The following is an outline of select areas of bankruptcy law which are significant as you contemplate a filing under Chapter 7. Often, someone who considers bankruptcy is unaware of the nuances of bankruptcy or certain creditors' rights in bankruptcy. You should be familiar with some of the applicable provisions as you prepare for filing. What follows is not, by any means, an exhaustive review of bankruptcy law; nor does it fully explain each provision of the bankruptcy code or rules which might apply because each individual's situation is unique and sometimes unanticipated events occur; however, this overview will provide you with broad guidelines so that you may be comfortable with your decision. I will begin with an outline of basic procedures in Chapter 7 case and conclude with a discussion of various Chapter 7 pitfalls.
Basic Procedure
A. Upon filing, you will be required to file a sworn list of creditors, a schedule of assets and liabilities, a list of exempt property, a schedule of current income and expenditures, a statement of your financial affairs and a statement of intent regarding consumer debts secured by property of the estate. You will also be required to surrender to the trustee all property of the estate. 11 U.S.C. 521. The order of relief is granted when you file. What this means, among other things, is that an automatic stay is triggered, prohibiting creditors from pursuing you or your property
outside of the bankruptcy proceeding.
B. The clerk of court will give notice of the bankruptcy to your creditors. 11 U.S.C. 342.
C. There will be a meeting of creditors called to question you about your debts and ability to pay. The U.S. Trustee calls this meeting and you are required to attend. The judge may not question you at this time. Other creditors and the trustee may question you. Unlike a trial, your attorney may not "object" to questions in a formal sense. It is an open opportunity for creditors to question you and you are required to respond in good faith. 11 U.S.C. 341.
D. A creditor of the trustee assigned to your case may object to your listed exemptions within 30 days after the meeting of creditors.
E. A creditor must file a proof of claim within 90 days after the first date set for the meeting of creditors. At the end of the case, if a surplus remains after all of the claims are paid in full, the court may grant an extension of time for filing of claims not filed during the initial 90 day period.
The trustee may object to any claim.
An objection to your receiving a general discharge of all of your debts must be filed by thetrustee or a creditor within 60 days following the first date set for the creditors meeting If no objections are filed, and if no motion to dismiss is pending, the court will ordinarily grant a discharge upon expiration of the 60 day period. Bankruptcy Rules 4004 and 1017; 11 U.S.C. 727.
G. A creditor may object to the dischargeability of a particular debt at any time if the debt: (1) is for a tax or customs duty; (2) is not listed in the schedules so that a creditor could file a proof of claim; (3) is related to alimony or child support; (4) is a government fine or penalty; or (4) is a
government insured student loan. Any student loans guaranteed or insured by the government will not be dischargeable. This means that you will continue to be liable for the payment even if you file bankruptcy.
A creditor may object to the dischargeability of a particular debt only within 60 days of the first date set for the meeting of creditors, if the debt: (1) is a consumer debt created close to filing; (2) is a result of fraud; (3) is a result of a wilful and malicious injury to a person or property of another. Bankruptcy Rule 4007; 11 U.S.C. 523.
Debtor Pitfalls
The debtor's goal in any Chapter 7 is to have as many debts discharged as possible. The general rule is that all debts created before the bankruptcy filing are discharged. Discharge destroys any person liability you may have on a claim or debt. (Discharge will not destroy liens; liens survive the bankruptcy.)
There are some very significant exceptions to the general rule that all debts will be discharged. As stated above, a creditor can try to have his claim excepted from discharge pursuant to the provisions of 11 U.S.C. 523. If the claim is not discharged, the debtor continues to be responsible for its payment; obviously, this could have severe consequences to the debtor seeking a "fresh start" which is the very purpose of the Chapter 7 filing.
There are ten categories of debt excluded from discharge under 523. These fall into two areas: debts that are not dischargeable due to the wrongful conduct of the debtor and debts that are not dischargeable due to public policy.
The debts not dischargeable due to the debtor's misconduct include those created by intentional torts, fraud, larceny, embezzlement, fiduciary violations, and drunken driving. The debts not dischargeable due to public policy include alimony and child support, taxes and customs duties, governmental fines, penalties and forfeitures, educational loans, unscheduled debts and certain debts surviving a prior bankruptcy case. A claim must fall within one of these exceptions to be
found non-dischargeable.
To prevail on a fraud exception, the creditor would need to show that there was a false, material representation of fact made by the debtor that the debtor knew was false at the time he made it, made with the intention of deceiving the creditor. Some courts have held that when a credit card is used, the debtor impliedly represents that the debtor has the ability and intention to pay for the goods and services charged. Those courts have therefore found that some credit card debt is
non-dischargeable under the fraud exception.
This is not the only potential problem that can arise with credit card or similar debt. 523 also provides that there is a presumption that certain consumer debt created right before filing a Chapter 7 is non-dischargeable. The presumption of non-dischargeability will apply if the debt is a consumer debt for so-called "luxury goods or services" incurred or within 40 days before the filing, owing to a single creditor aggregating more than $500. Further, the presumption of
non-dischargeability will apply if there are cash advances made by a creditor for more than $1000 that are extensions of consumer credit under an open end credit plan within 20 days of filing bankruptcy.
Luxury goods and services are not defined by the Bankruptcy Code and the determination of same will be contingent upon the facts and circumstances of each case. I can tell you that courts have characterized such items as a person computer, coffee maker, floral arrangements and three-wheel recreational vehicle as "luxury" items.
Any credit extended based on false financial statements is subject to exception from discharge. Statements made in the financial statements have to be materially false with the intent to deceive the creditor to fall within this exception. Note that a credit application should not qualify as a "financial statement" if it does not require a disclosure of debts.
It is crucial for the debtor to include all creditors in his schedules filed with the court. If a debtor knows of the creditor and does not schedule him, the creditor is denied participation in any distribution; to protect the creditor from this type of problem, the code provides that unscheduled claims may be non-dischargeable.
Debts created by willful and malicious injury will also be excepted from discharge. These types of claims arise from intentional actions by the debtorFind Article, done with malice which causes damage. It is important to note that ordinary negligence claims are dischargeable. A plaintiff with a personal injury claim would need to allege significantly more than simple negligence to have his or her claim deemed non-dischargeable in the bankruptcy court.
Dismissal may also be justified if the debtor is an individual who has primarily consumer debt and the court finds that the granting of relief would be a substantial abuse of the bankruptcy process. Substantial abuse has been found by courts if the debtor is actually able to pay his debts when due.
ABOUT THE AUTHOR
Joe L.Golson, writer and Affiliate Marketeer
For Free information and services on Credit Repair and Bankruptcy.
http://resultstracker.net/
Saturday, May 5, 2007
The Bankruptcy Record is open to the Public
Before you file for bankruptcy, it is important to realize that all bankruptcy proceedings will be listed in public bankruptcy records.
Therefore, if you have filed for bankruptcy, it is possible for anybody - including future employers or creditors - to easily look up your bankruptcy record while trying to discover your financial history. This can be very annoying in the future, and might make it harder for you to get credit that you need.
Another result of this is that there is really no point in neglecting to mention that you have had to file for bankruptcy in the past. Since the information is public, you cannot easily hide that information from a future creditor. However, you can also find out whether or not your own information is still listed on the bankruptcy record, and you can also find out exactly what information other people have access to by searching for yourself.
There is a benefit to having bankruptcy records, however, and that comes if you are going to invest in a company, or if you're looking to buy from one. You can find out what a company's bankruptcy history is, which will give you a good idea as to whether or not they are worth investing in. This is especially useful since the bankruptcy proceedings regarding smaller companies rarely make the news - and you probably will not have heard that a particular company has ever gone bankrupt.
Another thing that you can look for if you need more information would be the bankruptcy records that were filed by the bankruptcy court. These records will have detailed information about the bankruptcy proceedings, so you can find out what to expect if you end up doing business with that particular company.
However, it's important to note that just because your name is listed in the bankruptcy records does not mean that it will be impossible for you to get a loan or other line of credit if you need it. In fact, in most cases you will still be able to get credit after a bankruptcyPsychology Articles, especially if you allow time to pass and work on rebuilding your credit rating.
ABOUT THE AUTHOR
Jakob Jelling is the founder of Cashbazar.com. Please visit http://www.cashbazar.com/bankruptcy.shtml and learn all about bankruptcy.
Therefore, if you have filed for bankruptcy, it is possible for anybody - including future employers or creditors - to easily look up your bankruptcy record while trying to discover your financial history. This can be very annoying in the future, and might make it harder for you to get credit that you need.
Another result of this is that there is really no point in neglecting to mention that you have had to file for bankruptcy in the past. Since the information is public, you cannot easily hide that information from a future creditor. However, you can also find out whether or not your own information is still listed on the bankruptcy record, and you can also find out exactly what information other people have access to by searching for yourself.
There is a benefit to having bankruptcy records, however, and that comes if you are going to invest in a company, or if you're looking to buy from one. You can find out what a company's bankruptcy history is, which will give you a good idea as to whether or not they are worth investing in. This is especially useful since the bankruptcy proceedings regarding smaller companies rarely make the news - and you probably will not have heard that a particular company has ever gone bankrupt.
Another thing that you can look for if you need more information would be the bankruptcy records that were filed by the bankruptcy court. These records will have detailed information about the bankruptcy proceedings, so you can find out what to expect if you end up doing business with that particular company.
However, it's important to note that just because your name is listed in the bankruptcy records does not mean that it will be impossible for you to get a loan or other line of credit if you need it. In fact, in most cases you will still be able to get credit after a bankruptcyPsychology Articles, especially if you allow time to pass and work on rebuilding your credit rating.
ABOUT THE AUTHOR
Jakob Jelling is the founder of Cashbazar.com. Please visit http://www.cashbazar.com/bankruptcy.shtml and learn all about bankruptcy.
Bankruptcy Alternatives - 5 Ways to Avoid Bankruptcy
In today's debt ridden society many people are in severe financial difficulties, often for reasons outside their control. Bankruptcy for many, is the last step in a long road of financial pressures but many opt for this solution too early and without considering suitable bankruptcy alternatives. Whilst bankruptcy may get rid of the immediate pressures it isn't necessarily the end of the problems.
What you are about to read may stop you making the biggest mistake of your financial life.
In today's debt ridden society many people are in severe financial difficulties, often for reasons outside their control. Bankruptcy for many, is the last step in a long road of financial pressures but many opt for this solution too early and without considering suitable bankruptcy alternatives. Whilst bankruptcy may get rid of the immediate pressures it isn't necessarily the end of the problems.
When you file for bankruptcy your life becomes an open book for the court appointed bankruptcy officials. They will pry into all aspects of your life and you will be required to provide all your financial information, including bank accounts, savings, investments and assets. Anything that can be sold or converted to cash, including your family home and any valuable contents, will be disposed of and you may still have part of your income deducted from your salary to pay some of your debts.
But there are bankruptcy alternatives that may be less painful for many. Here I've listed 5 bankruptcy alternatives
1. Negotiate with your creditors.
When you get into difficulties you should contact your creditors as soon as possible. Contacting them sends a signal that you want to repay them.
Lenders are anxious to get their money back and sometimes they will go to great lengths to help you. They may be prepared to re-finance your debt to have it paid over a longer period with lower installments.
They will often be prepared to reduce or freeze the interest rate and will even cut the balance owing up to 75%.
2. Refinance your mortgage.
If you have a property, which you own outright or on a mortgage, there is the real possibility of you being able to refinancing your debts using a secured mortgage or re mortgage.
Refinancing your debts involves taking out a new mortgage, or an additional mortgage. Some lenders will lend up to 125% of the property value allowing you to pay all your outstanding debt and may even have some spare cash to treat yourself.
As the new loan is repayable over a long period of time (often 25 - 35 years) the monthly repayments are significantly lower than with short term debt and should be far more manageable
3. Refinance your debts using a debt consolidation loan.
Debt consolidation is where you take a new unsecured loan and use the funds to pay off your outstanding debts. Debt consolidation loans are repayable over a longer term at a relatively low interest rate and as a result the monthly repayments are lower. If the loan is secured on your property then the interest rate and payments may be even lower.
4. Sell your home and downsize.
One of the easiest ways to get out of debt is to sell your house or apartment and downsize or move into rented accommodation. The surplus cash can then be used to pay your debts and you can continue with your life without the pressure.
Selling up and moving home is, however, a difficult and often painful option. If you do sell however. you can determine the price and remain in control. If the house falls into bankruptcy, you lose control and the house may be sold by
your mortgagor at auction for a price often considerably less than the price you can obtain in a normal sale.
5. A formal arrangement with your creditors.
A formal arrangement with your creditors can often be negotiated by specialist debt management companies and is filed with the courts. These arrangements are for 5 years. You pay an agreed amount each week or month to the debt management company and it is then divided between your creditors. While you continue to pay they are prevented from approaching you.
After the 5 year period is over any balance still owing is wiped out and you are free to live your life free of debt. If however you break the arrangement the normal result is bankruptcy.
As you can see, there are several sound bankruptcy alternatives for you to choose from. Everybody is under financial pressure from time to time, however you should not compound your problems by declaring bankruptcy too soon. Instead, choose the bankruptcy alternative that sounds the best for your particular situation and start working to repair your credit now.
Using a bankruptcy alternative means that in a few years you will have rebuilt your credit and will be back on trackFind Article, whereas with bankruptcy it could be ten years before you can get back to normal.
ABOUT THE AUTHOR
John Edmond worked for many years in insurance and finance and now writes on debt management and finance. For more articles and advice on managing your debt go to http://www.card-debt.net or http://www.consolidation-loan-advice.info
What you are about to read may stop you making the biggest mistake of your financial life.
In today's debt ridden society many people are in severe financial difficulties, often for reasons outside their control. Bankruptcy for many, is the last step in a long road of financial pressures but many opt for this solution too early and without considering suitable bankruptcy alternatives. Whilst bankruptcy may get rid of the immediate pressures it isn't necessarily the end of the problems.
When you file for bankruptcy your life becomes an open book for the court appointed bankruptcy officials. They will pry into all aspects of your life and you will be required to provide all your financial information, including bank accounts, savings, investments and assets. Anything that can be sold or converted to cash, including your family home and any valuable contents, will be disposed of and you may still have part of your income deducted from your salary to pay some of your debts.
But there are bankruptcy alternatives that may be less painful for many. Here I've listed 5 bankruptcy alternatives
1. Negotiate with your creditors.
When you get into difficulties you should contact your creditors as soon as possible. Contacting them sends a signal that you want to repay them.
Lenders are anxious to get their money back and sometimes they will go to great lengths to help you. They may be prepared to re-finance your debt to have it paid over a longer period with lower installments.
They will often be prepared to reduce or freeze the interest rate and will even cut the balance owing up to 75%.
2. Refinance your mortgage.
If you have a property, which you own outright or on a mortgage, there is the real possibility of you being able to refinancing your debts using a secured mortgage or re mortgage.
Refinancing your debts involves taking out a new mortgage, or an additional mortgage. Some lenders will lend up to 125% of the property value allowing you to pay all your outstanding debt and may even have some spare cash to treat yourself.
As the new loan is repayable over a long period of time (often 25 - 35 years) the monthly repayments are significantly lower than with short term debt and should be far more manageable
3. Refinance your debts using a debt consolidation loan.
Debt consolidation is where you take a new unsecured loan and use the funds to pay off your outstanding debts. Debt consolidation loans are repayable over a longer term at a relatively low interest rate and as a result the monthly repayments are lower. If the loan is secured on your property then the interest rate and payments may be even lower.
4. Sell your home and downsize.
One of the easiest ways to get out of debt is to sell your house or apartment and downsize or move into rented accommodation. The surplus cash can then be used to pay your debts and you can continue with your life without the pressure.
Selling up and moving home is, however, a difficult and often painful option. If you do sell however. you can determine the price and remain in control. If the house falls into bankruptcy, you lose control and the house may be sold by
your mortgagor at auction for a price often considerably less than the price you can obtain in a normal sale.
5. A formal arrangement with your creditors.
A formal arrangement with your creditors can often be negotiated by specialist debt management companies and is filed with the courts. These arrangements are for 5 years. You pay an agreed amount each week or month to the debt management company and it is then divided between your creditors. While you continue to pay they are prevented from approaching you.
After the 5 year period is over any balance still owing is wiped out and you are free to live your life free of debt. If however you break the arrangement the normal result is bankruptcy.
As you can see, there are several sound bankruptcy alternatives for you to choose from. Everybody is under financial pressure from time to time, however you should not compound your problems by declaring bankruptcy too soon. Instead, choose the bankruptcy alternative that sounds the best for your particular situation and start working to repair your credit now.
Using a bankruptcy alternative means that in a few years you will have rebuilt your credit and will be back on trackFind Article, whereas with bankruptcy it could be ten years before you can get back to normal.
ABOUT THE AUTHOR
John Edmond worked for many years in insurance and finance and now writes on debt management and finance. For more articles and advice on managing your debt go to http://www.card-debt.net or http://www.consolidation-loan-advice.info
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