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Which Option Is Best For Me…Chapter 7 or Chapter 13?

August 16, 2013 Leave a comment

It is my job to know whether a Chapter 7 or a Chapter 13 is the better option for my clients.  The questions that I ask at the initial consultation asked to make this determination.  Most clients want to file a Chapter 7, but that is not always the best option for them.  Each case is different and the rest of this blog will show the differences between the two options so you can have a better understanding of both.

A Chapter 7 is less expensive than a Chapter 13 and it is cheaper.  In my initial consultation it is important for me to determine what type of debt my clients have.  There are three types of debt: priority, secured and general unsecured.  Priority debt consists of recent tax debt and domestic support obligations, such as alimony or child support.  If someone owes taxes from the last few years and/or a domestic support obligation, a Chapter 7 will not get rid of this debt.  Secured debt is another type of debt.  Secured debt consists of car loans, mortgages or statutory liens.  Secured debt can be taken from you if you are not making the payments.  If the client is current with their mortgages and car loans a Chapter 7 may still be a good option for them.  However, if they are delinquent on secured debts, a Chapter 13 may be in their best interest.  Alternatively, if someone has a high interest rate on a vehicle or the monthly payment leaves them with no disposable income, a Chapter 13 may be a good way to stretch out those payments on the vehicle to free up some other money to take care of other things they may need or start savings.  The last type of debt is unsecured debt.  Unsecured debt is credit card debt, medical bills, old utility bills, pay day loans, etc.  This type of debt is discharged in a Chapter 7, which means it is wiped out.  This type of debt is the reason that many potential clients feel they need to file bankruptcy.

As I said, Chapter 7’s are quicker than Chapter 13’s.  They usually last 4 months or so, while the Chapter 13 will last from 36-60 months, but Chapter 13’s do have some advantages over Chapter 7 bankruptcies.  Below I will list some of the reasons why people may want to file a Chapter 13, rather than a Chapter 7.

For some people, a Chapter 7 is not an option.  They may not be eligible.  In order to be eligible for a Chapter 7 you are not allowed to have filed one in the last 8 years.  Additionally, some people make too much money or have too much monthly disposable income to be able to file a Chapter 7.  If any of these restrictions apply, you can still file a Chapter 13.  Another great reason to consider a Chapter 13 is if you are behind on your mortgage or car payment.  Rather than lose your house to foreclosure or your car to repossession, you could file a Chapter 13 and get protection under the law.  A case filing will stop all attempts at the mortgage company selling your house or the car creditor picking up your car.  A Chapter 13 will also allow you to catch up on your back mortgage payments over the course of 5 years and stretch out your car payments over the same amount of time.

Chapter 13 bankruptcies are also a great option for people who are “upside down” on their house and have a 2nd or even a 3rd mortgage.  In a Chapter 13, if you have no equity in your house in regards to the 1st mortgage, then we can “strip off” the second mortgage.  That means these 2nd or 3rd mortgages would become unsecured debts and could be discharged at the end of the Chapter 13 and you would still be able to keep your house.  Some people are also often behind on tax debt or domestic support payments and need time to catch up.  They might be afraid of a bank levy or a criminal charge.  A Chapter 13 will give them the time to become current without facing further penalties.  These debts can be paid through the plan in a structured way to make it easier to handle for the debtor.

A Chapter 13 is also the only option when you are trying to discharge a debt that was assigned to you in a divorce decree.  It is a good idea if you have gotten a divorce to show the decree to your attorney.  If you have assigned debts through that divorce that you want to discharge it cannot be done through a Chapter 7.  A good, knowledgeable bankruptcy attorney will be able to sort through all of this paperwork and let you know what the best option is for you.

Additionally, I often have clients who have filed a Chapter 7 bankruptcy in the last 8 years, but they are getting garnished by a new creditor.  They come to see me hoping to stop the garnishment but cannot file a Chapter 7.  Often it is a good idea to file a Chapter 13 to stop the garnishment.  We can always file a Chapter 7 later to discharge the debt, but the Chapter 13 will stop the garnishment to free up money so you can pay your rent and utilities and not get further behind on your bills.  These garnishments are often up to 25% of your paycheck, which can be devastating to many people.

Another advantage of Chapter 13 bankruptcies is that they can often be cheaper up front since attorney fees can be paid over the course of 5 years.  We are very willing to work with clients on payment arrangements in a Chapter 13 if they are employed and have the ability to make the monthly plan payments to the Trustee.

This decision on what kind of bankruptcy to file is a complicated one and should not be taken lightly.  We have experienced lawyers here that deal with all types of cases every single day.  It is our job to analyze your debts, assets, income and expenses and have in-depth knowledge of the bankruptcy code.  If you are considering bankruptcy or would like to speak with an experienced bankruptcy attorney in the St. Louis area, please do not hesitate to give our office a call.  We offer free consultations at five different locations across the St. Louis area.

Why Should I Hire an Attorney for Bankruptcy?

July 10, 2013 Leave a comment

You may be asking yourself, “Why do I need to hire an attorney to file bankruptcy?” You may also think, “I’ve done some research and I’ve seen the forms to fill out. It seems simple enough.”  The answer is: Bankruptcy isn’t as easy as a process as you may think. Time and again, we have people come to us telling us that they tried to file bankruptcy for themselves but their case was dismissed. In truth, the cost of fixing errors that are made in representing yourself can add up and you probably would have been better off having an attorney handle your case in the first place.

Representing yourself in a bankruptcy matter is referred to as filing pro se. Just like a traffic ticket, you are welcome to represent yourself in bankruptcy. However, as many people find out later (when it is too late), it is often necessary to have appropriate representation from an attorney with experience to make sure your interests are protected and you get the most favorable outcome available to you in the matter.

Last week, I saw a number of pro se cases that had problems when the petitioners came to their First Meeting of Creditors. This is a meeting where you are asked questions by the trustee of your bankruptcy to make sure everything in your petition is correct. Frequently, pro se filers make mistakes that require amendments to their petitions and coming back to attend future meetings. While it is not impossible for a mistake to be made in a petition filed by an attorney, the chances of having your bankruptcy go smoothly without any problems is a lot better if you have representation.

An attorney will know where your debts and assets need to be listed to prevent problems. Many times I will hear pro se filers say things like “I didn’t think I needed to list THAT.” Your attorney will be able to tell you what needs to be listed and what does not. Also, your attorney will be able to give you advice on when the best time to file will be. If a petition is filed too soon or too late, there may be debts that would have been discharged but will not be if the petition was filed at the wrong time. Finally, your attorney will know how to properly use the available exemptions to protect your property. This can become an issue if you have moved from one state to another within the last two years prior to filing. Some states provide for more property to be exempted from the bankruptcy estate than others. In some situations, the even more generous Federal exemptions may be available to a petitioner.

If you are considering bankruptcy and would like more information about your options, call our office and make an appointment to see one of our attorneys. We offer free consultations and you can discuss what chapter of bankruptcy will best suit your situation.

Will My Judgment or Settlement be Discharged in Bankruptcy?

May 23, 2013 Leave a comment

A common question that people considering bankruptcy may have is whether or not a judgment that has been entered against them will be discharged through their bankruptcy. The short answer is that in many cases the answer is yes, but there are some circumstances that won’t discharge the debt.

For example, let’s say someone has gone to court and obtained a judgment against you for past due rent. Typically, this judgment can be discharged through a Chapter 7 bankruptcy and that debt will no longer be owed. While the landlord would still be able to follow through with an eviction before filing, the debt could be discharged in bankruptcy.

However, let’s say a municipal utility company gets a judgment against you for a past due utility on your home. In this case, the judgment may remain if the utility company seeks to add a lien on your property with that judgment. The judgment lien would remain on your property if you go through bankruptcy. If you were to sell your home at a later date, the lien would be paid out of the proceeds of the sale of the house.

In another example, let’s say you have entered into a settlement agreement with someone who brought a claim against you. Some settlement agreements contain standard language that doesn’t contemplate the defendant filing for bankruptcy at a later date. If this is the case, the settlement can be discharged through bankruptcy under the right circumstances.

Some settlement agreements will contain language that will protect the plaintiff in case the defendant files bankruptcy. Some examples of this would be requiring a guarantor for the defendant or having a third party make the payments to the plaintiff on behalf of the defendant. If the settlement agreement requires a guarantor then the defendant would be discharged of the debt through bankruptcy, but the plaintiff would still be paid by the guarantor. If the third party is contracted to make the payments, the plaintiff would have protection from the bankruptcy trustee attempting to recover the settlement payments.

However, some settlements or court ordered payments are not dischargeable. The bankruptcy code takes public policy considerations and prevents certain debts from being discharged. Obligations like alimony and child support will not be discharged through bankruptcy. If a settlement is the result of a defendant’s “bad act” it may survive bankruptcy as well. For example, if you have a settlement to pay due to a drunk driving accident, it is very unlikely to be discharged. But, the plaintiff will have to file suit again in bankruptcy to preserve the settlement and prevent discharge. In this situation, if the settlement agreement contains an admission of fault by the defendant then the settlement is nearly guaranteed to survive bankruptcy. If it does not, the issue of fault will need to be determined by the bankruptcy court. Other examples of non-dischargeable settlement obligations would be those involving repayment for property obtained by false pretenses, such as fraud or embezzlement. Again, the language of the settlement agreement would determine if the issue of guilt would need to be litigated again.

To find out your options with bankruptcy and any judgments or settlements you may have, contact our office and talk with one of our attorneys.

Head of Household Exemption in Bankruptcy

February 15, 2013 Leave a comment

If you decide to come in and speak with an attorney regarding a bankruptcy filing it is likely that the attorney will ask you how many children you have living with you that are under 21.  These children that are living with you that you are helping take care of are your dependents and will be listed as such in your bankruptcy filing.

You may wonder why that is important.  The bankruptcy laws are set up to help the debtors protect certain assets.  The attorney that prepares your petition will use these laws to exempt certain property (such as cars, furniture, money in bank accounts and even your home) from your bankruptcy estate.  That is, the Trustee would not be able to get a hold of these assets, liquidate them and pay off your unsecured debt with the money they collect.  That is good news for the debtor.

It is obviously important then for a bankruptcy attorney to know the law and the exemptions that are available to use.  Section 513.430 sets out the “Head of Household” exemption and it states that the debtor is allowed to claim a $1250 exemption if they are head of household and they may also claim an additional $350 for each unmarried dependent child under the age of 21.  This means that if you want to file a Chapter 7 bankruptcy, but you have some money in the bank or are expecting a fairly large tax refund, your attorney may still be able to help you protect these assets.

Here is how the exemption would work…debtor wants to file a Chapter 7 to stop a wage garnishment, but they are expecting a $2000 tax refund in 2 months.  That tax refund is an asset of the bankruptcy so the Trustee could require you to turn it over so that he or she could pay off your creditors with it.  However, you have 3 children under the age of 21 that are all living at home with you.  Your attorney can apply the Head of Household exemption for $1250, plus $350 per child (for a total of $1050 for 3 children).  These would be a total of $2300 that the law allows you to exempt, which would cover the entire tax refund that you are to receive in 2 months.  That means you would not have to wait to file your bankruptcy, you could stop the garnishment right away and still be able to retain all of your tax refund.

These exemptions are important and you obviously will want to protect as much property as you can.  That is why, if you are thinking about filing for bankruptcy, it is very important to speak to an experienced bankruptcy attorney.  We offer free consultations at several locations in the St. Louis area.  Please contact us if you would like to speak with someone about your options.

What to Expect at the Creditors’ Meeting

November 15, 2012 Leave a comment

Shortly after you file for bankruptcy, the Court sends you a notice to appear at a meeting of creditors, also called a “341 meeting”.  This meeting will take place roughly about a month after your case is filed.  The notice will contain the date, address, time and the name of the trustee that will be handling your case.  This meeting is mandatory.  If you do not attend the meeting, your case will be dismissed.

For most people, the meeting goes very quickly.  Often, there are no creditors there and it will normally just be you, the trustee and your attorney (assuming you have retained one) involved in the meeting.  When your name is called by the trustee, you will need to be prepared with your photo ID and social security card in your hand and ready to give to the trustee.  This will keep the process moving along smoothly.  The trustee will then swear you in, verify your identification and begin asking you questions regarding your bankruptcy schedules that were filed with the court.

The trustee is interested in recovering non-exempt assets in your estate so that he or she may obtain them, sell them and distribute the proceeds to your unsecured creditors.  The trustee will ask you questions regarding the value of your home or your car, and how you came up with the values that you listed on your bankruptcy paperwork.  They will also ask you about anticipated tax refunds.  Often times, your anticipated tax refund will be an asset of your bankruptcy estate.  The trustee may ask you to turn over any non-exempt portion of that tax return so that they can distribute it to creditors.

Additionally, the trustee will be looking for inconsistencies in your paperwork.  It is very important that you are honest, both when filling out your bankruptcy paperwork and when you are in front of the trustee at the creditors’ meeting.  If your answer to a trustee’s questions is different from what is listed in your bankruptcy paperwork, that will give the trustee a reason to believe that you have not been completely honest and it will make it more difficult for you to get a discharge.   Make sure you review your paperwork carefully before filing it with the court because ultimately you are responsible for the information listed on the schedules, even if you did not prepare them.

This is a big step for you in the process of filing bankruptcy.  You will likely be a little nervous and apprehensive to go to the meeting and answer more questions in front of someone you have never met before.  If you have answered all questions honestly, you have nothing to be worried about.  The meeting will likely be brief and you will walk out of there with a fresh start and a real opportunity to get your life back on the right track financially.

If you have questions about this, or anything else related to bankruptcy, it is my recommendation that you consult with a St. Louis Bankruptcy Attorney today.  We offer free consultations at a number of locations.

I’ve filed Bankruptcy Before, Can I file Again?

            Yes, you can file bankruptcy multiple times. In fact, there is no limit to the number of times that you can file. However, if you have received a discharge in a previous case, a certain amount of time must pass before you can receive a discharge again. The amount of time that must elapse depends on which chapter you previously filed, and which chapter your plan on filing now.

            If you have previously filed a Chapter 7 bankruptcy, you must wait eight years to file and receive a discharge in a new Chapter 7. If you have filed a Chapter 7 in the last eight years and received a discharge you can still receive the protection of bankruptcy (automatic stay) by filing a Chapter 13.  If more than four years has elapsed since you filed your Chapter 7, you can receive a discharge in your new filing.

            If you previously received a discharge through a Chapter 13, you can receive a discharge in a Chapter 7 if six years has passed since your Chapter 13 filing. Note, that the clock starts as soon as your case is filed, not when you receive your discharge. If six years, has not passed, you can receive a discharge through another Chapter 13 as long as two years has passed since the previous Chapter 13 filing.

            But what if you can’t receive a discharge? Can you still benefit from filing? Absolutely! Student loans and taxes are generally not dischargeable in a Chapter 7. After your Chapter 7 has concluded, student loan creditors can resume garnishing up to 25% of your paycheck. The IRS is even worse. They can take over 90% of your paycheck to pay on back taxes.  Even though you may not be eligible for a discharge, you can still receive the protection of bankruptcy by filing a Chapter 13 and your student loan creditors will not be able to garnish your wages. A small monthly payment may give you up to five years of protection from lawsuits, garnishments, levies and liens.

            Just because you have previously filed a bankruptcy doesn’t mean you can’t file again. Even if you can’t receive a discharge, you can still enjoy the protection that bankruptcy provides. Schedule your appointment today with one of our experienced bankruptcy attorneys. He or she will be able to evaluate your situation and determine what is best for you.

Not disclosing and transfer of assets led to denial of discharge

We learned nothing new from a recent court decision (In re Dandrum, Bankr. D.ND. August 19, 2011): The debtor must take seriously his duties to disclose transfers before filing and to list income and assets accurately seriously or risk denial of discharge (and even more severe consequences).

Debtor failed to disclose assets and transfers on the schedules and statement of affairs. He also liquidated assets that he would not have been able to exempt in his bankruptcy case,  and paid only debts that were beneficial to him because the debt was either on exempt property or because the debt was nondischargeable.

Even though the debtor amended his schedules later and provided information about transactions to the trustee, the court found that debtor’s multiple inaccuracies regarding income, assets, and transfers rose to the level of “reckless indifference to the truth” which the court considered as equal to the intent to deceive.

What do we learn from it? Disclose, disclose, disclose everything that has been done before filing.

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