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How Much Debt Do You Need To File Bankruptcy?

There is no set amount of debt needed to file bankruptcy. In deciding whether to file bankruptcy, we examine the amount of debt you have, the type of debt you have, and whether you qualify for Chapter 7 or Chapter 13 from an income perspective. This article seeks to address concerns surrounding “How much debt do you need to file bankruptcy?”.

Unsecured Debt

Unsecured debt is a debt that is not tied to any property. Common examples include credit card debt and credit “lines”. Unsecured debt is discharged in bankruptcy. When deciding if you have enough debt to file bankruptcy, you might consider the cost of filing bankruptcy as compared to what it would cost you to settle the debts with each creditor. Our office routinely assists clients with debt settlement when it makes more sense to settle the debt instead of file bankruptcy. Generally speaking, if you have more than $15,000.00 of unsecured debt and you do not have the ability to settle that debt or keep current on payments, you should consider a bankruptcy filing.

Secured Debt

Secured debt is a debt that is “secured” by a property—a car or home, typically. In a bankruptcy filing, you have the choice to either keep the secured debt (See: Keep Your Car In Bankruptcy) or discharge the debt. Keep in mind, the property travels with the debt. If you choose to keep the property, you keep the debt. If you surrender the property, the debt goes with it.

Upside Down Vehicles

Many clients are faced with a vehicle that is upside down. In other words, prior to bankruptcy, the value of the car is worth less than the loan balance. Trading the car in for a new car simply means carrying that negative equity into the new vehicle purchase. Bankruptcy offers a different solution. You can purchase a new car just prior to filing bankruptcy. Then, when you file the bankruptcy, you surrender the old car (and the old debt), and you are left with only the new car and the new car debt.

Creative Bankruptcy Solutions

You will find that much like the vehicle solution above; bankruptcy offers an opportunity to deal with your debt creatively. Chapter 13, which we discuss in greater detail in prior blog posts, also offers vehicle and home solutions ranging from stopping foreclosure to lowering your vehicle interest rate. Often, these solutions more than make up for the cost of filing bankruptcy.

Speak With A Bankruptcy Lawyer Today

If you have questions about “How much debt do you need to file bankruptcy?”, we are here to help. Call us at 704.749.7747 or click HERE to request a free consultation. You deserve to understand your options and we would love to speak with you.

Filing A Small Business Bankruptcy

Filing a small business bankruptcy in North Carolina is an endeavor which will relieve you of your personal obligations on business debt. For most small businesses, a Chapter 7 or Chapter 13 combined with a dissolution of the corporate entity, will accomplish your goals.

While Chapter 11 is designed for traditional business bankruptcy filings, it is an expensive bankruptcy option that costs debtors tens of thousands of dollars. There are times when a Chapter 11 is the appropriate avenue for a corporate entity to enter into bankruptcy and continue to do business. More often, in a small business bankruptcy setting, a Chapter 7 or Chapter 13 will serve to meet your goals, and save you thousands of dollars.

Debt With A Personal Guaranty

As part of preparing for bankruptcy, you must review your debt obligations with the help of your bankruptcy attorney. Specifically, it is important to distinguish between debt which is to the corporate entity only, and debt which includes a personal guaranty. The dissolution of the corporate entity serves to relieve the corporate entity of the obligation on the debt; the personal bankruptcy filing will serve to address the personal guaranty.

Anti-Bankruptcy Clauses In Contracts

Many corporate debt contracts contain language specific to bankruptcy. Those contracts often dictate that a bankruptcy filing will not serve to relieve the personal guaranty or other obligations to repay the debt. While this language is freely entered into by both parties signing the contract, courts have rules it to be in conflict with public policy. Our firm will defend any challenges to the discharge of your corporate debt, specifically challenges premised upon an anti-bankruptcy clause.

Profit and Loss Statements

Qualifying for Chapter 7 requires a thorough review and disclosure of your income for the 6-month window prior to the filing. When operating as a small business, debtors are typically not paid as W-2 employees. LLC members and partners take draws and often those draws differ dramatically from month to month, depending upon the profitability of the business. Additionally, while bankruptcy is available for debtors who qualify from an income perspective, you must demonstrate to the bankruptcy court your income, as defined by the bankruptcy court. This necessitates the submission of a profit and loss statement showing actual gross income, less actual expenses. Our firm will guide you through this process. We can help to create your profit and loss statement or advise a third party—typically an accountant—who you might retain to prepare it for you. For small businesses which have not had much income over the 6-12-month window prior to filing, often the profit and loss statement is easily created.

Call For A Consultation

We know the stress of running any small business. When you’re facing financial difficulties, it can be overwhelming. We’re here to help. Call us for a free consultation at 704.749.7747 or click HERE to make a simple request to be contacted. We will reach out to speak with you or schedule a time to speak. Your financially recovery is right around the corner, and we hope you choose to Recover With Us.

Discharging Student Loans in 2019

I have created a Google Alert for Student Loan Crisis. Every day my inbox tells me about one or another tales of how unpayable student loans are the key stressors for Millenials and Generation Z. One of the best measures for the sense of where our country is going is to analyze trending cases in bankruptcy courts that consider whether to discharge student loans in bankruptcy.

As many of us know, the general rule is that student loans are not dischargeable unless the debtor can show that the loans impose an “undue hardship.” While the Bankruptcy Code does not define this phrase, most courts have adopted a three part approach known as the “Brunner Test” to determine whether a debtor’s repayment of student loans after bankruptcy constitute “undue hardship.” The three parts, all of which must be satisfied, are:

  1. Will repaying the loan force the debtor to live an existence below a minimum standard of living?
  2. Will this condition likely persist into the foreseeable future?
  3. Has the debtor made a good faith effort to repay the student loans?

While the U.S. Supreme Court has not stated that the Brunner Test is the sole applicable standard, it has become the widely acknowledged standard around the country. I’ve taken a look at ten of the most recent student loan opinions to see if we can draw any conclusions about national trends in discharging student loans in bankruptcy.

In re Halatek (Eastern District of North Carolina)

  • Amount of Loan: 114,783
  • Held: Although Chapter 7 debtor suffered from Hypermobile Ethles-Danlos Syndrome and narcolepsy, she was gainfully employed by the State of North Carolina in a tenured, non-legal position, earned $66,192 in salary in 2016, debtor could not meet the first prong of the Brunner test because she had the ability to make payments on her student loan debt, while maintaining a minimal standard of living, if she reduced her discretionary expenses.

Analysis: North Carolina is a low income state, and $66,192 (right around median for a family of three) seemed simply too high for this court to find that this debtor could eliminate her student loans, notwithstanding her debilitating illness.

In re Tinsley (New Jersey)

  • Held: 1) whether or not a debtor is eligible for a zero-dollar-per-month repayment plan is not outcome determinative as to the first prong of the Brunner test. If the court finds that a debtor has reasonable expenses that significantly exceed their income and they would be unable to pay any loan amount, then the first prong is satisfied, even if a zero-dollar-per-month repayment plan is an option. 2) Debtor does not satisfy second prong of Brunner test where debtor medical condition does not prevent her from maintaining full-time employment for a significant portion of the repayment period, debtor’s expenses will decrease dramatically for a significant portion of the repayment period of the student loans, and debtor failed to produce any evidence that showed how her student loans have created a “stigma” in her life and how that stigma will impact her for a significant portion of the repayment period of the student loans.

Analysis: the Court added a “stigma” gloss to the second Brunner prong where none had existed previously. Plus, the likelihood that expenses would decrease caused the court to refuse to discharge the student loans.

In re Quackenbush (Southern District of Mississippi)

  • Amount of loan: $30,809 and $7,760 in accrued interest
  • Held: Debtor could not survive DOE’s motion for summary judgement even though debtor was unemployed and supporting her mother and mentally disabled daughter where debtor did not produce evidence that her situation was likely to persist for a significant portion of the repayment period of her loans, or that she had made a good faith effort to repay.

Analysis: the evidence required to discharge the student loan must be applied to every prong of the Brunner test. Borrowers frequently run afoul of the third prong because they have been simply unable to make any payments at all.

In re Regan (New Mexico)

  • Amount of Loan: $50,000
  • Held: Debtor, a 62 year old with an annual income of $44,444 could not discharge loans under Brunner because under the first prong of the Brunner test, evidence of her financial condition established that she could maintain a minimal standard of living even if forced to repay her student loans under an income-based repayment plan and public service loan forgiveness program; if she made payments under an IBRP, took advantage of the PSLFP, and made 114 consecutive qualifying payments, the remaining balance of her student loan debt would be forgiven in nine years, when she was 72.

Analysis: This opinion demonstrates the bias against discharging student loans in bankruptcy. The income of $44,444 was below the state median income, even for a household of only one person.

In re Lozada (SDNY)

  • Held: debtor fails first prong of Brunner test where his expenditures indicated that he lived a comfortable lifestyle and the record did not reveal any efforts to minimize discretionary expenses. Also, debtor has at least $1,400 of surplus income that he could apply towards paying his student loans. Debtors’ charitable donations totaling more than $100,000 in the five years preceding his bankruptcy also weighed against him.

Analysis: This was a fairly easy decision. Surplus income of any kind is typically enough to defeat a request to discharge student loans in bankruptcy.

In re Kinney (Northern District of Iowa)

  • Held: Debtor’s cosigning of niece’s student loans, where debtor receives no educational benefit from these loans, weighs against prohibiting discharge for debtor, so long as debtor can otherwise satisfy the Brunner test.

Analysis: this decision makes a nuanced distinction between guarantying another’s student loans and obtaining student loans for one’s own benefit.

In re Metz (Kansas)

  • Amount of Loan: $67,277
  • Held: 59 year old single debtor who filed bankruptcy under Chapter 13 was entitled to partial relief under the Brunner test where, although she had an income of $43,000, she could not make minimum monthly payments of $564 while maintaining a minimum standard of living, had few if any prospects of earning a higher salary, and would have been required to pay to work until she was 84 to pay the entire debt.

Analysis: like other cases, the age and low relative income of the debtor entitled her to obtain relief from her student loans.

In re Menefee (Eastern District of VA)

  • Held: debtor failed to satisfy any prong of Brunner test where she failed to provide any evidence as to her current income and expenses or the amount of her student loan payment, and thus did not establish that she could not maintain a minimum standard of living.

Analysis: this case raises the question of debtor’s good faith in attempting to obtain student loan relief. Debtors bear the burden of establishing the right to a discharge in bankruptcy for student loans.

In re Pierson (Northern District of Ohio)

  • Held: 1) debtor could satisfy first prong of Brunner test notwithstanding in the IBR repayment program at a zero monthly payment requirement. 2) Debtor met second prong of Brunner test where debtor struggles with learning disabilities and bi-polar manic-depressive disorder and thus had limited future earning potential. 3) Debtor could satisfy third prong of Brunner test where he utilized administrative assistance such as requesting forbearance and did not seek discharge until 20 years after his education. Discharge granted.

Analysis: this case would provide the greatest hope for those who would seek to discharge student loans in bankruptcy. This debtor overcame two of the greatest hurdles facing such debtors: participating in an income based repayment program and seeking forbearance and deferment instead of outright making payments. This court certainly focused on the debtor’s long term mental health struggles.

 In re Richardson (Southern District of Georgia)

  • Held: debtor fails first prong of Brunner test where creditor shows that debtor could maintain minimal standard of living by limiting his retirement plan payroll deductions.

Analysis: voluntary deduction for retirement plans frequently interfere with a debtor’s efforts to discharge student loans or otherwise obtain bankruptcy relief. Courts frequently view such deductions as a debtor paying themselves before paying creditors. On the other hand, if a debtor can’t possibly save for retirement because he owes exorbitant student loans, then why is that not an undue hardship?

Conclusion: as much as we would like for bankruptcy courts to take up the mantle of addressing the huge social problem imposed by ruinous student loan debt, it appears almost certain that the final word must be made by Congress. However, if an enterprising attorney were to bring this matter to the Supreme Court who would articulate a standard that is less rigid than the Brunner Test, as traditionally applied by bankruptcy courts, that could open doors for huge change in the world of student loans and bankruptcy.

This article was contributed by Ronald J. Drescher. He can be reached at www.drescherlaw.com or 410.484.9000.

Speak With A Charlotte Bankruptcy Lawyer Today

If you are considering filing bankruptcy or have questions about discharging student loans,  it’s important that you speak with a Charlotte bankruptcy attorney. The call is free and you will come away with a much better understanding of your options. You can reach us at 704.749.7747 or click to request a FREE CASE EVALUATION, and we will be in touch shortly.

Further Reading

If this article was helpful, you may find other helpful articles on our Bankruptcy Blog. Thank you for visiting the website—we hope it has been helpful.

What To Expect After Filing Bankruptcy

When you file bankruptcy, you should feel an instant sense of relief. Your bankruptcy attorney has filed the paperwork, and the court has sent out notices of the filing to your creditors. The Automatic Stay immediately goes into effect, which means your creditors are no longer allowed to contact you. You are on your way toward a brighter financial future. Below, we address some common concerns clients have shortly after filing.

The Post-Bankruptcy Timeline

If you file a Chapter 7 or a Chapter 13 bankruptcy, you will receive notice within a week, of your 341 meeting date. The 341 meeting date is typically 45 days after the bankruptcy is filed. The meeting only takes about 10 minutes and your attorney will attend with you. The advance notice is provided so you can make sure to clear your schedule. You can read further in our blog about what happens at a 341 meeting if you like.

Note also that the trustee may request additional documents at the 341 meeting. These may be bank statements, or other information related to assets or debts. The trustee will typically continue the meeting for a few weeks. So long as you provide the requested documentation within 14 days, you do not have to attend a continued 341 meeting.

Chapter 13 Payments

If you have filed Chapter 13, you will need to make your first Chapter 13 payment within 30 days of the bankruptcy filing. Because it takes seven days for your payment to post, you should make sure to mail your payment no later than 21 days after the bankruptcy was filed. Making on time payments in Chapter 13 is a key part of not having your Chapter 13 case dismissed. You will be provided guidance as to how to make a payment.

Taking The Financial Management Course

Once you file, you will need to take a second online course called the Financial Management course, or the Post Bankruptcy course. This is true of Chapter 7 or Chapter 13. The course is for education purposes only, but it is a requirement that it is completed prior to the entry of your discharge. A failure to take the course in the required time will result in you not receiving your discharge. Taking the Financial Management course should be done prior to your 341 meeting. Our firm pays for both the Credit Counseling course you take before filing, and the Financial Management course you take after filing.

Reaffirming Vehicle Loans

In Chapter 13, there is nothing to do regarding your vehicle except to make your monthly Chapter 13 payment. If you have decided to keep your vehicle in Chapter 7 bankruptcy, you may need to complete a Reaffirmation agreement with the lender. Essentially, if you want to keep your car, and if the car has a loan, you must complete and submit the Reaffirmation agreement as quickly as possible after filing. In any case, it must be completed prior to the entry of discharge. In a Chapter 7, this means you have roughly 60 days to complete the Reaffirmation agreement and return it to the lender with enough time for them to review it and file it.

While we will assist with completing the Reaffirmation agreement, you will need to request it from your lender. Steps should be taken toward this as quickly after you file your bankruptcy as possible—certainly no later than two weeks after filing. It will take time for the lender to draft the agreement and send it to our office.

When you reaffirm a vehicle loan, you are re-obligating yourself to the debt. This is done under the same interest rate, terms and repayment period. Additionally, once you reaffirm, any payments you make on the loan will be reported by the lender to the credit bureaus and will help to rebuild your credit.

Surrendering A Vehicle

If you are surrendering a vehicle in bankruptcy, you will simply need to reach out to the lender and make arrangements for them to pick up the vehicle. In the alternative, you can deliver the vehicle to them. This process is quite painless, but you should take steps shortly after filing, to complete the process.

Making Car Payments

In Chapter 13, your car payments are built into your Chapter 13 payment. In Chapter 7, if you plan to keep your car in bankruptcy, you will find that until your bankruptcy case closes, you will most likely need to make your monthly car payments to the bankruptcy division of your car lender’s office. This is a procedural matter for the car lender, and is a temporary payment situation until your cases closes. Once your case closes, you can resume auto-draft or any other type of payment method available prior to your bankruptcy filing.

Redeeming A Vehicle Loan

You may also choose to Redeem a vehicle loan in Chapter 7. This is a process by which you take out a new loan with a redemption company such as 722 Redemption. They will pay off your current vehicle loan, and going forward you will pay the new loan and keep the car. This is usually done to avoid reaffirming a vehicle loan with a very high interest rate, lower the loan balance to the blue book value, and may even offer a longer repayment period than a Reaffirmation. If you wish to start this process, you must reach out to a redemption company as soon as possible after the filing of your bankruptcy.

Home Mortgage Concerns

In Chapter 13, you simply make your Chapter 13 payment. In Chapter 7, as opposed to Reaffirmations on vehicles, you can generally keep your home so long as you continue to pay your mortgage. There is a public policy against reaffirming a home loan. The theory behind this is that your bankruptcy filing relieved you of the obligation to repay the home loan. To enter into a large debt immediately after filing bankruptcy may not be advisable. Supposing the housing market crashed after your bankruptcy. If you never entered into a home Reaffirmation, you could simply turn the home over to the mortgage lender and you would not be responsible for any remainder on the loan if the home is upside down.

For this reason, most individuals choose to “Retain and Pay” the mortgage. This means that as long as you continue to make mortgage payments, you are allowed to keep your home. You do not need to sign a home reaffirmation agreement. Additionally, your lender can not foreclose on the property if you are current. Lastly, your mortgage balance will reflect any payments you make, over time.

The only downside to not reaffirming a home loan is that the lender will typically NOT report the payments to the credit bureaus. This means you won’t get credit for your mortgage payments, and your credit score will not reflect them. You can address this yourself at the end of each year by submitting a list of payments you made on the mortgage, to each credit bureau. If the mortgage lender does not dispute them, you will be given credit for the payments on your credit report.

Your Credit Score After Bankruptcy

Everyone is concerned about their credit score after bankruptcy. You will be surprised how quickly your credit score recovers after bankruptcy. Additionally, you will receive offers for credit cards and vehicle financing shortly after your discharge. In most cases, our clients are able to purchase new homes two years after filing bankruptcy. You can read more about Your Credit Score After Bankruptcy on our blog.

The Discharge

In Chapter 7, after replying to any trustee requests for documents, filing Reaffirmation agreements, and taking your Financial Management course, your discharge will be entered. This means your case is officially closed and you have no further obligations in bankruptcy.

In Chapter 13, your discharge will be entered after you make your final Chapter 13 payment.

Speak With A Charlotte Bankruptcy Lawyer Today

If you are considering filing bankruptcy, it’s important that you speak with a Charlotte bankruptcy attorney. The call is free and you will come away with a much better understanding of your options. You can reach us at 704.749.7747 or click to request a FREE CASE EVALUATION, and we will be in touch shortly.

Further Reading

If this article was helpful, you may find other helpful articles on our Bankruptcy Blog. Thank you for visiting the website—we hope it has been helpful.

Can I File Bankruptcy Without My Spouse?

Yes, you can file bankruptcy without your spouse. When deciding whether to file bankruptcy with or without your spouse, there are a few factors to consider. We’re here to help you sort through the decision-making process and make the best choice for you and your family. Click HERE to request a free consultation, or call 704.749.7747 to speak with an attorney.

Examining Your Joint Debt Before Filing

The primary purpose of filing bankruptcy is to free yourself from debt. Bankruptcy is typically referred to as a Fresh Start. Because of the powerful relief offered by a bankruptcy filing, you truly do get a fresh start after your case closes. For this reason, our first priority with clients is to make sure we are discharging as much debt as possible in bankrutpcy. Quite often, this analysis will answer the question whether to file bankruptcy with or without your spouse.

For a household that has $100,000 in credit card debt, a Chapter 7 or Chapter 13 filing will provide much needed relief. If half of that debt is joint debt between you and your spouse, the bankruptcy filing would only provide your household with half of the available relief, which we see as a bad result.

Can I File Bankruptcy Without My Spouse If We Have Joint Debt?

If you and your spouse are both debtors on a credit card debt with a balance of $10,000, your bankruptcy filing will relieve you of your obligation to repay that debt; however, if your spouse does not join in the filing or file her own bankruptcy, she will still be liable for the entire $10,000 balance on the debt. As a result, unless there is a pressing reason to not file a joint bankruptcy, we strongly encourage it.

Preserving The Credit Score Of One Spouse

One strategy for not filing a joint bankruptcy is that you want to preserve the credit score of one spouse, for future purchases and credit. While this may have some appeal, more often than not it is misguided. Unless clients are planning on purchasing a new home shortly after the bankruptcy filing of one spouse, preserving your credit score is usually a high price to pay for continuing to carry burdensome debt as a married couple. We have written extensively about how your credit score will recover after bankruptcy, and the news is good. In fact, our favorite bankruptcy clients are those individuals and couples who have already purchased a home and have working vehicles—they can wait the year or two after bankruptcy for their credit scores to recover, before entering into large credit transactions.

Household Income In A Bankruptcy Filing

There may be instances where one spouse makes more income than the other. In these situations, you may think the spouse with lower income can file bankruptcy despite the income of their spouse. For better or worse, the bankruptcy court looks at the income of the entire household when determining whether you pass The Means Test in bankruptcy. As a result, both your income and your spouse’s income will need to be considered when determining whether you qualify to file Chapter 7. Additionally, if you’re considering  Chapter 13 filing, your household income will be a factor in determining your Chapter 13 payment.

Fortunately, if one spouse is filing and the other is not, there is an opportunity to take what is known as a Marital Adjustment when calculating household income. In this instance, we are able to exclude any household income which the non-filing spouse is spending on him or herself. This includes, but is not limited to: hobbies, health insurance, food, vehicle, etc. When these expenses are carefully investigated, quite often they make the difference for passing The Means Test.

Joint Mortgages In Bankruptcy

Filing a bankruptcy without your spouse will not affect a joint mortgage negatively. In a Chapter 7 filing, you will need to be current on the mortgage when filing, or make a decision to surrender the property to the bankruptcy court. In Chapter 13, one spouse can use the bankrutpcy filing to get ‘caught up’ on the mortgage; in the meantime, so long as the Chapter 13 payments are consistently made, the non-filing spouse will be protected from the mortgage creditor, the same as the spouse who filed the bankruptcy.

Speak With A Charlotte Bankruptcy Lawyer Today

If you are considering filing bankruptcy, it’s important that you speak with a Charlotte bankruptcy attorney. The call is free and you will come away with a much better understanding of your options. You can reach us at 704.749.7747 or click to request a FREE CASE EVALUATION, and we will be in touch shortly.

Further Reading

If this article regarding “Can I file bankruptcy without my spouse?” was helpful, you may find other helpful articles on our Bankruptcy Blog. Thank you for visiting the website—we hope it has been helpful.

Is Loan Consolidation Better Than Chapter 7?

Loan consolidation or “Debt Consolidation”, is when a debtor combines their existing debt into one loan. Typically, filing a Chapter 7 bankruptcy will yield a much better result for the debtor and at a fraction of the price of loan consolidation. This is true even of an Emergency Bankruptcy filing.

A loan consolidation makes it easier for the debtor by allowing them to pay one creditor instead of numerous creditors. This typically results in a lower monthly payment due from the debtor. The loan consolidation company negotiates a lower balance on your debt for you, and in exchange you make your payments on an agreed upon schedule. When you have made your last payment, you will have a zero balance on each debt.

Pitfalls Of Loan Consolidation

Taxation On Forgiveness Of Debt— You will achieve dramatically different results regarding taxation, depending upon whether you choose loan consolidation or Chapter 7. In many instances, the lowered balance on your debt is considered forgiveness of debt. For example, if you owe $10,000 on a credit card and the loan consolidation company negotiates the balance to $7,500, you may have $2,500 of forgiveness of debt. The federal government considers this to be income. Come tax time, you will most likely receive a notice of $2,500 of income related to forgiveness of debt. You will then owe the taxes on that $2,500 just as if you had earned it as an employee. This comes as a surprise to many debtors and can undo the benefits of the negotiated debt. This is similar to the treatment of forgiven debt in a foreclosure outside of bankruptcy.

Default Penalties— The contract you sign with a loan consolidation company will be lengthy and complicated. Typically, it will include hefty penalties for failing to make your payment on time. In many cases, even one missed payment can result in you losing the benefits of the loan consolidation.

Exorbitant Fees— The fees charged by loan consolidation companies are a new element of your debt. Identifying the exact fees can be challenging due to the complexity of the contract you sign. In worst case scenarios, you may be sending more than 10% of your monthly payment to the loan consolidation company as a fee for managing your debt.

No Protection Against Creditors— Unlike Chapter 7 bankruptcy, you may find a creditor fails to cancel your debt in exchange for the payments you make through loan consolidation. You will also find the debt consolidation company often has no answer as to how to resolve this situation. You may end up arguing with a large lending institution about the balance on your debt. Without an attorney, this can be a tough fight often won by the creditor.

The Chapter 7 Bankruptcy Difference

One difference between loan consolidation or Chapter 7, is that in most cases, Chapter 7 bankruptcy involves a flat fee. As a result, you immediately know the total amount of money you are paying in order to receive a discharge of your debt. In most cases, the Chapter 7 bankruptcy fee you incur to receive a discharge of debt will be thousands of dollars less than the amount you would spend in a loan consolidation program.

Chapter 7 Time frame

While most debt consolidation programs will have a duration of 36 months or longer, your Chapter 7 bankruptcy will typically start and finish within 120 days. We provide clients with an estimated timeline for Chapter 7 when representation begins. During that time frame, you will typically only be required to attend one hearing called a 341 Meeting. Your attorney will attend that meeting with you.

Tax Implications In Chapter 7

One of the most meaningful differences between Chapter 7 and debt consolidation, is with regard to tax implications. In Chapter 7, you receive a full discharge of the debt in question. Additionally, federal bankruptcy law dictates that you will not owe any taxes on the discharge of that debt. This is a meaningful difference when compared to the tax consequences that can result from forgiveness of debt in debt consolidation, as discussed above.

Chapter 7 And Your Credit Score

You should anticipate your credit score will drop more as a result of your Chapter 7 than as compared to debt consolidation. This drop in credit score is minimized if your credit coming into debt consolidation and Chapter 7 is already less than perfect. On an equally important note, improving your credit score after bankruptcy is faster and easier than you might think. The primary reason for this is that the filing of a Chapter 7 dramatically decreases your debt. Your credit score is determined by many factors. One of those is your debt to income ratio. When your debt decreases and your income stays the same—as it does when you file Chapter 7—the result is a better debt to income ratio for your credit score. We have written on an article about Chapter 7 and your credit score, which may be helpful.

Chapter 7 And Protection Against Creditors

One amazing and powerful benefit of filing Chapter 7 is the Automatic Stay. The Automatic Stay goes into effect the moment you file your bankruptcy, and it prevents creditors from taking action to pursue collection of their debt. This means foreclosure proceedings come to a halt, as do court cases, phone calls, and letters from creditors.

The rights of creditors in Chapter 7 are dictated by the federal bankruptcy code. Unless you have too many assets or too much income for Chapter 7, there is virtually nothing your creditors can do to prevent a successful Chapter 7 filing. Your Charlotte bankruptcy lawyer will make sure to review your case with you from these perspectives, well before filing.

Speak With A Charlotte Bankruptcy Lawyer Today

If you are considering filing bankruptcy, it’s important that you speak with a Charlotte bankruptcy attorney. The call is free and you will come away with a much better understanding of your options. You can reach us at 704.749.7747 or click to request a FREE CASE EVALUATION, and we will be in touch shortly.

Further Reading

If this article regarding loan consolidation or Chapter 7 was helpful, you may find other helpful articles on our Bankruptcy Blog. Thank you for visiting the website—we hope it has been helpful.

Bankruptcy And Foreclosure

If you’re considering bankruptcy and foreclosure proceedings have started, you need to act quickly. Filing a bankruptcy will stop a foreclosure proceeding; however, you will need a plan to either repay the mortgage lender over time in Chapter 13, or surrender the property within roughly sixty days of filing the bankruptcy.

Bankruptcy And The Automatic Stay

When you file your Chapter 7 or Chapter 13 bankruptcy, the Automatic Stay goes into effect. This protection means that creditors—including your mortgage lender—are no longer allowed to try to collect on a debt. Foreclosing on property is the equivalent of attempting to collect on debt. As a result, when you file bankruptcy, all foreclosure proceedings come to a halt.

Foreclosure And Chapter 7

If you are behind on your mortgage and you file Chapter 7, the bankruptcy filing will serve to temporarily stop foreclosure proceedings. Because Chapter 7 makes no allowance for paying a mortgage lender, you will need to either make payments to the mortgage lender to get current, or plan to surrender the property in bankruptcy.

When you go through a foreclosure, if your mortgage lender sells the property and the proceeds from the sale are not enough to satisfy the debt, the mortgage lender can pursue you for the remaining balance. Chapter 7 protects you from this result. If you surrender your property in a Chapter 7 bankruptcy, the lender will not be able to pursue you for any shortages when they sell the property. In essence, any remaining debt is discharged by the bankruptcy filing.

Lastly, if a lender ‘forgives’ any remaining debt, you may receive a 1099 form from the federal government for forgiveness of debt. You will be responsible for the taxes on that forgiveness of debt, as it is treated as income for tax purposes. However, once again, Chapter 7 relieves you of this burden.

Foreclosure and Chapter 13

A Chapter 13 filing allows you to force your mortgage lender to allow you to ‘catch up’ on your mortgage over time. Typically, a Chapter 13 plan is a five year plan. If you are facing a foreclosure and want to keep the home, a Chapter 13 filing can allow you the time you need to continue making your normal mortgage payments while also slowly repaying the mortgage lender for whatever amount you were behind at the time you filed your Chapter 13.

You can also surrender a home in Chapter 13. As a result, you will be afforded the same protections against foreclosure you receive in Chapter 7, which are outlined above.

How Long Will Bankruptcy Hold Off A Foreclosure?

If you file a Chapter 13 and your plan proposes to pay the lender over time, the foreclosure proceeding will stop and as long as you continue to make your Chapter 13 plan payments, you will not face the threat of foreclosure. Additionally, at the end of the Chapter 13 plan, you will be current on your mortgage.

If you file Chapter 13 or Chapter 7 and do not make provisions to repay the lender the amount you are behind, you can expect that the filing of the bankruptcy will temporarily stall the foreclosure proceedings by about 60 days; however, your lender will typically file a motion for relief from the automatic stay. That motion will be approved by the court, and the lender will be allowed to proceed with their foreclosure.

If your foreclosure sale is coming up quickly, you may consider filing an Emergency Bankruptcy, and we can assist with that filing. The Emergency Bankruptcy allows you to receive the protection of bankruptcy while you work with your attorney to gather the required documentation for a normal bankruptcy filing.

Speak With A Charlotte Bankruptcy Lawyer Today

If you are considering filing bankruptcy, it’s important that you speak with a Charlotte bankruptcy attorney. The call is free and you will come away with a much better understanding of your options. You can reach us at 704.749.7747 or click to request a FREE CASE EVALUATION, and we will be in touch shortly.

Further Reading

If this article about bankruptcy and foreclosure was helpful, you may find other helpful articles on our Bankruptcy Blog. Thank you for visiting the website—we hope it has been helpful.

Filing Bankruptcy With A Pending Lawsuit

If you file bankruptcy with a pending lawsuit, the legal action against you will come to a halt pursuant to the Automatic Stay in bankruptcy. This means the creditor attempting to turn your debt into a judgment they can execute will be prevented from taking further action. Any attempt to do so would amount to an Automatic Stay Violation. This is true so long as the Automatic Stay is in effect, and will be true ongoing, provided you receive a Discharge in your Chapter 7 or Chapter 13 bankruptcy filing.

When Debts Escalate To Lawsuits

It is one thing to be behind with a creditor. It is another thing entirely to be faced with a lawsuit filed by a creditor. Presumably, the creditor is pursuing a judgment in court. With a judgment in place, the creditor has more ways to attempt to collect on their debt. These include potential wage garnishment, forced sale of assets, and foreclosure.

In a past article, Is The Sheriff Coming To My House?, we addressed the process by which a creditor can attempt to enforce their judgment once they obtain one in court. However, by filing bankruptcy you will invoke the powerful protection of the Automatic Stay and prevent the creditor from moving forward.

Notifying The Lawsuit Creditor Of Your Bankruptcy

In a past article, we discussed Who Will Notify My Creditors When I File Bankruptcy? However, this instance is more specific and relates to making sure a legal action against you comes to a halt prior to a judgment being placed on record. While the federal bankruptcy court will send notice of your bankruptcy to your creditors, we make sure to notify the lawsuit creditor immediately upon filing the bankruptcy. We also send notice to the county courthouse where your proceeding is most likely filed. This alerts the county court system that a bankruptcy has been filed and the case must come to a halt until further notice.

Filing An Emergency Bankruptcy Petition

You may choose to file an Emergency Bankruptcy Petition in order to prevent a creditor from obtaining a judgment. This is a process by which you are allowed to file bankruptcy prior to having all the paperwork completed. The court then gives you fourteen days to file the remainder of the paperwork- don’t worry, our office assists with meeting all of the emergency bankruptcy filing requirements to make sure your bankruptcy petition is not dismissed.

What If My Creditor Does Obtain A Judgment?

If filing bankruptcy with a pending lawsuit doesn’t work out and your creditor gets a judgment before you file, that’s ok. We can file a motion together with your bankruptcy filing, to have the judgment removed from your record. This means that when you sell your real property (your house), you will not have to pay the judgment. This analysis is case by case and is specific to each debtor and the amount of equity you have in your home; however, we can give you an answer very quickly as to whether you would qualify for this relief.

Speak With A Charlotte Bankruptcy Lawyer Today

If you are considering filing bankruptcy, it’s important that you speak with a Charlotte bankruptcy attorney. The call is free and you will come away with a much better understanding of your options. You can reach us at 704.749.7747 or click to request a FREE CASE EVALUATION, and we will be in touch shortly.

Further Reading

If this article was helpful, you may find other helpful articles on our Bankruptcy Blog. Thank you for visiting the website—we hope it has been helpful.

 

 

Is Bankruptcy Public Knowledge?

Yes, your bankruptcy filing is public knowledge. However, the chance of someone finding out you filed bankruptcy is not as good as you might think. In fact, other law firms routinely call our office to ask us to check to see if an individual or company has filed bankruptcy. The reason it’s difficult for someone to find out you filed bankruptcy is that information is stored on PACER. PACER is an electronic system that stores records. In order to access it, you must register and pay per page for any materials you would like to view. As a result, most PACER users are bankruptcy lawyers, creditors, and attorneys. As a result, the chance your friends, family members, and co-workers find out you filed bankruptcy is very small.

Bankruptcy And Your Credit Report

While we have written in the past about bankruptcy and your credit score, it’s important to know that bankruptcy will show on your credit report for up to ten years. This is not a cause for alarm, because your credit score is more important than how long bankruptcy shows on your credit report. In fact, unless your credit was perfect before filing bankruptcy, your credit score a year after filing bankruptcy will typically recover to what it was the day before you filed. From there, if you follow a few simple strategies for building your credit score, you will continue building a healthy credit score.

Credit Card Offers

Our clients report to us that they start receiving credit card offers shortly after filing for Chapter 7 bankruptcy. One reason for this is that bankruptcy improves your Debt To Income Ratio. Your debt to income ratio compares your income to the amount of debt you have. When you file bankruptcy, you eliminate a large amount of debt. As a result, your debt to income ratio improves. Creditors see you as a good candidate for credit card offers. First, they know you do not have any other debt to pay. Second, they know you can’t file bankruptcy again for at least 8 years. As a result, you will start to get credit offers, which may surprise you.

Automobile Financing

Most clients are surprised to find out they can keep their car in bankruptcy. However, you may want to obtain a new car just before or just after filing bankruptcy. Even Chapter 13 clients who are in an ongoing bankruptcy, are able to obtain financing for new cars. This surprises many clients. Additionally, the process for getting approved for new vehicle financing in Chapter 13 is quite easy.  Again, another myth of bankruptcy is dispelled by the reality that filing bankruptcy serves to protect you more than it serves to harm you.

Life After Bankruptcy Gives You A Chance To Excel

Yes, bankruptcy is public knowledge. What’s more important is how positively your life will be affected from the day you file your bankruptcy. Without the ongoing debt payments, filing bankruptcy is like giving yourself the raise you deserve. You’ll find you have more money left over each month after paying bills, you can balance your budget and save for special events like birthdays and Christmas, and you’ll even be able to help a relative in need if you desire. You deserve a second chance, and we’re eager to help you seize the opportunity.

If you are considering filing bankruptcy, it’s important that you speak with a Charlotte bankruptcy attorney. The call is free and you will come away with a much better understanding of your options. You can reach us at 704.749.7747 or click to request a FREE CASE EVALUATION, and we will be in touch shortly.

Further Reading

If this article “Is Bankruptcy Public Knowledge?” was helpful, you may find other helpful articles on our Bankruptcy Blog. Thank you for visiting the website—we hope it has been helpful.

How Does Bankruptcy Affect Tax Refunds?

Tax refunds are protected in bankruptcy by the bankruptcy exemptions available to all debtors. Your tax refund is an asset, and must be declared as an asset on your bankruptcy case filing. By applying the bankruptcy exemptions to the refund, you can keep the refund.

Bankruptcy Exemptions To Protect Tax Refunds

The Bankruptcy Code provides for debtors to retain property even when filing a bankruptcy. It is for this reason that you can typically keep your home in bankruptcy or keep your car in bankruptcy. The allowances which dictate how much value in an asset is protected in bankruptcy are called Exemptions. Tax refunds are a general asset, and as such, you can protect them by using N.C.G.S. Sec. 1C-1601(a)(2). This is commonly referred to as the “Wild Card” exemption. It allows you to protect up to $5,000 of any asset, including your tax refunds. The exemption applies to each debtor. For a married couple filing bankruptcy, you would have $10,000 available under the Wild Card exemption.

Refunds Received Before Filing Bankruptcy

If you receive your tax refund before you file bankruptcy, you may still need to protect it by using an exemption. It is perfectly fine to spend your tax refund before you file bankruptcy. You may decide to use it to pay for bankruptcy, pay for some home repairs, buy new car tires, or pay for normal living expenses. These expenditures are perfectly allowable in bankruptcy and will not negatively affect your bankruptcy filing. If you have funds remaining from your tax refund when you file bankruptcy, you will use the Wild Card exemption to protect those remaining funds.

Tax Refunds In Chapter 13

If you are filing a Chapter 13 bankruptcy, you will need to disclose your tax refunds each year that you are in the Chapter 13. If your tax refunds are the result of an earned income credit or child tax credit, they are exempt in bankruptcy and you can keep them. Generally, you can also keep the first $1,000 of a tax refund each year. If your tax refund exceeds $1,000, your Charlotte bankruptcy attorney will disclose the refund to the Chapter 13 trustee. This is a good time to also tell the trustee if you have household expenses which you have been putting off. You can propose to keep your tax refund to take care of those household expenses, provided they are not luxurious.

If you are considering filing bankruptcy, it’s important that you speak with a Charlotte bankruptcy attorney. The call is free and you will come away with a much better understanding of your options. You can reach us at 704.749.7747 or click to request a FREE CASE EVALUATION, and we will be in touch shortly.

Further Reading

If this article addressing “How Does Bankruptcy Affect Tax Refunds?” was helpful, you may find other helpful articles on our Bankruptcy Blog. Thank you for visiting the website—we hope it has been helpful.