Tag Archive for: notice of right to claim exemptions

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.

 

 

Can Creditors Take Your Property?

The short answer is yes, creditors can take your property. However, they have to go to great length to do so. Below, we ask a few questions, and then provide some answers. Call us if you have questions—we’re here to help! 704.749.7747.

Is There A Valid Debt?

The first question when deciding the answer to the question “Can creditors can take your property?” is whether there is a valid debt. In most cases, the answer is yes. As a result, the creditor is entitled to be re-paid, per the contract you signed with them.

Do They Need A Judgment?

Except for the repossession of motor vehicles, in most cases the creditor will need a judgment in place in order to take your property. A judgment is not that difficult to obtain. As a result, most creditors are successful in procuring a judgment. One thing to keep in mind is that a judgment requires a lawsuit. If you have not been served a lawsuit, this means there is no judgment. Once a creditor files a lawsuit, you have a chance to defend against it. However, if the debt is valid there is no reason to spend time and energy fighting the judgment. One thing you might consider is responding to the Complaint (lawsuit) with an Answer, and ask for a hearing. At the hearing, you can ask the judge for an extension of time to consider filing bankruptcy or pay the creditor. This will buy you 30-90 days before a judgment is entered.

The Creditor Has A Judgment—What’s Next?

After a creditor receives a judgment against you, their next step is to try to enforce that judgment. First, the creditor must send you a Notice of Right to Claim Exemptions. It’s very important you complete this form. As a result of completing this form, you will disclose your assets and also invoke the protection of your State Exemptions. These exemptions protect you in Chapter 7, Chapter 13, and in a situation where a creditor is trying to take your property.

Second, the creditor will need to obtain a writ of execution. This is a court order from the Sheriff to take possession of property. Consequently, you may now be facing the loss of property. Communicating with the Sheriff’s office about your writ of execution is a very good idea. The Sheriff will understand if you tell them you are requesting some time to file bankruptcy—they may even tell you they will give you 30 days before executing on the writ of execution.

Lastly, the Sheriff will carry out the writ of execution to seize property to be turned over to the creditor in satisfaction of the debt. Or, the Sheriff will order the sale of property to liquidate it in order to pay the creditor.

Foreclosure Is Slightly Different

All of the above is true for foreclosure, except the process differs slightly. A mortgage creditor does not need a judgment against you to file foreclosure. They must simply show in court that you are behind on mortgage payments. You will receive notice of a preliminary foreclosure hearing. You should attend this hearing and ask for an extension to file bankruptcy or get caught up on your mortgage payments. Ultimately, if you don’t get caught up, the court will set a foreclosure date. You have until 10 days after the foreclosure sale date to file a Chapter 13 to save your house.

How Can You Stop A Creditor From Taking Your Property?

Bankruptcy is the most secure way to stop a creditor from taking your property. The filing of a bankruptcy invokes The Automatic Stay in bankruptcy. This prevents creditors from attempting to collect a debt in any manner. If necessary to save an asset, you can file an emergency bankruptcy petition with the court, and our firm can help with this.

What If The Creditor Is Threatening To Take My Car?

This video about Vehicle Repossession by attorney Ian Lyngklip gives great instruction on how to protect your car from a lender who is aggressively attempting to take it. Again, the filing of a bankruptcy will stop this process altogether and we’re here to help.

Speak With An Attorney Today

If you have questions about “Can creditors take your property?” please call us at 704.749.7747. Filing bankruptcy will dramatically change your life for the better—we’ve seen it over and over with our clients. You can also click for a FREE CASE EVALUATION and we will reach out to you today. We know you have choices. We hope you choose to Recover With Us.

The purpose of this article is to explain the effect of a writ of execution, and help you understand your options which include filing bankruptcy.

Your Pain

If you’ve received a writ of execution, it’s because a creditor has a judgment against you and is trying to collect on that judgment. The writ of execution will be served or delivered on you by the Sheriff. Essentially, it gives the Sheriff the power to take assets which you own, in an attempt to pay off the judgment.

Prior to the writ of execution, you should have received a Notice of Right To Claim Exemptions, which is important to complete and submit in a timely manner. This notice allows you to exempt some or all property so that a Writ of Execution will not later harm you.

If the Sheriff shows up with the Writ of Execution, the best thing you can do is communicate with them. If you plan to file bankruptcy shortly, you should tell them that. You can even give them your bankruptcy lawyer’s name and phone number. Usually, the Sheriff will want to know if you have a bankruptcy case number—you don’t get one of those until you file; however, the Sheriff may also give you an extension to allow you some time to get your bankruptcy filed.

How We Help

As Charlotte bankruptcy attorney, my job is to keep creditors from seizing your assets. We can confirm that you are working with our firm to file a bankruptcy, and even tell the Sheriff’s office when we expect to file the bankruptcy. Additionally, we can help you understand the effect of a Writ of Execution, a Judgment or a Notice of Right To Claim Exemptions.

Mainly, if creditors have a judgment against you or are pursuing judgments, it’s time to talk to a Charlotte bankruptcy attorney about whether filing a Chapter 7 is the right choice for you. Whether you file with our firm or another firm, part of our job is helping you understand the options.

Next Steps

If you are having trouble with creditors and would like to know more about the option of filing a bankruptcy, give us a call. Phone consultations are free and we’re here to help. Most consultations can be done over the phone. You’ll get the guidance you deserve and you’ll be empowered to take next steps. Call 704.749.7747 or click HERE to request a consultation. We hope you choose to Recover With Us.