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Bankruptcy FAQ

What is Bankruptcy

Bankruptcy is a legal method of eliminating debt and providing a means for debt-oppressed people to obtain a “fresh start.” In many cases, bankruptcy means the elimination of the debt that you owe to your creditors. There are two primary forms of bankruptcy, Chapter 7 and Chapter 13.

 

Who can file Chapter 7 bankruptcy?

You must reside or have a domicile, a place of business, or property in the United States or a municipality. You must not have been granted a Chapter 7 discharge within the last 6 years or completed a Chapter 13 plan. You must not have had a bankruptcy filing dismissed for cause within the last 180 days. It must not be a “substantial abuse” of bankruptcy to grant the debtor relief.

Generally speaking, if after you pay the monthly expenses for necessities there is not enough money to pay the remaining monthly debts, then granting a discharge would not be an abuse of Chapter 7. It would not be fundamentally unfair to grant the debtor relief under Chapter 7 or Chapter 13.

 

Why is it legal to ``wipe out`` our debts?

More so than in any other time in our country’s history, our economy is based on consumer debt. In fact, in this age of multi-billion dollar corporate bailouts, easy credit and relentless bombarding of seductive messages cajoling us to “charge, consume, buy” it is not surprising that so many people are drowning in debt.

For many of us, this debt is insurmountable and is causing family problems and feelings of hopelessness and even suicide. With credit card interest rates of 18-21%, many feel like modern day indentured servants. Many times, the debt is occasioned by unforeseen events such as loss of a job or medical bills, but more often it is simply poor planning. Nevertheless, in instituting our bankruptcy laws, Congress recognized that responsible, well-intentioned people could from time to time run into financial problems. By allowing you to recover from your debt burden you will be able to start afresh, look to the future and become a more productive member of society. This is good for you and for good for society as a whole.

 

What is Chapter 7 Bankruptcy?

This is commonly referred to as “straight bankruptcy” and it is the most commonly filed form. Only individuals (not businesses or partnerships) may obtain a discharge in a Chapter 7 proceeding. Large credit card debt and other unsecured bills coupled with few assets, typify the filer of this form of bankruptcy. In the vast majority of cases this type of bankruptcy is able to completely eliminate all of the filers debts.

 

Will I have to give up any of my property to my creditors?

The vast majority of filers get all or most of their debts discharged (wiped-out) without giving up any of their own property. This is because federal as well state laws provide exemptions for your property. Exempted property is property such as household goods and personal belongings, which you may keep despite your bankruptcy.

Are some of my debts nondischargeable?

Some kinds of debts are not dischargeable, which means that you will remain obligated to repay them even after you complete your personal bankruptcy. Examples of nondischargeable debts are certain state and federal taxes and student loans unless there is undue hardship.

 

What is a Chapter 13 Bankruptcy?

Under a chapter 13 bankruptcy, a debtor proposes a 3-5 year repayment plan to the creditors offering to pay off all or part of the debts from the debtors’ future income. The amount to be repaid is determined by several factors including the debtors’ disposable income. To file under this chapter you must have a “regular source of income” and have some disposable income. Like in a Chapter 7, corporations and partnerships may not file under this chapter.

When is a Chapter 13 a better alternative than a Chapter 7?

There are several situations where a chapter 13 is preferable to a chapter 7. A chapter 13 bankruptcy is normally for people who have too much income to file a Chapter 7 bankruptcy or have the kind of debt that is non- dischargeable in a Chapter 7 (e.g. certain taxes). Also, people file Chapter 13 because they are behind on their mortgage or business payments and are trying to avoid foreclosure. A chapter 13 bankruptcy allows them to make up their overdue payments over time and to reinstate the original agreement. Also, where a debtor has valuable nonexempt property and wants to keep it, a chapter 13 may be a better option.

However, for the vast majority of individuals who simply want to eliminate their heavy debt burden without paying any of it back, Chapter 7 provides the most attractive choice.

Will Filing Bankruptcy Stop My Bill Collectors from Taking Action?

Yes, When you file bankruptcy, federal law imposes an “automatic stay” which precludes your creditors from taking any action to collect debts against you including court judgments and tax debts during the pendency of the bankruptcy. For instance, if you have been served by one of your creditors to appear in court over a debt, the bankruptcy filing will stop this lawsuit.

Any wage garnishments or repossession efforts are also halted. However, once the bankruptcy is over, a creditor holding a claim that was not discharged may proceed to collect on the debt. Also, under some circumstances a secured creditor may proceed to collect on the lien he has on the filer’s asset during the bankruptcy proceeding, but may only do so by filing a court motion and by getting the approval of the bankruptcy court first.

How quickly will my creditors get notice of my bankruptcy?

Within a couple of weeks of the filing of your petition, the bankruptcy court clerk mails your creditors notice of the filing and the imposition of the automatic stay. Until the creditors get notice, it may be necessary for you to supply the creditor with the docket number and date of your bankruptcy. Once they have been given notice, they must stop collection efforts against you or may be liable for court sanctions. Thankfully, for the vast majority of people, once their bankruptcy petition is filed that is the last time they hear from their unsecured creditors.

Do I have to pay my bills during the bankruptcy proceeding?

For the most part, the answer is no. For specific property (usually secured) 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.

 

How long does a bankruptcy take?

For a typical chapter 7 case, the discharge of your debts usually takes approximately 4-6 months. A chapter 13 takes anywhere from 3-5 years.

 

How Do I know if it's time for me to File?

If your creditors are attacking your assets and income and you are in debt way over your head, look into the “fresh start” filing bankruptcy may be able to provide you with. It seems the stigma attached to filing bankruptcy has greatly diminished over the last decade as a fast increasing percentage of the population file every year.

 

Is hiring a bankruptcy petition preparer to help me file my bankruptcy petition a smart move?

No. Bankruptcy preparers are not licensed and regulated by a bar association, so you have no way of knowing the qualifications and background of the person with whom you are dealing. Moreover, you must keep in mind that they cannot give you legal advice and charge anywhere from $150-250 just to type your petition. They cannot appear with you in Court. You are definitely better off with an attorney than proceeding without one which is a very risky way to proceed.

Will I lose my car and my house?

As long as you continue to keep up to date on your payments on the loan that secures the property, there should not be a problem keeping your house or car, even after the bankruptcy proceeding is concluded. If you want to play it safe have your attorney contact your creditor to reaffirm the debt directly. This reaffirmation agreement must then be filed and approved by the court.

Does Bankruptcy devastate my credit?

Although the record of filing bankruptcy may technically stay on your credit for up to 10 years, often by making payments on time subsequent to your bankruptcy you can regain an “A” credit rating within 2 years of your discharge.

Ironically, in many cases filing bankruptcy may actually help your credit rating because
discharging your debts greatly improves your debt to income ratio which is a major criteria creditors use in judging your “creditworthiness” (see below). In fact, many people report a flood of pre- approved credit cards within weeks of a bankruptcy discharge.

By all accounts, bankruptcy no longer has stigma attached to it that it once did. Perhaps, this is one of the reasons that the number of filings has been dramatically increasing over the last several years.

 

Can I keep any of my existing credit card accounts?

The credit card accounts that you have a zero balance on are not technically creditors and thus are not discharged in bankruptcy. Often these creditors will allow you to keep your credit with them.

If you do have an outstanding balance when you file, you may still be able to keep your account. To do this you usually must agree with the creditor to pay off the balance. Once you make an agreement with the creditor you must file the “reaffirmation agreement” and get the approval of the bankruptcy court. It is advisable to consult legal assistance before you reaffirm an otherwise dischargeable debt. Some creditors will allow you to get a new account with them by reapplying with them even though you discharged their debt in the bankruptcy.

Will everyone find out about my Filing?

Not unless you tell them or they go out of their way to check the public records. Bankruptcy filing are not normally published in newspapers, therefore the only people who usually find out that you are in a bankruptcy are creditors whose debts you have listed on the petition or who you apply for credit with.

Can I be fired for filing bankruptcy?

No, if your employer finds out about your bankruptcy, it is against federal law to discriminate against someone for filing bankruptcy.

 

What is the procedure after I file bankruptcy like?

In most cases, completing and filing your petition is the hardest part. If your bankruptcy petition does not raise any red flags for the trustee or your creditor(s), you’re usually in good shape. Thirty to forty days after filing the petition, you are required to attend the “First Meeting of Creditors” or “Section 341(a) Examination.”

At this meeting, creditors are given the opportunity to ask you questions. There is no judge for this hearing, just the Trustee in charge of your case. However, in most “no asset” cases, rarely do creditors show up for this hearing. Normally there is a room full of other filers and the questioning by the Trustee is very limited since they are usually pressed for time.

In most cases, the key to the success of your case lies in your bankruptcy petition. Normally, 4-6 months from the time the petition is filed, you are granted final discharge of your debts.

Can I run up my credit cards right before I file bankruptcy?

No, running up your credit cards on the eve of bankruptcy in anticipation of filing may cause your debt to be nondischargeable on the grounds of fraud and you can be fined. You should get legal advice concerning large amounts of credit card debt incurred for “luxury goods” right before your bankruptcy.

 

Do I have to list all of my assets on my petition?

Yes. Knowingly and fraudulently concealing your assets from the bankruptcy court is a felony and the court has the power to fine you and deny you a discharge. Remember that most bankruptcy cases are considered “no asset” cases since state or federal exemptions protect all of their property.

 

Should I feel ashamed to file bankruptcy?

There is a lot to think about before filing bankruptcy, however feeling ashamed should not be one of them. The history of bankruptcy in the United States dates back to the founding of our nation. The early English practice of debtor’s prison was so abhorred by our founding fathers, they expressly outlawed it and instituted forgiving bankruptcy laws early on in our nation’s history. Over the years, some of our nations’ most revered companies and people have turned to the bankruptcy system for help. Perhaps this nations greatest president and founding father, Thomas Jefferson filed for bankruptcy not just once, but several times to eliminate the accumulation of his huge debt. Filing bankruptcy is better put into perspective when you know that a man of Mr. Jefferson’s foresight and intelligence could repeatedly get himself into financial trouble.

Are there intake forms I need to fill out to start my bankruptcy case?

Yes. For further information, please call our law offices.

Auto and Truck Collisions FAQ

What To Do If You're In An Auto Accident - As Soon as an Accident Happens

  1. Stop your car. Failure to stop can result in serious criminal consequences.
  2. If possible, move your car so it doesn’t block traffic.
  3. Warn approaching traffic with flares and/or your car’s flashers.
  4. Call the police. If anyone is injured, call for an ambulance.

What To Do If You're In An Auto Accident - At the Scene of the Accident

  1. Do not make any statements about who caused the accident.
  2. Note carefully any statements made by other people involved in the accident.
  3. Get the following information from the driver(s) of the other vehicle(s) involved in the accident:
    1. Driver’s license. Get the driver’s birth date, license number and the state of issue.
    2. Vehicle make, model, year, and tag number. Ask to see the registration card to confirm this important information.
    3. Name, address and phone numbers (home and work) of the driver.
    4. Name, address and phone numbers (home and work) of the owner of the vehicle.
    5. The insurance Policy Number, the name of the insurance company, and the agent’s name, address, and phone number.
  4. Get the names, addresses, and home and work phone numbers of anyone who saw any part of the accident (witnesses) or came on the scene afterwards.
  5. Tell the police officer that you want a written report of the accident. (Sometimes, if no one appears to be immediately injured, the police will not prepare a report.)
  6. Take down the officer’s name, badge number and department. If injured, or if you aren’t sure if you are OK, go immediately by ambulance or car to a hospital emergency room.

CAUTION

Due to the shock of the collision, you may not realize how badly you are hurt. If you are unsure, be on the safe side and go to the hospital or see your doctor right away. DO NOT DELAY! You may not be aware of the full extent of soft tissue injury until days or weeks after the accident. You should have a doctor familiar with car accident injuries examine you promptly. Seeing a doctor immediately is very important in getting fair compensation for your personal injury.

What To Do If You're In An Auto Accident - Immediately After the Accident

  1. Call your attorney! The sooner your attorney is brought into the matter, the better he or she can advise you and protect your rights. Your attorney will help you process your medical bills, work with the insurance companies and help you get a fair recovery for your injuries.
  2. Describe What Happened–Write out a detailed description of the accident, including location, time of day, weather conditions, description of the roadway, speed limit, traffic lights, stop signs, etc. The sooner you do this, the more precise your recollection will be.
  3. Talk To No One–You should not talk to anyone about your collision except one of the lawyers or investigators in your lawyer’s office. You should always require some identification so that you are sure to whom you are speaking. You should not even talk to your own insurance company without notifying your lawyer first.
  4. Traffic Offenses–Never plead guilty to any traffic offenses or pay any tickets in connection with the collision without speaking with your lawyer first. If you receive a ticket, call your lawyer immediately, and he or she will see that someone represents or advises you.
  5. Witnesses–Give your lawyer immediately the names, addresses and telephone numbers of all witnesses to the collision and people who came on the scene after the collision.
  6. Photographs– Take pictures of any severe bodily injuries and damage to your car immediately. This will vividly record what happened. Send your lawyer the negatives and copies of prints of any photographs you have pertaining to your case. Helpful photographs include those which show damage to your vehicle, shots of the accident scene and pictures of your injuries. Car Repair–If your car has not been repaired, do not do so until you speak with your lawyer-he or she may want to take pictures or have the car inspected. If it has been repaired, supply your lawyer with copies of all estimates and bills.
  7. Your Doctor–You should follow as precisely as possible the advice and course of treatment recommended by your doctor or other health care providers. Do not minimize and do not exaggerate your ailments to your doctor or health care provider, as he or she needs to know the true extent of your problems to best know how to treat you. If you see any additional doctors or health care providers, be sure to immediately let your attorney know their names, addresses and telephone numbers.
  8. Record of Complaints–Please keep a daily or weekly record or diary of your condition and progress. Record how you feel on a day-to-day basis and how your life is affected by your injuries. This can be very helpful in dealing with the insurance company and if a trial is necessary. Again, do not minimize or exaggerate your problems; write down exactly how you are feeling.
  9. Wages And Earnings Lost–Please keep an accurate record of all time lost from work because of your injuries, including time off to visit doctors and therapists. Please have your employer send your lawyer written confirmation of this and the amount of wages represented by this time lost. Your lawyer need this information even if you are compensated for your lost pay through sick leave or vacation  time. (Note: Some states do not allow recovery for lost time if you received sick leave or vacation time.)
  10. Medical Bills–Keep copies of all your medical, hospital and drug bills, and send the original bills to your lawyer. You should also keep records of any other expenses you have in connection with your accident,  such as the hiring of extra help and mileage or taxi fare for visits to doctors. All your expenses should be paid by check or you should get a receipt. If you have health or medical   insurance to cover such bills, or if this is a Worker’s Compensation case, please speak with your lawyer before submitting  bills for payment. If you can pay the amount not covered by insurance, don’t not pay because of the case, but, again, speak with your lawyer first.
  11. Questions–Your lawyer will probably not contact you on a set schedule but will contact you from time to time when necessary. That you do not hear from him or her is not an indication that they are not working on your file–a great deal of work is done between the insurance company and the lawyers, and the parties are not directly involved. We can help you get a fair recovery for personal injuries suffered in automobile collisions, slip and falls, medical malpractice and products liability matters.

What To Do If You're In An Auto Accident - How Can We Help You?

When involved in an accident, your first step is to contact our office at 1-800-677-1010. Our first step will be to obtain the police report, or other incident reports, concerning your case. We will also contact the defendant and/or insurance carrier to put them on notice of our representation of you. If they contact you directly, please do not speak to them, but refer them to us. We will also secure property damage estimates and appraisals on your vehicle, if applicable.

After this initial work-up, we will also obtain copies of all of your medical bills and records. We will advance costs on your behalf, but you remain ultimately responsible for all costs advanced, and are legally obligated to reimburse us irrespective of the outcome of your case.

Generally, we do not send out a demand letter on your case seeking settlement until you have completed all medical treatment, and we have a chance to ascertain your disability and prognosis from your treating physician. We also must obtain lost wage verifications from your employer(s), if you have a lost income claim. In this regard, you will be asked to sign a number of forms and documents to give us authorization to obtain necessary records on your behalf. We will also require a copy of the declaration page of your automobile insurance policy at the time you provide the executed forms and documents referred to above. It is in your best interest to cooperate with your doctors and keep all medical appointments. Please forward us all records that you obtain, or come into possession of, with respect to your claim as they occur. Please do not speak to the insurance company or its representatives during the pendency of the claim, and be aware that any statements you make adverse to your claim may find their way into your medical records, to your detriment. However, be truthful and honest to your health care providers at all times.

After you have completed treatment, we will have a demand conference, in which we determine an initial demand amount, and then we will send out a demand letter reflecting that amount. The initial demand amount will exceed the probable settlement value of the claim, as negotiations will be necessary, in all likelihood, to resolve your claim once the insurance adjuster reviews the demand package.

We will keep you advised of all developments and give you our best professional advice, but the ultimate decision for the settlement of your claim will be yours. Generally, we like to communicate with our clients approximately once a month to six weeks, during the pendency of their claim, to discuss the progress of their claim. We will also endeavor to send you copies of all important correspondence necessary to keep you advised about the status of your case.

After the demand letter is prepared, we will engage in settlement negotiations with the insurance company. It usually takes the insurance company approximately one month to evaluate the claim after the demand letter has been submitted. Once again, we will keep you advised about all offers and counter offers, and give you our opinions, but you will make the ultimate decision.

If your case settles before a lawsuit is filed, this is often in your best interests, since it resolves the matter more quickly and without the out-of-pocket costs of litigation. Sometimes, there are health care provider liens on your settlement amount which must be paid directly by the law firm, from its trust account. On other occasions, you will be responsible for the payment of the medical bills yourself. We will provide you with a detailed and itemized distribution statement at the time of your settlement, showing all disbursements, including the payment of any liens, if applicable. We can also sometimes assist in referring you to competent doctors to assist you, but the decisions for the choice of health care providers is ultimately your responsibility. Some of the doctors will work on a lien and await payment until the conclusion of your case, but you remain ultimately legally responsible for their bill irrespective of the outcome of your case. Sometimes, we can negotiate bill reductions with the health care providers, but no guarantees can be made in this regard in advance.

If your case does not settle, then litigation can be considered. The firm reserves the right to withdraw at the conclusion of prelitigation settlement negotiations, if it does not believe that litigation would be profitable or in your best interests. If any withdrawals are made, every effort will be made to withdraw in such a manner so as to protect your rights, and we will fully cooperate with any attorney you might select, to the best of our ability. If the case proceeds to litigation, there are various court costs, such as filing fees, service of process fees, court reporter fees, etc., which are incidental to the litigation and which you may be asked to bear.

You should be aware that it can take months, and sometimes years, to resolve a personal injury claim. No specific guarantees can be made concerning the outcome of your case. Your case may not be successful, in which event you may still be liable for out-of-pocket costs. We must have full disclosure of all relevant information concerning your case in our accident questionnaire, in order to properly represent you, and any omissions from a full disclosure in the accident questionnaire could damage your case.