Hamilton Debt Relief

Bankruptcy

Reasons to Avoid Bankruptcy

You know it. Something bad happened and in this economy, bankruptcies are at a record high. Over 1.5 million were filed in 2010 alone. But you know there are several reasons NOT to actually go through with it? It's true. Here are seven very important reasons why you should not file bankruptcy:

1. Bad Credit: A bankruptcy will absolutely negatively effect your credit. A Chapter 7 or Chapter 13 bankruptcy can actually put a big black mark on your record for as long as 10 years, and your credit score drops 150 to 250 points according to some studies. This could spell trouble in many avenues, not just for when you need get a loan.

2. You CAN lose your property: A lot of people don't know that if a creditor doesn't get enough of a payout they can sue and depending on your state's laws and your own personal situation, you can lose your car and your home if you have one.

3. Financial Trouble: Bankruptcy can do a lot more than just mess up your life. It will make it difficult to rent or own a home or car, and if you don't disclose the reason to your employer, it will mess with your security clearance.

4. Some retirement Plans Are Not Protected. Very few programs are actually not sold or borrowed against in a bankruptcy in some states. Items like a 401k may be hit in order to pay back the money during a bankruptcy. If you have assets that protect you, then you probably should try to avoid bankruptcy at all costs.  Of course it is best that you review this aspect of bankruptcy with an attorney who is licensed in your state.

5. You may still owe a debt.  If you reaffirmed your auto and home loans and kept the property, you are not relieved of the debt associated with it.

6. You may not get new credit for a long time. A bankruptcy stays on record for 10 years. Even getting a secured loan may be problematic for 2 to 4 years, and if you declare bankruptcy, it will take even longer to get an unsecured loan. The only way you may avoid this is with a secured credit card, which might have a high interest rate and fees.

7. You may still owe money: No, declaring bankruptcy does not eliminate all debts. There are certain debts that cannot be discharged even after you say you're bankrupt. This includes student loans, child support, alimony, back taxes, and certain judgments can't be discharged.

There are alternatives to total bankruptcy. Always look with good debt relief companies to see what your choices are, and whether debt consolidation or negotiation may be better.

Chapter 7 & 13 Bankruptcy Discharge

When a bankruptcy case receives a “discharge” it means that the consumer is released from certain specified types of debts, or that he/she is no longer legally or personally liable to pay debts that the bankruptcy court has already forgiven; but sometimes certain items survive bankruptcy, and the creditors would naturally try to resume collection from the consume

 

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What To Do Before Filing Bankruptcy

If it is the prerogative of a consumer to not hire a lawyer and instead go at bankruptcy alone, the consumer has to make sure of the following before tackling the giant: That his/her amount of debt is large enough to warrant all the trouble and that his/her debt is primarily “dischargeable” and that the creditors would not challenge the discharge.

 

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Dismissing your Case in Bankruptcy

The consumer should first check the court’s local rules regarding “voluntary dismissals” and find out the time limit, types of papers to be submitted (Petition for Voluntary Dismissal and Order Granting Voluntary Dismissal) and all the other requirements because those rules vary per district.

 

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Properties that are Not Part of the Bankruptcy Estate

If the consumer is aware that he/she is legally going to be receiving assets (money, properties, anything of value, etc.) at the time he/she filed bankruptcy then those would fall under the bankruptcy estate.

 

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Do-It-Yourself vs Bankruptcy Lawyers & Petition Preparers

Individual consumers may represent themselves "pro se,” or without an attorney, in the bankruptcy court but to go through the whole bankruptcy process without legal aid is going to be quite an adventure. The consumer might actually regret not seeking the assistance of a bankruptcy professional, when he/she missteps in filing his/her papers and documents, and when it leads to the case being dismissed.

 

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When a Bankruptcy Plan is Not Submitted in Good Faith

The term “good faith” in bankruptcy does not have an official definition. It is a phrase that refers to the consumer’s honesty or trustworthiness in his/her papers or declarations. If the consumer truly filed bankruptcy with the intention of wiping the debts so as to be able to start over and then he/she actually makes all the payments specified in his/her Chapter 13 case, the objection should not get in the way of his/her petition.

 

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Filing Bankruptcy to Stop Foreclosure

If the consumer has what it takes to make up payments in the future (bankruptcy is a long and tedious process) then he/she can file Chapter 13.  The consumer must make sure that he/she can sustain these payments for at least three years.

 

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How to File Bankruptcy Yourself – Chapter 7


•    The consumer should proceed to the clerk of the Federal Bankruptcy Court that is serving in his/her area.
•    He/she should submit the Individual Debtor's Statement of Compliance with the certificate of completion from the credit counseling course.
•    Wait for the court to send out the notice of his/her Chapter 7 bankruptcy case. The consumer should know that the court is about to inform the creditors that he/she has filed bankruptcy.

 

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The consumer wanted to reopen the case

For the consumer, if a creditor suddenly pops out of nowhere claiming that the consumer owes him/her a substantial amount, then it is imperative for the consumer to ask the bankruptcy court to reopen the case, let that creditor be added to the Mailing Matrix, add that particular debt to the discharge, and then reclose the case.

 

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The Costs of Filing Bankruptcy

However, since bankruptcy is a legal issue, the consumer should be more concerned about the legal fees (lawyer’s fee). Rates may be based on where the consumer lives but it is typically in the $1,500 to $2,000 range for Chapter 7 and $2,500 to $4,000 for Chapter 13. The more work for the lawyer, especially as bankruptcy laws change, the more the fees add up.

 

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Before Filing Bankruptcy to Stop a Foreclosure

Foreclosure is the legal process by which a lien against a consumer’s property is enforced by the lender or creditor through the taking and selling.
The consumer who is facing foreclosure may panic and file bankruptcy immediately  (which is not such a bad idea considering that both Chapter 7 and Chapter 13 can stop collection calls and property sale via a court issued Order for Relief)  to avoid losing his/her home but there are other options for the consumer to explore.

 

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Lifting the Automatic Stay in Bankruptcy

It is, as long as the creditors have not filed the Motion to Lift Stay, but more often than not, they are going to petition for it, in order to start collecting from the consumer again, at least until the debts are satisfied. The court then would set a hearing and send the consumer a notice. A certain period of time would be given to the consumer to file a response, but in some districts, even if the consumer decides not to file a response, he/she can still appear in court to argue against the lifting of the stay.

 

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Means Test

In a Chapter 7 case, if the consumer fails the means test he/she is presumed to abusive of the bankruptcy laws, and he/she would not be allowed to proceed unless proven otherwise. For a presumption of abuse to halt the consumer’s bankruptcy petition, either or both the Trustee and the creditors must file a request and motion for hearing to dismiss the case or have it converted to Chapter 13.

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What Happens if you Fail the Means Test for Bankruptcy

A consumer facing case dismissal or conversion on the basis of presumed abuse will receive a notice from the court 20 days in advance. The word “presumed” means to suppose that something is true even without evidence, that the consumer has the burden of proof, meaning he/she would have to provide the court with evidence that he/she did not commit the abuse.

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Objections to the Discharge of Debts in Bankruptcy

The court has systems (like guidelines on which debts are dischargeable and non-dischargeable) in place to settle each case at hand on the first hearing. However some creditors (usually the unsecured ones) sometimes still challenge some of the dischargeable debts and so it necessitates another hearing.

 

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Rebuilding your Credit After Bankruptcy & Debt Settlement

The consumer should keep abreast of his/her credit report status. Sometimes it shows that the consumer missed out on a payment when he/she really pays on time. If this happens, the consumer should send the credit bureaus his/her recent account statements and also copies of canceled checks as proofs of his/her good payment history. Request for those information to be added to the reort. Be sure to be thorough.

 

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How to Respond to Creditor Objections & Motions in Bankruptcy

Each of the creditors that the consumer listed in his/her papers would be sent a notice by the trustee of the case. The creditors, if they wish to be paid, or lay a claim on a debt, must file that claim within the 90 days after the first creditors meeting. *If the meeting is scheduled, the deadline for filing a claim still follows the first schedule, which is inside 90 days after the creditors meeting.

 

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When is Bankruptcy Discharged

A discharge is automatically handed down to the case; once the conditions of the bankruptcy are fulfilled (how Chapter 7 is discharged differs from Chapter 13). However, in both chapters, if the there is an objection to the discharge filed by the trustee or creditors, there is going to be another hearing set by the court, in which the trustee or creditor will present evidence to support his/her claims (burden of proof).

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When your Bankruptcy Case is Reopened

If even to an average person, it seems as if the consumer deliberately omitted certain properties when he/she filed for bankruptcy, and the trustee might request to reopen the case.  The court usually grants this request especially if the “new” property is substantial enough that its proceeds would satisfy what the consumer owes the creditors.

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Property in Bankruptcy

The section that defines estate properties (USC Section 541) is so broad that it includes practically every imaginable property type that a consumer would have a legal interest on. In contrast, the exceptions list is shorter, and it includes properties that the consumer declared as his/her exempt property (USC section 362, pertaining to the Automatic Stay) in the Official Forms (Schedule C). The automatic stay protects the property of the estate as it stops the creditors from taking any action against.

 

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Problems with Bankruptcy

If the consumer was honest with his/her declaration of properties when he/she filed bankruptcy he/she should now be ready to start a new life.

What if the consumer was dishonest?

When the consumer filed bankruptcy he/she swore under oath (penalty perjury) that everything in his/her paper is true to the best of his/her knowledge. If he/she deliberately omitted important details in his/her Statement of Financial Affairs, the U.S. Attorney’s office would be in on his/her case to possibly prosecute him/her for fraud.

 

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Preparing for Bankruptcy – Pre-Bankruptcy Credit Counseling & Planning

Bankruptcy is a federal court proceeding in which a consumer may obtain protection from the creditors. There are two general types of bankruptcy: voluntary (Chapter 7) and involuntary (Chapter 13). A voluntary bankruptcy is initiated when a consumer files a petition, while in an involuntary bankruptcy the creditor forces the consumer into filing.

 

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Properties that are Part of the Bankruptcy Estate

Any property that the consumer legally owns whether or not it has been fully paid. All properties that the consumer has the right to sell belong to the estate.


o    This includes properties that the consumer is not using but is earning from (leased space or objects.)

o    A deposit on a stock (held by the stock broker.)

o    Security deposit (advanced payment) held by the landlord or utility company.

o    Money investment on a business venture.

 

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Motions in Bankruptcy

A motion is a written or an oral request submitted to a court or a judge to obtain a ruling or an order that is favorable to the consumer. The consumer who has filed for the motion is known as the moving party.  The bankruptcy court system requires that the written notice be served or be delivered, to the other party, in advanced. Written motions contain the specific reasons or grounds for the request and also a brief recitation of the nature or facts of the case.

 

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Budgeting after Bankruptcy

Before the “fresh start” can even begin, life after bankruptcy leaves the consumer little room for leniency. The consumer, after all those mandatory counseling, should now be ready to face the many restrictions and constraints as a result of being bankrupt.

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What To Do Before Filing Bankruptcy

If it is the prerogative of a consumer to not hire a lawyer and instead go at bankruptcy alone, the consumer has to make sure of the following before tackling the giant: That his/her amount of debt is large enough to warrant all the trouble and that his/her debt is primarily “dischargeable” and that the creditors would not challenge the discharge. The consumer must make sure that the chance of the case being discharged is good.

 

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Bankruptcy Revocation of Discharge – What is it?

Although it happens rarely, the trustee or creditor can ask the court to revoke the discharge of all the consumer’s debts in bankruptcy, if they are able to convince the court that the consumer committed fraud. Whether or not the consumer is guilty of the accusation, it might be too tough a case for him/her to handle alone, and it is best that he/she hires the expertise of a bankruptcy lawyer.

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Bankruptcy Exemptions

The purpose of filing for bankruptcy is to give debtors a chance to start over. It allows them an opportunity to build their lives again after being overwhelmed by too much debt. One common misconception of Chapter 7 bankruptcy is to literally give everything up, even the shirt off your back. However, this is not exactly the case—federal and state law allows for property exemptions that help struggling debtors get back on their feet.

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Bankruptcy Discrimination – Employment & Other Issues

One of the consequences of filing bankruptcy is the possible unfair treatment or prejudice against the consumer by the government sector or private organizations. That is a fact even as the law prohibits such negative actions. Some of the unfair actions against the consumer are salary deduction, being demoted or even termination (and those are especially applicable to consumers that filed under Chapter 13).

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