| Bankruptcy Law |
 |
 |
|
“Warren & Migliaccio is a debt relief agency that helps people and their loved ones file for bankruptcy” Bankruptcy – What is it and what will it do for me? Bankruptcy seeks to benefit a debtor by seeing that debtors get partial or complete relief from debts they can not pay. When you file the bankruptcy, the Court orders an automatic stay and all collection activities of creditors stop immediately. Bankruptcy can give you a chance for a fresh financial start!Chapter 7 Bankruptcy
Chapter 13 Bankruptcy
Bankruptcy Frequently Asked QuestionsClose All | Open AllNo. It is against federal law to discriminate against someone for filing bankruptcy.
The law prohibits the following forms of discrimination:
1) terminating an employee;
2) discriminating with respect to hiring;
3) or denying, revoking, suspending, or declining renew a license, franchise, or similar privilege.
It depends on the complexity of the case. Warren & Migliaccio offers a free initial bankruptcy consultation. At the consultation, we ask that you explain your situation and at the same time determine if you are comfortable with our bankruptcy attorney, Christopher Migliaccio and the staff. Christopher Migliaccio will give you feedback on your situation and provide you with options. This is also a time to discuss the fees and set up a mutually acceptable contract and in some cases, we can set up a payment plan.
You can not receive a discharge under Chapter 13 if you received a discharge in Chapter 13 bankruptcy which was filed within 2 years before the present case was filed.
NOTE: The above scenarios make the assumption that you want to file a bankruptcy that will be eligible for discharge.
You can not receive a discharge under Chapter 13 if you received a discharge in Chapter 7 (or Chapter 11 or Chapter 12) bankruptcy which was filed within 4 years before the present case was filed.
You can not relieve a discharge under Chapter 7 if you received a discharge in a Chapter 13 (or Chapter 12) bankruptcy which was filed within 6 years before the present case was filed.
You can not receive a discharge under Chapter 7 if you received a discharge in a Chapter 7 or Chapter 11 bankruptcy that was filed within 8 years before the present case was filed.
There are certain time periods you must wait to file second or subsequent bankruptcy cases. Depending on which type of bankruptcy you filed previously and which type you are filing now, you will have a different time periods you must wait.
No. You must list all your assets and all your debts. You may voluntarily repay any creditor you wish to after your case is concluded. Of course, you are required to repay any debts that are not discharged.
Most debts are dischargeable in a Chapter 7 or Chapter 13 case. However, some debts are generally not dischargeable under consumer bankruptcy. They include the following:
Chapter 7—typically between 3 to 8 months
Chapter 13—Not until the payment plan has been met, typically 36 – 60 months.
It is the legal elimination of debt through a bankruptcy case. When a debt is discharged, it is no longer legally enforceable against the debtor personally. In other words, you are no longer required to pay any debts that are discharged.
Some creditors obtain liens on the debts you owe them. For these debts, you are still not personally liable for the debt when it is discharged, but the creditor may enforce the lien to recover the property secured by the lien.
EXAMPLE:
Through bankruptcy, you receive a discharge on a car loan that you decide you can no longer afford to pay. The car lender can not try to collect from you personally, but the car lender can repossess the car. However, you will not be liable to pay any deficiency.
In most cases, the answer is No. Typically retirement savings can either be claimed as exempt property or they may not even be property of your estate and therefore, not available to the Trustee and creditors. You should have a bankruptcy attorney review your retirement savings and accounts to maker certain it is exempt.
You can keep your current vehicle if your payments can be made and you are financially able to continue making monthly payments. In most cases, Texas exemption law allows you to keep all the equity in your car. For information on your Car and Bankruptcy, please click here
Your credit report should show the that the debt(s) discharged in bankruptcy and the balance should be reported as “0.”
Why is this important?
The Fair Credit Reporting Act has commentary which states that a credit report entry that reflects a past due account is treated differently by prospective creditors in evaluating credit applications than an entry that reflects a debt has been discharged in bankruptcy. The key difference is the discharged debt is no longer an obligation, while the past due account is a legally enforceable obligation that must be resolved.
No. If you are not legally married, you cannot file for bankruptcy together, even if all bills are in both of your names. In such cases, each one of you would have to file a separate bankruptcy petition.
It depends on the type of bill.
For specific property such as your car loan or your houses mortgage that you plan on keeping you should probably continue to make payments. Also, for day to day expenses such as rent and utilities you should also continue to make payments.
You should stop making payments on other old debts incurred prior to the bankruptcy such as credit card debts.
These are assets that you may shield and protect from your unsecured creditors. These assets must be listed on your Bankruptcy paperwork in the Statement of Affairs and Schedules. Exempt assets are defined by federal and state law. In Texas , you may choose either of the two laws
The key to understanding the difference between secured debt and unsecured debt is to ask if the creditor could take away any property if you are not able to repay the debt in time.
With a secured debt there are tangible items that are attached to the debt, such as a house or car. If you fall behind on payment, the lender can repossess the property.
With unsecured debts there is no property or any other kind of product that is attached to that debt. Typically, you borrow from a creditor to obtain goods or services on credit in exchange for your promise to repay the debt. Common Examples of unsecured debt is credit card debt, personal loans, and medical debt.
A Bankruptcy Trustee is a private individual or corporation appointed in all chapter 7 and chapter 13 cases to represent the interests of the bankruptcy estate and the debtor's creditors.
An Automatic Stay is an injunction that automatically stops lawsuits, foreclosure, garnishments, and all collection activity against the debtor the moment a bankruptcy petition is filed.
There are several strategies for dealing with creditor harassment. It is not a bad idea to have dialogue with the creditor. Explain why your account is in default or late and you may be able to convince the creditor to allow you payment extension or to make other arrangements for payment. But do not be disappointed if the creditors and bill collectors are unreasonable. Many debt collectors use threats and intimidation as means to collect money.
If negotiation does not work with the creditor, another option which has an immediate effect is to file for bankruptcy. Filing for either Chapter 7 or Chapter 13 bankruptcy will immediately stop creditor harassment. No more calls at home or work!
NOTE:
If you have been a victim of threats or intimidation by a creditor or bill collector, they may have violated the Fair Debt Collection Practices Act. You should meet with an attorney to go over options that may be available to you.
In 2005, the Means Test was added to the Bankruptcy Code to create standards for determining which individuals were eligible for relief under Chapter 7 Bankruptcy.
The Means Test takes your income over the last 6 months prior to filing and determines your current monthly income and what would than be your yearly income. This number is compared to Texas’s yearly median income which varies depending on your household size. For example, as of November 2009, the yearly median income in Texas for a household of two is $55,859. If your income is less than the median income, you qualify for Chapter 7 automatically.
If your income is more, than the Means Test applies more tests by first determining your disposable income. Disposable income is determined by taking your income and subtracting a expenses that are both actual and some that are standard.
If you have enough disposable income to pay over a certain amount to your creditors (typically more than $182.50), than you may not qualify for a Chapter 7 and Chapter 13 may be the option available to you.
The Means Test is very complicated and you should contact a bankruptcy attorney to discuss and advice you on its application in your situation.
If you are financing your car, you have different options on what you may do with your car in Chapter 7 and Chapter 13 bankruptcy.
In Chapter 7, you have three options:
The stigma that been attached to bankruptcy has diminished over the past several years. While your bankruptcy can be reported up to 10 years from the filing of the case, you can begin to repair your credit immediately.
Although this is on your credit report, it is very possible to gain credit again. Credit issuers know that after you file for Chapter 7, you have no debt and you can not file for bankruptcy again for 8 years. This may make you ideal for being a credit card candidate.
It is not out of the ordinary for bankruptcy filers to obtain opportunities to finance automobiles shortly after receiving the bankruptcy discharge. It is also not out of the ordinary for bankruptcy filers to receive a mortgage within two years of receiving their discharge in bankruptcy
Income tax debts may be dischargeable (wiped out) in Chapter 7 or Chapter 13 Bankruptcy. Chapter 7 provides for a complete discharge while Chapter 13 provides a payment plan to repay some, and the remainder is discharged.
There are five conditions that all must be met to discharge income taxes in a bankruptcy.
Bankruptcy allows you to keep your property and possessions, as long as those items are exempt under the law. Texas has a liberal exemption list. There is also a Federal exemption list. You are allowed to select either one. If you have property that is non-exempt, you may have to liquidate or pay back the value of the non-exempt property.
Texas Bankruptcy Exemptions Homestead No limit Proceeds from Home Sale Personal property of a debtor which may be exempt from garnishment, attachment, execution or other seizure exclusive of liens, security interests, or other encumbrances. If it is provided for a family the limit is $60,000. Personal Property to include Reasonably necessary clothing, household goods, furnishings, household appliances. Motor Vehicle for each adult (subject to combined personal property limit of 60,000 for family, $30,000 for single person Jewelry Current Wages Pensions 100% for six months $30,000 $30,000 for single. $60,000 for family. $30,000 for single. $60,000 for family. Up to certain value 100%, except for enforcement of child support. Most Pensions are exempt. NOTE: These are the major bankruptcy exemptions. Check with your bankruptcy lawyer for a full exemptions list Federal Bankruptcy Exemptions Homestead $20,200* Life insurance policy with loan value, in accrued dividends or interest $9,850 $475 per item in any household goods up to a total of $9,850; $9,850 Jewelry $1,225 Motor vehicle $3,225 Personal injury compensation payments $18,450 Tools of trade - books and equipment $1,850 Wild Card • $925 of any property $925 * unused portion of homestead to $10,125 may be applied to any property Property that is typically non-exempt. Bankruptcy, particularly, Chapter 13 bankruptcy is a useful tool in stopping a foreclosure and getting your loan caught up. If you fall behind on your mortgage, the mortgage lender will eventually consider the loan in default, demand the full balance of the mortgage, and give notice of foreclosure proceedings. In most cases, the lender will not accept payments to reinstate the loan and you will told that you either need to pay the FULL BALANCE of the mortgage or give up your home. However, there is a third option: you can file for bankruptcy protection to stop the foreclosure. Filing a Chapter 13 bankruptcy will allow you to continue to live in your home and give you a chance to catch up on the payments you have missed. The lender is required to accept these payments and cannot foreclose on your home as long as you make the required payments. If your lender is threatening foreclosure or has initiated foreclosure, bankruptcy may be your best option depending on your other circumstances. You should consult with a bankruptcy attorney right away to make certain that you are making the best decision for yourself. Repossession is the power of the creditor to take back goods when you fail to make loan payments on a secured item such as a car or jewelry. Example: When you buy a car, you promise to pay the purchase loan and pledge the car as collateral to the creditor. If you are in default or behind on a secured loan, creditors typically attempt to repossess the collateral and sell it. After selling the collateral, the money is applied to your loan and if there is still a balance, the creditor can sue you for the balance of the loan. Stopping Repossession Stopping repossession requires immediate action. Filing for bankruptcy protection will order that all creditors cease all legal actions including repossession. If a creditor is threatening to repossess a property of yours, it is important that you consult with a bankruptcy attorney to advise you if this is your best option. Residents living in Texas are subject to wage garnishment by the IRS if they owe taxes. A wage garnishment orders your employer to withhold a portion of your paycheck each pay period and send it to the IRS. The only way to stop wage garnishment is to file for bankruptcy. Immediately upon filing bankruptcy, an automatic stay is ordered and all garnishments will be stopped. In some cases, you may even be able to get back some of the wages that were garnished. If your wages are being garnished or are being threatened to be garnished it is important that you consult with a bankruptcy attorney to go over the options available to you. 1: Credit Counseling Certificate You must take and receive a certificate of completion for credit and budget counseling from an approved credit counseling agency within 6 months of filing your bankruptcy case. This counseling course is designed to inform you of your options in dealing with your debts and it typically takes about 90 minutes. Depending on the agency, the counseling will be available to you in person, over the telephone, or even on the internet. Warren & Migliaccio will encourage you to make this requirement an opportunity and we will make certain that you are signed up with the type of course that fits your and preferences and needs. 2: Evidence of income for prior six months This is required so that your average monthly income can be averaged and applied to the Means Test. Paycheck stubs or income records are sufficient for this. 3: Copies of Tax Returns for last 2 years If you have misplaced or lost your tax returns, Warren & Migliaccio can obtain a tax transcript. IT IS MANDATORY THAT YOU HAVE FILED YOUR TAX RETURNS FOR PREVIOUS YEARS. If you have not filed a tax return for a prior year, Warren and Migliaccio can help you get these tax returns filed. 4: Copies of Insurance declarations page for auto and home 5: Copy of driver’s license and Social Security Card 6: Bankruptcy intake form provided by Warren & Migliaccio This is a list of items that are needed to get the ball rolling in your case. More information and documents may be needed after Warren & Migliaccio has had the opportunity to meet with you and access your situation.
Related Areas:
|
