Who can file a Chapter13 bankruptcy?

A Chapter13 bankruptcy can be filed by an individual or a joint case husband and wife.  Chapter13 cannot be filed by a corporation.  In order to file for Chapter 13, an individual must complete several prefiling requirements.  The most important requirement is the taking of a credit counseling session.  The credit counseling session is a one hour session on the computer or over the telephone whereby you talk with a credit counselor in order to receive a certificate enabling you to file for bankruptcy. In addition to the credit counseling requirement, you will have a personal financial management instruction course which must be completed after your cases filed but before it goes to a + Read More

What are the most common causes of Chapter 13 bankruptcy?

Chapter 13 bankruptcy is reorganization through a Chapter 13 trustee.  The reason why many people will file Chapter 13 is to save a home that has gone into foreclosure.  Now, the reason why the home fell into foreclosure could be several; in many cases, someone has lost their job, fallen behind on their bills and now they are back employed.  In other cases, someone has had an illness which caused them to lose work and now they have recovered from illness and are back gainfully employed.  There are other situations such as divorce or straight job loss that can lead someone to fall behind on their bills and be in need of a Chapter 13. The most common form of Chapter 13 or reason for a + Read More

Do I have to hire an attorney to file for bankruptcy?

You do not have to hire an attorney to file for bankruptcy; however, I would strongly recommend that you do so.  You do have the ability to fill out forms online or from an office supply company, go down to the clerk’s office and attempt to handle a Chapter 7 or Chapter 13 bankruptcy case on your own. The problem with doing so is that the law has gotten very complex, especially since the law changed October 17, 2005.  It used to be that someone with a simple Chapter 7 case could technically do the case themselves with very little in the way of error except for possibly losing property.  Under the current law, there are all kinds of pre-filing requirements that must be satisfied before a + Read More

What is Chapter 13 bankruptcy?

Chapter 13 bankruptcy is one form of bankruptcy under the United States Bankruptcy Code whereby someone reorganizes their debt and pays back either all or a portion of the debt over a 3 to 5 year period.  Chapter 13 is most commonly used to save a home that’s in foreclosure.  In a Chapter 13, a debtor is able to make the regular mortgage payment on time once again and pay the part that they fell behind over the next 3 to 5 years.  The amount that they pay per month is dependent upon their income, their expenses, their assets and their liabilities. In a typical Chapter 13 bankruptcy case, there is a Meeting of Creditors, a confirmation hearing and then an amount that is solid in terms of + Read More

Can my student loans be discharged in bankruptcy?

Typically student loans are going to be non-dischargeable.  A non-dischargeable debt is a debt that is not going to be eliminated in a bankruptcy case.  Student loans are the type of debt that are typically non-dischargeable except for extreme hardship cases.  In my 21 years of practice, I have never had an extreme hardship case that was winnable before the court.  I did have a case where someone was schizophrenic and did not have the ability to work.  However, we could not prove that the schizophrenia occurred after the bankruptcy case was filed.  The threshold is very difficult and the burden is very difficult as well. The federal government and the private student loan carriers are + Read More

Bankruptcy – Difference between Chapter 7 & Chapter 13

Chapter 7 is a liquidation fresh start type of bankruptcy whereby a person who has very little in the way of assets and a lot of unsecured debt can file a Chapter 7 and get a fresh start.  Under Chapter 7, debtors typically keep all of their properties such as houses, cars, personal belongings provided they continue to make monthly payments on those secured items.  Chapter 7 is the most common for someone who is not making a lot of money or doesn’t have the ability to repay their debt and has not received a Chapter 7 bankruptcy discharge within the last eight years.  Chapter 7’s make up 75% of all bankruptcy cases that are filed throughout the country whereby Chapter 13 represents + Read More

What is a 341 Meeting?

A 341 Meeting is a meeting of creditors we acquired and mandated by the Bankruptcy Code whereby a debtor will be examined under oath by a Chapter 7 trustee regarding assets and liabilities.  The Chapter 7 trustee has the duty to examine the debtor and determine whether or not there are any assets that can be taken and sold by the trustee for the benefit of the creditors.  The trustee will examine the debtor under oath and it will be recorded.  The meeting should last anywhere from 2 to 7 minutes and the debtor should not be shocked by any of the questions at the 341 Meeting.  The trustee is going to want to ask if the debtor listed all of their assets, all of their liabilities and did they + Read More

Bankruptcy & How Long The Process Takes

Chapter 7 bankruptcy can last anywhere from 100 to 120 days from start to finish.  It basically works like this: once the Chapter 7 bankruptcy case is filed, there is a notice that goes out to all creditors, the debtor and the debtor’s attorney advising of an upcoming meeting called a 341 Meeting of Creditors.  This meeting is held anywhere from 4 to 6 weeks after filing where a Chapter 7 trustee is going to interview the debtor under oath regarding assets, liabilities and all the information in the bankruptcy petition.  Creditors have an opportunity to appear at this meeting, however most will not under Chapter 7 because they rely on the Chapter 7 bankruptcy trustee to perform the + Read More

Keep Home When Payments are Current – Bankruptcy

You definitely have the ability to keep your house and car in a Chapter 7 Bankruptcy if you are current on your payments, provided you do not have significant nonexempt equity in those properties.  Most people who come to see me for a Chapter 7 and who may be homeowners do not have significant equity.  It is definitely the norm for people to have very little in the way of equity in the real estate.  In those cases, they can continue to make their first and/or second mortgage payment and keep the property free and clear from creditors and from the trustee. In terms of vehicles, once again, most people do not have significant equity above and beyond the exemption amount in a vehicle.  Most + Read More

Will I file a Bankruptcy Case Prior To Being Fully Paid?

There are some cases under Chapter 7 where I will file a case prior to being paid in full.  Those cases involve wage garnishments, bank citations or other court appearances required that would be a burden to the debtor and would actually hinder the debtor’s ability to pay the law firm in the long run.  In those certain circumstances, when the debtor must be filed, if they show good working history, if they have the ability to fulfill the obligations under the Bankruptcy Code, then I will consider filing prior to being paid in full.  In those circumstances, we will want a post-petition retainer agreement which basically sets forth what the law firm is going to do after the case is filed and + Read More

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