Sunday, December 13, 2009

A recent move may impact your ability to protect property in bankruptcy


You’ve recently moved, which state’s exemptions apply?

First of all, why is this important? Whether federal or state, the exemption laws vary in the amount of property they allow you to protect from creditors. Some states may allow you to protect $100,000 of equity in your home, others $40,000 or less. O.J. Simpson famously moved to Florida to take advantage of its absolute exemption for the homestead.

As the guardian of your assets, exemption laws are crucial to any personal bankruptcy filing. Indeed, since exempt property is sheilded from creditors, the availability of exemptions is usually key to the determination of whether to file bankruptcy in the first place. If the debtor has significant amounts of property that could potentially be lost in a chapter 7 liquidation, chapter 13 may be the answer. Even in a chapter 13 setting, the value of nonexempt property may determine the minimum that must be paid to unsecured creditors. All Denver bankruptcy lawyers can agree about the fundamental importance of the exemption laws, however, sometimes it can be tricky figuring out which state’s exemption laws apply.

When states have “opted out” of federal exemption standards and only allow citizens to use their own, choice of exemption law is decided by domicile or residence. The state exemption law that applies to a debtor is determined by the state in which the debtor’s domicile has been located for the 730 days (two years) immediately preceeding the filing. What if the debtor has lived in two different places in the past two years? For example, Colorado has experienced rapid growth in population by people drawn to its pleasant climate and strong economy.

If the debtor’s domicile has changed in the last two years, the determining factor for exemption law purposes will be where the debtor resided for the 180 day period preceding the two year period. In other words, we look back two years plus 180 days. Wherever the debtor spent the majority of this 180 day period will be his or her exemption state. The plot thickens when the debtor’s exemption state requires that a debtor be a resident to take advantage of its laws. Some states such as Colorado limit their exemption laws only to current residents (defined as someone who lived in Colorado longer than anywhere else in the actual 180 day period immediately preceeding the bankruptcy filing).

So what becomes of the debtor who lived in Colorado for 10 years but moved to North Carolina 1 year ago? Colorado and North Carolina are both opt out states, meaning federal exemptions are normally not available. Let’s run through the analysis. Since the debtor has not lived in North Carolina for the last two years, North Carolina exemption law is not applicable. We turn to the Colorado bankruptcy exemptions. But wait! Colorado law mandates residency in Colorado in order to claim its exemptions. The debtor will not qaulify for the protections of Georgia law because the Colorado legislature has limited the scope of Colorado exemptions to current residents only. Have we created the Yaser Arafat of bankruptcy debtors who has no protection from any state’s bankruptcy exemption laws? Thankfully, No. If the effect of this complicated residency scheme is to render the debtor ineligible to claim any exemptions, the debtor may elect to exempt property under the federal exemptions, even if the state of the debtor’s domicile is an opt out state.

Questions about bankruptcy? Consult a Denver bankruptcy attorney.

How Long Does Chapter 7 Bankruptcy Take

Chapter 7 bankruptcy is a fairly quick process that generally lasts about four months after you file your case.

Your case will be filed electronically. A few minutes after the case is filed, you will be given a hearing date. This hearing is called a 341 hearing (after section 341 of the Bankruptcy Code) or a First Meeting of Creditors. We’ll just call it “your hearing.”

Your hearing will be held four to six weeks after you file your case. All of the deadlines in your case run from the hearing date. Creditors and the United State Trustee have 60 days after your hearing date to file motions to dismiss your case, object to discharge, or file non-dischargeability actions for specific debts. A non-dischargeability action is where the creditor asks the court to rule that a particular debt is non-dischargeable. Not all debts can be discharged. For example, debts incurred by fraud cannot be discharged.

Once the 60 day period runs after your hearing, neither creditors nor the United States Trustee can bring complaints or motions to disallow your discharge of your debts.

However, the United States Trustee could bring an action to revoke your discharge if he later learned that you comitted fraud during your bankruptcy. For example if the U.S. Trustee found out you lied about your assets or income, the bankruptcy court could later revoke your discharge. This could be done years after your bankruptcy case was closed, so be sure to be honest and provide your attorney with accurate information.

In the vast majority of cases, the 60-day period is just a waiting period where nothing happens. As with many things in life, no news is good news.

After the 60-day period runs, you will get a discharge from the court. The discharge order provides that all dischargeable debts are now discharged. Put simply, you don’t owe them anymore. Any debts excepted from discharge, such as alimony, child support, certain taxes, student loans, or specific debts the court ruled that are non-dischargeable will not be discharged.

The actual discharge order will not be issued immediately after the end of the 60-day period. The bankruptcy court clerk’s office is busy dealing with thousands of other matters. Because of this you may not get your discharge until 90 days or even longer after your hearing. Don’t worry; this is normal. Once you get past the 60-day period after your hearing, you can breathe easy. Your discharge will arrive shortly. Enjoy your financial fresh start!

Friday, December 11, 2009

Chapter 7 Bankruptcy Help

written by: Steve Young

In the financial system that people are facing now, many are challenged with very complex financial decisions. Many people have just lost their job, incurred great medical bills or are even going through a divorce. These can be devastating at times to your everyday life and financial expectations.

Every individual is unique, but when you face a challenge like working through bankruptcy, you are never alone. You can always get a chapter 7 bankruptcy support. Countless men and women have faced the exact same problem and have survived and thrived. Luckily, people who file for bankruptcy in Denver may find that other difficult debts are removed from their lives and they may be able to re-structure their budgets to handle money much better. This freedom may make it much easier to maintain timely child support payments and pay off medical debts as a result. With other debts out of the way, persons going through bankruptcy may find it easier to pay off the debts that were not discharged. Over the year's people's opinion of bankruptcy have certainly changed. Whilst years ago you may have been imprisoned and looked down on it is now a viable and humane option for dealing with debts that you cannot afford to repay.

Bankruptcy can sometimes help in situations where support obligations are in arrears or a garnishment is about to effectuated for arrears. In some cases, the Bankruptcy Court could provide a forum to address any arguments about what may be owed or may have already been paid prior to filing bankruptcy. A bankruptcy judge may address accounting issues on what is due and owing in a support claim, but a Bankruptcy Court will typically not address any support orders made by a Family Law Court, or modify any future ongoing support.

Many people think that if they simply file Chapter 7 bankruptcy, then they will get rid of all of their debts. Unfortunately, this is not the case. There are some types of debts that cannot be discharged in bankruptcy by law. In other words, even if you complete bankruptcy proceedings, you still have to pay back these debts. These debts include child support, alimony, student loans, most taxes, many secured debts, and debts not listed in your bankruptcy petition. Filing for bankruptcy protection does not let your ex to discharge past due child support obligations. Any back payments owed for child support cannot be discharged in a bankruptcy proceeding.

The automatic stay rule which prevents creditors and other debt collection entities from seeking compensation from borrowers does not apply to child support payments. In other words, if you are trying to collect from an ex-spouse, his or her bankruptcy filing will not protect him or her from having to making good on past due support bills. Child support payments are considered main priority -- meaning that they must be paid off before other creditor obligations, such as payday loans, credit cards and medical bills -- but the receiving spouse may have to work with an attorney to ensure the proper and speedy expedition of said child support payments. If you want to know more about Denver bankruptcy, just visit Denver bankruptcy information.

Should You File For Bankruptcy To Stop Foreclosure?

written by: Ginger Taylor

If you are facing foreclosure, your biggest concern right now is how to save your home. Nothing else really matters. You are facing an uphill battle, but it is not impossible to stop foreclosure. Filing for chapter thirteen bankruptcy is last resort way to keep from losing your home.

As soon as you file, the foreclosure must be stayed and the bank cannot pursue any further collection action until your Denver bankruptcy is dealt with. This allows you to come up with a plan to save your home by offering a modified schedule for paying your debts. The plan does not have to cover all of your unsecured debts, but it does have to get the approval of a bankruptcy judge before it can go into effect.

Before you file for bankruptcy, you will be required to attend a credit counseling session. This can help you determine whether you really need to file for bankruptcy or if your debts can be repaid in some other way. If the credit counseling agency prepares a debt repayment plan for you, it must be submitted to the court along with your bankruptcy filing. You may also want to consult a Denver bankruptcy lawyer on how to handle your bankruptcy. Filing bankruptcy can be tricky and if you file incorrectly, you will have to live with that decision the rest of your life instead of putting your bankruptcy behind you and moving on.

Within fourteen days after you file for chapter thirteen, you must file your repayment plan. This is usually done at the same time as the original filing, but it can be done later if you are not quite ready yet, as long as it is on file with the court within fourteen days.

You will be required to attend a creditor's meeting, and all of the companies and people you owe money will have a chance to ask you questions. The purpose of this meeting is to give your creditors a chance to object if they do not feel you will be paying as much as you possibly could under the proposed plan.

After the meeting has been conducted, the bankruptcy judge can take up to 45 days to approve or deny your proposal. In any case, you are required to start making the payments proposed under the plan within 30 days, so that means you may have to start paying on the plan before you know whether it will be accepted.

The downside to using bankruptcy to avoid foreclosure is that sometimes it only postpones it, and then you end up with both a foreclosure and a bankruptcy on your credit. It is often difficult to stick to the repayment plan, and if you fail, you can still lose your home. But before you file chapter thirteen bankruptcy explore all possible options, talk to an experienced Denver bankruptcy attorney first.