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Category: Bankruptcy procedures
There are times when a person may be found to owe another person money. Usually one party sues another over a promissory note or a charge card. After a court proceeding, if the Court finds that the debt is valid, the Court grants a judgment in favor of the creditor.
One way the Judgment Creditor can try to collect is by filing a Citation to Discover Assets with the Court and serving the Judgment Debtor. The Judgment Debtor can be taken to court and asked about any and all assets that he has that can be used to satisfy the judgment. Once a Judgment Debtor is served with the Citation, he cannot sell, transfer, or dispose of his property until the Judgment Creditor has a chance to inquire about the assets. The Citation acts to freeze the assets of the Judgment Debtor.
The Judgment Creditor may issue a similar Citation to Discover Assets upon a third party not part of the original dispute, in order to determine if the third party has assets of the Judgment Debtor. If, for example, a bank has the Judgment Debtor’s money in an account, the bank can be prevented from releasing any funds out of that account. The Judgment Debtor will know when the Judgment Creditor contacts the third party as a copy of the Third Party Citation to Discover Assets is mailed to Judgment Debtor.
Depending on what is discovered in the post-judgment Citation hearing(s), the Judgment Creditor may be able to reach the Judgment Debtor’s bank account, seize non-exempt assets, and even garnish wages in order to satisfy the amount of the judgment that remains due and owed. The Judgment Debtor may be able to work out a payment arrangement with the Judgment Creditor. Obtaining legal assistance is advisable as soon as possible. Some Judgment Creditors may be willing to compromise on the amount owed, because the Judgment Debtor may have the option of seeking bankruptcy protection. If the Judgment Debtor qualifies for a Chapter 7 discharge, the Judgment Creditor could receive nothing.
April 15th is the deadline to file 2013 tax returns with the IRS and your state taxing authority unless you’ve received an extension to file. But you may notice we ask for several years of tax returns (if you were required to file) before we can file your bankruptcy. Why?
Well, let’s say you have regular income and want to do a Chapter 13 filing to make a payment plan for your debts over 3 years. One of the requirements in the bankruptcy code says you have to file all tax returns for all taxable periods ending during the 4-year period ending on the date of the filing of the petition? Huh?
Basically you have to have filed your last 4 years of tax returns before filing the bankruptcy. What happens if you don’t? Well, your Chapter 13 trustee can hold open the meeting of creditors to file those returns. If they aren’t filed, the case can be dismissed and your bankruptcy will tank. That would be bad.
The code also says all debtors have to provide certain tax returns to the trustee before the meeting of creditors. If you don’t do that, the trustee can’t do their job and conduct the meeting. Your case could be dismissed and you won’t get the benefit of the hard work, fees, and other documents you’ve already invested in the case.
Not only that, but if you never file your tax returns, the debt you might owe from those past returns can’t be discharged. Think about that – you might owe tax debt from 2007 or 2008 that could be discharged this year if the taxes were filed in a certain time frame. By not filing, you’re denying yourself a chance to eliminate that debt!
Tax returns are important pieces of information that lets your attorneys do their job of asking questions and let the trustees do their job in administering cases. Unless you have a good excuse for not filing (such as only having social security income or not having any job in the year that the returns would have been filed), you should always file those returns. If you owe the money, we can talk about how you might be able to pay it back or eliminate it. But until that’s done, you’re only hurting yourself by refusing to file.
If you have questions about discharging or repaying taxes in bankruptcy, reach out to us. Lakelaw will help go over your paperwork with you to make the most of your bankruptcy debt elimination or repayment plan. Call 847-249-9100 or 262-694-7300 in Wisconsin, or e-mail us , but most of all, get those taxes filed and copies to us!
Lawyers don’t like paperwork. If we had a choice, we’d have a paper-free office. But in our jobs, we need to be ready to show the right papers to the right people to be effective.
The Bankruptcy code says we have to give the trustee – the person overseeing a bankruptcy case – documents. We ask for these papers because we can’t give a proper financial story without proof. Paystubs to show a pay cut. Tax returns to show a change in income from year to year. Bank statements to prove that there were no unusual transfers or purchases before bankruptcy. They let us do our job to tell your story.
We successfully represented our clients Jack and Janet in a Chapter 7 bankruptcy. As part of the process, we had to ask for bank statements, mortgage documents, car titles, pay stubs, and tax returns. The US Trustee, the government body that oversees bankruptcies, had a question about our client’s income situation. They asked for more bank statements, pay stubs, and the most recent tax returns. We gave them to the office and they determined we were right – our clients deserved a Chapter 7 discharge. They got it.
Finding and keeping track of paperwork can be annoying. But it may mean the difference between a bankruptcy being successful and being a nightmare. Lakelaw will help go over your paperwork with you and work to make your bankruptcy successful. Call 847-249-9100 or 262-694-7300 in Wisconsin, or e-mail us to see what we can do to make sure you have all the financial documents you need for a successful bankruptcy filing.
In baseball, a batter gets three strikes, then he’s out. It doesn’t quite work that way with bankruptcy. Take our clients Aaron and Wendy. They filed a Chapter 13 bankruptcy and their bankruptcy was dismissed. They weren’t able for different reasons to make their plan payments for the complete plan, and wanted to start over.
Aaron and Wendy could have filed a Chapter 13 bankruptcy again (and they did). However, the bankruptcy code puts in rules when someone has two bankruptcies open in the same year. These rules affect the “automatic stay”, the protection you get when filing for bankruptcy. This is the protection that tells creditors to stop foreclosures, wage garnishments, car repossessions, and lawsuits.
The automatic stay is good for the full bankruptcy unless the court gives permission to a creditor to get around it. So if you stop paying on your mortgage for four months, the mortgage company can ask the court to let them out of the protection so they can foreclose.
But when one case was dismissed (or discharged and finalized), then another case is filed, the automatic stay protection only lasts for 30 days. To make it stay for the whole bankruptcy again, you have to ask the judge to continue or extend it and explain why.
To get what we wanted in court, we had to do what the courts ask when we need to ask for something – we filed a motion. We filed the motion for Wendy and Aaron to continue their bankruptcy protection throughout their new bankruptcy. In our explanation, we included their statements about why their last case didn’t work but this case would be more successful. Sometimes that is enough for the court to agree and for creditors to stay quiet and not object or fight it.
Sometimes the judge wants to hear an explanation in person. That’s what happened here. The judge listened and agreed that this case was filed in good faith and not simply another way to stall and avoid creditors. So she agreed and now our clients are protected again.
If you’ve had one case (or more) dismissed and want to re-file, you’ll want a lawyer to explain how to keep that automatic stay and protect yourself from creditors. Call 847-249-9100 or 262-694-7300 in Wisconsin, or e-mail us to see what we can do to make sure you keep the automatic stay in a new bankruptcy filing.
As an attorney who’s been practicing in consumer bankruptcy for five years now (in Illinois and Wisconsin), it’s heartbreaking and frustrating to see the huge amount of lies and misinformation about bankruptcy.
Some of these mistakes come from gossip or bad experiences in bankruptcy (including lying, bad attorneys, or other frustrations). Others come from rumors spread by the financial services industry to try to keep people out of bankruptcy (even though lenders can write off the uncollectable debt and take a tax break for it). Even worse are errors from hacks – er, attorneys/writers – who blatantly skew statistics and facts about bankruptcy filings for their own purposes. We can assure you that while nothing is ever certain with the law, the overwhelming majority of bankruptcies are successful, peaceful, and bring financial relief to our clients.
Here are some common statements about bankruptcy and the truth.
Statement 1: Why not just settle debt? It’ll be better for your credit report and you won’t have to pay a lawyer to settle debts for 40-50 cents on the dollar.
Answer: If your sole major debt is a $4,000 credit card and you can afford to pay a lump sum of $2,000, a credit card company may take it and waive the rest. To do so, you’ll have to show you have a serious hardship (not just because you don’t feel like paying) and submit financial records to prove it. You’ll also have to come up with a lump sum or a few significant payments, not a long term payment plan. Unless you’re insolvent, you’ll have to pay tax on the forgiven debt. But in the situation above, that’s fine because bankruptcy’s costs for a lawyer and the filing fees would make a bankruptcy unnecessary. Where bankruptcy absolutely becomes necessary is if you are in the same financial situation but have $50,000 worth of credit card debt and medical bills.
Even if you get every card or hospital to settle for 10 cents on the dollar (an unrealistic goal for most clients), and even if you can avoid the tax on the 1099 for the forgiven debt, that’s still at least 2-3 times what you’d pay for a bankruptcy to discharge the debt altogether. With so much debt, settlement is not only unrealistic, but it costs significantly more than a bankruptcy filing. For an attorney not to disclose that is tantamount to malpractice.
2. You cannot discharge student loans in bankruptcy.
Answer: This is another major misstatement, largely perpetrated by student loan lenders. In order to discharge student loans, there is a very high standard (possibly relaxed by a recent decision in the 7th Circuit Court of Appeals for Illinois/Indiana/Wisconsin) where you have to demonstrate a good faith attempt to make payments and a serious reason why it’s impossible to pay anything back. Essentially the situation is for people who are unable to earn a significant income, will likely never have the means to do so, leaving the possibility of repayment fruitless. That’s a high standard for sure, but it’s by no means impossible. (Think a 60 year old disabled person with only $700 per month in social security/disability coming in, with expenses of $1000 per month and $60,000 of outstanding student loans). With or without an attorney, people have successfully discharged significant private and government-backed student loan debt.
3. I want to file bankruptcy, but if I do, I’ll lose my (car, boat, beagles, RV, bank account, retirement accounts, etc.)
This aggravates me this most because it assumes that the point of bankruptcy is to take everything from the debtor. The exact opposite is true: an honest but unfortunate debtor gets a fresh start (in Chapter 7, or a repayment plan in Chapter 13) in exchange for listing, valuing and exempting assets. Every state has a scheme of exemptions (with some, like Wisconsin, allowing federal exemptions, while others, like Illinois, do not). The easiest way to find out what you can maintain: Talk to a competent bankruptcy lawyer. Call us at Lakelaw or e-mail us. Even if we don’t practice in your jurisdiction, we can refer you to a qualified consumer attorney in another area. You’ll be surprised, but typically 90% of Chapter 7 cases or so are no-asset 7 cases where the filing debtor turns over nothing.
The moral of this story: Speak with an attorney and learn the truth before believing what people write and say to scare people away from bankruptcy. It may not be for everyone, but for most debtors, it’s a huge relief and worthwhile decision.
I like to offer free initial consultations because I believe it’s only fair to know what your options are before paying for legal representation. I meet with many people who would benefit from Chapter 7 Bankruptcy relief. The only problem is that they are not eligible to file and get a discharge because they filed in late 2005, or 2006, or later.
The rules are very clear and simple: Measured from the date the prior bankruptcy was filed (not converted), a debtor must wait 8 years before filing another Chapter 7 bankruptcy and receiving a discharge.
Sure, there are other options available in the meantime – debt consolidation programs, Chapter 13 Bankrupty plans, Chapter 128.21 Debt Amortizations (for Wisconsin residents). These all require a steady income with disposable money to pay creditors. In this economy, not everyone has that.
My two cents: Meet with me (or another well-trained bankruptcy attorney) and look over your finances. If you make so little money you can’t be garnished, you may simply want to wait to file. If a small Chapter 13 plan payment is possible, that might work as well, but you should never file a Chapter 13 plan unless you know in good faith you can make it work. It’s simply too much time for you, an attorney, the court and trustee, not to mention money and a toll on the system. Also, you should never try to file a Chapter 13 bankruptcy and plan without an attorney – I was in court recently when a judge told a pro se debtor that she wouldn’t even file a bankruptcy without an attorney!
Still, there may be options available. Call us or e-mail us to discuss.
Every bankruptcy can take a different amount of time, but for each chapter of bankruptcy, we can usually give a very good guess for how long our clients will be in the process.
In a Chapter 7 Bankruptcy, from the time we file the petition and schedules with the court, the usual time to reach the Creditor’s Meeting (or 341 meeting) is about 30-45 days. From then, assuming our clients have no assets to be sold and divided among the creditors, they will take their second counseling session (debtor education or financial management), we will file the certificate, and there will be a discharge of the debts in 60-90 days from the creditor’s meeting. Even if there are assets, the case can proceed to a discharge in the same time period, but the case will stay open while the asset (a car, cash in a bank account, a house) will be sold and the creditors get paid.
The other chapters require a payment plan. So beyond the creditor’s meetings, the goal is to create a plan to pay creditors back over three to five years. The bankruptcy doesn’t have to last this long if the creditors can be paid back faster, but this is the general timeframe we have. The plans cannot last for longer than five years.
An e-mail recently circulated from another state. It asked what might happen in a case that had just opened. It seems that the filer had just filed a Chapter 7 bankruptcy in the past year. The debtor was about to be discharged, or released, from bankruptcy, with the case to be closed shortly. However, just before the debtor received the discharge, they filed a petition for Chapter 13 bankruptcy.
Different states might have ways of handling this situation. But from the responses received, it is pretty clear that this filer could be facing trouble for two big reasons. First, when a bankruptcy is filed, schedules D, E, and F, list all of the debts owed by the debtor. Debts to anyone for any reason. Because the debtor hadn’t received a discharge when this case was filed, those debts should be identical to those on the Chapter 7 petition. It’s possible the debtor might only have listed debts that would have survived the Chapter 7 – like mortgage debt, certain taxes, student loans, child support, and so forth.
The second, and more troublesome issue, is that for a time there were two bankruptcy estates open. If that sounds weird and confusing it is. A bankruptcy estate is the financial world of a debtor – whether an individual, or a business. Imagine if your beloved grandfather passed away peacefully. Everything he owned and all of his debts would be involved in his estate. Now suppose just as everything was to be divided and resolved with his family, you were told that your grandfather had a second estate that prevented this matter from being closed, and that the property couldn’t be divided until this second case was resolved. Well, other than the pain and sorrow of a death, this is very similar to two bankruptcy cases being open at once.
There are now questions of “bad faith” – whether the Chapter 13 was filed with the intention of paying back creditors, or simply to stall another process. This would have been much cleaner had the debtor simply wanted until the Chapter 7 was closed to file. Then a new estate, free from the Chapter 7, would be created and easier to manage. Unfortunately, that didn’t happen, and the court will have a very messy case to deal with.
I wouldn’t want to be that debtor or their attorney!
The moral of the story: The bankruptcy process has to be completed – either dismissed without a discharge, or closed after a discharge, in order to be started again. Consecutive bankruptcies may be ok, but two simultaneous bankruptices is not.
Lawyers, especially bankruptcy lawyers, are very aware of what is happening with the economy and how the average joe lives. We are much more in tune with the middle and lower classes than our wealthier congressmen. So when we hear questions like “Why are does it cost so much to file a bankruptcy?”, we understand and sympathize. We even get that some people who would like to file cannot afford to do so. This affects not only our clients in Wisconsin and Illinois, but consumers all across the country.
The price of filing a bankruptcy is set by Federal law. Right now, to file a Chapter 7 bankruptcy it costs $306, while a Chapter 13 bankruptcy runs $281. These fees go to pay the administrative fees of filing the case (things like the Trustee’s fees and the cost of processing paper work). While it is possible to petition the court to waive your fee for extreme financial difficulties, it is not easy to get a waiver. It can’t be. The courts depend on your payments in order to staff the courts, pay the judges, trustees, and other officials involved, and run everything smoothly. The courts receive woefully little funding and rely on these fees to make the system work well.
The second part of the price to file a bankruptcy comes from attorney’s fees. Your attorney does a lot of work for you when filing your bankruptcy petition. Some of the tasks in a simple bankruptcy include: preparing the petition, contacting creditors that are garnishing or may garnish your wages, attending the 341 meeting, answering questions you have, protecting assets from seizure, and preparing a means test. The means test, which first showed up in 2005, is a big reason why the cost of filing a bankruptcy has shot up in recent years. As you can see in other posts, the means test helps determine whether or not you can file a Chapter 7 bankruptcy. Before the means test requirement, people could file so long as they were not filing in “bad faith.” Now, with the means test requirement, attorneys have to perform a tricky mathematical test which measures whether or not our clients are deemed worthy of a Chapter 7 bankruptcy, based on income and expenses. What complicates the means test further is that there are now exceptions attorneys have to account for. To put it simply, the amount of work that goes into a bankruptcy is what makes the cost so high.
Even though there are high costs for filing a bankruptcy, we here at Lakelaw try and work with you to make bankruptcy affordable. If you have financial concerns but aren’t sure if bankruptcy is right for you, contact us for a free consultation in order to discuss your financial options. We promise to treat you with Care, Kindness, Courtesy, Respect, Professionalism and Dedication.
This article was co-authored by Lakelaw Senior Associate Ryan Blay and Associate Nicholas D. Strom
You may recall some previous blog entries about the “Means Test”, the math calculation that Congress forced the bankruptcy courts to use to help determine who belongs in Chapter 7 and who belongs in Chapter 13 – and how much should be paid to creditors.
As of yesterday, the Means Test numbers have changed. You can see the new amounts here. Every few months, there are adjustments depending on the economy and how much families are making.
Let’s say you come in to our office in Waukegan and tell us that you are a single parent with one child and live in Lake County, Illinois. We’d look to the state of Illinois, see that the median income level for a household size of 2 is $59,794. If you then told us that you are salaried, your income is steady and you gross around $45,000 per year, you shouldn’t have any issues with the means test. We would still look at the facts and your budget (as well as any prior bankruptcies) to see if you should consider filing in Chapter 13, but the Means Test is not going to be a concern in preparing the bankruptcy filing.
Now, perhaps, you are a resident of Racine, Wisconsin. You and your spouse have two delightful children. You and your wife together earn roughly $100,000 per year. Well you make more than the median line and would have to complete part 2 of the means test. You still might qualify for Chapter 7, but it will be a tougher hurdle to overcome. We’d have to consider what this means for a Chapter 13 payment as well.
Like many laws, this Means Test is constantly adjusting. We can tell you what this means for your chances of filing, but we need to know what was earned in the last 6 months, and any changes that might be happening in the near future (loss of overtime, large bonuses). With this information, we can advise you properly.
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