As of June 21, 2024, the debt limits for individuals filing chapter 13 bankruptcy have reverted to pre-pandemic levels, as Congress has not elected to extend them as of the time of this writing. Accordingly, 11 U.S.C. §109(e) requires individuals filing chapter 13 bankruptcy to have less than $465,275 in unsecured debt and $1,395,875 in secured debt, or the chapter 13 case may be subject to dismissal or conversion for non-compliance. 11 U.S.C. §109(e) (2024). This means that individuals seeking chapter 13 bankruptcy protection in areas with higher property values, like Palo Alto, Mountain View, Los Altos, Sunnyvale, Menlo Park, and other parts of the San Francisco Bay Area served by Nova Law Group, may increasingly need to file in chapter 11, instead of chapter 13, if a reorganization bankruptcy is desired.
Archive for the ‘Personal Bankruptcy’ Category
Further Update: Temporary Enhanced Post-Covid Debt Limit for Chapter 13 Expires.
Wednesday, November 13th, 2024Are Health Savings Accounts Exempt in Bankruptcy in California?
Wednesday, August 14th, 2024Clients working with a bankruptcy lawyer often ask us if “Health Savings Accounts,” also called HSA’s, are exempt in bankruptcy. This is relevant to many clients of Nova Law Group who may have contributed substantial funds to HSA’s, and accordingly, have a desire to keep those funds exempt so that they can retain them in bankruptcy.
HSA’s are tax-advantaged accounts that are created to allow individuals with high-deductible insurance plans to save for their healthcare expenses. Individuals can contribute to the HSA and then withdraw money as needed to pay for qualified healthcare expenses.
While the purpose of HSA’s is to save for healthcare expenses not covered by insurance, technically the money can be withdrawn by an individual for any purpose with a 10% penalty applied (in addition to income taxes) if the individual is under the age of 65. At the age of 65, money in an HSA can be withdrawn for any reason, by paying the income taxes due on such withdrawn amounts. HSA funds are generally considered property of the bankruptcy estate, unless an appropriate exemption applies.
Accordingly, the question remains, are HSA accounts exempt in bankruptcy? At the time of this writing, when applied to individual debtors claiming California or Federal exemptions, the answer is “no.” Federal exemptions do not include any specific exemption for HSA funds. 11 U.S.C. §522(d) (2024). Additionally, there is no separate California exemption for HSA funds at the time of this writing, although legislation has been enacted in other states to separately exempt HSA funds, which may also occur in California in the future. Cal. Civ. Code §§703, 704 (2024).
While HSA funds are not subject to a specific exemption under the Federal or California exemptions, individuals who wish to exempt HSA funds in bankruptcy can still exempt such funds by using the “wildcard exemption” provided in both Federal and California exemptions. 11 U.S.C. §522(d)(5) (2024); Cal. Civ. Code §703.140(b)(5) (2024).
If you have questions regarding filing bankruptcy, including the treatment of your HSA account in bankruptcy, contact Nova Law Group and speak with a bankruptcy attorney who will be happy to assist you with your needs. Nova Law Group represents bankruptcy clients throughout the San Francisco Bay Area from our office in Mountain View, California.
Update: Debt Limit for Chapter 13 Temporarily Increased to $2,750,000.
Friday, June 24th, 2022This update is excellent news for anyone who is considering personal bankruptcy under chapter 13 of the bankruptcy code. On June 21st, 2022, the President signed the “Bankruptcy Threshold Adjustment and Technical Correction Act” into law. Among other changes, the new statute now allows the filing of chapter 13 cases for debtors who have noncontingent, liquidated debts of less than $2,750,000–nearly double the amount of debt allowed under prior versions of the statute. Additionally, the new statute does not require any particular amount of secured debt versus unsecured debt in the calculation of the total debt that can be owed to file in chapter 13. This is a major, but very positive, departure from prior versions of the law. In totality, the new amendments will be a welcome adjustment for prospective bankruptcy debtors who live in areas with higher property values and who may have higher general liabilities, like Palo Alto, Mountain View, Los Altos, Sunnyvale, Menlo Park, and much of the greater San Francisco Bay Area. This will enable these bankruptcy debtors to increasingly file in chapter 13 bankruptcy, instead of chapter 11 bankruptcy, saving very significant additional time and money.
Is it Important to Hire a Local Bankruptcy Attorney to Represent Me?
Monday, October 21st, 2019Generally, whether a local bankruptcy attorney should be retained to represent the client, as opposed to an attorney who is geographically much farther away, depends on the definition of “local” and the complexity of the proposed bankruptcy case.
I always recommend to prospective clients who are making the decision of which bankruptcy attorney to hire that they select an attorney who is “local” in the sense that he or she knows the bankruptcy trustees, the bankruptcy judges, and other bankruptcy professionals in the area in which the case will be filed. This is important because a “local” attorney in this sense will generally have more credibility with these various professionals, trustees, and judges, and may obtain a more favorable outcome for the client than if he or she was completely unknown within the bankruptcy community. Most bankruptcy communities, including the one in the San Francisco Bay Area, are very small. This means that most frequent practitioners of bankruptcy know the other attorneys who commonly practice in the area. The more complex the bankruptcy case, the more important it is to have local bankruptcy counsel representing the client, as in complex cases, there is a much greater chance that multiple hearings and communications will be needed with the court, the trustee, and other professionals. A client represented by good local counsel with significant bankruptcy experience will almost always be able to obtain a more favorable outcome for a client than bankruptcy counsel with equivalent experience, but who is unknown in the community and has no intrinsic credibility with the court, the trustees, or other professionals.
At the same time, “local” bankruptcy counsel need not mean counsel that is literally in the same city as the client. Frequently, counsel only needs to be “local” enough to have a good relationship with the court, the trustees, and other professionals. Accordingly, usually hiring counsel who frequently practices anywhere in the same district as the bankruptcy court in which the case will be filed is sufficient. For example, Nova Law Group is located in Mountain View, CA and meets with bankruptcy clients at its office location. However, Nova Law Group represents clients throughout the entire San Francisco Bay Area, including Mountain View, Sunnyvale, Los Altos, Los Altos Hills, Menlo Park, East Palo Alto, Palo Alto, Cupertino, Santa Clara, San Jose, San Francisco, Oakland, and many other communities throughout the South Bay, East Bay, North Bay, and the mid-peninsula. Accordingly, Nova Law Group can expertly represent a bankruptcy client who needs debtor or creditor representation regarding bankruptcy cases filed anywhere in the greater San Francisco Bay Area, including the San Jose, San Francisco, and Oakland divisions of the United States Bankruptcy Court for the Northern District of California.
Stated differently, Nova Law Group practices bankruptcy law and is “local counsel” anywhere in the San Francisco Bay Area, and as a result, a client need not be in Mountain View, CA or even the mid-peninsula to retain Nova Law Group. This provides important flexibility for clients, because there are many other factors to consider when hiring a bankruptcy attorney, such as skill, intellectual ability, experience as a bankruptcy attorney, cost, availability, customer service and personality, and dedication to serving the client, all of which matter just as much or more than geographical location.
Accordingly, whether you or your company is a resident of Mountain View, CA, or anywhere else in the Northern District of California, Nova Law Group can assist you with your bankruptcy needs. We also assist individuals and companies as creditor counsel located anywhere in the world, as long as the bankruptcy case in which the client is a creditor is pending in the Northern District of California. Please call a Nova Law Group attorney if interested and we will be happy to assist you.
How Does Filing Bankruptcy Impact My Credit Score?
Tuesday, January 15th, 2019
A common misconception about bankruptcy is that it ruins the debtor’s credit score forever and that no one will ever lend to the debtor ever again. This false assumption is further perpetuated by many “debt consolidation agencies” because they want to dissuade debtors from filing bankruptcy and force them into debt repayment plans, which are not the best option for all people who owe significant debts.
The impact of a bankruptcy filing on the credit score of an individual person is highly-dependent on the chapter of bankruptcy the individual is filing and how the individual acts to repair his or her credit after the bankruptcy is filed.
The first impact on an individual person’s credit score as a result of a bankruptcy filing is the chapter of bankruptcy being filed. If an individual is filing a chapter 7 bankruptcy, he or she will generally notice a greater decline in his or her credit score upon filing than if the same individual were to file chapter 13 bankruptcy. Many individuals will notice a 100-200 point drop in FICO score when a chapter 7 bankruptcy is filed and a 75-150 point drop in FICO score when a chapter 13 bankruptcy is filed. This will vary based on the pre-bankruptcy credit score of the borrower and other myriad factors which are not within the scope of this article. Generally, the higher the credit score pre-bankruptcy, the more points are deducted from an individual’s FICO score when he or she files. Individuals with bad credit experience less of a drop because in many cases these people already have a low credit score due to missed payments, high borrowings relative to total debt, and other reasons. The credit reporting agencies often view chapter 7 bankruptcy as “worse” than chapter 13 bankruptcy because creditors often receive higher distributions statistically from chapter 13 cases than chapter 7 cases. However, in many cases, chapter 7 bankruptcy will often allow individuals to rebuild credit faster than the same individual can in chapter 13 bankruptcy, because chapter 13 bankruptcies usually last much longer (3-5 years) than chapter 7 bankruptcies (3-6 months). Additionally, chapter 13 debtors are prohibited from incurring new debt without approval from the bankruptcy court, which can make it more difficult for chapter 13 debtors to establish new credit and rebuild a credit score. Generally, debtors filing chapter 7 cases can begin rebuilding credit with secured credit cards, auto loans (at higher interest rates), or other loans very soon after receiving the bankruptcy discharge, which usually occurs within 3-6 months of filing for bankruptcy. Some creditors will even lend money to a chapter 7 debtor while in bankruptcy, but generally it is recommended to avoid incurring new debt during the chapter 7 case unless it is an emergency (car breaks down, medical emergency, etc.). In contrast, chapter 13 debtors must wait to accumulate new lines of credit until after bankruptcy unless such debt is incurred with bankruptcy court approval. This can mean that chapter 13 debtors will not actually be able to obtain new credit for 3-5 years after filing bankruptcy, unless a sufficient reason is given for the court to allow the new debt, such as an emergency need to finance a car or other item needed for the debtor’s business or profession. Accordingly, even though chapter 7 bankruptcy often results in a larger credit decline initially than chapter 13 bankruptcy, many debtors filing in chapter 7 can rebuild their credit faster than comparable debtors filing in chapter 13 bankruptcy.
The second impact on an individual person’s credit score as a result of a bankruptcy filing is the action that such individual takes post-bankruptcy to rebuild his or her credit. This credit rebuilding phase usually can begin within 3-6 months after filing for chapter 7 debtors, and 3-5 years after filing for chapter 13 debtors. During this phase, Nova Law Group recommends that a client slowly apply (not more than one application for credit every six months) for new credit lines until they reach a minimum of three. These credit lines can be credit cards, bank lines of credit, auto loans, installment loans, or any other type of loan from a creditor that reports to the credit reporting agencies. However, a client should only obtain credit if it is useful to the client. For example, a client should never get an auto loan if the client doesn’t need a car. With regard to credit cards, even if a client never wants another credit card, Nova Law Group recommends that a client simply obtain enough credit cards to reach the minimum of three credit lines, and then the client can stop accumulating credit for credit rebuilding purposes. As part of rebuilding credit, a client should utilize the credit line or credit offered each month, but can utilize a very small amount of the credit if desired. For example, if a credit card obtained has a limit of $500, a client can simply charge $1/month for a cup of coffee on the card and then pay the credit card off, in full, and on time, every single month. This usage is then reported to the credit reporting agencies and will generally increase a client’s credit score significantly over time as each monthly bill (however small) is paid off in full, and on time, each month.
For the reasons stated above, filing for bankruptcy does not always mean a large credit decline upon filing. Furthermore, most former bankruptcy debtors can quickly rebuild credit over a one to four-year period simply by utilizing the steps listed above for credit repair after the debtor’s chapter 7 bankruptcy or chapter 13 bankruptcy case (or less commonly, chapter 11 bankruptcy case) is completed. Many former clients of Nova Law Group have improved their credit scores 100-200 points over a one to four-year period through the above methods and have gradually developed excellent credit over time. While every client’s situation is different and the above methods are effective to different degrees for each client, the above methods can assist all post-bankruptcy debtors with rebuilding credit to a significant extent.
If you are an individual interested in bankruptcy or have questions regarding the credit impact resulting from a bankruptcy case, feel free to contact Nova Law Group and an attorney will be happy to speak with you. Nova Law Group’s office is located in downtown Mountain View, CA, and we serve bankruptcy clients from all over the San Francisco Bay Area, including mid-peninsula cities like Palo Alto, Menlo Park, Los Altos, Sunnyvale, and Los Altos Hills, as well as from the major metro areas of Oakland, San Francisco, and San Jose, including all cities surrounding such metro areas in the greater SF Bay Area. Feel free to contact us regarding your bankruptcy needs and we will be happy to speak with you.
Recovering Legal Fees and Costs for Bankruptcy Clients When Defending Non-Dischargeability Actions
Tuesday, March 20th, 2012Non-dischargeability actions by a creditor against a bankruptcy debtor are somewhat rare, but when they occur, the legal fees and costs involved in defending against such an action can be prohibitive. Most debtors in a bankruptcy case will never need to confront a non-dischargeability action under 11 U.S.C. §523(a), but for clients with more complex bankruptcy cases under Chapters 7, 11, or 13, or for clients who have made significant pre-bankruptcy transactions, such actions often are more frequent and must be addressed. At Nova Law Group, we feel that keeping legal costs to as low a level as possible during bankruptcy litigation is just as important as representing the client in the best possible manner given the circumstances of the case. This article will discuss methods in which non-dischargeability actions can be defended in a cost effective manner for bankruptcy clients.
Most non-dischargeability actions against a debtor are based upon either specific allegations of fraud, under 11 U.S.C. §523(a)(2)(A-B), or a presumption of statutory fraud under 11 U.S.C. §523(a)(2)(C). While the specifics of defending against this type of action for a client is discussed in the article “What is a Non-Dischargeability Action?” (also on this website), it is important to note that any non-dischargeability action must allege sufficient facts to state a claim under one or more sections of 11 U.S.C. §523, and that even if a presumption of fraud is alleged to be applicable under 11 U.S.C. §523(a)(2)(C), that such presumption may be rebutted.
For example, many junior attorneys often ask the managing attorney of our firm if they should settle an action on behalf of a client with a creditor, merely because such creditor claimed that the “client made luxury purchases within the 90 day period prior to filing bankruptcy.” Typically, such allegations by a creditor are made without any specific facts alleged as to which purchases made were fraudulent prior to bankruptcy, when the fraudulent charges were made, where they were made, and why such purchases might be considered “luxury goods” under 11 U.S.C. §523(a)(2)(C)(i)(I) for purposes of the statutory presumption. Many creditors attempt to make blanket claims of fraud against the debtor which lack substantive merit, thinking that most bankruptcy debtors will never challenge the action, or will settle to avoid paying legal fees and costs to the debtor’s bankruptcy lawyer.
Accordingly, it is a fair question to ask how a bankruptcy client can afford to pay his or her bankruptcy attorney to defend a meritless non-dischargeability action against the client in a cost-effective manner. The answer is often the statutory language provided in 11 U.S.C. §523(d), which allows for bankruptcy debtors to receive reimbursement for attorney fees and costs from the creditor that sued them, at least where the debtors can prove that such action was meritless (as it often is).
The bankruptcy code states under 11 U.S.C. §523(d) that a bankruptcy debtor can recover attorney’s fees and costs from a creditor that sued such bankruptcy debtor unsuccessfully, if the court finds that the suit filed by the creditor was not “substantially justified,” unless “special circumstances” would make the award of such fees and costs unjust. 11 U.S.C. §523(d) (2012). Essentially, to obtain an award against a creditor for fees and costs in the non-dischargeability action, the bankruptcy debtor must not only win the case, but also convince the judge that the creditor’s original suit in bankruptcy court had no merit to begin with, and that the creditor can afford to pay the legal fees and costs if awarded. While this might seem like a difficult task in most situations, in reality, most non-dischargeability actions filed are objectively meritless and often insufficient to meet federal pleading requirements. As a result, it is often a good idea for a debtor’s bankruptcy attorney to file motions to dismiss meritless actions under Federal Rules of Civil Procedure 12(b)(6), rather than answer a meritless complaint, as a victory at the motion to dismiss stage will often mean that the court views such complaint as not “substantially justified,” and legal fees and costs will be much easier to obtain. Fed. R. Civ. Proc. 12(b)(6) (2012). In essence, it is much easier to argue that a creditor’s action is not “substantially justified” when the court itself has dismissed the action for failure to state a claim multiple times, as it will be difficult for a creditor to argue that its action “was substantially justified” under 11 U.S.C. §523(d) if the court already found the action to be “insufficient to state a claim for relief.” Additionally, it is the experience of Nova Law Group that most creditors’ attorneys have no idea how to litigate a motion to dismiss adequately, and as a result, often will settle such actions in a manner favorable to the bankruptcy debtor when confronted with skilled opposition from the debtor’s bankruptcy attorney.
In conclusion, a client should always be sure that the bankruptcy attorney representing him or her is aware of the necessary steps to effectively defend against a non-dischargeability action, as well as the cost-saving provisions of 11 U.S.C. §523(d) for recovery of attorney’s fees and costs in such an action. This provision can not only serve as a very significant cost-savings to a bankruptcy client, but also can operate as a significant deterrent to any creditor contemplating an action in bankruptcy court against the debtor. If you would like to learn more about effective representation of bankruptcy debtors in non-dischargeability actions or would like to consult with a Nova Law Group attorney regarding your individual situation, feel free to contact a bankruptcy attorney of our office and we will be happy to assist you.
What is a Non-Dischargeability Action?
Saturday, March 10th, 2012The vast majority of all debts in bankruptcy are discharged (eliminated) for most debtors in Chapter 7 and Chapter 13, but there are exceptions. Indeed, the main purpose of filing a bankruptcy case is to eliminate or substantially reduce debt owed by the bankruptcy debtor and give such debtor a fresh start, clear of the prior liabilities that once plagued his financial life. However, there are some types of debts called “non-dischargeable debts,” which are not eliminated when the debtor receives his or her bankruptcy discharge. Some of the debts that are often non-dischargeable in bankruptcy include child support, very recent tax debts, debts for drunk driving claims against the debtor, and debts owed an ex-spouse based on a marital separation agreement or divorce. Additionally, sometimes debts that would normally be dischargeable (eliminated), can be rendered non-dischargeable based on the circumstances surrounding how the debt was incurred or the behavior of the bankruptcy debtor prior to filing the case. This article will focus on describing certain situations in which an otherwise dischargeable debt might be rendered non-dischargeable on the basis that the debtor’s conduct was fraudulent, materially misrepresentative, malicious, or otherwise in bad faith.
The bankruptcy code lists several factors that are analyzed by a bankruptcy court in determining whether or not a certain debt, which otherwise would be dischargeable, should be rendered non-dischargeable on the basis of the debtor’s conduct prior to the filing of the case. Most of these factors are encompassed in 11 U.S.C. §523, and include fraud, material misrepresentation, intentional malice, and certain criminal behavior. Often these allegations will be raised by a creditor of the debtor and will assert that a certain debt owed the creditor should be non-dischargeable (not eliminated in bankruptcy) on the basis that the debt was procured by fraud, misrepresentation, or some other bad faith action on the part of the debtor. For example, it is sometimes the case that credit card companies who loaned a bankruptcy debtor money within 90 days prior to the time that the bankruptcy debtor filed the case, will claim that such debtor knew that he or she was going to eliminate the credit card debt borrowed from the company, and accordingly, that such credit card debt should be non-dischargeable after the bankruptcy case ends. The credit card company often alleges that such credit card charges were incurred fraudulently, as the bankruptcy debtor represented that she would pay the credit card company back on the money borrowed, but then allegedly never actually intended to, knowing all along that she would file her subsequent bankruptcy case.
While some bankruptcy clients might normally be concerned that several creditors might commonly challenge the dischargeability of certain debts, in practice, these suits are relatively rare. Part of the reason for the rarity of these actions in most circumstances is that “intent” to commit fraud or misrepresentation is often very difficult to prove. Accordingly, some creditors use what are called “statutory claims” to establish a case for fraud or misrepresentation against the debtor, as the bankruptcy code itself lists certain actions and/or purchases made by the debtor that are presumptively non-dischargeable. For example, using a credit card to pay a non-dischargeable tax claim makes the credit card debt used to pay on the claim non-dischargeable itself. Likewise, luxury goods of more than $600 incurred within 90 days prior to the filing of the bankruptcy case and cash advances taken of more than $875 within 70 days of the filing of the bankruptcy case are presumed non-dischargeable.
A creditor could theoretically proceed against the debtor under 11 U.S.C. §523(a)(2)(A) or 11 U.S.C. §523(a)(2)(B) without any statutory basis for claiming that the debt owed the particular creditor is non-dischargeable, but it is often much more difficult to prove intent to defraud or misrepresent a material fact without a statutory presumption stating that a certain act of the bankruptcy debtor constitutes fraud. When a creditor does proceed without a statutory basis for alleging fraud however, a creditor usually cites to relevant case law establishing certain types of acts of the debtor that tend to indicate fraud. There is a detailed list of factors that bankruptcy courts in the 9th Circuit typically look at to determine non-dischargeability in the case of In re Dougherty, 84 B.R. 653 (9th Cir. BAP 1988). Generally, as long as the bankruptcy debtor intended no bad faith with regard to the purchases and intended to repay such debt at the time it was incurred, the creditor will tend to lose these actions where there is no statutory claim for non-dischargeability that applies to debtor’s circumstances. Nonetheless, it is very important for a bankruptcy client to inform her attorney if she has incurred substantial debt within the 90 days preceding a bankruptcy case filing, and possibly even before this time period if such debt was very substantial or out of the ordinary relative to the bankruptcy client’s typical circumstances.
While it is possible for a creditor to allege that a specific debt owed that creditor by the debtor is non-dischargeable, it is important to note that even if such action by the creditor is successful, it is only that particular debt that becomes non-dischargeable. In other words, the debtor is still entitled to a discharge of all other dischargeable debts in the case, even if the bankruptcy court rules in a particular creditor’s favor with regard to a certain debt.
It is the opinion of Nova Law Group that most non-dischargeability actions filed against debtors are objectively meritless and should be vigorously litigated when such actions are pursued without substantial evidence against the debtor or without statutory claims being credibly alleged. Our firm has substantial expertise in litigating these types of actions, including on appeal, and we invite prospective clients who are considering a defense against a non-dischargeability action to contact an attorney at our office, who will be happy to assist you.
How Do I Find A Great Bankruptcy Attorney?
Friday, March 11th, 2011There are many different elements to consider when selecting a bankruptcy attorney. At Nova Law Group, we believe that clients should consider a variety of factors, both objective and subjective, in making the decision to hire a particular bankruptcy attorney. We have attempted to list some of the factors we think are the most important below.
Bankruptcy Practice Focus and Experience:
The first important element to consider when hiring a bankruptcy attorney is whether the attorney focuses on bankruptcy as a core field of his or her practice, or in the alternative, is a “general practitioner” who might only try to perform an occasional bankruptcy case and who doesn’t specialize in the area.
Zachary Tyson, managing bankruptcy attorney of Nova Law Group, thinks it is vitally important for clients to hire counsel who regularly practice in the bankruptcy field, because bankruptcy law can be very complex even for attorneys, and an attorney who doesn’t regularly practice in the field is more likely to make mistakes and be less familiar with the law in this specialized area. It has been his experience that the representation of debtors in bankruptcy is often too complex for attorneys who do not regularly practice in bankruptcy, and it is very important that the client hire an attorney who focuses in bankruptcy to handle the case, and not just “any attorney,” or one who practices in many unrelated fields of law. In essence, clients should not assume that simply because an attorney is “bar certified” or “licensed to practice law” in California, that he or she can handle the client’s bankruptcy case competently, or cost-effectively.
In selecting a great bankruptcy attorney, there are many sources that a client may turn to in making the selection.
First, most serious practitioners of consumer bankruptcy law are members of NACBA, which is an acronym for the National Association of Consumer Bankruptcy Attorneys. If the bankruptcy attorney you are considering is a member of this organization, then it is likely that the attorney you are reviewing considers bankruptcy to be a key focus of his or her practice, and is more likely to be familiar with the law in our field. NACBA is a professional organization that helps provide continuing legal education and professional seminars for bankruptcy attorneys, and most serious bankruptcy attorneys are members of this organization, because it helps us stay on the cutting edge of bankruptcy practice. All Nova Law Group attorneys are members of NACBA and most have been for several years.
Second, the attorney’s website and associated information may indicate whether the attorney focuses primarily on bankruptcy practice, or whether bankruptcy is only one of many fields in which he or she focuses. When viewing the websites of some attorneys, it becomes clear that the attorney doesn’t really practice bankruptcy law at all, and therefore, should not be selected. Other factors might include whether or not the attorney has informative bankruptcy content on his or her website, whether the attorney’s website seems credible, the representative engagements of the attorney and demonstrated experience he or she has in bankruptcy, and the organizations the bankruptcy attorney has worked for prior to entering private practice.
Third, it is advisable to check the educational history of your attorney and what law school he or she attended, as the quality of attorney practitioners who went to law schools of high caliber and those who did not can be very substantial. These qualifications are often posted on the attorney’s website, but if not, then the client can ask the attorney he or she meets with at the initial consultation where the attorney received his or her legal training. High caliber schools like Cornell, Harvard, Stanford, UC Berkeley, Duke, University of Chicago, Columbia, and other top-tier schools are very selective in their admission standards, and as a result, attorneys who graduate from top-tier institutions tend to have significantly better critical and analytical thinking ability, oratory ability, and writing ability than attorneys trained at less selective schools. The educational credentials of all Nova Law Group bankruptcy attorneys are posted in the education section of the attorney’s personal bio on our website.
Fourth, ask your attorney what experience he or she has in handling bankruptcy cases, and whether bankruptcy is a large portion of his or her practice. Do not make the mistake of assuming that an “older attorney” is necessarily a more “experienced attorney.” There are many older attorneys practicing in the bankruptcy field who have no clue how to successfully complete a bankruptcy case of moderate complexity, either because they never learned how to perform legal research or don’t handle complex cases, or because they only recently started handling bankruptcy cases. Please remember that not all bankruptcy attorneys are created equal—every attorney has different levels of expertise, personality, critical and analytical thinking ability, oratory ability, and willingness to work diligently toward the successful completion of the client’s case. Hiring a bankruptcy attorney is not like buying a gallon of milk at the store, and price is definitely not the only variable to consider when selecting a great bankruptcy attorney.
Bankruptcy Attorney Relational and Communication Ability:
The second element of hiring a great bankruptcy lawyer is also often one of the most overlooked by clients—the ability of the attorney to communicate effectively with the client in a professional and respectful manner. A client should hire an attorney who is courteous, professional in appearance, and who responds to the client in a timely and efficient manner. For example, at Nova Law Group we strive to return all client communications within 24 hours, and often much sooner, but this is not common practice at most bankruptcy firms. Quite to the contrary, there are some bankruptcy attorneys practicing in the field who return client calls late (or not at all), appear to client meetings in jeans and a T-shirt, fail to communicate with clients regarding important court dates, and in some cases, fail to attend the mandatory court dates at all.
At Nova Law Group we strive to not only return all client communications promptly (almost always within 1-24 hours), but also have extended office hours to service our clients. Nova Law Group bankruptcy attorneys schedule client meetings at the client’s convenience, and are available between 9AM and 9PM Monday through Friday, and on weekends by request to schedule meetings. We understand that often clients who are going through financial hardship cannot always take time off work to go see a bankruptcy attorney, and the bankruptcy attorneys of Nova Law Group hold extended evening and weekend hours at our offices in Mountain View, CA for this reason to accommodate our bankruptcy clientele.
In addition to the attorney’s availability, prospective clients should consider the attorney’s personality and whether the client can envision working successfully with the attorney on the bankruptcy case. Clients should find an attorney who can communicate effectively, speaks in a respectful manner, listens to client needs and wants, and answers client questions. Great bankruptcy attorneys are often also available to meet in person with clients, and in most cases, a client should be very skeptical about hiring any attorney who refuses to meet in person, or is frequently unavailable to talk with the client, as the attorney is likely to treat the client with the same level of indifference during the bankruptcy case as well. As stated previously, Nova Law Group bankruptcy attorneys are always available to our clients, whether by phone, email, fax, or in person for a face to face consult, and are often able to book meetings within a 1-3 day timeframe based on client needs. The superior customer service that Nova Law Group bankruptcy attorneys provide our clients is one of the defining characteristics of our firm, and we believe, the reason our bankruptcy firm is rated so highly by clients and recommended so frequently through referral. Whether you are seeking a bankruptcy attorney in Mountain View, CA, or in the Greater Bay Area or San Jose Metro Area in general, feel free to give a Nova Law Group bankruptcy attorney a call and we will be happy to assist you.
Bankruptcy Attorney Location and Geographical Area of Practice:
The third element of hiring a great bankruptcy attorney actually has nothing to do with the attorney’s credentials or personality, but rather is simply a consideration of where the bankruptcy attorney is located relative to where the client needs to file his or her bankruptcy case. The location of any prospective bankruptcy attorney is not only relevant in terms of convenience to the client and the ability of the client to meet with the attorney in person, but also is legally relevant, as bankruptcy attorneys generally only practice before certain bankruptcy courts and might not practice in the bankruptcy court where the client needs to file.
For example, as of the time this article was written, Nova Law Group’s bankruptcy attorneys are based in Mountain View, CA, within Santa Clara County. From our offices in Mountain View, our bankruptcy attorneys practice in the bankruptcy courts in San Jose, San Francisco, and Oakland, which service clients filing in almost every county throughout the Greater Bay Area. As a result, Nova Law Group bankruptcy attorneys can service clients in almost every county in the Bay Area, but there are bankruptcy courts in other states, or in Southern California, or up in Sacramento, where our bankruptcy attorneys do not practice at this time. Even though our bankruptcy attorneys are based in Mountain View, CA, we service clients filing in Morgan Hill, San Francisco, Walnut Creek, and everywhere in between, including almost all cities throughout the Greater Bay Area region.
It is important for all clients to note that the Bankruptcy Code itself often mandates where the client must file a bankruptcy case. For example, in the vast majority of situations, personal bankruptcy clients must file their bankruptcy case in the bankruptcy division of the bankruptcy district where they have lived for the greater part of the last 6 months prior to filing. An illustration of this rule is the following:
John Doe moved from New York, NY to Palo Alto, CA four months before he planned to file his bankruptcy case. John Doe still owns a home in New York, NY, and most of his belongings are still in New York, as he didn’t have the money to move most of his possessions to Palo Alto, CA when he moved.
John consulted a Nova Law Group bankruptcy attorney in Mountain View, CA and asked where he should file his bankruptcy case. The Nova Law Group bankruptcy attorney told John that he must file his bankruptcy case in the San Jose Division of the United States Bankruptcy Court, because the San Jose Division serves Palo Alto, CA, and he has lived in Palo Alto, CA for the greater part of the last 6 months (John has lived in Palo Alto, CA for 4 months). Consequently, John will need to file bankruptcy in the bankruptcy court which services Palo Alto, CA (in this case San Jose Division), because he has lived there for the greater part of the last 6 months—where he lived before or where his belongings are is irrelevant.
This requirement, called “venue,” is a very important element for clients to consider when selecting a bankruptcy attorney, as it will help ensure that your prospective attorney practices in the division in which you must file your bankruptcy case.
Bankruptcy Attorney Fees and Costs:
The fourth important element of hiring a great bankruptcy attorney is cost, but it is evaluated last in this article, because it is often the least important element of hiring a bankruptcy attorney. That is right—it is the opinion of our firm that cost is the least important element of hiring a bankruptcy attorney to handle your case. Why you might ask? The following illustration should help clarify:
Suppose you are told by a reputable heart surgeon at an established hospital that you are about to have a heart attack, and that without a complex, time intensive surgery that only a specialist can perform, you might die within a few months time. This reputable doctor then gives you medical data that substantiates his opinion regarding your condition, proves to you that the surgery is needed, and says that he believes if he performs the surgery himself that it will cost you $10,000 for him to do the work.
Imagine now that you are approached by another surgeon, who you see on “Craigslist,” or meet at the local coffee shop, or see in a tiny web advertisement with cheesy catch-phrases (etc.), and with whom you happen to share your condition when you find out he also “performs surgery” (supposedly). He listens to your story, and then states that he’ll do your entire heart surgery for $500!
If you were in the situation described above, would you hire surgeon #1 or surgeon #2 to perform your life-saving heart surgery? I hope your selection was surgeon #1, or you’d likely end up getting a great bargain, but winding up dead on the operating table.
I give this illustration for one very important reason—to demonstrate to clients that when it comes to hiring a bankruptcy attorney, not all bankruptcy attorneys are created equal. Hiring a lawyer is not like buying a gallon of milk—price comparisons are largely meaningless. This is because so many elements go into the cost of hiring an attorney—experience, intelligence, effective communication, geographical location, quality of work product, attentiveness to client needs, efficiency, reputation, and many others. As a result, a client should never assume that a bankruptcy attorney charging $500 for a bankruptcy case is a “great deal” compared to another bankruptcy attorney charging $2,000 for the same bankruptcy case, as it is likely that the client will get very different levels of service and quality of representation from these two attorneys.
Over his career, Zachary Tyson, the founder and managing attorney of Nova Law Group, has seen the work product of thousands of attorneys. While there are many great bankruptcy practitioners who generate excellent work product and service the needs of clients in an exemplary manner, there are definitely a significant subset of bankruptcy attorneys who do not. Many, although not all, of the bankruptcy attorneys who perform work that is completely unacceptable or fail to meet basic professional standards, come from bankruptcy firms who offer “bargain rates” or other gimmicky sales pitches to lure in clients. Many of these ads, some of which claim that the client can hire a bankruptcy attorney for “$99,” or perform the entire case for “$799,” come from bankruptcy firms that are less than reputable or lack the expertise required to counsel the client effectively. For example, Mr. Tyson has personally witnessed attorneys of other firms, many of which represent “bargain firms,” negligently counsel their clients in all of the following ways:
- Inform clients that their family-owned bakery business could be kept open in a Chapter 7 case, even though the business was not incorporated. Outcome: The Chapter 7 Trustee shut down the clients’ bakery business permanently and called the U.S. Marshall out to ensure its closure, depriving the attorney’s clients of their only means of support.
- File a Chapter 7 bankruptcy case for two clients without checking the value of the clients’ home, resulting in significant non-exempt equity in the home that belonged to the Chapter 7 Trustee and the bankruptcy estate. Outcome: Chapter 7 Trustee informed shocked clients at the 341 meeting that he would likely sell their house for the benefit of the estate, ousting them from their home.
- Attorney arrived at the 341 meeting 30 minutes late with no excuse and then proceeded to sit and look bored, while completely ignoring what the trustee or her client was saying.
- Attorney arrived at the 341 meeting and didn’t know who the Chapter 7 Trustee was, or even what the Chapter 7 Trustee was there for at the meeting. He also didn’t know that the meeting was recorded, and seemed to have no idea regarding the purpose of the 341 hearing for his client, or how to represent his client.
The real-life situations above are just a sample of the attorney negligence of some practitioners of other firms, and we would advise clients to use caution when dealing with any gimmicky bankruptcy firm quoting a bargain-basement rate for legal services. Never has the following old adage been more true when hiring a bankruptcy attorney: “you get what you pay for.”
At Nova Law Group, we strive to provide exemplary service to our clients along with superior work product at an affordable price. Nova Law Group bankruptcy attorneys are neither the least expensive bankruptcy attorneys, nor the most expensive, but rather we believe we provide the best overall value to clients hiring a bankruptcy attorney. For bankruptcy law firms of our caliber and professionalism, we provide a very high-quality of legal work to the client at an affordable price. If you would like to inquire how a Nova Law Group bankruptcy attorney can service your needs in connection with a bankruptcy case, feel free to contact us and we would be happy to assist you.
What Does a Bankruptcy Trustee Do in a Bankruptcy Case?
Wednesday, February 23rd, 2011A bankruptcy trustee is one of many court officials a client will meet as he or she navigates through the bankruptcy process. There are 3 primary types of bankruptcy trustees a client may meet in connection with his or her personal bankruptcy case: 1.) the Chapter 7 Trustee; 2.) the Chapter 13 Trustee; and 3.) the United States Trustee.
The Chapter 7 Trustee is an individual person that all clients who are filing a Chapter 7 bankruptcy case will meet at the 341 hearing, which normally occurs 20-40 days after the filing of the client’s bankruptcy case. The Chapter 7 Trustee has several duties, which include, among other things: 1.) preserving the value of the estate and maximizing the amount of money given to unsecured creditors; 2.) ascertaining whether or not the debtor has hidden assets or committed other types of bankruptcy fraud; 3.) recovering monies that were improperly transferred out of the bankruptcy estate prior to filing (such as preferences or fraudulent transfers); and 4.) distributing any non-exempt assets that exist to pay creditors, if any exist at all. In a Chapter 7 bankruptcy case, the trustee will attempt to determine from the debtor’s statements and schedules, as well as any other information provided or that the trustee can find, what exempt property the debtor gets to keep through the bankruptcy case, and correspondingly, what non-exempt property the debtor must give up to pay creditors (if any). While most Chapter 7 clients do not have any non-exempt assets and get to keep all of their property through the bankruptcy case, some clients that have substantial assets might need to give up some of those assets to pay creditors, and it is the Chapter 7 Trustee’s job to liquidate these non-exempt assets and pay creditors the proceeds to the extent required by law. Many of the exemption rules regarding what property can be kept by the client through the bankruptcy case and what property must be abandoned are very complex, and the assistance of competent counsel is highly recommended to ensure that the maximum amount of client property is protected. If you have questions regarding what property of yours might be exempt in a bankruptcy proceeding, feel free to contact a Nova Law Group attorney and we will be happy to assist you.
The Chapter 13 Trustee is an individual person that all clients who are filing a Chapter 13 bankruptcy case will meet, both at the 341 hearing scheduled 20-50 days after the filing of the client’s bankruptcy case and also at other relevant court hearings regarding plan confirmation. The Chapter 13 Trustee has several duties, which generally include: 1.) ascertaining the value of the client’s exempt and non-exempt property, even though the Chapter 13 Trustee will not liquidate that property; 2.) ascertaining whether or not the debtor has committed any kind of bankruptcy fraud or transferred assets pre-bankruptcy that are disallowed; 3.) distributing available assets to creditors in connection with the payments that are proposed in the client’s bankruptcy plan; 4.) ensuring that the client’s bankruptcy plan pays creditors the proper amounts required by the bankruptcy code; and 5.) ensuring that the client is eligible for Chapter 13 bankruptcy and has secured and unsecured debt below the Chapter 13 debt limits. It is important to note that it is not the Chapter 13 Trustee’s duty to liquidate non-exempt assets and distribute them to creditors, unlike the Chapter 7 Trustee, because in Chapter 13 bankruptcy the client is able to retain even non-exempt property as long as the debtor pays equal value to creditors over the duration of the bankruptcy plan. This is one major advantage of Chapter 13 bankruptcy over Chapter 7 bankruptcy for any client with substantial non-exempt funds, as Chapter 13 allows the client to retain the property anyway by paying creditors an equivalent amount over the next 3-5 years of the Chapter 13 bankruptcy case. If you are in a situation where you think you might have substantial non-exempt assets were you to file bankruptcy, or are considering Chapter 13 bankruptcy for other reasons, feel free to contact a Nova Law Group attorney and we would be happy to service your needs.
The United States Trustee is a branch of the United States Government, closely intertwined with the Department of Justice, which has two primary duties that are performed in both Chapter 7 and Chapter 13 bankruptcy cases. These two duties are: 1.) investigate bankruptcy fraud and other misconduct by both debtors and creditors; and 2.) in Chapter 7 bankruptcy cases, determine whether any client obtaining a Chapter 7 discharge, as opposed to a Chapter 13 discharge, would constitute an abuse of bankruptcy process [11 U.S.C. §§ 707(b)(2), 707(b)(3)]. The first duty of the United States Trustee, to investigate bankruptcy fraud and other misconduct, can take many forms. The United States Trustee, for example, might look into whether or not the client has not reported any assets or liabilities on the bankruptcy statements or schedules, has not reported all of his or her income, has transferred or otherwise hidden assets from the trustee, or has lied about his or her eligibility for bankruptcy. The United States Trustee has very broad powers to look into the financial affairs of any bankruptcy debtor, and in many cases, can subpoena financial records and other documents to uncover bankruptcy fraud or misconduct. However, as long as the client is entirely truthful in all dealings with the court and with the Chapter 7 or Chapter 13 Trustees, the client will never have a problem with the United States Trustee. The one exception to the above has to do with the U.S. Trustee’s second duty, which is to investigate whether or not the use of Chapter 7 bankruptcy by a client would be an abuse of bankruptcy process, and whether that client should be forced to obtain a discharge only in Chapter 13 (or Chapter 11 in rare cases). This duty, a part of which is called evaluating the “Means Test” under 11 U.S.C. § 707(b)(2), is a method the U.S. Trustee uses to determine whether a client could actually pay back a portion of his or her debt in Chapter 13 bankruptcy, and therefore, should not be allowed to file a Chapter 7 bankruptcy. Additionally, the United States Trustee is entitled to make an equitable argument under 11 U.S.C. §707(b)(3) claiming that the debtor’s use of Chapter 7 bankruptcy is “unfair,” and constitutes an abuse of bankruptcy process, the argument being that the debtor can actually afford to pay off his or her debts. It is the experience of Nova Law Group that the United States Trustee generally only objects when the Trustee perceives that the client can actually afford to pay back a portion of his or her debts over time, and due to the overwhelming debt that most clients face going into bankruptcy, these objections are rare. Nevertheless, it is very important to seek competent legal advice in evaluating the “Means Test” and the exceptions to the “Means Test,” as there are many sections of the law regarding this matter that can be effectively raised by competent counsel and sometimes qualify even a high-income debtor for Chapter 7 bankruptcy, even where some amateur practitioners or non-lawyers wouldn’t think it possible. Nova Law Group has extensive experience advising clients regarding the Means Test and similar matters, as well as experience actively litigating such matters with the United States Trustee. If you have questions regarding whether or not you can pass the Means Test or qualify for Chapter 7 bankruptcy, feel free to contact a Nova Law Group attorney and we will be pleased to assist you.
Should I Sell My House in a Short Sale?
Thursday, August 26th, 2010Many clients of ours often ask whether selling a home in a short sale is a good idea, either with a bankruptcy case planned or while considering non-bankruptcy alternatives. It is almost always the case that a client’s bankruptcy options are superior to those derived from a short sale, but there are situations in which it benefits a client to at least communicate with creditors regarding a short sale, even if no short sale is eventually completed.
The simple definition of a short sale is a sale in which you sell your home for less than the amount of money you owe to all of your creditors on the property. Short sales require the consent of all lenders, lien holders, and other secured creditors who you owe a debt to secured by your house, and unanimous consent must be obtained. In other words, every creditor you owe money to that is secured by your home must agree to a short sale, and on properties with multiple creditors holding liens, this can be a very challenging goal, particularly where there are multiple mortgages on the property.
For example, if you own a home that is currently worth $600,000, and you owe your first mortgage company $800,000 and your second mortgage company $200,000, then your home cannot be sold for at least the value of the debt that you owe on it. In this situation, if you wanted to sell your home, maybe because you can’t make the payments on the house, you could consider a short sale, if you could obtain the permission of every lender who loaned money to you on the property. In the situation above, to sell your home in a short sale, you would need to convince the first lender to accept only $600,000 for its claim of $800,000 on the property, and somehow obtain the approval of the second lender, even though that creditor would normally get nothing, as there is no money from the sales price that can be used to pay them if the home sells for $600,000. When a second lender does approve a short sale transaction, it is often because either the first lender or the seller has agreed to compensate them in some way, for example, by paying the second lender $5,000 to approve the short sale and waive the remaining $195,000 ($200,000-$5,000) of the second lender’s claim. If unanimous consent from all lenders is obtained, then the property can be sold through a short sale, if there is a willing buyer for the property.
It is the opinion of Nova Law Group that short sales almost never benefit the client, but there are circumstances where merely talking to lenders about a potential short sale might be. For many clients, merely discussing the possibility of a short sale with a lender might buy the client months of living in the house without the lender moving toward foreclosure, as some lenders figure that foreclosure is not cost-effective if you are willing to sell your home to a qualified buyer anyway. This can benefit a client, because it basically means that while your realtor or the lender attempts to find a buyer, you may get to live in the house free of charge, possibly for months or even years. This is particularly true where real estate has dropped significantly, because there may not be many buyers looking to purchase property and it may take a long time for the lender or your realtor to find a buyer, giving you more time in your home. This is of course only true if your lender is willing to stop all foreclosure proceedings during the negotiation of the short sale. Without this, there is really no benefit to the client in talking with them.
While talking with a lender about a short sale can sometimes be beneficial to a client for the reasons stated above, actually completing a short sale is rarely, if ever, a good idea. While the list of reasons why a short sale is generally a terrible option for clients is too large and complex to put in one blog post, some of the biggest reasons are discussed below.
First, when you complete a short sale, you often lose the home right away, or within about a month of the time the transaction is completed. Losing the home quickly in a short sale to a buyer means that you can’t live in the property free of charge, for months or even years on end, because you have voluntarily given it up. For example, if you agree with a lender to do a short sale, and the lender finds a buyer within 2 weeks for your home at a tremendously reduced price, then you might need to leave your home in a total of 6 weeks or so, when the deal closes and the right to possession of the property is transferred. In contrast, if you were to simply do nothing at all and let the lender evict you, you would get a minimum of 90-180 days in your home during the notice of default period (depending on the applicability of Cal. Civ. Code Sections 2923.52, 2923.53), and then another 20 days during the notice of sale period, resulting in a total time in your home of 4-7 months. Additionally, it often takes the foreclosure department of a bank a lot of time to get its act together and actually commence foreclosure proceedings, meaning additional time living in your home free of charge. As a result, it is almost never a good idea to effectuate a short sale on your home, because it deprives you of the ability to live in your house for many months or years free of charge, allowing you to save a lot of money for a subsequent move or other purposes.
Second, it is sometimes the case that a lender will sue you after selling your home in a short sale, for the amount of the difference between the money you owed them and the amount they received in the short sale for the property. This occurs regularly, even in situations where the lender can’t legally sue you, because the lender hopes that you’ll be too broke to hire an attorney to defend your rights, and that they will get away with obtaining a judgment against you for the deficiency as a result. Some deficiency judgments can be for several hundred thousand dollars, and while a short sale does not ensure that you won’t be held responsible for a deficiency judgment, bankruptcy almost always does. Additionally, don’t simply take the lender’s word that they won’t sue you for a deficiency judgment after completing a short sale, as many lenders are not honest with their former clients in this regard. All short sale agreements should be reviewed by a competent attorney to ensure that there is no liability on the client’s part after the short sale. However, it is the opinion of Nova Law Group that a short sale should never be done at all.
Third, many people consider a short sale even on a home they would like to keep, simply because they can’t afford the full payment on the home, or can’t afford to bring the back payments (arrearage) current. At Nova Law Group, we encourage our clients to evaluate whether a bankruptcy alternative might be a more powerful resolution to keeping a client’s home or resolving the debt, instead of completing a short sale that may be completely unnecessary. For example, it is possible in a Chapter 13 bankruptcy to force a secured lender to accept small monthly payments for the arrearage on your house, instead of a lump-sum payment as the lender often demands. In a hypothetical situation where you owe $60,000 in back payments (arrearage) on your home, you might be able to force the lender to accept $1,000 per month over 5 years, instead of all $60,000 upfront, and keep your home instead of selling it. However, this strategy requires that the client be able to afford to make not only the small arrears payments each month, but also the full mortgage payment as well, although other creditors often do not need to be paid (like credit card debt and other unsecured debt). At the same time, making up the arrears is not the only way bankruptcy offers vastly more options to keep your home relative to a short sale, which often quickly disposes of it. For example, in a Chapter 13 bankruptcy it is sometimes possible to permanently remove a junior lien, like a 2nd, 3rd, or 4th mortgage from your home permanently, which often means you never need to pay on the loan ever again. This allows some people who can afford the first mortgage, but not the second or any subsequent mortgage, to strip those liens permanently off the property and keep their home in the process.
In essence, bankruptcy offers many opportunities that simply don’t exist in a short sale to either keep your home, or to live in your home free of charge for as long as possible, saving money in the process. If you are in a position where you are facing foreclosure, Nova Law Group encourages you to consider bankruptcy options in addition to options regarding a short sale, as it is our opinion that bankruptcy is generally a far superior alternative. Although it may sometimes benefit a client to “talk” about a short sale with a lender, it almost never makes sense to actually complete a short sale transaction, and at Nova Law Group we advise our clients accordingly. If you would like to explore bankruptcy options as they might apply to your individual situation, a Nova Law Group attorney would be happy to assist you.
What Can I do When my Home is in Foreclosure?
Wednesday, November 4th, 2009If your home is in foreclosure, you have many options, both legal and non-legal. This section is designed to explore the basics of some options that either delay foreclosure, or prevent the foreclosure from proceeding permanently. This article is not designed as a comprehensive demonstration of foreclosure strategy and litigation, but is rather a description of some constructive responses to foreclosure. If you would like to consult with an attorney regarding your situation, a Nova Law Group attorney would be happy to provide you with a free consultation to discuss your legal options.
Common Legal Options to Avoid or Delay Foreclosure:
- Filing for Chapter 7 Bankruptcy: This generally delays foreclosure proceedings about 2-3 months while the creditor files a motion for relief from stay to continue the foreclosure. Some creditors will wait until the bankruptcy case is over, rather than file a motion for relief from stay, in which case the foreclosure might be delayed 3-4 months instead. We strongly advise consulting an attorney in this situation, as a bankruptcy that is filed at the wrong time will provide absolutely no delay whatsoever during the foreclosure. In addition, Nova Law Group does not advise clients to declare Chapter 7 bankruptcy merely to delay foreclosure proceedings.
- Filing for Chapter 13 Bankruptcy: If a debtor can make the payments for the home under the bankruptcy plan, then Chapter 13 bankruptcy can theoretically allow the debtor to keep the home entirely. Even if a debtor does not complete the plan due to unexpected circumstances, the good faith attempt by the debtor to pay under the plan will delay foreclosure many months or years. The substantial challenge in using Chapter 13 bankruptcy to delay or avoid foreclosure is that the debtor must be able to afford the plan payments, which means the debtor must be able to pay the creditor on the loan. Chapter 13 is usually appropriate as a foreclosure avoidance method when the debtor has missed multiple back payments on the home and cannot bring the mortgage current, but can afford to make payments going forward, perhaps due to recently finding a job or recovering from physical injuries. Nova Law Group does recommend filing for Chapter 13 bankruptcy to avoid or delay foreclosure, as long as the filing represents a good faith attempt on the part of the debtor to resolve his debts.
- Consumer Protection Litigation: The federal government and the states have passed legislation protecting borrowers from unscrupulous acts on the part of lenders and other creditors. Many lenders fail to comply with the requirements of these federal and state consumer protection statutes, and these lending violations can lead to damages and injunctive relief against lenders in some instances. In some cases, this type of litigation can delay foreclosure or bring a creditor to the table for negotiations. Some common consumer protection statutes that lenders violate are the TILA (Truth in Lending Act), the HOEPA (Home Owner Equity Protection Act), the RESPA (Real Estate Settlement and Procedures Act), and numerous state statutes governing lending and foreclosure procedures. While all of the above statutes are frequently violated by creditors, not all of our clients will be able to pursue these options or have a valid good faith legal claim to challenge a foreclosure proceeding. If you would like to explore whether these options apply to your situation, a Nova Law Group attorney would be happy to discuss whether any of these options might be available to you.
Common Non-Legal Options to Avoid or Delay Foreclosure:
- Bring the Loan Current: This option is the best option, but also generally not a viable option for most people in foreclosure. However, if you are able to bring the loan payments current, including any fees and costs the lender has incurred over the course of the foreclosure, then you are legally allowed to do so until 5 days before the foreclosure sale. After this period, you must pay the entire loan balance to stop the sale.
- Work out a Deal with the Lender: Many lenders hate foreclosure just as much as you do. For the most part, lenders do not want to own your house. Lenders only want their money and to be paid regular payments as agreed. If you can propose a viable plan to bring the loan current, or at least pay regular on-time payments going forward, most lenders will negotiate. However, you should negotiate with the lender yourself or hire an attorney to negotiate on your behalf. Do not ever hire a “mortgage consultant” or anyone trying to give you a “quick fix” to your mortgage problems, as these businesses are frequently scams. Even the reputable companies in the industry cannot do anything that you or a good lawyer cannot.
- Execute a “Short-Sale”: A short sale is a sale to a third-party buyer where the proceeds from the sale are not enough to cover the debt you owe on the home. The lender must approve a short sale, because it is basically agreeing to receive less than the money you owe it on the home. Some lenders will agree to this arrangement when it seems that the alternative is a long and expensive foreclosure, but you will have to find a buyer for the home. If you intend to execute a short sale, it is our strong advice that you consult an attorney, or you could remain liable for any money still due the lender on the sale. In our firm’s opinion, short sales are almost never the best option to resolve a foreclosure on your home.
- Execute a “Deed in lieu of Foreclosure”: A deed in lieu of foreclosure is a transaction where you essentially give the keys back to the lender and walk away. Like a short sale, if you plan to execute a deed in lieu of foreclosure, we advise you to consult with an attorney, or you might still be liable for any debt owed the lender if the lender cannot recoup its losses on the home. Our firm rarely, if ever, advises clients to execute a deed in lieu of foreclosure, as this is almost never the client’s best option.
Our firm hopes that you find the above discussion informative and that it helps you have a greater understanding of your legal options. If you would like to discuss any of these options with an attorney, feel free to contact Nova Law Group to discuss whether any of the above options might apply to your situation.
How long does Bankruptcy stay on my Credit Report? Will Bankruptcy Affect My Credit?
Wednesday, November 4th, 2009One disadvantage of a bankruptcy filing is that the credit of the debtor will be negatively affected for a long period of time, but not forever. While the length of time that creditors consider a bankruptcy filing in making a credit determination varies, the following provides the “conventional wisdom” regarding the effect of bankruptcy on credit determinations. Most creditors consider a Chapter 7 bankruptcy filing in making credit decisions for a period of 7-10 years, and a Chapter 13 bankruptcy filing for a period of 4-7 years. The more years that have passed since a bankruptcy filing, the fewer creditors consider it a factor in their decision-making. In addition, on-time payments to creditors after bankruptcy can affect your credit positively, helping to combat the negative effects of a bankruptcy filing. In addition, a home foreclosure is generally considered by creditors for a period of about 4 years, and this is a useful comparison when evaluating the negative effects of bankruptcy on credit. Fortunately, if you are in foreclosure and then declare bankruptcy, the time periods do not stack. In other words, if you file a Chapter 7 bankruptcy while in foreclosure or not in foreclosure, the effect on your credit is the same.
Can my Employer Fire Me for Declaring Bankruptcy? Will I lose my Job?
Wednesday, November 4th, 2009Federal law requires that no private or government employer fire you because you have filed for bankruptcy. If a government or private employer violates federal law against bankruptcy discrimination and fires you anyway, you can sue them in state court or federal bankruptcy court. Additionally, government employers are prohibited from considering your bankruptcy filing when you apply for a job, although unfortunately, private employers can. If a private employer denies your job application (as opposed to firing you which is prohibited), you probably have little recourse. Fortunately, many employers do not consider credit when making employment decisions, and government employers are prohibited from doing so.
Does my Spouse have to File for Bankruptcy if I do?
Wednesday, November 4th, 2009There is no requirement that a married couple file jointly for bankruptcy. Both spouses can file for bankruptcy separately or jointly, and they need not file bankruptcy at the same time. Some of our clients choose for one spouse to file bankruptcy, usually in cases where the filing spouse is liable for most of the debts, or when the non-filing spouse has excellent credit to protect. The analysis below attempts to cover some of the major legal issues that apply to discharge in the marital bankruptcy context. Additionally, this analysis will focus only on bankruptcy effects in community property states, like California.
The general rule in community property states regarding spousal liability for debts is that any debts accumulated during the marriage are the debts of both spouses, regardless of whether only one spouse signed the agreement. Debts that were incurred prior to the marriage are generally the separate debts of the spouse who originally incurred them.
Given the general rule, most debts accumulated during marriage are debts of both spouses, whereas most debts accumulated before marriage are debts of one spouse. In situations where only one spouse is liable for the debt, it generally does not make sense for the other spouse to declare bankruptcy to remove a debt for which he or she is not liable. However, in situations where both spouses are liable for the debt, the analysis is much more complex, and an attorney should be consulted. If both spouses are liable for a debt (called a “community debt”), then both spouses must file for bankruptcy or the non-filing spouse will still be liable for the debt. However, because all of the filing spouse’s property is still community property and the filing spouse’s discharge prevents creditor attachment to the community estate, it is possible that all community property (including all property of the filing spouse and the non-filing spouse) may be protected by only the bankruptcy of the filing spouse. In other words, the filing of one spouse may protect all community property, including the community property of both spouses, as long as the community exists (the spouses remain married). However, the separate property of the non-filing spouse can still be targeted by creditors, and should the spouses later divorce, no property of the non-filing spouse would be protected as the community estate would cease to exist. If the above situation applies to your case, it is highly recommended that you contact Nova Law Group and seek the advice of an attorney, as the law in this area is quite complex.
What Property can I keep if I File for Bankruptcy?
Wednesday, November 4th, 2009Most people filing for bankruptcy are able to keep the vast majority of their personal property, and sometimes, real property such as the family home as well. While the actual determination of what property a debtor can keep is very complex and beyond the scope of this article, the following analysis is designed to give readers an idea of what property they can normally claim as exempt in bankruptcy (property that can be kept). It should also be noted that the property a debtor can keep varies substantially based on whether a Chapter 7 or a Chapter 13 bankruptcy is filed.
Chapter 7 Bankruptcy:
Personal property, like clothing, furniture, games, automobiles, art, musical instruments, and other personal effects can almost always be kept. The one major exception to this general rule is if the item is very valuable and you have far less debt on the item than it’s worth (in bankruptcy terms, your non-exempt equity in the item is high). An example of an item that you might not be able to keep is a $40,000 BMW that you own free and clear. However, if you own the $40,000 BMW, but still owe $45,000 on the car to the lender, then you might be able to keep it, because you have more debt on the car than it is worth (i.e. no non-exempt equity in the car). Another exception is if the property is security for a debt. If a creditor has a security interest in your personal property as collateral for non-payment of the creditor’s debt, seek the advice of an attorney.
Real property, generally known by the more common term “real estate,” is treated very differently in bankruptcy than is personal property. In a Chapter 7 bankruptcy case, the debtor will not be able to discharge most debts that are secured to the home, like mortgages, and will have to remain current on the mortgage in order to keep the home. This is because a Chapter 7 bankruptcy case discharges the liability to pay the debt, but not the lien on the home, which still allows the lender to foreclose on the home in the event of non-payment. On a more positive note, the amount of equity a debtor can claim as exempt in a home is generally much higher than the exemption amounts for personal property. This means that some debtors can keep their homes even if they have substantial equity in the property (owe less than the home is worth), as long as they remain current on the mortgage.
Chapter 13 Bankruptcy:
In a Chapter 13 bankruptcy the debtor generally maintains control of all of her personal and real property, as long as she can make the payments under the bankruptcy plan. This is an advantage of utilizing Chapter 13 bankruptcy, as long as the debtor can make the plan payments over the 3-5 year period of the plan—a very challenging task. It is also possible to give up some property in a Chapter 13 bankruptcy and keep other property. Generally this is done where the debtor can afford to make payments on some property under the plan, but not all of the property.
What Debts are Discharged in Bankruptcy? What Debts Survive Bankruptcy?
Wednesday, November 4th, 2009Most clients find that a bankruptcy discharge eliminates the vast majority of the debt the client owes to creditors. While some debts survive a bankruptcy filing, most clients are able to drastically reduce or eliminate their debt entirely through bankruptcy. It should also be noted that the types of debts that are dischargeable in bankruptcy vary somewhat in a Chapter 7 as opposed to a Chapter 13. The lists of dischargeable and non-dischargeable debts below are not designed to be comprehensive, but rather are a useful starting point to determine what general debts are dischargeable in a client’s bankruptcy case under most circumstances.
Examples of Dischargeable Debts (Debts that can be eliminated):
- Credit Cards
- Bills for Professional or other Services (including medical and legal bills)
- Debts that are Unsecured (e.g. Personal IOUs and Most Business Debts)
- Deficiency Judgments
- Most lawsuit Judgments (except drunk driving or sometimes malicious acts)
- Some tax debts (income taxes that became due more than 3 years before filing)
- Amounts owed on Property (but lien still exists, so lender can still foreclose usually)
Examples of Non-Dischargeable Debts (Debts that cannot be eliminated):
- Student Loans (except in very rare circumstances involving extreme hardship)
- Most types of Taxes (Some income tax debts, property taxes, some government fines)
- Debts where you Defrauded the Court or Creditors
- Debts from Embezzlement, Larceny, or Breach of Fiduciary Duty (If creditor objects)
- Debts arising from your Willful and Malicious Actions (If creditor objects)
- Debts for Luxuries incurred within 90 days of your Filing (if they exceed certain amount)
- Debts you Obtained through a False Statement of Financial Condition (If creditor objects)
In addition to the above types of dischargeable and non-dischargeable debts, some types of debts are dischargeable in Chapter 13 bankruptcy, but not in Chapter 7 bankruptcy.
Examples of Debts Dischargeable Only In Chapter 13 Bankruptcy:
- Marital debts in accordance with a divorce settlement agreement
- Debts you Incurred to pay non-dischargeable taxes
- Court fees
- HOA dues incurred after your Bankruptcy Filing
- Debts you Borrowed from your own Retirement Plan
- Debts not discharged in a previous Bankruptcy
While the above lists are not comprehensive examples of all debts that can be dischargeable and non-dischargeable in bankruptcy, we hope that this discussion will lead to informed choices regarding your legal options regarding your debt. If you choose to seek legal counsel regarding a debt or have further questions, a Nova Law Group attorney will be happy to assist you.
Can I Transfer Property to Friends and Relatives before I File Bankruptcy?
Tuesday, November 3rd, 2009Clients often ask our lawyers if they can transfer valuable property to friends and relatives right before filing bankruptcy and not list it on their bankruptcy papers. This question has a simple answer, which is probably the answer you expected—you cannot. The bankruptcy code requires that all gifts and other transfers of property for the previous 2 years be listed in your bankruptcy papers, which you must sign under penalty of perjury. Knowingly failing to list a property transaction in your bankruptcy papers is a felony. In addition, if the bankruptcy court finds that you defrauded your creditors in connection with your bankruptcy case, it can refuse to discharge any or all debts in your case. In other words, transferring property to friends or relatives (or anyone else) for the purpose of concealing it from your creditors is a very bad idea.
In contrast, a completely legal way to retain most property in connection with your bankruptcy case is to claim it as exempt and list it in your bankruptcy papers. In our professional opinion, much of the property that clients are sometimes tempted to conceal can be legally claimed as exempt under one of the state or federal exemption rules, and therefore, can be saved in a completely legal manner.
In summary, concealing transfers of property prior to your bankruptcy case is illegal and a very bad idea. However, most personal property can generally be claimed as legally exempt in a bankruptcy case, and this is a legal, ethical, and smart method to retain your personal property after bankruptcy.
What is a Budget Counseling Requirement?
Tuesday, November 3rd, 2009The bankruptcy code requires that all debtors obtain personal financial management counseling (also called “budget counseling”) prior to receiving a discharge in the bankruptcy case. After you declare bankruptcy, but before you obtain any discharge in the case, you must obtain a certificate indicating that you received this approximately 2 hour long seminar. Nova Law Group recommends that this personal financial management counseling occur with the same organization that performed your credit counseling before the filing of your bankruptcy case, although this is not required. In any event, you should select an organization that is listed on the United States Trustee’s website as being a certified service.
Budget counseling must be obtained within 45 days of the first meeting of creditors, but after the filing of your bankruptcy case. Failure to present evidence of a certificate of budget counseling to the court will likely result in the dismissal of your bankruptcy case without a discharge.
What is a Credit Counseling Requirement?
Tuesday, November 3rd, 2009The bankruptcy code currently requires that all people filing for bankruptcy receive mandatory credit counseling from a certified credit counseling agency before filing. Credit counseling is required even if it is unlikely to culminate in a workable plan for the client, and the bankruptcy code requires that this credit counseling be obtained by the client within the 6 month period preceding the bankruptcy filing. Additionally, Nova Law Group advises that clients not obtain credit counseling the same day as a bankruptcy filing; it is preferable to obtain the counseling at least one day in advance of the bankruptcy filing date.
When a client attends credit counseling, the credit counselor will attempt to work out a viable plan for repayment of the client’s debts outside of bankruptcy. In some cases, this is likely to be an exercise in futility, but all clients must go through the process before filing for bankruptcy. Typically a credit counseling meeting takes 1-3 hours, and at the end of the meeting, the counseling agency will give the client a certificate demonstrating completion of the program. It is this certificate that the bankruptcy court will require you to present to prove that you went through the counseling before filing for bankruptcy. Without this certificate, the court will likely dismiss your case.
A list of certified credit counseling agencies can be obtained on the website of the United States Trustee. Nova Law Group recommends that clients make certain that the credit counseling agency chosen is an agency that is certified on the U.S. Trustee’s website.
Will Bankruptcy Stop Creditors from Calling Me? How do I Stop Creditor Harassment?
Tuesday, November 3rd, 2009Many of our clients initially consider filing bankruptcy because they want to stop bill collectors and other creditors from harassing them at work or home. Creditor harassment is illegal and can be stopped, and there are many options that accomplish this result.
Bankruptcy will stop creditor harassment immediately. If a creditor ignores your bankruptcy filing and disregards the automatic stay, there are severe consequences for the creditor, including hefty fines and contempt of court charges. If a creditor calls you after your bankruptcy petition is filed and attempts to collect a bill, simply inform the creditor of your bankruptcy filing, including the case number and filing date and the creditor should back down. If a creditor persists in harassing you in violation of federal law, contact a lawyer immediately.
While bankruptcy will stop creditor harassment, you don’t need to declare bankruptcy to stop creditors or bill collectors from contacting you. The Fair Debt Collection Practices Act also prohibits many types of creditor harassment and applies to bar creditor communications with a debtor in most contexts.
In summary, no client should ever have to cope with creditor harassment, and illegal harassment can be stopped both in and out of bankruptcy. If you have been the victim of creditor harassment, Nova Law Group will be happy to consult with you regarding your legal options.
Is Bankruptcy Confidential? Will my friends know that I filed for Bankruptcy?
Tuesday, November 3rd, 2009Many clients of our firm are concerned that their friends, relatives, or business associates will learn of their bankruptcy and have a negative reaction. It is our professional opinion at Nova Law Group that these concerns are unwarranted in the context of the vast majority of bankruptcy filings. In other words, except in the most unusual of circumstances, it is likely that no one you care about will learn of your bankruptcy filing unless you tell them.
Bankruptcy filings are technically matters of public record, and in theory, someone you know could go down to the courthouse and search for non-confidential information involving your filing. Confidential information, like your social security number, is not available as a public record for security reasons. The public nature of bankruptcy filings makes it possible, although extremely unlikely, that a friend, relative, or business associate of yours would find information regarding your bankruptcy case. Most people have better things to do than stalking the local courthouse to uncover potential information regarding possible bankruptcy filings of their friends and relatives. This would be an enormous waste of free time, and many people don’t know that information regarding bankruptcy filings is even available. As a result, although it is theoretically possible that someone you know could learn of your bankruptcy filing, it is very unlikely that they ever would.
Perhaps the only exception to the above rule is that a friend, relative, or business associate of yours will be aware of your bankruptcy case if that person is also your creditor. When you file bankruptcy, all of your creditors will receive notice from the court regarding your bankruptcy filing and how to protect any rights they may have regarding payment from the bankruptcy estate. Accordingly, friends, relatives, and business associates who are also creditors of yours will know about your bankruptcy filing.
In our experience, in the very rare instances when a personal connection of our client finds out about the client’s bankruptcy case, it is generally not an issue. Most people understand that bankruptcy exists for a reason—to get people on their feet again, and that the vast majority of bankruptcy filers are hard-working people who have just hit very challenging times. Many of our clients are reluctant to discuss bankruptcy with friends, relatives, and colleagues, only to find that these same people are generally compassionate regarding the client’s situation. In the humble opinion of our firm, we believe that people who reach an educated decision to explore bankruptcy options are taking charge of their financial situation and the cards life has dealt them. These choices should be viewed as positive empowerment on the part of the client and a demonstration of resolve to work through the client’s debt problems toward a constructive solution. In our view, any negative stigma to these positive decisions is almost always misplaced, and is a reflection only of ignorance relating to bankruptcy’s purpose. Our firm commends our clients for taking affirmative steps to resolve their debts and move on to a fresh start in life.
What is the Means Test? How do I pass the Means Test?
Tuesday, November 3rd, 2009The “means test” is a computation designed to determine whether some higher-income bankruptcy filers should be forced to file a Chapter 13 plan rather than a Chapter 7 plan. This means that some higher-income people who fail the means test may not have the choice to file a Chapter 7 bankruptcy case.
While the means test prevents some high-income people from filing for bankruptcy under Chapter 7, most people filing for bankruptcy either do not need to take the means test, or pass the means test and can file a Chapter 7 bankruptcy case anyway.
Any person filing for bankruptcy who earns less income than the median state income for the state in which he lives, adjusted for the number of dependents in his household, does not need to take the means test. In other words, if you make less than the median income for your state, adjusted for the number of your dependents (children, elderly grandmother, etc.), then the means test will not prevent you from filing a Chapter 7 bankruptcy case. There are many other factors you may have to meet to file a Chapter 7 bankruptcy case, but the means test will not present a problem for you. However, if you earn more income than the state median, then you must proceed to the second step and see if you pass the means test.
The actual means test calculation is very complex and is beyond the scope of this article, but the simple way of looking at the test is to compare your total income from all sources with your total expenses and see if there is anything left at the end of the month. In other words, if you are a high-income filer, but you have almost no money left at the end of every month after paying your reasonable expenses, then you might pass the means test and be eligible to file Chapter 7 bankruptcy. However, if you have a lot of money left after paying your expenses, then it is likely that you will not pass the means test. If you fall into this second category of people, it is highly-advised that you consult with a lawyer, as there are legal arguments that can still be made on your behalf should you choose to file a Chapter 7 bankruptcy case. It should be noted that you can still file for bankruptcy under Chapter 13 even if you do not pass the means test.
What is the Difference between Chapter 7 and Chapter 13 Bankruptcy?
Monday, November 2nd, 2009The differences between Chapter 7 and Chapter 13 bankruptcy are numerous, but this article is designed to cover some of the biggest differences between a filing under each. The following provides a comparative analysis of the some basic distinctions between each bankruptcy chapter as applied to some typical concerns of debtors.
What Property do I have to Give Up in Bankruptcy?
Chapter 7: Generally all property that is not covered by a bankruptcy exemption must be given up to pay off the debtor’s creditors. It should be noted that there are many exemptions under State and Federal law to be claimed and that frequently many debtors are able to keep all property of minor to moderate value. Some notable exceptions are homes or cars with substantial equity (but not those without equity or minor equity), expensive luxury goods, investments, and anything of high value not covered under an exemption. Talk with an attorney to see if the property you want to protect can be exempted. If an exemption is available, then you will not need to give it up in bankruptcy.
Chapter 13: Generally the debtor gets to keep all of his property, as long as he can make the plan payments allocated the specific creditor in question over the term of the bankruptcy case. This is a major advantage of Chapter 13 bankruptcy, as the debtor gets to keep control of the property as long as he can afford the payments. However, the debtor must continue making all payments under the bankruptcy plan as ordered by the court. If at any time the debtor fails to make payments on the property, control of the property may be lost depending on the situation. In addition, debtors are entitled to claim the same exemptions as they would be entitled to take in a Chapter 7 case.
How Long does Bankruptcy under each Chapter Last?
Chapter 7: Normally lasts 3-4 months from filing until discharge.
Chapter 13: Normally lasts 3-5 years, assuming the completion of a successful plan by the debtor. It is very difficult to make plan payments for 3-5 years and only the most diligent of people will be able to accomplish this task, as it requires living very modestly for a very long period of time. This is a disadvantage of Chapter 13 bankruptcy.
How much will Each Type of Bankruptcy Cost?
Chapter 7: Fees and costs change, but you can generally expect bankruptcy under Chapter 7 to normally be about 30-50% of the cost of a similar Chapter 13 case.
Chapter 13: See above. More expensive than Chapter 7 bankruptcy due to the complexity of the case and the number of attorney hours required.
Can I file for Chapter 13 Bankruptcy?
Monday, November 2nd, 2009This section is designed to provide guidance regarding eligibility to file a chapter 13 bankruptcy case. Please note that people who do not qualify to file a bankruptcy case under chapter 13 of the bankruptcy code may still be able to file bankruptcy under chapters 7, 11, or 12, of the code.
The most important consideration when a client decides she would like to file a chapter 13 bankruptcy case is whether or not she has the income or assets to propose a confirmable chapter 13 plan. The essence of chapter 13 bankruptcy is a commitment to pay your creditors back over a long period of time, usually 3 to 5 years, and your proposal to repay the creditors is called the “plan.” Similarly, a “confirmable plan” is basically a plan where the debtor has enough income or assets to pay all types of creditors which the bankruptcy code says must be paid in full, and some portion, although not always, of creditors who need not be paid in full. Creditors who must be paid in full in a chapter 13 case include: child support not owed state agencies; chapter 13 trustee fees; most tax debts; and secured debts that will outlive your plan (like most mortgages). The vast majority of chapter 13 bankruptcy cases are proposed with the idea of obtaining confirmation of a bankruptcy plan. However, as long as a case is proposed in “good faith” toward creditors, it is possible to file a chapter 13 bankruptcy case in which plan confirmation is not the ultimate goal. As an example, some clients of Nova Law Group may need a temporary reprieve of a few weeks to a few months to execute a transaction, like the sale of a home or other valuable property, and need the protection of the automatic stay to prevent a foreclosure. This is an acceptable use of chapter 13 bankruptcy, as long as the case has been filed in good faith and with a sale or other transaction in mind that will result in creditors receiving payment, even if payment is deferred or delayed. As the automatic stay prevents nearly all types of enforcement actions, including foreclosure actions from proceeding against the client, chapter 13 bankruptcy can be a very effective means of obtaining a reprieve from creditors while a plan is formulated for retaining or selling the home, whichever is in the best interests of the client.
While the exact calculation for proposing a chapter 13 plan is extremely complicated and beyond the scope of this article, the simple way of calculating whether or not you can propose a confirmable plan is to do the following: add up all income earned or received from all sources; add up all of your expenses on everything that you intend to keep after filing bankruptcy, including cars, homes, food, utilities, etc.; add up all payments that you would have to make to creditors that “must be paid in full” (described above) and divide by 36 or 60 (3 or 5 year plan); add 10% to your expenses for the chapter 13 trustee’s fee; and now compare your income to the sum of all the expenses listed above. If you’re income is still higher than the sum of all of the above expenses, then you can possibly propose an eligible chapter 13 plan. However, the list above is by no means an accurate representation of every step in determining your eligibility for chapter 13, and you should definitely seek the counsel of an attorney if you want to consider filing a chapter 13 case. The list is only designed as a rough estimate to determine your eligibility, and the actual computation is much more complex. If it seems like you may be able to propose a confirmable plan, then you can move on to the final steps for determining eligibility to file chapter 13 bankruptcy. Additionally, clients with substantial assets may be able to utilize assets (generally cash, stock, bonds, or other liquid assets) to make payments required by the chapter 13 plan, if income is insufficient to make such payments. Accordingly, it is possible to obtain confirmation of a plan where income does not exceed expenses, if there are other sources of money (such as assets) to make the payments required by the chapter 13 plan.
To file a chapter 13 bankruptcy, you must have secured debt less than $1,395,875 and unsecured debt less than $465,275, or your case may be subject to dismissal or conversion at the discretion of the bankruptcy court. These numbers change regularly however, so consult with an attorney to ensure that accurate numbers are used. A “secured debt” is basically a debt whereby the creditor can seize the property itself if you don’t pay. A secured debt always has a “lien” which attaches the debt to property. Examples of secured debts are automobile loans, home loans, construction liens, UCC liens, and many others. In contrast, an “unsecured debt” is a debt where the creditor can sue you if you don’t pay, but can’t take away any of your property directly. Examples of unsecured debts are your personal debt to Aunt Mary Jane, your unpaid dentist bill, parking tickets, credit card debts, medical bills, and so on.
To propose a confirmable chapter 13 plan, you must also pay your creditors at least what they would have received if you had filed for chapter 7 bankruptcy. One of the advantages of a chapter 13 bankruptcy is that you generally get to keep even valuable property with substantial equity, if you can afford to make the payments. This provision ensures that creditors aren’t in a worse position because you filed for chapter 13 bankruptcy than they would be in chapter 7 bankruptcy, had you filed in that chapter.
If it seems like you meet all or most of the requirements posted in this section and are interested in filing a chapter 13 bankruptcy case, then we recommend you consult with an attorney regarding the possibility of filing chapter 13 bankruptcy. Nova Law Group is pleased to provide you with a free consultation to consider your chapter 13 bankruptcy options.
Can I file for Chapter 7 Bankruptcy?
Monday, November 2nd, 2009This section is designed to describe the major categories of people who can file for bankruptcy under Chapter 7 of the bankruptcy code. While not all people are permitted to file for bankruptcy under Chapter 7, most people can if they choose to do so.
There are many categories of people who will always be allowed to file for Chapter 7 bankruptcy under the code, barring fraud or the most unusual of circumstances. Some categories of people who are almost always allowed to file under Chapter 7 include:
- Debtors who have primarily business debts to discharge as opposed to personal debts.
- Debtors who meet the status of a disabled veteran under the statute.
- Debtors who earn less than the median income for the state, adjusted for both the number of dependents in the debtor’s household and also averaged over the six months leading up to the bankruptcy filing.
In addition to the categories of people listed above, some filers who do not meet any of the above listed tests can still file for Chapter 7 bankruptcy under the code. The most common reason that a person might not meet the standard tests is that the person earns more than the median state income and has primarily consumer (not business) debts. In this case, the person would need to pass what the bankruptcy code calls the “means test.”
The means test was designed to determine whether any given debtor can pay back some of the debt he owes over time in connection with a Chapter 13 plan. As a practical matter, the means test is designed to force some debtors who prefer to file a Chapter 7 bankruptcy case into Chapter 13 instead, where they will be required to pay back a portion of what they owe to creditors over 3 to 5 years. The application of the means test is a highly-complex calculation involving certain income and expenses applied in different proportions to calculate your payment ability, and it is advised that you contact an attorney if you fall in this category of people and want to file a Chapter 7 bankruptcy case. If you pass the means test, you will likely be able to file a Chapter 7 bankruptcy case. If you fail the means test, then you may be required to file a Chapter 13 bankruptcy case instead.
In addition to the above tests, there are a few additional factors which determine eligibility to file a Chapter 7 bankruptcy case:
- A person cannot file a Chapter 7 bankruptcy case if he obtained a discharge in a separate Chapter 7 case within the past 8 years, or a Chapter 13 case within the past 6 years, unless you paid at least 70% of your unsecured debts in the prior Chapter 13 case.
- A Chapter 7 bankruptcy case cannot be filed if a prior Chapter 7 or Chapter 13 case was dismissed in the past 180 days due to the violation of a court order or your request for dismissal after a creditor requested relief from stay from the court.
- A Chapter 7 bankruptcy case can be dismissed after filing if it is found that the debtor has defrauded his creditors or seeks to defraud the bankruptcy court.
The law regarding eligibility to file a Chapter 7 bankruptcy case can be very complicated, and it is highly recommended that the advice of an attorney be obtained before proceeding with filing. This is especially true in the event that a filer exceeds the median income for the state and wants to file Chapter 7 bankruptcy nonetheless. Note that should a filer be unable to file for bankruptcy under Chapter 7, he may still be able to file for bankruptcy under Chapter 13.
How long does Bankruptcy Last?
Sunday, November 1st, 2009The length of any bankruptcy case generally varies based on the chapter of the bankruptcy case and the complexity of the case. Typically, most individual Chapter 7 bankruptcies last about 3 to 4 months from the time of filing to the time that discharge is granted. A Chapter 13 bankruptcy case lasts much longer than a Chapter 7 case, and typically extends 3 to 5 years from the time of filing before a discharge is granted.
How much does it Cost to File Personal Bankruptcy?
Sunday, November 1st, 2009There are two components to the total cost of filing personal bankruptcy.
First, the filing fee to the bankruptcy court and any other associated costs must be paid. At the time of this writing (November, 2024), the bankruptcy court’s filing fee for a Chapter 7 bankruptcy case is currently $338 and the fee for a Chapter 13 filing is $313. However, these court fees are subject to change, as the fees are adjusted by the courts from time to time. Additionally, many courts impose fees for various services provided to debtors, including copying documents, official certificates, additional filings, documents involving adversarial proceedings, and many others. The bankruptcy trustees may also impose fees on some debtors for services provided, particularly in Chapter 13 proceedings, where the trustee is often paid monthly out of the debtor’s plan. Generally, Nova Law Group advises its clients to budget the amount of $400 total for costs in most bankruptcy cases, to cover the chapter 7 or chapter 13 court filing fees, plus additional miscellaneous expenses or costs.
Second, in addition to the basic fees submitted to the court and potentially the trustee, many people choose to employ the services of an attorney experienced in bankruptcy to represent them in bankruptcy proceedings. This is essential to ensure that the client receives competent strategic advice regarding the client’s bankruptcy and non-bankruptcy options for resolution of any debts or liabilities client may have, and to ensure that any bankruptcy case ultimately filed is effectuated correctly and in the manner most advantageous to the client. Nova Law Group offers clients representation by an attorney experienced in bankruptcy, excellent client communication, and superior service, all at a reasonable price. Our fees typically vary depending on the services provided, the complexity of the issues presented, and the number of hours of work product required to represent the client’s best interests.
We invite you to attend a free consultation to explore how Nova Law Group can help you meet your legal needs in a cost-effective manner.
