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A discharge in United States bankruptcy law, when referring to a debtor's discharge, is a statutory injunction against the commencement or continuation of an action (or the employment of process, or an act) to collect, recover or offset a debt as a personal liability of the debtor. The discharge is one of the primary benefits afforded by relief under the Bankruptcy Code and is essential to the "fresh start" of debtors following bankruptcy that is a central principle under federal bankruptcy law. A discharge of debts is granted to debtors but can be denied or revoked by the court based on certain misconduct of debtors, including fraudulent actions or failure of a debtor to disclose all assets during a bankruptcy case.

The benefit of the discharge injunction is narrower than (but similar to) the benefit afforded by the automatic stay in bankruptcy says Los Angeles Bankruptcy Attorney Steven C. Peck.

U.S. law also provides for specialized discharges in bankruptcy (see below).

Bankruptcy discharge for the debtor:
In the United States, there are generally seven kinds of debtor discharges in bankruptcy, found in the following statutes:

11 U.S.C. § 727(a) (relating to liquidation bankruptcies for individuals);
11 U.S.C. § 944(b) (relating to municipal bankruptcies);
11 U.S.C. § 1141(d)(1)(A) (relating to discharges resulting from confirmation of a Chapter 11 plan of reorganization);
11 U.S.C. § 1228(a) (relating to certain family farmer or fisherman cases);
11 U.S.C. § 1228(b) (relating to certain family farmer or fisherman cases);
11 U.S.C. § 1328(a) (relating to certain cases involving adjustment of debts of an individual with regular income);
11 U.S.C. § 1328(b) (relating to certain cases involving adjustment of debts of an individual with regular income).
The effect of the debtor's discharge is provided for at 11 U.S.C. § 524. In addition, certain limitations on the debtor's discharge are described at 11 U.S.C. § 523.

Other discharges in bankruptcy:
In the United States, with respect to taxes incurred by the bankruptcy estate (as opposed to the debtor) during case administration, a specialized discharge for the trustee, the debtor, any successor to the debtor, and (for cases commenced on or after October 17, 2005) the bankruptcy estate is provided in 11 U.S.C. § 505(b).

At the conclusion of a case the trustee (if any) may be discharged as trustee under 11 U.S.C. § 350(a).

Continue reading "What Is Considered A Bankruptcy Discharge?" »

Chapter 7 bankruptcy
is commonly referred to as "liquidation" bankruptcy. It cancels debt entirely in the course of approximately three months and is an attractive option for many people considering bankruptcy. The down side for many is that filing for Chapter 7 means that any non-exempt belongings will be liquidated to distribute among creditors in order to pay off debts. When you file for Chapter 7, it is critical to know what exemptions will be included. Clearly understanding your options can help you make the right decision. Since exemptions differ from the state and federal laws, it is recommended to clarify your state's laws before filing. Here are some sample exemptions.

States have an exemption on homesteads for individuals filing for Chapter 7 bankruptcy. The way to determine what state to use for your exemption is by looking at where you lived for the 730 days before filing. If you didn't live in a single state for the past two years, you can determine your state by looking at the past 180 days and see where you lived for the majority of that time. If you are ineligible for state exemptions, you can take federal exemptions.

On the federal level, exemptions include a Homestead exemption of $21,625, a jewelry exemption of $1,450, a motor vehicle exemption of $3,450, an exemption of $2,175 that covers tools of the trade and including books and other equipment used for work, plus an exemption of $550 per item in any household goods up to a total of $11,525.

For the state of California, bankruptcy exemptions include homestead exemptions, personal property including appliances, furnishings, clothing, building materials for home repair, burial plots, health aids, jewelry and heirlooms, motor vehicles, personal injury and wrongful death causes of action and recoveries needed for support. Additionally, insurance, property of business partnerships, pensions and retirement income - including IRAs and Keoghs, tools of the trade and public benefits - are all exempt.

Continue reading "Bankruptcy Exemptions What Should the Debtor Be Looking For?" »

Since small businesses that are unincorporated, they don't have the same restrictions as larger corporations, which means that any business and personal debts are the responsibility of the business owner. So when a small business owner gets in over their head, the business doesn't file for bankruptcy, rather the individual files. For small business owners who file for Chapter 7 bankruptcy, there are several protections which make it an attractive choice. If you are a sole proprietor, you operate your business by yourself so your business debts are also your personal debts, so they can be dismissed in a bankruptcy case.

There are several benefits for small business owners to file for bankruptcy. First of all, there is uniform protection in the United States on future assets, which offers a fresh start to the debtor. So, if you are a business owner who files for bankruptcy, you can start a new business or a new job without worrying about having future earnings seized to pay pre-bankruptcy debt.

Another important benefit for small business owners filing for Chapter 7 bankruptcy is exemptions. Exemptions vary from state to state and are set values above which debtors must surrender property. States with higher exemptions are more attractive to debtors because it protects more of their property. It is important to note that for small businesses filing for bankruptcy, the filer must also list all assets, both business and personal, which makes the exemption value of the state an important detail to know before filing. It can make the difference between keeping a home or having it liquidated.

If you are a small business owner who is seriously considering bankruptcy and you live in Los Angeles, you need to consult with an attorney who understands California bankruptcy laws. Not all bankruptcy attorneys are the same. While the process appears complicated, a Los Angeles bankruptcy attorney will be able to help you understand your options and avoid making poor decisions. You get one chance to file bankruptcy right for the first time.

Continue reading "Small Business Bankruptcies Have Less Filing Restrictions" »

The most straightforward way to understand the difference between unsecured and secured loan is to work out if your creditor can take away any item or property in the case that you are not able to repay the overdue amount in time.

The basic difference between secured and unsecured debts is that in unsecured debts there is no tangible property or any other kind of product that is attached to that debt, whereas for a secured debt there are tangible items that are attached to the debt. Common examples of unsecured debts are arrangements such as credit cards, medical bills and store cards where you do not have to put up any material as security for the debt. On the other hand, things such as mortgages and car payments usually have tangible items attached to it, i.e.: your house or car.

The difference between the two types of debts is applicable when someone is filing for bankruptcy also. In Chapter 7 Bankruptcy you can make the choice of either keeping the product or property and pay of your debt in some other way. But if you decide that you cannot pay at all then you also have the option of giving the product or property back and paying off your debt in that way. On the other hand, in Chapter 13 Bankruptcy you are allowed to keep the merchandise or property but you will be allowed to pay off your debt according to the Chapter 13 plan. That is to say the bankruptcy court will most probably allow the creditor to charge you only about 10% interest, whereas you most probably were paying a much higher interest than that. However, if the value of the item is less that the value of the debt, then the outstanding about that is not covered by the item will be paid as an unsecured debt without interest.

Essentially, there are basically two types of bankruptcy available to individuals. Even though looked at as being two types, Chapter 7 and Chapter 13 bankruptcy do have certain similarities. Also, there exists the option of moving from one to the other provided you fill certain prerequisites.

In a typical case where Chapter 7 bankruptcy comes into play, the debtor would be a person with very few assets and a lot of debts. In such a case anything that the debtor may own is used to pay off creditors, but unlike with Chapter 13 where certain debts are dischargeable, in Chapter 7 bankruptcy they are not. (By dischargeable one means that payment of debt can be avoided if the court grants a discharge.)

A debtor would ordinarily file a Chapter 13 bankruptcy because of any sort of arrears, for example with rent or car loan or things like that. Creditors are paid based on a plan for the future earnings of the debtor. For this to come into effect, the basic requirement is that the debtor has a regular income.

Apart from these, a third type of bankruptcy is called a Chapter 12 which is limited to family farmers. On a larger level, we can also look at Chapter 11 which deals with cases where the debt in question is a huge sum. Ordinarily, Chapter 11 debtors are companies, and the processes involved in filing the same extremely complex.

Coming back to personal bankruptcy, while with Chapter 7 bankruptcy filing there is no ceiling for debt restrictions the rules change with Chapter 13. In the latter the debtor must figure out a Best-odds budget and a Best-effort budget for the creditors.

For those who have to repay a student loan and are considering filing for bankruptcy, the question on their mind would be: does filing for bankruptcy discharge my student load? Unfortunately, student loans are usually not discharged in the case of bankruptcy. According to Chapter 7 Bankruptcy law the only time a student loan might be discharged is if it would cause the debtor "undue hardships". The same basic rule also applies to Chapter 13 Bankruptcy cases.

Discharging student loans became popular during the 1970s, when students would file for bankruptcy soon after they finished their pricey education. They would do so before they started earning so that they could get the loan out of the way. However, the requirements for discharging student loans were changed in 1998.

According to these new changes, your student loan will only be discharged if the bankruptcy court is convinced that paying back the loan would bring about undue hardships for you or the people who are dependent on you. Keeping this in mind, the Federal Student Aid Ombudsman (FSAO) stated that there were three criterions that would be used to determine whether a person is eligible to have their student loan discharged or not:

1. Will repaying your student loans prevent you from maintaining a minimal standard of living?
2. Will it be difficult for you to maintain your minimal standard of living over the repayment period?
3. Did you make an effort to repay the loan before filing bankruptcy. Have you been repaying your loan for at least 5 years?

Even if you are unable to fully discharge your student loan debt by filing bankruptcy, there are many other options for dealing with student loans including deferments and cancellations.

Continue reading "If I File for Bankruptcy Will My Student Loans Get Discharged?" »

Filing bankruptcy is always a complex and stressful procedure that should be both well considered and well prepared. If your bills have become insurmountable and you need to file chapter 13 bankruptcy, you should be aware of the fact that there are a number of mandatory requirements you must meet before filing bankruptcy. Failure to meet these requirements will result in the court refusing your chapter 13 bankruptcy. It is evident that meeting these mandatory requirements before filing bankruptcy is the first important step on the journey to what will be, if all goes well, a clear financial future. So what are these mandatory requirements exactly?
The first thing every consumer must do before filing bankruptcy is take a credit counseling class at a government-approved credit counseling agency. This class must be taken within 180 days prior to filing bankruptcy. It is vital that you file the certificate of compliance that attests you have, in fact, completed the credit counseling class. If you are unable to take the class within the determined time period, you may be able to file for an extension, but only if you can prove you tried to obtain the class within the last five days before filing bankruptcy. If an extension is granted, you must take the class and file the certification within 30 days after filing bankruptcy.

The second requirement you must meet before filing bankruptcy is to take the so-called means test. This means test is key in determining whether you need to file chapter 7 or chapter 13 bankruptcy. The means test examines your income level against a state-determined median, and determines the amount of disposable income you have which may or may not be sufficient, when filing bankruptcy, to support the repayment plan included in a chapter 13 bankruptcy. Because the median income differs from state to state, the income level associated with a chapter 13 bankruptcy also differs from state to state. A third requirement you must meet before filing chapter 13 bankruptcy is that you avow all documentation and information submitted to the court is well grounded in fact, and warranted by existing law or a good faith argument for the modification of the existing law. If you are filing chapter 13 bankruptcy this means that you declare to know and understand the chapter 13 bankruptcy laws that apply when filing bankruptcy. If you claim ignorance of the chapter 13 bankruptcy laws at any point during your chapter 13 bankruptcy filing, it will not count as an excuse.

Continue reading "What Are the Pre-Filing Requirements For Chapter 13 Bankruptcy Protection?" »

Before filing for bankruptcy you need to make sure which type is appropriate for your situation. At this time it is important to ask if your co-signer would be asked to pay your debt if your file for bankruptcy. The answer to this question would depend on the type of bankruptcy that you file for and the particulars of your bankruptcy plan. says Los Angeles Bankruptcy Attorney Steven C. Peck.

Essentially, only a Chapter 13 bankruptcy will protect your co-signer. With a Chapter 7 bankruptcy, only the debtor is protected and the co-signer will still be liable for the debt. That is to say, with Chapter 7 bankruptcy, the creditors will still have the right to demand that your co-signer pay off the outstanding payments. On the other hand, Chapter 13 bankruptcy is able to give the co-signer increased protection under the right conditions. Under chapter 13 bankruptcy, as long as the bankruptcy plan is active the co-signers will receive a stay. All the same, when the plan closes, the co-signer is once again liable to pay any outstanding payments. The following aspects should stay constant while your file for bankruptcy and in the later processes also. If any one of the following factors is not satisfied at the point of bankruptcy filing or later, then your co-signer will be responsible to pay off your debts. The factors are:

* you file for Chapter 13 bankruptcy. Chapter 7 will not protect your co-signers
* the debt of the co-signer has to be a consumer debt, which is to say, a personal debt and not a business one.
* the co-signer is not the recipient of any benefits from the debt proceeds.
* the accurate bankruptcy plan payments are made in accordance with your bankruptcy.

Continue reading "Which Chapter of The Bankruptcy Code Is The Most Appropriate for Your Situation?" »

In the face of a continuing financially distressed economy, more and more individuals and entities are seeking relief from debt obligations by filing Chapter 7 liquidation bankruptcy cases. Although numerous parties are involved in a bankruptcy case, no one has a greater impact on a Chapter 7 liquidation case than the bankruptcy trustee. Therefore, the powers and duties of the trustee are particularly important for creditors to know and understand.

When a Chapter 7 bankruptcy case is filed, an estate is created that is comprised of the debtor's legal or equitable interests in property that exist at that time. The United States Trustee then appoints a member of the panel of private trustees to serve as trustee in the case.

As a representative of the bankruptcy estate, the trustee has a fiduciary obligation to protect the interests of all beneficiaries (i.e., all classes of creditors, including those holding secured, administrative, priority unsecured and non-priority unsecured claims, as well as the debtor's interests in exemptions and any possible surplus property).
Duties of the Trustee

The overarching duty of the trustee is to collect and liquidate the property of the estate and to distribute the proceeds to creditors. The trustee's specific statutory duties, as set forth in Section 704 of the United States Bankruptcy Code, include the following:

1. To collect and reduce to money the property of the estate and close the estate as expeditiously as compatible with the best interests of the parties in interest;
2. To be accountable for all property received;
3. To ensure that the debtor performs his or her intention as to retaining or surrendering property of the estate that secures consumer debt;
4. To investigate the financial affairs of the debtor;
5. If a purpose would be served, to examine proofs of claims and object to any that are improper;
6. If advisable, to oppose the discharge of the debtor;
7. Unless the court orders otherwise, to furnish information concerning the estate and the estate's administration as requested by a party in interest;
8. If the debtor's business is authorized to continue operating, to file with the court appropriate reports and summaries, including a statement of receipts and disbursements; and
9. To file a final account of the administration of the estate with the United States Trustee and the court.

Powers of the Trustee:

The trustee in a Chapter 7 liquidation case is authorized to employ accountants, attorneys, appraisers, auctioneers and other professionals to assist in carrying out his or her duties. Additionally, the trustee may use, sell or lease property of the bankruptcy estate, subject to a notice requirement. However, there is no notice required for a trustee to enter into transactions in the ordinary course of business if he or she is authorized to operate the debtor's business. The trustee is also authorized to obtain unsecured or secured credit in connection with the operation of a business and assume or reject executory contracts or unexpired leases of the debtor.

A trustee is vested with significant powers to aid in carrying out his or her fiduciary obligations to the bankruptcy estate. Among them is the ability to move to dismiss a bankruptcy case for cause, including unreasonable delay by the debtor that is prejudicial to creditors; non-payment of any fees or charges required under certain provisions of the Bankruptcy Code; and failure of the debtor to file certain information required under the Bankruptcy Code. The trustee may prosecute an objection to a discharge granted to an individual debtor. He or she may also object to proofs of claim filed by creditors in a bankruptcy case. The disallowance of a proof of claim or a reduction in its allowed amount has a significant impact on what creditors ultimately receive when the trustee distributes the funds on hand in a bankruptcy estate.

The most significant of the trustee's powers are generally referred to as avoidance powers, and they are often the subject of litigation in the Bankruptcy Court. Known as the "strong arm clause," Section 544(a) of the Bankruptcy Code gives the trustee the rights and powers of a judicial lien creditor or a purchaser of real estate, whether or not there is an actual judicial lien creditor or purchaser who may be able to exercise the same rights. Section 544(b) allows the trustee to bring actions that an unsecured creditor could bring (including state law fraudulent conveyance actions), while Section 545 permits the trustee to avoid the fixing of certain statutory liens. Section 547-Preferences authorizes a trustee to avoid certain transfers of property, including payments made by the debtor to creditors, within 90 days prior to the commencement of a bankruptcy case (subject to certain conditions). Section 548 authorizes a trustee to avoid fraudulent transfers or obligations made with actual intent to hinder, delay or defraud a past or future creditor. Transfers of property made by a debtor for less than a reasonably equivalent consideration are also vulnerable if the debtor was or thereby became insolvent, was engaged in business with an unreasonably small amount of capital or intentionally incurred debts that would be beyond the debtor's ability to repay. Finally, Section 549 authorizes the trustee to avoid transfers of property of the bankruptcy estate that occur after a bankruptcy case has commenced.
The Upshot for Creditors

The trustee's ability to recover property or funds by exercising these avoidance powers can be extremely lucrative and provides a significant benefit to the creditors of a bankruptcy estate. Therefore, you should pay careful attention to any communication from a bankruptcy trustee that references avoidance powers and consult with legal counsel about how to respond. Failure to do so could result in a creditor being subjected to litigation.

One should understand and have the knowledge of the most crucial and prominent feature of bankruptcy Chapter 13. It is something different from File Chapter 7 Bankruptcy, it do not make free all outstanding payments instantly. On the other side debtors try to repay the debt to the creditors approximately a short time of five years. He is required to make a record for his monthly payments and give or present this expense list to the court.

Eligibility It is but natural that for different types of filing for bankruptcy plan the eligibility criteria is also different. To be eligible for filing bankruptcy, you must have secured debts no more than $800,000 and unsecured debts about $300,000. Hence in case of ownership like the secured creditor or vehicle hold the specific of total payment of outstanding expenditure if the purchase date remains within 30 months from the date of filing chapter 13. Individual can get a relief under the same clause inside last 2 years or else in chapter 7, 11, 12 within last 4 years.

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Continue reading "What is Chapter 13 Bankruptcy Protection All About?" »

If one spouse files for California bankruptcy, the other spouse is not automatically brought into the bankruptcy. How a bankruptcy affects a spouse depends on whether the spouse files separately or jointly. Deciding which is the right thing to do depends on the financial circumstances of both spouses. It's important to understand the issues involved to protect the best interests of both individuals' finances.

Filing Separately or Jointly:
In their book "Chapter 13 Bankruptcy," attorneys Stephen Elias and Robin Leonard suggest that most spouses will want to file bankruptcy jointly if the finances of both spouses are completely mixed and the debts are shared. A separate filing works best if a spouse has previously filed bankruptcy, or most of the debt is in one spouse's name, or if the spouse without debts has highly valued assets or inheritance.
Liability:
Under California law and that of most states in the nation, marriage does not make both spouses responsible or liable for all debts. If only one spouse files on a debt that is shared by both, the other spouse will not be protected and will still need to meet the responsibility of the debt.
Cosigned Debt:
If your spouse has co-signed or guaranteed your debt, collectors can pursue him if you file for bankruptcy but your spouse does not.
Supplementary Credit Card:
Having a supplementary credit card is very common in many credit-lending relationships. One spouse opens a supplemental credit card account, but the other is authorized to use it. If your spouse has used the credit card, he is responsible for the entire debt on the card.
Affect on Spouse's Credit Rating:
If there are no joint debts, your California bankruptcy has no effect on your spouse's credit rating, strictly speaking. Your bankruptcy, however, can affect your ability to be a co-signer on a loan in the future, which would indirectly have an effect on your spouse's credit.
Exemptions Allowed:
Whether you file bankruptcy jointly or separately, you and your spouse are entitled by the state of California to a number of exemptions. This includes up to $75,000 in equity in your home, and up to $150,000 if you or your spouse are disabled or on a low income. You and your spouse can also exempt up to $2,300 equity in one or more cars. Seventy-five percent of your salary in the last 30 days that have not yet been paid is also exempted. You're also entitled to exempt up to $6,075 in jewelry, heirlooms and works of art.

Continue reading "What Happens If Only One Spouse Files For Bankruptcy?" »

Bankruptcy has developed into an nearly common-place word nowadays, occuring in the media and in your life in a number of other, more private, way since the global financial system crashed in the fall of 2008. Despite it being a single word, it has many interpretations, frequently referring to type of Bankruptcy filed. Bankruptcy itself is defined as the legal procedure dealing with debt problems of an individual or a company. Bankruptcy refers, specifically, to the filing of Chapter 11 Bankruptcy. There are many types of Bankruptcy namely Chapter 7, Chapter 9, Chapter 11, Chapter 12, Chapter 13, and Chapter 15 but the majority of cases are filed under the three key chapters of Bankruptcy which are Chapter 7, Chapter 11, and Chapter 13.

Only Someple of these are related directly to the individual, many relate to a company and one even relates to the government. Chapters 7, 11, 12, and 13 refer to the first section. Chapters 7, 9, 11, and 12 refer to the second section and Chapter 9 refers solely to the third section. Please note that this only refers to the bankruptcy practices in the United States of America and it should not be assumed that these practices transport over to other nations. There are also particular exceptions in the states of North Carolina and Alabama.

An individual would file for any Chapter Bankruptcy by filing a petition at the bankruptcy court that serves the area where the entity lives. Also the individual would also need to file their schedules of assets and liabilities, a schedule of current income and expenditures, a statement of financial affairs, and a schedule of excretory contracts and unexpired leases. The individualindividual to provide the assigned case trustee with a copy of the tax return or transcript from the most recent year. Equally, any entity might file for Chapter 7, Chapter 11, or Chapter 13 Bankruptcy as long as they has not willingly appeared before court in the creditor's former attempt at settling, or voluntarily dismissing a court case concerning to the debt within in the last one-hundred and eighty days (180 days) previous to filing for any type of Bankruptcy.

Chapter 7 Bankruptcy, one of the three major chapters, is one commonly used by individuals who have fallen into debt. It is technically named Liquidation under the Bankruptcy Code, which means that if the consumer was to file under this chapter, their nonexempt homes and land would be sold and the money of this would go to repay the debt. Any entity may file for Chapter 7 as long as they have not dismissed voluntarily or refused to appear in court for a earlier attempt by the creditor to settle the debt in some manner within the last one-hundred and eighty days (180 days) before filing. The debtor must also meet with an accepted credit counselor one-hundred and eighty days (180 days) ahead of filing. This chapter provides a opportunity to repay back creditors by selling nonexempt assets in order to settle the overdue fees. The major consequence of filing under Chapter 7 Bankruptcy is the loss of property. The court would charge a case filing fee which amounts to a small over $300 due to federal regulations. In order to file the petition itself the debtor would be required to turn over a record of all creditors and the amount and nature of their claims, the source, amount, and frequency of the debtor's income, a list of all of the debtor's property, and a detailed list of the debtor's monthly living expenses. These would include food, clothing, shelter, utilities, taxes, transportation, medicine, and so on. There are several alternatives to this chapter; namely chapters 11 and 13.

Chapter 9 Bankruptcy is also known as Municipality Bankruptcy and can only be filed by municipalities which include cities and towns, villages, counties, taxing districts, municipal utilities, and school districts. Basically, Chapter 9 is for any poorly managed local or city government and is not used by consumers.

Chapter 11 Bankruptcy is a term that is now honestly regurlarly used as it is what many companies in late 2008 and early 2009 filed under. It is the Reorganization Under the Bankruptcy Code and allows a company or partnership to reorganize in order to keep their company alive and pay back creditors over time. But, it is also used by individual consumers and is filed much the same way that Chapter 7 would be. Likewise, an individual who has willingly failed to appear before court or comply with the orders of the court or voluntarily dismissed after creditors sought relief from the bankruptcy court within the last one-hundred and eighty days (180 days) before filing are not eligible to file for any chapter of bankruptcy. The debtor has 120 days, except they are a small business debtor, to file a plot. In North Carolina and Alabama, bankruptcy administrators operate comparable functions that U.S. Trusties do in the other forty-eight (48) states.

Chapter 12 Bankruptcy is liable for providing adjustments to the debts of persons who are classed as a "family farmer" or a "family fisherman", which is why it is named Family Farmer or Family Fisherman Bankruptcy. Family farmer or family fishermen refers to an individual or an individual and spouse or a corporation or partnership. In reference to corporations or partnerships, they must be owned solely or mostly by a single family unit. Additionally, in reference to the individual or individual and a spouse, they must be engaged in a farming or commercial fishing business. The whole debts, both secured and unsecured, have to not exceed $3,544,525 if a farming operation and $1,642,500 if a commercial fishing operation. Fifty percent (50%) of a family farmer's debt must be correlated to the farming operation whereas eighty percent (80%) of a family fisherman's total debts must be correlated to the commercial fishing operation. Finally, more than fifty percent (50%) of the family's revenue from the past year have to come from either a farming or commercial fishing operation. A person who files for Chapter 12 Bankruptcy may adhere to the guidelines laid out for those who would file for Chapter 7, Chapter 11, or Chapter 13 Bankruptcy. Filing for Chapter 12 Bankruptcy consequentially stops the majority collection proceedings against the debtor or the debtor's property. Chapter 12 Bankruptcy allows the debtor to pay back the creditors in small amounts which requires the debtor to live on a fixed budget for a set period of time and the debtor can't get any new debt within the time period as it may well make it challenging to reimburse back the creditors.

Chapter 13 Bankruptcy allows the debtor to pay back their debts over a particular period of time, frequently three to five years, without the selling of their properties. It is formally called the Individual Debt Adjustment but is also called a wage earner's plot. It allows persons with a regular income to develop a arrangement to repay all or part of their debts over a certain time period. Chapter 13 offers the individual a opportunity to save their residence from liquidation, which would most probably happen if they were to file for Chapter 7 bankruptcy. It also allows an individual to reschedule secured debts, though this excludes a mortgage for their primary residence, and lengthen the debt over the life of the chapter 13 plot. This may help to reduce payments. The debtor would have no direct contact with the creditors under chapter 13 bankruptcy as they pay the agreed amount to the trustee who then pays it to the creditors. Any person is eligible for chapter 13 relief if thiertheir unsecured debts are fewer than $336,900 and their secured debts are fewer than $1,010,650. Unlike former Chapters, corporations and partnerships can't file under Chapter 13. The same steps that are addressed in the third paragraph are taken to file for Chapter 13 Bankruptcy though the fee is slightly less than $300. Chapter 13 contains a special provision to look after co-debtors.

Chapter 15 Bankruptcy refers only to those cases that cross the United States Borders. It is also known as the Ancillary and Other Cross-Border Cases Chapter. Obviously, this Chapter deals with cases that have to do with more than one nation. Alternately, the debtor may file a Chapter 7 or Chapter 11 Bankruptcy case within the United States. An ancillary case is used when a "foreign representative" files a petition for the recognition of a "foreign proceeding". If the bankruptcy case is initiated by a foreign representative the court's jurisdiction is customarily limited to the debtor's assets that are situated in the United States.

The Bankruptcy Abuse Prevention & Consumer Protection Act requires debtors to pass more stringent guidelines to determine whether they can have their debts liquidated through Chapter 7, or whether they must enter a repayment plan through Chapter 13. Because the new laws make it more difficult for consumers to file bankruptcy, consumers should consult with a qualified Bankruptcy Attorney in their area, as listed on this site, to make sure they file the necessary forms to discharge debt.
How Will the New Bankruptcy Laws Affect Me?

There are many ways in which the new bankruptcy laws will affect debtors:

* A strict financial means test is now required that will prohibit many debtors from filing a liquidation bankruptcy under Chapter 7;
* Debtors must now receive a briefing from an approved credit counseling agency at least six months before they can file their bankruptcy case;
* Debtors must take an approved class on debt management techniques before they receive their bankruptcy discharge;
* A provision now makes it easier for a court to dismiss a bankruptcy case outright or to convert a Chapter 7 case to a Chapter 13 case; and
* A provision now permits a court to impose sanctions on attorneys, or even on debtors, for filing a Chapter 7 case that is dismissed or converted to a Chapter 13 case.

For more information, click here to download the Bankruptcy Basics brochure. To speak directly to an experienced Bankruptcy Lawyer, use the directory on this site to locate qualified legal counsel in your area.
How do Bankruptcy Attorneys Solve Credit Problems?

Bankruptcy attorneys handle all aspects of bankruptcy law and provide legal methods for an individual or commercial enterprise/business to either wipe out debts by liquidating assets and distributing them among creditors or resolve them by developing a court-approved reorganization plan, or other plan involving the repayment of creditors over time.

Bankruptcy lawyers explain the primary purposes and applications of bankruptcy laws and how they function to relieve individuals and businesses from indebtedness and provide a fresh financial start. Title 11 of the United States Code (the bankruptcy code) regulates the bankruptcy proceedings, including what chapter under which a debtor may file, what bills can be eliminated, how long payments may be extended, what possessions can be kept, and all other details concerning the bankruptcy.
Bankruptcy Proceedings

Bankruptcy attorneys practice two basic types of bankruptcy proceedings: liquidation under Chapter 7, and debtor rehabilitation involving a court-approved plan of reorganization and payment of the debts over a period of time using future earnings under Chapters 9, 11, 12 and 13.

The following provides general information on the five chapters of bankruptcy under which a debtor may possibly file:

Chapter 7:

Informally called "straight bankruptcy," Chapter 7 is a liquidation bankruptcy proceeding. The debtor turns over all non-exempt property (assets) to the bankruptcy trustee who then converts it to cash for distribution among the creditors. At the end of the proceeding the debtor receives a discharge of indebtedness (discharge notice) for all dischargeable debts, releasing him or her from personal liability for those debts.

Chapter 9:

Also known as 'Adjustment of Debts for a Municipality,' Chapter 9 is a federal mechanism for the resolution of municipal debts passed by Congress about 60 years ago. This form is similar to reorganization under Chapter 11, but it's only available to municipalities. Municipalities include cities and towns, as well as villages, counties, taxing districts, municipal utilities, and school districts.

Chapter 11:

Also known as 'Reorganization,' Chapter 11 is normally the chapter under which commercial enterprises (businesses) or their lawyers file. This allows the business to continue its operations while repaying creditors concurrently through a court-approved plan of reorganization.

Chapter 12:

Also known as 'Adjustment of Debts of a Family Farmer with Regular Annual Income,' Chapter 12 provides debt relief to family farmers. Chapter 12 proceedings are very similar to those of Chapter 13 where the debtors or their lawyers propose a plan to repay debts over a period of up to three years, unless the court approves a longer period, no more than five years.

Chapter 13:

Also known as 'Adjustment of Debts of an Individual with Regular Annual Income,' Chapter 13 provides debt relief for individuals or consumers. Chapter 13 differs from Chapter 7 in the respect that it enables the debtor to keep valuable assets, like a house, while making payments to creditors (through the trustee) based on the debtor's anticipated income over the life of the plan, usually three to five years. At a confirmation hearing, the court either approves or disapproves the plan, depending on whether the plan meets the Bankruptcy Code's requirements for confirmation.
Should I Hire a Bankruptcy Lawyer?

If you are a consumer or business facing foreclosure, lawsuits, liens, repossession or wage garnishment, an experienced Bankruptcy Lawyer can find the best option to help eliminate your debt. Use our attorney directory to locate a qualified Lead Counsel Bankruptcy Lawyer in your area who can help you to

The Debtors filed a petition seeking relief under Chapter 7 of the United States Bankruptcy Code (the "Chapter 7 Case"). On the same date, the Debtors filed the various financial schedules and statements required by the Bankruptcy Code and rules (the "Chapter 7 Schedules") and declared, under the pains and penalties of perjury, that the information contained in those Chapter 7 Schedules was true and accurate to the best of their knowledge and belief. On Schedule A -- Real Property, the Debtors disclosed their ownership of the Property and represented that the Property's then current market value was $140,000. On Schedule D -- Secured Creditors, the Debtors listed two secured claims against the Property: the First Mortgage and a second mortgage also held by Household Finance (the "Second Mortgage"). On Schedule C -- Property Claimed as Exempt, the Debtors elected to take the exemptions provided by the Bankruptcy Code. See 11 U.S.C. § 522(b)(1), (d) (2003). The Debtors listed the value of their claimed exemption in the Property as $0.00.

On Schedule B -- Personal Property, the Debtors responded "None" to the question of whether they held any "contingent and unliquidated claims. . ., counterclaims,. . . [or] rights to setoff" at the time the case was filed. On their Statement of Intention, the Debtors indicated an intent to reaffirm their obligations to Household Finance under § 522(c) of the Code, although no reaffirmation agreement was ever filed. And on Schedule D -- Creditors Holding Secured Claims, they left blank the column which questioned whether the mortgages held by Household Finance were disputed.

The Chapter 7 Case proceeded fairly uneventfully: the meeting of creditors required by § 341 was held and concluded on January 27, 2003; the Chapter 7 trustee reported that no assets were available for distribution to creditors; the Court issued an order of discharge on April 3, 2003 (relieving the Debtors of the more than $50,000 in unsecured debts disclosed on their Schedule F); and the case was closed on April 8, 2003.

The following year, on April 21, 2004, the Debtors filed their second and current bankruptcy case, this time under Chapter 13 (the "Chapter 13 Case"). Schedule A lists the Debtors' ownership interest in the Property, this time estimating the market value at $99,300 (a reduction of 29% over 15 months). On Schedule D, the Debtors list only the First Mortgage as a secured claim, again without indication that the claim is disputed in any way. This time, however, the Second Mortgage is listed as an unsecured claim on Schedule F, consistent with the Debtors' proposed treatment of the claim through their Chapter 13 plan. As in the Chapter 7 Case, the Debtors responded "None" to the question of whether they held any "contingent and unliquidated claims . . ., counterclaims,. . . [or] rights to setoff."

The Court confirmed the Debtors' Chapter 13 plan on September 21, 2004, and confirmed an amended plan on August 23, 2006. Under each plan, the Debtors proposed to pay the prepetition arrearage on the Refinancing loan through the plan and to make their monthly postpetition payments directly to Household Finance. Both confirmation orders contained identical language stating that Household Finance will "retain[ ] its lien on the [P]roperty" and the Debtors will "continue to make regular monthly payments" to Household Finance.

Over the course of the Chapter 13 Case, Household Finance has filed two motions requesting relief from the automatic stay imposed by § 362(a). In the first, filed on January 27, 2006, Household Finance alleged that the Debtors had failed to make two postpetition mortgage payments. That motion was resolved by a Court-approved stipulation requiring the Debtors to make certain payments to Household Finance and providing that the remaining postpetition arrears would be added to the end of the loan.

On September 3, 2009, Household Finance filed its second motion seeking relief from the automatic stay (the "Motion for Relief"), contending that the Debtors were seven months in arrears postpetition. The Debtors objected, maintaining that they were, at most, two months behind in their mortgage payments. In their objection, the Debtors claimed that there was an "ongoing dispute over payments." (Resp. to Mot. for Relief from Stay ¶ 5.e.) The Debtors also stated that a "QWR [Qualified Written Request] was sent with specific documents requested" from Household Finance. (Resp. to Mot. for Relief from Stay 2.) There is no indication that those specifically-requested documents were not received, but the Debtors alleged that Household Finance did not provide documents "that would resolve the on-going dispute." (Resp. to Mot. for Relief from Stay ¶ 5.e.) This "dispute" regarding application of payments was not detailed in the Debtors' opposition, nor did the Debtors specify how Household Finance's document production was inadequate. Instead, the Debtors summarily stated that the documents provided by Household Finance "at best are confusing, at worst intentionally obfuscating, and probably merely carelessly printed from a computer without checking for any accuracy of meaningfulness [sic]." (Resp. to Mot. for Relief from Stay 2.)

The Debtors followed their opposition to the Motion for Relief with the filing of this adversary proceeding on October 1, 2009, and the parties have assented to consolidation of the Motion for Relief with this action. In the complaint (the "Complaint"), the Debtors seek a rescission of the Refinancing transaction, actual and statutory damages, attorneys fees and costs, and a determination of Household Finance's secured status. Their demands for relief are predicated on Household Finance's alleged violations of the federal Truth in Lending Act (the "TILA"), 15 U.S.C. §§ 1601 et seq., and its implementing regulations ("Regulation Z"), 12 C.F.R. § 226; the Massachusetts Consumer Credit Cost Disclosure Act ("MCCCDA"), Mass. Gen. Laws ("MGL") ch. 140D, §§ 1 et seq.; the Real Estate Settlement Procedures Act ("RESPA"); MGL ch. 183, § 63; 12 U.S.C. § 2605 ("Regulation X"); the Massachusetts consumer protection statute, MGL ch. 93A ("Chapter 93A"); the "Massachusetts high cost loan statute;" and "common law." (Compl. § I.)

Household Finance moved to dismiss the Debtors' Complaint (the "Motion to Dismiss") under Federal Rule of Civil Procedure 12(b)(6), made applicable to this adversary proceeding by Federal Rule of Bankruptcy Procedure 7012(b), and the Debtors objected. At the hearing on the motion and the Debtors' objection thereto (the "Hearing"), the Court took the matter under advisement and allowed the parties additional time to file supplemental briefs, which they have done.

II. POSITIONS OF THE PARTIES[ 5 ]
A majority of the counts in the Complaint are predicated on Household Finance's conduct prior to and at the time the Refinancing transaction closed. The Debtors complain that Household Finance first misled the Debtors into believing that the loan they would receive would be the "best available" and on terms favorable to the Debtors. The Debtors maintain that Household Finance took advantage of the Debtors' lack of sophistication and engaged in so-called "bait-and-switch" behavior, ultimately providing the Debtors with an inferior, high-cost, adjustable-rate mortgage loan. These misrepresentations, according to the Debtors, warrant damages for deceit under Massachusetts common law. In addition, the Debtors say that Household Finance failed to provide them with the statutorily-prescribed number of copies of the disclosure documents required by the TILA and MCCCDA (the "Disclosures") and that the Disclosures contained inaccurate recitations of, inter alia, the finance charge and annual percentage rate. According to the Debtors, these inaccuracies entitle them to rescind the Refinancing under the TILA or MCCCDA and also entitle them to damages under the TILA, MCCCDA, and Chapter 93A. And, apart from the factual circumstances involving the Refinancing, the Debtors allege in the Complaint that Household Finance is liable for breach of contract and Chapter 93A damages because it has "improperly credited monies between the interest and principal accounts." (Compl. ¶ 45.)

In its Motion to Dismiss, Household Finance argues that each claim raised by the Debtors is barred by corresponding statutes of limitations, ranging from one to six years and commencing at the time of the negotiations and closing of the Refinancing transaction. And as for the Debtors' contention that payments have been wrongly applied, Household Finance says that the Debtors' conclusory statements, absent any explanation of how the Debtors believe any payments were misapplied, are insufficient to state any cognizable claim.

In response, the Debtors admit that the statutes of limitations relevant to many of their claims have expired, but only if measured from the date the Refinancing was consummated. The Debtors argue instead that the limitations periods should be tolled or should be calculated from the date the Debtors "discovered" that they had claims against Household Finance. Moreover, say the Debtors, even if some of the claims are barred by the statutes of limitations, others (such as the breach of contract claims) arose each time the Debtors made a payment to Household Finance, and those claims are thus timely filed.

Household Finance takes issue with the "discovery rule" as the Debtors apply it. According to Household Finance, all of the claims predicated on Household Finance's alleged misrepresentations and inadequate Disclosures (the "Refinancing Claims") arose at or near the time the loan documents were signed or at the time the proceeds were disbursed, and not at some later point when the Debtors say they finally realized they might have claims against Household Finance. Relying on Salois v. Dime Savings Bank of New York, 128 F.3d 20 (1st Cir. 1997), Household Finance argues that because the Debtors possessed all of the relevant information necessary to determine the existence of any purported claims in November 2001, and because they have not alleged facts sufficient to show that Household Finance attempted to conceal the causes of action, the Debtors cannot rely on the doctrine of equitable tolling to extend the limitations periods for their claims. Finally, to the extent the Debtors claim that the violations arising from the circumstances surrounding the Refinancing continue each time the Debtors make a payment on the Refinancing loan, Household Finance says this "continuing violation" theory has been consistently rejected by various courts and commentators and should not be found viable here.

In its supplemental brief, Household Finance also raises judicial estoppel as an additional ground for dismissal of the Complaint. Noting that the Debtors' claims against Household Finance were not disclosed in the Chapter 7 Schedules, Chapter 13 Schedules, or confirmed plans, Household Finance maintains that the Debtors are judicially estopped from pursuing their claims in this adversary proceeding. Household Finance argues that the Debtors have repeatedly represented to the Court that they have no claims against Household Finance (by failing to disclose any such claims in their schedules or plan), and have received the benefit of those representations through Household Finance's forbearance and willingness to enter into the Stipulation and through the Court's confirmation of their Chapter 13 plans. As such, Household Finance says, the Debtors are now barred from asserting these claims and challenging the mortgage.

III. DISCUSSION
A. Motion to Dismiss Standard
The standards for evaluating a motion to dismiss brought under Federal Rule 12(b)(6) are well-known and simply stated. In deciding a motion to dismiss, the court must "accept as true the well-pleaded factual allegations of the complaint, drawing all reasonable inferences in favor of the non-moving party." Damon v. Moore, 520 F.3d 98, 102 (1st Cir. 2009) (citing Stanton v. Metro Corp., 438 F.3d 119, 123-24 (1st Cir. 2006)). In order to sufficiently state a claim, the complaint "does not need detailed factual allegations," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), but nonetheless must provide facts sufficient "to raise a right to relief above the speculative level." Id. Thus,

[the court] differentiate[s] between well-pleaded facts, on the one hand, and "bald assertions, unsupportable conclusions, periphrastic circumlocution, and the like," on the other hand; the former must be credited, but the latter can safely be ignored.
LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507,508 (1st Cir. 1998) (quoting, citing Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)).[ 6 ]

B. Refinancing Claims
In Salois v. Dime Savings Bank of New York, the First Circuit Court of Appeals held that a plaintiff's claims predicated on misrepresentation, fraud, deceit, and TILA, MCCCDA, and Chapter 93A violations in connection with certain mortgage transactions arose when the transactions were consummated -- "when [the lender] allegedly induced them to sign loan contracts by misrepresenting and/or omitting facts about the terms of the mortgage [and] charged them excessive closing fees." 128 F.3d 20, 25 (1st Cir. 1997). This holding was compelled by the unassailable proposition that "[a] cause of action generally accrues at the time of the plaintiff's injury." Id. Therefore, to the extent the Debtors rely on a "continuing violation" theory with respect to the Refinancing Claims, the Court rejects that argument as inconsistent with binding First Circuit case law. See Salois, 128 F.3d at 25.[ 7 ] As in Salois, the Debtors' claims related to Household Finance's alleged misrepresentations arose at the time Household Finance representatives misled the Debtors regarding the type of loan they would be offered. And the TILA, MCCCDA, and Chapter 93A violations all arose when Household Finance provided them with the allegedly defective and inadequate Disclosures. That is, each of the Debtors' Refinancing Claims arose no later than November 2001.

Since each of the Refinancing Claims arose, at the latest, in November 2001, this Court need not go into a detailed analysis of the parties' various arguments regarding statutes of limitations, tolling, or judicial estoppel. Instead, the Court concludes that the Debtors have no standing to bring the Refinancing Claims, even if viable, as those claims would belong to their Chapter 7 bankruptcy estate.

Because the Refinancing Claims arose in 2001, prior to the filing of the 2003 Chapter 7 Case, the Debtors had an obligation to disclose their potential claims against Household Finance in the Chapter 7 Schedules. See 11 U.S.C. § 541(a). Regardless of whether the Debtors' failure to disclose the Refinancing Claims was intentional or inadvertent, those claims nonetheless became property of the Chapter 7 bankruptcy estate when the Chapter 7 Case was filed. See id.[ 8 ] A Chapter 7 trustee "`steps into the shoes of the debtor for the purposes of asserting or maintaining the debtor's causes of action[ ],'" DiMaio Family Pizza & Luncheonette, Inc. v. The Charter Oak Fire Ins. Co., 448 F.3d 460, 463 (1st Cir. 2006) (quoting In re Rare Coin Galleries, Inc., 862 F.2d 896, 901 (1st Cir.1988)), and has exclusive standing to prosecute prepetition claims, id.; see also Parker, 365 F.3d at 1272.

While disclosed assets are deemed abandoned upon the closing of a Chapter 7 bankruptcy estate, 11 U.S.C. § 554(c), "`property that is not formally scheduled is not abandoned and therefore remains part of the estate,'" Welsh, 199 B.R. at 229 (quoting Rosenshein v. Kleban, 918 F.Supp. 98, 102-03 (S.D.N.Y. 1996)).[ 9 ] Because the Debtors' undisclosed Refinancing Claims were never abandoned by operation of § 554, they remain property of the Chapter 7 bankruptcy estate and the former Chapter 7 trustee is the only party with standing to prosecute those claims.[ 10 ] Accordingly, the Debtors cannot pursue those claims here, and the Court must grant the Motion to Dismiss as to all claims that arose in connection with the Refinancing.

C. Misapplication of Payments
In addition to claims arising from the circumstances surrounding the negotiation and consummation of the Refinancing, the Debtors have raised claims that, they say, arose after the filing of the Chapter 13 Case. In the Complaint, the Debtors alleged that Household Finance "improperly credited monies between interest and principal accounts." (Compl. ¶ 45.) Attached to the Debtors' brief are two documents whose contents, context, and provenance are left unexplained. According to the Debtors, these "attached Exhibits illustrate, when combined with the Response to the Qualified Written Request,[ 11 ] Defendants breached their contractual obligations to Plaintiff." (Pls.' Suppl. Br. ¶ 10.) The Debtors then state that "[a]n additional breach occurred in the servicing of the loan," and that Household Finance "has not credited payments correctly." (Pls.' Suppl. Br. ¶¶ 10, 11.) Nowhere do the Debtors identify their view of how payments should have been applied. Nowhere do the Debtors identify the alleged error in Household Finance's application of payments. Nowhere do the Debtors identify a single payment application that would indicate a potential breach of the contract's terms. The Debtors have not only failed to state "facts sufficient to justify recovery on any cognizable theory," LaChapelle, 142 F.3d at 508 (emphasis supplied), they have failed to supply the Court with any facts at all. Accordingly, because no other viable claims remain, the Court must grant the Motion to Dismiss in its entirety.

IV. CONCLUSION
Because the Debtors' claims arising from the November 2001 refinancing of their Property were never disclosed and, therefore, never abandoned during their 2003 Chapter 7 Bankruptcy Case, the Debtors lack standing to pursue those causes of action. And because the Debtors have pled no facts in support of any remaining claims, the Court will grant Household Finance's Motion to Dismiss the Complaint and grant judgment to Household Finance. Household Finance's Motion for Relief will be set for further hearing so that the Court may evaluate the current circumstances associated therewith

South Florida continued to see upward movement in the number of bankruptcy filings during June.

In the three-county area, personal bankruptcy filings were up 36 percent, to 3,105 from 2,275 in June 2009, and up 9 percent compared with May.

The number of business bankruptcies for the three counties in June was up 22 percent, to 141 cases from 116 a year earlier, and up 8 percent from May.

There were 59 new business bankruptcies in Broward County last month, up from 50 cases last year, and up 11 cases from last year. Personal bankruptcy filings in Broward rose 36 percent over last year, to 994 cases opened, and rose 8 percent compared to May.

Miami-Dade County saw a small dip in business bankruptcy filings. There were 44 new business bankruptcies there last month, down from 45 cases last year and 56 cases in May. Personal bankruptcy filings in Miami-Dade rose 52 percent over last year, to 1,640 cases opened, and rose 12 percent over May.

There were 38 new business bankruptcy filings in Palm Beach County in June, up from 21 cases last year and 27 cases in May. Personal bankruptcy filings in Palm Beach rose 19 percent over last year, to 47 cases opened, and remained flat compared to May.

The American Bankruptcy Institute reported June consumer filings nationwide totaled 126,270, or 8.5 percent more than the 116,365 consumer filings in June last year, but 7.8 percent less than the nationwide May 2010 total of 136,142 consumer filings.

"Years of rising consumer debt and low savings rates, combined with the housing and unemployment crises, are causing bankruptcy levels not seen since the 2005 amendments to the Bankruptcy Code," ABI Executive Director Samuel J. Gerdano said. "We expect that there will be more than 1.6 million new bankruptcy filings by year-end."

•Elimination of debt. Filing for bankruptcy provides a way to eliminate most forms of unsecured debt, including credit cards, unsecured loans, unpaid medical bills, repossession deficiencies and payday loans.
•Bankruptcy discharge. The majority of people who file bankruptcy under chapter 7 will be discharged in just 4 months.
•No repayments. Provided that the new bankruptcy laws are complied with, it isn't necessary to offer creditors a monthly repayment. This is particularly beneficial to people who are currently unemployed and have minimal disposable income.
•Court protection. After filing for chapter 7 bankruptcy, it is illegal for creditors and debt collection agencies to contact the debtor for repayment. This protection arises the moment the petition is filed with the court. The only time contact can be made is for re-affirmation of debts, such as a car loan or mortgage, that are to be repaid separately.
•Credit counseling. A requirement of filing is that the debtor must get bankruptcy credit counseling from a source that is approved by the United States Trustee's office. This advice is designed to help that individual to manage his finances more appropriately in the future.
•Future credit. Despite the problem of a lower credit rating, it is possible to fix bad credit and qualify for home mortgages, car loans and credit cards within a few years.
•Free from worry. Eliminating serious debt problems will reduce stress and anxiety.

One of the most important benefits of filing for bankruptcy is that it will stop collection calls, letters, and other activities by debt collectors. This includes garnishments, lawsuits, and repossessions. When creditors or collectors do not cease collection efforts, consumers may be able to seek additional recourse in court. This article discusses some of the key protections for debtors who are being harassed over bills included in bankruptcy says California Bankruptcy Attorney Steven C. Peck.

Violation of the Automatic Stay:

When any person, business, or other entity files the initial petition for bankruptcy, the bankruptcy court judge enters an automatic stay. This is essentially a "safe harbor" for the debtor to catch their breath and prepare for the rest of the bankruptcy case. During the automatic stay, all collection efforts of any kind are prohibited.

The bankruptcy code provides a private cause of action for an individual injured by any willful violation of the automatic stay. The injured individual is entitled to recover "actual damages," including court costs and attorney's fees. An award of actual damages requires a showing of injury or loss stemming from acts in violation of the stay. Some examples of acts that have repeatedly supported an award for actual damages are repossession of a debtor's vehicle, locking a debtor out of a rented property, filing a lawsuit against a debtor, and continued efforts at the collection of debts owed before filing bankruptcy. Punitive damages are awarded when the creditor's collection activities are particularly egregious. indicates Los Angeles Bankruptcy Attorney Steven C. Peck.

Violation of the Discharge Injunction:

The final discharge order entered by the bankruptcy court judge is an injunction that releases the debtor from personal liability for specified debts. The discharge is a permanent injunction or order prohibiting the debtor's creditors from taking any form of collection action on discharged debts, including filing lawsuits, garnishing bank accounts or wages, and other collection efforts with the debtor, such as telephone calls, letters, and personal contacts.

A debtor that is harassed over discharged debts after the entry of the final discharge order can bring a contempt proceeding against the violating creditor. This is an adversary proceeding in the bankruptcy court, either brought as a motion for a contempt order, or an adversary action. The bankruptcy court judge can award an injured individual "actual damages," including court costs and attorney's fees. In appropriate cases, the creditor may be required to pay penalties or sanctions.

Fair Debt Collection Practices Act:

In most courts, it is possible for a consumer to assert a Fair Debt Collection Practices Act (FDCPA) case, when a creditor attempts to collect a debt that is discharged in bankruptcy. There are many articles about the provisions of the FDCPA, but in general, that federal law prohibits certain collection practices relating to bills that the debtor does not owe. Under the FDCPA, consumers can seek compensatory damages, statutory damages, and attorney fees.

The exception to this is Walls v. Wells Fargo, a federal appellate court opinion from the Ninth Circuit Court of Appeals, which applies as binding precedent in California, Idaho, Montana, Nevada, Oregon, Washington, Alaska, Hawaii and Guam. That case held that the FDCPA was preempted by the bankruptcy code, and that debtors are limited to seeking remedies for violations of the discharge injunction, as discussed above.

Continue reading "Bankruptcy Filing Stops Collection Calls, Letters, and Other Activities By Debt Collectors" »

Bankruptcy auto finance typically will represent a form of building back the credit history of a person. Usually, after the bankruptcy is closing, the person in question can apply for low interest car loans the next day. The purpose of this article is to help you in getting a car financing after bankruptcy, without so many struggles and with the most affordable interest rates. So, do not forget to read the tips below, and also apply them in the real life.

Before starting to apply for a bankruptcy car loan, it is important to check your credit report, in order to make sure that all the accounts are in perfect order. It is not something uncommon after a bankruptcy to see some open accounts that will need to be immediately closed, so it is important to do this properly. If not it can really hurt your chance at getting low interest no credit car loans. Also, after you look at your credit report, consider to add a page that will explain the general situation, which has resulted in the bankruptcy. In the case you are obtaining car financing after bankruptcy, the financial lenders will approve you for a much better low interest car loans in comparison with the normal conditions (this happens in the majority of the cases).

It is important to decide if you can afford a monthly car loan payment before purchasing the actual vehicle. As in the case of car financing after bankruptcy, there needs to be taken a decision regarding the financing package that is the most suitable for the actual income. The bankruptcy car loan amount and the length of the payment represent the factors which can determine the monthly payments. In economical terminology, this is named the flexibility, which can help the interested people to determine the vehicles that they can afford to purchase with their bankruptcy auto finance.

Declaring bankruptcy is not merely a financial decision; it's personal and emotional. Here is a simple checklist to determine whether discharging debt makes sense. If you meet all seven points, then the legal route could be your best course of action.

Point No. 1: You're allowed to file.
If you have enough money to pay your creditors, you may be ineligible to declare Chapter 7 bankruptcy. How would the courts know? Well, you'd have to complete the paperwork and pass the "means test" created by the 2005 bankruptcy reform law. If you make less than the median income for your state, you're fine. Yet if your income exceeds that figure, and you have enough left over after paying your necessary monthly expenses to cover some of your debts, you can't file.

Point No. 2: You don't see your situation improving in the near future
Now look into the future: Though you're tapped out and living on the edge today, perhaps you have a better paying job up ahead. Or maybe you're due to come into money with a gift or inheritance. If your hardship is temporary, and you foresee more cash flowing in the next year, you may want to wait it out. When your circumstances improve, you can apply more to your debts and pay them down much faster.

Point No. 3: Most of your debts are unsecured
You didn't mention the types of debt you have, but not all liabilities go away in bankruptcy. Bankruptcy may discharge unsecured debt -- credit and charge card balances, medical bills, collection accounts and the like. However, student loans, recent tax debt, many legal bills and child support arrearage are among those you're stuck with. In addition, the liens on secured debt -- think mortgage and car loan -- generally pass through bankruptcy unscathed, meaninig your obligation to pay them remains. So assess your liabilities: If the bulk is dischargeable, you meet the measure for this section.

Point No. 4: You understand (and accept) the downside of bankruptcy
Before walking into court, you're required to get approved bankruptcy education and counseling. These specialized classes, often conducted online, cover what can happen to you if you file. You'll learn about the damage bankruptcy leaves behind and the type of property you may have to surrender. This counseling will give you the opportunity to gauge whether or not you are comfortable having a bankruptcy notation on your credit report for 10 years. If you understand and are OK with bankruptcy's consequences, give a check to this section.

Point No. 5: You have no other good options
Bankruptcy may not be the only way out of your "nightmare." Another legal alternative to Chapter 7 bankruptcy is Chapter 13 bankruptcy. You'd pay your debt -- often discharging some -- via a three- to five-year court-supervised plan -- but get to keep all property. Also look into credit counseling. These nonprofit organizations have arrangements with most major creditors to reduce interest rates, and their debt management plans are designed to get you out of debt in fewer than five years.

Point No. 6: You're comfortable walking away from your financial obligations
Don't discount the emotional reaction to bankruptcy. Though many feel relieved afterward, others feel depressed and ashamed. Therefore, take plenty of time to project how you might react to "being bankrupt," then compare it to how you feel today. Who knows, you may prefer knowing you're paying your bills to feeling like you "failed." (Please note that I'm not making a judgment call, just asking you to consider your own emotions.)

Point No. 7: You will be in a better place if you do
Bankruptcy's big advantage is that it allows filers to reboot and make lasting, positive changes to the way they treat money. The problem? Too many don't. They make the same mistakes they did in the past and wind up in debt again, fast. So think: If you were to discharge your allowable debts, would you know what to do differently? And are you willing and able to make that commitment?

Continue reading "Simple Checklist To Determine Whether Bankruptcy Discharge Is Appropriate" »

When you file for bankruptcy, you will be assigned a bankruptcy trustee. The trustee is the most important person that you will be dealing with while your bankruptcy is ongoing.

He is the person who will be responsible for answering all of your questions once the bankruptcy proceedings are underway. He is the person who takes control of all your non-exempt property and puts it up for auction. And he is the one who communicates with your creditors and pays them from the auction proceedings. And, lastly, the bankruptcy trustee is also the person who ensures that all of the paperwork that you submit to the courts is complete and accurate.

The bankruptcy trustee does have a boss and this is someone called the U.S. Trustee. There are 21 regional U.S. Trustee offices throughout the country. Their goal is to oversee the bankruptcy trustees and ensure that all of the bankruptcy cases that enter the courts are being handled according to the various federal laws. Normally, you as the person filing, will have no direct contact with the U.S. Trustee unless there are some illegalities or other unusual circumstances involved.

There is no formal training involved to be assigned as a trustee. But, normally, a bankruptcy trustee comes from the ranks of the local bankruptcy lawyers, even though it is not necessary to be a lawyer to be a bankruptcy trustee. Normally, what happens, is that a few days after you file for bankruptcy, you will get a notice in the mail letting you know who your bankruptcy trustee is. You call him and from that point on, he is in charge.

The interesting thing about bankruptcy trustees is that they are paid indirectly by you. They make their money by taking a percentage of the sales of your non-exempt items that are sold at auction. In theory, this gives him a monetary incentive to get as much as he can for your various items which is good for the creditors who are looking to be paid off. In actuality, however, most of the time they are looking for the quickest sale to avoid having to spend too much time on a particular bankruptcy.

It is important to know that once you file for bankruptcy and are assigned a bankruptcy trustee, all of your non exempt property is under his control. This means that you cannot sell or get rid of it without his permission. He can take any or all of these items to sell as he pleases. If you violate these terms, it is likely that your bankruptcy case will be dismissed and you will not longer have bankruptcy protection for your exempt items.

Continue reading "Bankruptcy and the Role of The Bankruptcy Trustee" »