of company owns nothing of yours. The utility company would have to first sue you for what you owe and get a judgment in its favor before it could possibly make you sell anything to pay your debt. Credit card debts can be either secured or unsecured, depending upon what it says in the contract you signed. 

In Chapter 7 bankruptcy, the unsecured creditors get only a portion, if any, of the amount you owe them. The bankruptcy trustee examines your estate to see if any assets can be sold to satisfy your debts. However, most property is considered exempt and cannot be sold. The trustee will sell the nonexempt property, divide the proceeds, and distribute them to your creditors. They divide up a portion of the money that is collected when your assets are sold.  

In Chapter 13, you set up a plan to pay unsecured creditors installments at least the amount they would have received had you filed Chapter 7. Assuming that your home or other collateral is worth at least as much as you owe the bank, you pay the secured creditors your usual monthly installments plus you make arrangements to pay the back payments. If your home or collateral is worth less than you owe the bank, you may be able to reduce the amount of your monthly payments. The secured creditors usually end up receiving payments equal to the value of the collateral they hold, while the unsecured creditors often end up with significantly less than you owed them. 

The bankruptcy assets are all your assets that are in the bankruptcy estate. Some assets are exempt from the bankruptcy estate and therefore cannot be used to pay off creditors. One thing you can exempt is your interest in your home, up to $35,000 in West Virginia. Equity is how much of the value of the home you would have after the mortgage is paid. 

When you file Chapter 13 bankruptcy, you must create a written plan to show how you will pay your creditors. Your unsecured creditors must get at least as much as they would have had if you filed Chapter 7 bankruptcy. This amount is frequently as little as 10% of what you owe them. The Chapter 13 plan is usually spread over a period of time. This means that if you owed your unsecured creditors a total of $5,000, you may be able to pay them as little as a total of $500 over a period of three years. This would greatly reduce the amount of your monthly payments. In addition, your Chapter 13 plan must include provisions for your secured creditors. You will have to pay them an amount equal to the value of the collateral they hold. This would include making up past overdue payments as well.  

Your Chapter 13 plan must be approved by the bankruptcy court. For this reason, you must have an income. You have to show that you could afford to pay future payments on your home, and other secured debts, plus a small amount each month on the payments you previously missed. You would also have to show that you could pay some amount to your unsecured creditors. Finally, you would have to show that you could make these payments and still have enough money to cover your daily living expenses. If your plan is approved, you do not have to sell your home to pay the debt. 

If you don’t have any income, or you can’t make your house payments in the future, you may be required to sell your house. In these situations, you might be forced to liquidate your bankruptcy assets to pay your debts. 

However, even in those situations where you cannot make your house payments based on your income, there may be other alternatives. One alternative may be to rent the house, and another may be to refinance the home. Of course, you want to avoid selling the home through foreclosure. Usually a house sold through foreclosure does not command the full value of the home. As a result, many times you end up losing your equity.  

Bankruptcy is complicated. If you think you need to file for bankruptcy consulting a bankruptcy attorney may help you identify important details about the process that only an experienced professional is likely to know.  

For more information, see: 11 U.S.C. §§ 109(e), 502, 507, 522, 1303, 1322, 1325, 1328 (2015); W. Va. Code § 38-10-4 (2015); James W. Martin Jr., Bankruptcy, in The West Virginia Practice Handbook Vol.1 (The West Virginia State Bar, Young Lawyers’ Division, eds., 4th ed. 1996).

Can I keep my car if I continue to make the payments after filing for bankruptcy?

If you want to pay a certain debt for a special reason, such as to keep your car, you may reaffirm the debt. To reaffirm the debt, you must sign a Reaffirmation Agreement with the creditor and file the agreement with the court. To be valid, the agreement must be voluntary, it must not impose too heavy a financial burden on you, and it must be in your best interest. Further, the agreement can be cancelled before discharge of the debt or within sixty days of filing the agreement, whichever is later.  

You should consider carefully before reaffirming any debt because if the debt is reaffirmed, it is not discharged through bankruptcy. If you later find that you can’t pay the debt, the creditor can take action as if the bankruptcy had never happened.  

For more information, see: 11 U.S.C. §§ 101-112 (2015); 28 U.S.C. § 1930 (a 

mended in part by 2013 US Order 0014) (2015); National Consumer Law Center, Surviving Debt: A Guide for Consumers (5th ed. 2005); James W. Martin Jr., Bankruptcy, in The West Virginia Practice Handbook Vol.1 (The West Virginia State Bar, Young Lawyers’ Division, eds., 4th ed. 1996); United States Bankruptcy Court Southern District of West Virginia, Filing and Miscellaneous Fee Schedule, http://www.wvsb.uscourts.gov/content/filing-fees (last visited June 10, 2015).

. . . should I tell my attorney about all of my debts and assets?

Yes. The worst thing a debtor can do is hide assets or not disclose a legitimate debt to his/her attorney. Most assets and debts can be effectively dealt with in a bankruptcy case, and with proper planning can be addressed favorably. In addition, if you fail to disclose a debt in your original filing, you will have to pay an additional fee to amend your filing. Furthermore, the bankruptcy petition is signed under oath and failure to disclose properly is against the law.

. . . what bills should I try to pay?

What bills you pay will depend on your particular circumstances. Deciding on which bills to pay is one of the most important decisions that you will make. Creditors cannot be treated preferentially or unfairly. Nevertheless, in many Chapter 7 cases, the debtor is so short of funds that only necessities can be paid. The most basic necessities should be paid first, such as rent or mortgage, electricity, gas, water, food, and transportation expenses. Frequently, there is nothing left after these are paid. If there is, a case-by-case analysis of the remaining bills must be made.  

In a Chapter 13 case, a more sophisticated analysis must be made to determine how payments made will fit into the proposed plan. Special attention should be paid to transfers to friends and relatives as these may be undone, and exempt assets may lose their exempt status if transferred to a relative or friend.

. . . what happens to court cases that are pending against me when I file for bankruptcy?

Most pending litigation is stopped when you file for bankruptcy and the court imposes the automatic stay. The new law, however, does not provide an automatic stay for evictions, certain family law cases, and certain licensing cases. Any foreclosure on real estate is generally halted. The permission of the bankruptcy court must be obtained before the litigation or foreclosure may proceed further. Whether the litigation or foreclosure is stopped permanently depends on the particular facts of each case.

. . . will I have to pay a filing fee and how much is it?

Yes. You will need to pay a filing fee, an administrative fee, and a trustee fee. You may also have to pay additional fees for filing certain documents. For instance, an additional fee applies if you file an amended schedule of creditors because you failed to include all of your creditors in your initial filing. However, if you learn that one of your creditors has changed address, you will not have to pay an additional fee to correct the creditor’s address.  

Some jurisdictions allow certain debtors to proceed In Forma Pauperis, which means without paying a filing fee at the time of filing. If you have limited income, you may qualify to file without paying a fee.

. . . when will I be able to have credit again?

Surprisingly soon. Many debtors receive a letter almost immediately from their former creditors who will reestablish credit upon payment of some or all of the previous debt. This is called reaffirming the debt, and you are not required to do so. 

In addition, debtors are frequently contacted by credit card companies that will issue a card to be used up to a specific amount which has been paid to them as a deposit. This can be useful in situations where a credit card is required, such as for renting a car, and it can help you to reestablish your credit over a period of time.

. . . when will I stop getting calls from my creditors?

Technically, you should stop getting calls as soon as the bankruptcy court enters the automatic stay. An automatic stay is an order entered by the court which requires collection efforts against you to cease, and the order is entered immediately when the bankruptcy court receives your petition for bankruptcy. However, creditors can ask the bankruptcy court to lift the automatic stay so that they may pursue collection efforts. Whether or not the court will lift the automatic stay depends on the facts of your individual case.  

Creditors who persist in their attempts to collect debts without the permission of the bankruptcy court may be sanctioned and subject to penalties. However, the automatic stay has limits that also protect creditors. For example, the stay may be terminated in situations that indicate a series of bad faith and abusive bankruptcy filings. Evictions are not automatically stayed, and alimony and child support do not stop when you file for bankruptcy. 

For more information, see: 11 U.S.C. § 362 (2015); The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 109 P.L. 8 § 305-315 (2005); National Consumer Law Center, Surviving Debt: A Guide for Consumers (3rd ed. 1999).

. . . how often will I have to go to court?

Normally you will not have to go to court at all. You will have to attend a Creditor’s Meeting with a bankruptcy trustee, not a judge, and the meeting is normally held in an office. A bankruptcy trustee is appointed to represent the interests of the creditors and handle the bankruptcy proceedings. You have to attend court only if something unusual occurs.

If I file for bankruptcy . . .

Usually a debtor can keep most, if not all, of his or her belongings. Both federal and state laws exempt certain kinds of property from seizure. Sometimes, however, it is necessary to make arrangements with creditors that hold claims on particular items of property as security. Such arrangements are normally in the form of either redeeming the property or reaffirming the debt. You should consult your attorney before agreeing to redeem or reaffirm. 

It is very rare for creditors to ask to see the contents of a debtor’s home and even rarer that such a request is granted so long as reasonable assurances are provided to the creditors as to the value of the debtor’s belongings. Third-party appraisals are more common where there is a dispute as to the value of property. Even if your property is appraised, many of your household belongings are exempt from the bankruptcy estate. 

It is important to include all of your belongings on the bankruptcy form. Many of the items may be exempt from the bankruptcy estate. You are listing your belongings so the court knows what to exempt. The exempt items will not be taken from you.  

In West Virginia, you can only exempt what is permitted in the West Virginia Code. To qualify for West Virginia exemptions, you must have lived in West Virginia for 730 days. If you have not maintained residency in this state for the past 730 days, the governing exemption law will be the place were you spent the majority of the last 180 days. Examples of some of the things the West Virginia Code allows you to exempt are Social Security benefits, unemployment compensation, veterans’ benefits, disability benefits, and alimony. You are also permitted to exempt a certain amount of your interest in your home and your car. Consult an attorney to determine exactly what else can be exempted in your particular circumstances. 

Sometimes, confusion arises because of something called a bona fide security interest. When there is a bona fide security interest, something that would otherwise qualify as exempt does not. Property is subject to a bona fide security interest if the agreement under which it was purchased provides that if the buyer defaults on payments, the property may be sold in order to satisfy the buyer’s financial obligation. This is also sometimes called a secured debt, and the creditor is a secured creditor. For example, if you still owe money to the bank for your car, the bank may have a bona fide security interest in your car.  

If you do not include all of your belongs, your bankruptcy action may become frustrated or delayed. 

For more information, see: 11 U.S.C. §§ 521-522 (2015); W. Va. Code § 38-10-4 (2015); James W. Martin Jr., Bankruptcy, in The West Virginia Practice Handbook Vol.1 (The West Virginia State Bar, Young Lawyers’ Division, eds., 4th ed. 1996); National Consumer Law Center, Bankruptcy Basics (2007).

If I file for bankruptcy, which Chapter is best for me, Chapter 7 or Chapter 13, am I eligible to file under either, and what are the differences between the two?

Since 2005, your ability to choose between Chapter 7 and Chapter 13 bankruptcy has been tightened. To be eligible for Chapter 7 protection, you have to pass a two-part means test. The test compares your income with the median income for a family with the same number of individuals and with your expenses and debt. If you do not pass the test, you cannot file Chapter 7 bankruptcy and must file Chapter 13. A Chapter 13 plan is a reorganization that provides for payments of a portion of some debts and all of certain debts such as home mortgages. You must have a regular income to qualify for a Chapter 13, and some other requirements must be met as well.

A Chapter 7 plan involves liquidation and no payment is made on most debts. There are some debts that must be paid such as taxes, some support obligations, some student loans, and some intentional torts, which are debts that arise because you have injured someone intentionally or while driving drunk. These are only general rules of thumb, and what will or will not be paid depends on your specific case.

For more information, see: 11 U.S.C. §§ 101-112 (2014); The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 109 P.L. 8 § 707 (2005); U.S. Department of Justice, U.S. Trustee Program, Census Bureau Median Family Income by Family Size, http://www.justice.gov/ust/credit-counseling-debtor-education-information (last visited June 10, 2015).

Do I have to attend credit counseling before I can file for bankruptcy?

Yes. The Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) requires that debtors participate in mandatory credit counseling within the 180 days prior to filing for bankruptcy. The clerk of the court will maintain a list of education courses and approved credit counseling agencies. You will first have a briefing, which will be either individual or group, and it may take place in person, over the telephone, or on the Internet. Furthermore, the briefing must outline the opportunities for credit counseling and aid in your budget analysis. 

Although the credit counseling is mandatory, a small number of exceptions are included, such as when there are no approved credit counselors in a district or when the debtor is incapacitated. 

The law also contains provisions requiring the filing of certain materials with the bankruptcy court. For example, if a debt management plan is developed during credit counseling, the plan must be filed with the bankruptcy court. You are also required to file a certificate from the credit counseling agency detailing the services provided. 

For more information, see: 11 U.S.C. § 111 (2015); The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 109 P.L. 8 § 105-106 (2005); Federal Trade Commission, Before You File for Personal Bankruptcy: Information About Credit Counseling and Debtor Education, .

If I can’t afford to pay my creditors, should I file for bankruptcy?

Whether bankruptcy is right for you depends on your own individual circumstances. Bankruptcy is designed to give a fresh start to individuals and families with overwhelming debts. It is a last resort. Before you file for bankruptcy, you should weigh all your options carefully.  

You may be able to reduce your debts by negotiating with your creditors first. Creditors are the people to whom you owe money. They might be able to reduce your interest rates or lower your payments; it may be in your best interest to try to work the problem out before it gets to Bankruptcy Court.  

In some situations, however, bankruptcy is the best option. When making the decision to file for bankruptcy, factors to consider include: 

•your total debt;  
•the kinds of debt you have, and what your rights are regarding that debt;  
•your overall financial condition;  
•which of your assets are protected from creditors;  
•your income and whether any of your income sources are protected from creditors;  
•your ability to pay your monthly expenses excluding your debt;  
•the potential effect of bankruptcy on your credit rating; and  
•how much you are being harassed by creditors.  

You may also want to consider whether your situation is as bad as it is going to get. If you file for bankruptcy now, and then find yourself still unable to make ends meet, things could just get worse. If you file for bankruptcy under Chapter 7, you are barred from doing it again for the next eight years. In such circumstances, you may be better off waiting it out until you can make lifestyle changes that will better enable you to pay your bills. Each person has a different situation, and bankruptcy proceedings involve complicated rules and paperwork. Therefore, if you are considering filing for bankruptcy a consultation with a bankruptcy attorney can help you learn about how bankruptcy could apply in your particular circumstances.  

There are some general considerations to review as a preliminary step. First, bankruptcy may be damaging to your credit rating, and bankruptcy may appear on your credit report for up to ten years. If you later decide to apply for a bank loan, for example, you may have a difficult time getting approval. Some banks will not loan money to people who have ever filed for bankruptcy. However, other banks may look at your filing as a positive step toward reestablishing a solid credit history. Overall, if you are eligible for bankruptcy, filing will not usually make your credit rating worse. Most people filing for bankruptcy are already behind on their payments and often already have a bad credit rating. In addition, your credit rating may not be important to you for a special reason, for example, if you own your home mortgage-free. (See also the question on Credit Reports, p.132) 

Second, you may be in a situation where you have very little cash, yet many substantial assets. If so, you will want to be very careful. Although most of your property will probably be protected from sale, if you have certain types of very valuable property, you may not be able to keep it. If you file for Chapter 7 bankruptcy, many of your assets could be liquidated. When assets are liquidated, they are often sold for much less than they are worth. It is important that you explore all your options and consider all the consequences of bankruptcy before making a final decision.  

If you decide that filing bankruptcy would not be the best thing to do at this particular time, you may benefit from consumer credit counseling services. Consumer credit counselors generally help assess your financial situation, including your expenses, assets, income, and debt. They may call your creditors for you in order to arrange a payment schedule and help you set up a budget you can live with. These programs are generally inexpensive and can be very helpful. In fact, credit counseling is now a prerequisite to filing for bankruptcy. An individual must meet with a credit counselor in the six months prior to applying for bankruptcy. Beware, however, of debt management plans that only offer management of credit card debt. Many such plans may be advertised on TV. Only a plan that includes consideration of all your types of debt, plus your income and expenses, is likely to help you make progress toward getting a handle on your debt. 

Another option may be to take out a bill consolidation loan. When you take out a bill consolidation loan, you are only responsible for one large payment. Typically bill consolidation loans must be secured by your home, which may put your most valuable and protected asset in jeopardy, and the best rates and terms for these loans are not always the best option. Generally only seniors who are house-rich but cash-poor are good candidates for consolidation loans. Predatory lenders may offer bill consolidation loans that look attractive, but are actually filled with high or hidden fees and high interest. Converting unsecured debt, like credit card accounts and medical bills to secured debt is often not the best option because you could jeopardize your assets and give away some of your legal rights in the process. 

For more information, see: 11 U.S.C. 101-112 (2015); National Consumer Law Center, Surviving Debt: A Guide for Consumers (5th ed. 2005); James W. Martin Jr., Bankruptcy, in The West Virginia Practice Handbook Vol.1 (The West Virginia State Bar, Young Lawyers’ Division, eds., 4th ed. 1996).

What is bankruptcy?

Bankruptcy is a legal term used to describe people who have accumulated so much debt that they cannot pay their creditors. When a person becomes bankrupt, he/she may initiate a legal proceeding in court so that the person can be declared bankrupt. An advantage to filing for bankruptcy is that once a court declares a person bankrupt, it might also discharge a person’s debt. If debt to certain creditors is discharged, those creditors may no longer attempt to collect money for those debts. However, a significant disadvantage to filing for bankruptcy is that it can very negatively affect the filer’s credit score and ability to secure credit for many years. 

For more information, see: 11 U.S.C. § 101-112 (2015); National Consumer Law Center, Surviving Debt: A Guide for Consumers (5th ed. 2005); James W. Martin, Jr., Bankruptcy, in The West Virginia Practice Handbook Vol. 1 (The West Virginia State Bar, Young Lawyers’ Division, 4th ed. 1996).

Is it legal for creditors and collection agencies to call me and send me letters all of the time?

Maybe. Even if you owe money, it is illegal for a creditor to harass you through the mail or over the phone. The Fair Debt Collection Practices Act (FDCPA) makes certain conduct by creditors illegal. Any of the following tactics are illegal: 

•Communicating to third parties, such as your relatives, employers, friends, or neighbors, about a debt unless you or a court have given the collector permission to do so. Collectors are only allowed to contact attorneys, contract creditors, credit reporting agencies, co-signers, and your spouse. If creditors speak to anyone else about you, it can only be to request your address or telephone number so they can contact you. 
•Communicating with you at unusual or inconvenient times or places. The times 8:00am to 9:00pm (in your time zone) are generally considered to be convenient unless the creditor is aware you work at night. You can dictate what times are convenient by sending a letter to the debt collector limiting the days and times that telephone calls are convenient. You must state that all other times are inconvenient. (Ex. Please call only Monday through Friday between 1pm and 5pm all other days and times are inconvenient) All communications should be sent certified mail return receipt requested and a copy of the letter kept for your records.  
•Contacting you at work if the collector should know that the employer prohibits personal calls, or contacting you at other inconvenient places, such as a friend’s house or the hospital. 
•Contacting you if you are represented by a lawyer, unless the lawyer gives permission for the communication or fails to respond to the collector’s attempts to contact him or her. 
•Contacting you after you write a letter asking the collector to cease communications. This type of letter is often called a cease letter. After receiving the letter, the collector is only allowed to acknowledge the letter and to notify you about actions the creditor or collector may take. 
•If the debt collector communicates with you using an automated dialing system, computer or electronic devise, such communication may violate West Virginia law. 
•Using obscene, derogatory, or insulting remarks. 
•Publishing your name in a newspaper. 
•Telephoning you repeatedly and frequently or at times known to be inconvenient or annoying to you. (You will have to tell a collector that certain days or times are not convenient. Otherwise calls that come in after 8am and before 9pm are typically deemed reasonable times) 
•Telephoning without disclosing the collector’s identity. 
•Making communications that intimidate, harass, or abuse you, such as a threat to conduct a neighborhood investigation of you or telling you that you should not have children if you cannot afford them. 
•Making false, misleading, or deceptive representations in collecting debts, such as pretending that letters carry legal authority. 
•Falsely representing the character, amount, or legal status of a debt, or of services rendered or compensation owed.  
•Falsely stating or implying a lawyer’s involvement. 
•Threatening arrest or loss of child custody or benefits. 
•Stating that nonpayment will result in arrest, garnishment, or seizure of property or wages, unless such actions are lawful, and unless the creditor or the collector fully intends to take such action.  
•Threatening to take actions that are illegal or that are not intended. 
•Using any false representation or other deception to collect or to attempt to collect any debt or to obtain information about you. 
•Failing to disclose in communications that the collector is attempting to collect a debt. 
•The failure to clearly disclose the name and full business address of the person to whom the claim has been assigned for collection, or to whom the claim is owed, at the time of making any demand for money. 
•Using unfair or unconscionable means to collect debts. 
•Collecting fees or charges unless expressly authorized by the agreement creating the debt and permitted by law. 
•Any representation that an existing obligation of the consumer may be increased by the addition of attorney’s fees, investigation fees, service fees or any other fees or charges when in fact such fees or charges may not legally be added to the existing obligation 
•Depositing post-dated checks before their date.  
•Causing expense to another party while concealing the purpose of the communication by, for example, making collect telephone calls and sending collect telegrams. 
•Threatening repossession without the legal right to do so, or if the collector has no present intent to do so. 
•Creating the false impression that the collector is an affiliate or agent of the government. 
•Placing a phone call to you or a third party that gives the impression that the call is “urgent” or “an emergency.”  

•Using any communication, language, or symbols on envelopes or postcards that indicate that the sender is in the debt-collection business. 
•Threatening the garnishment of any wages of any person or the taking of other action requiring judicial sanction, without informing the consumer that there must be in effect a judicial order permitting such garnishment or such other action before it can be taken. 
•Failure to mail a written receipt for each payment made on a consumer account or loan. 
•Failure to provide a written statement of the amount of payments made in the last 12 months to a consumer who requests such a statement in writing. 

It is helpful to document each time the creditor illegally contacts you. Keep a pen and paper next to the phone to record all telephone contacts. Make sure to get the name of the person calling, the name and address of the company collecting the debt, the name of the original creditor, account number and amount of debt. Also, save any harassing messages left on an answering machine. If you believe that a creditor has violated the Fair Debt Collection Practices Act by engaging in any of the conduct listed above contact a lawyer to find out how to exercise your rights.  

For more information, see: Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (2015); W. Va. Code §§ 46A-2-114, 46A-2-124, 46A-2-127, 46A-2-129, 61-3C-14a (2015); National Consumer Law Center, Surviving Debt: A Guide for Consumers (5th ed. 2006).

How long after a doctor provides services for a patient is the doctor allowed to collect payment for those services from the patient?

When a person seeks assistance from a doctor, the patient and doctor enter into either an oral or written contract. The contract states that a person will pay for the services rendered by the doctor on behalf of the patient. As long as the patient has an outstanding debt with the doctor, the doctor, as a creditor, may request payment until the full amount is paid. If a doctor does not receive payment, notice must be given that the payment is delinquent. If payment is not received 10 days after the notice is given, the doctor has the right to take action against the patient. The doctor has 5 years in the case of an oral contract, and 10 years in the case of a written contract, to pursue a lawsuit to recover money owed. If the doctor does not take action through a judicial remedy during the doctor’s right to acquire the debt, the doctors right to recover that money is lost. 

A doctor may not, however, use “unfair or unconscionable means” to collect or attempt to collect the outstanding debt according to the Consumer Credit Protection Act. Violations include the following: 

•When a doctor seeks or obtains any written statement or acknowledgment in any form that specifies that a consumer’s obligation is one incurred for necessaries of life where the original obligation was not in fact incurred for such necessaries; 
•When a doctor seeks or obtains any written statement or acknowledgment in any form containing an affirmation of any obligation by a consumer who has been declared bankrupt, without clearly disclosing the nature and consequences of such affirmation and the fact that the consumer is not legally obligated to make such affirmation; 
•When the doctor collects or attempts to collect from the consumer all or any part of the debt collector’s fee or charge for services rendered; 
•When the doctor collects or attempts to collect any interest or other charge fee or expense incidental to the principal obligation unless such interest or incidental fee, charge, or expense is expressly authorized by the agreement creating the obligation and by statute; and 
•When the doctor makes any communication with a patient whenever it appears that the patient is represented by an attorney and the attorney’s name and address are known, or could be easily ascertained, unless the attorney fails to answer correspondence, return phone calls or discuss the obligation in question or unless the attorney consents to direct communication. 

For more information, see: 15 U.S.C.S. §1692c and W. Va. Code § 46A-2-128 (2015).

My spouse has personal debts. Am I responsible for those debts?

Probably not. The general rule is that you are not responsible for the debts of your spouse. However, there is an exception. You are responsible for debts incurred during reasonable and necessary medical treatment of your spouse.  

Spouses are also jointly responsible for debts whenever they both receive benefit from the goods or services. You cannot escape a debt just because it is in your spouse’s name. For instance, your spouse may have a credit card in his or her name only. If you charge something on that card for yourself, then you are both responsible for the bill. 

However, you are not responsible for personal debts that your spouse incurs if you receive no benefit from them. For example, say your spouse buys some golf clubs on credit at a sports store. If the account is in your spouse’s name only, unless you also use the clubs, you are not legally responsible to pay this debt. 

This question is important in estate proceedings. If your spouse dies with independent, non-necessary debts, you are not responsible for those bills. If there is no property in your spouse’s estate to pay those bills, then the creditor cannot simply collect from you. However, depending on how you and your spouse own property, the property may be subject to the debt. At any rate, there is no personal obligation that you must pay the debt. 

If a creditor is trying to get you to pay your spouse’s debts, be certain you have the obligation to pay them before you turn over any money. 

For more information, see: W. Va. Code § 48-29-303 (2015); Philippi Planning Mill, Co. v. Cross et al., 75 W.Va. 303, 83 S.E. 1004 (1914); Larzo v. Swift & Co., 129 W.Va. 436, 40 S.E.2d 811 (1946); Stewart v. Stewart, 177 W.Va. 253, 351 S.E.2d 439 (1986).

My spouse has medical debt. Am responsible for paying that debt?

Probably, yes. Normally you are not liable for the personal debts of your spouse. However, exceptions to this general rule are that you are liable for reasonable and necessary medical treatment, and for debts whenever you both benefitted from the goods or services. 

When a person dies, all of that person’s property goes into his or her estate. Then all of the debts of the deceased must be paid out of the estate, to the extent there are assets in the estate to cover them. After the debts are paid, the remaining property is distributed according to the will, if there is one, or according to intestate succession. If you and your spouse own all your property jointly, then the property may go directly to you when your spouse dies. If this happens, then the property generally does not have to be used to pay the debts. 

But if your spouse dies with medical bills, the hospital or doctor can make you pay if your spouse’s estate cannot. Even though you did not sign any agreement to pay, you may still be held responsible. 

If you cannot afford to pay the medical bills there may be other ways to get them covered. Your spouse may have qualified for Medicaid. Even if your spouse is deceased, Medicaid can look back for a period of 90 days to see if your spouse was eligible at his or her death. You may be able to obtain Medicaid coverage for your spouse after he or she has died. Be advised that, because of the limited look-back period, you should promptly apply for Medicaid at your local DHHR office.  

Also, hospitals grant charity care to some patients who cannot pay for their medical expenses. However, a condition of charity care is that you must have been denied Medicaid. 

For more information, see: W. Va. Code § 48-29-303 (2015).

My spouse and I co-signed a loan for our son. Without our knowledge, our son stopped making payments. The bank turned our names over to a collection agency and we are concerned about our credit rating. Shouldn’t we have had some notice that the loan was i

When you co-sign a loan, you and the borrower are equally responsible for the loan payments. Being a co-signer is a serious responsibility. You may receive no benefits from the loan, but you could still be required to pay for it. West Virginia law requires the lender to inform you of this great responsibility in writing and you must sign it before the loan is granted.  

You should never sign a document without reading and understanding it first. If you do not understand something in a document you are given to sign, ask questions and get answers from someone looking out for your best interests until you understand. The law will almost always assume that when you signed the document, you understood the contents. 

After a loan payment is missed, the lender must give you notice and a time to cure. To cure a loan payment means that you bring the missed payment up to date. The notice requirement means that the lender must give you time to make the payment before he or she can report adversely about your credit record or take further collection action. The lender must give written notice of the default (failure to pay) when the payment is at least five days late. You then have 10 days from the time of the notice to pay the amount plus any late charges or service fees. 

If you cure in time, everything is back to normal as if the payment were never missed. However, you can only miss payments and then cure without a penalty two times. If the borrower has defaulted three times, even if he cures on the first two, the lender has the right to proceed against him. 

In addition, the notice need only be sent to your last known address. If you move, and the lender does not know your new address, you may never get the notice and may have no idea the loan is in default. Therefore, it is wise to inform the lender of any change in address, even if you are just the co-signer. 

For more information, see: 15 U.S.C. §§ 1601-1615 (2015); W. Va. Code §§ 46A-2-104 to -106 (2015).

Are my Social Security or private pension benefits subject to attachment and/or levy by my creditors?

Generally, no. Attachment occurs when a creditor or other person to whom you owe money is entitled to take a portion of your property, usually money, to settle your debt. 

Social Security 

Social Security benefits are not generally accessible by your creditors. Veterans’ benefits are also not generally accessible by your creditors. However, these benefits can be garnished to enforce alimony and/or child support payments, and the federal government may garnish Social Security and Veterans’ benefits to satisfy a tax debt. 

Even though Social Security and Veterans’ benefits are not generally accessible by your creditors, problems can arise if your government benefit checks are deposited into an account that also contains money from other sources. If the other income sources are not exempt from garnishment, creditors may improperly seize your benefits because it is difficult to distinguish your benefits from your other income. Also, if you share a bank account with someone else, your benefits may be at risk. If your benefits are seized, you will have to show that the garnishment was illegal and that the funds were protected. It may be wise to open a separate bank account for your government benefits to guard against improper seizure. 

Private Pensions 

Federal law also protects certain types of private pensions from creditors. To qualify for federal protection, a pension must conform to the guidelines in the Employee Retirement Income Security Act (ERISA). These pensions are referred to as Qualified Plans. Even under ERISA, however, you are still allowed to voluntarily use up to 10% of the benefits to pay a debt. This means that you can use up to 10% of the pension to pay a debt if you want, but a creditor cannot attach a Qualified Plan pension without your approval. 

In addition, private pensions may be used to fulfill a Qualified Domestic Relations Order (QDRO). A QDRO is a court order that allocates a portion of your benefits to a family member, such as a spouse, former spouse, child, or other dependent. The order gives the family member a right to take part or all of the pension benefit. Usually QDROs are used for alimony or child support purposes. 

Finally, the federal government may garnish private pension plans to collect taxes due. 

For more information, see: 29 U.S.C. §§ 1056(d)(1)-(3) (2015); 38 U.S.C. § 5301(a) (2015); 42 U.S.C. § 407 (2015); 42 U.S.C. § 659(a) (2014); Simmons v. Simmons, 175 W. Va. 3, 330 S.E.2d 325, 327 n.1 (1985) (questioned on other grounds); Philpott v. Essex County Welfare Board, 409 U.S. 413, 34 L.Ed.2d 608, 93 S.Ct. 590 (1973) (superseded by statute as stated in Rodriquez v. Perales, 86 N.Y.2d 361, 657 N.E.2d 247, 633 N.Y.S.2d 252 (1995)); National Consumer Law Center, Surviving Debt: A Guide for Consumers (5th ed. 2005).

What type of information does my credit report contain and how important is it that I check it?

A consumer’s credit report contains a variety of financial and personal information that is often sold to creditors, insurers, and employers. Credit reports may be used to evaluate applications for everything from credit cards and insurance benefits to jobs and home rentals. In order to curb inaccuracies and fraud, Congress passed an amendment to the federal Fair Credit Reporting Act (FCRA) requiring each of the three nationwide credit reporting agencies to provide consumers who request it one free credit report every 12 months. The reports can be especially beneficial for seniors who are often victimized by fraud. 

Because each of the three nationwide credit bureaus, Equifax, Experian and Trans Union, are required to supply one free report every 12 months, some financial planners suggest that consumers stagger their requests so they are able to view a report every four months. Experts also remind consumers that reports from each bureau may vary due to different information sources. 

Consumers may obtain their free credit report by dialing 1 (877) 322-8228 or visiting http://www.annualcreditreport.com. There are some misleading sites that also claim to provide a free credit report, but do not. These sites provide you a free report only after you sign up to buy other services. Some of these misleading sites have names that are similar to the free sites or are slight misspellings of the free site. To help you ensure you use the correct site, the Federal Trade Commission (FTC) suggests that you use the link on the agency’s website http://www.consumer.ftc.gov/articles/0155-free-credit-reports to order your free credit report.  

You may also mail a request to: Annual Credit Report Request Service, P.O. Box 105281, Atlanta, GA 30348-5281. Reports requested online are available immediately, while phone and mail requests take about 15 days to be processed. 

For more information see: Federal Trade Commission, The Federal Trade Commission’s Information on Free Annual Credit Reports, http://www.consumer.ftc.gov/articles/0155-free-credit-reports (last visited June 9, 2015).

What is identity theft and how can I protect my identity from being stolen?

Identity theft occurs when someone uses your personal information, such as name, address, Social Security Number, or credit card account number, without your knowledge and with the intent to commit a crime, usually fraud. Identity thieves use different methods to obtain access to your personal information. For example, identity thieves may get your personal information from businesses by stealing records or hacking into computer systems. Identity thieves can also gain access to your private information by rummaging through trash, stealing wallets, stealing mail, or posing as legitimate government and business officials. 

It is important for seniors to protect themselves from this growing crime, because identity thieves can wreak havoc on a victim’s financial status. Once identity thieves gain access to private information, they can go on spending sprees with credit cards, take out loans, and drain bank accounts. To protect yourself from identity theft never give out personal information over the telephone, through the mail, or over the Internet unless you initiated the contact. Furthermore, be especially careful if you carry your Social Security card with you. Secure your personal information even inside your home, especially if you have roommates or employ outside help. Guard your mail and trash from theft by shredding papers that contain identifying information and account numbers before discarding them. 

In the event that your identity is stolen, act quickly. If your bank or credit accounts have been compromised, consider closing the accounts immediately to prevent further loss. If your Social Security number has been stolen, you can place a fraud alert on your credit report by contacting one of the three major credit reporting agencies. (See also the question on Credit Reports, p. 132) If any other item has been stolen, such as your drivers license, contact the issuing agency immediately. According to the Federal Trade Commission, you need not file an identity theft report with the police until your information is actually misused. However, if another crime was committed to gain access to your personal information contact local police both for investigation and to establish a record you may need later. 

For more information see: Federal Trade Commission, Deter, Detect, Defend, Avoid ID Theft, http://www.consumer.ftc.gov/features/feature-0014-identity-theft (last visited June 9, 2015); 18 U.S.C. § 1028(a)(7) (2015).

I received something in the mail that I did not order. Do I have to pay for it or send it back?

No, neither. It is illegal to send unsolicited goods through the mail and then bill for them. If you receive something in the mail that you did not order, you may keep it. An exception is that a charitable organization may send a gift requesting a donation without violating this law. However, you are still not obligated to donate nor to send the item back if you choose not to donate.  

For more information, see: 39 U.S.C. § 3009 (2015).