- What
is bankruptcy?
- Bankruptcy
is a proceeding under federal law wherein you file a petition
and other bankruptcy documents with a Bankruptcy Court and
you are granted a partial or complete discharge of your debts.
Immediate relief in bankruptcy is provided as soon as you file
for bankruptcy in the form of an order issued by the Bankruptcy
Court that acts as a legal injunction against creditors proceeding
against you for debt collection. At the end of the case, the
Bankruptcy Court enters an order relieving you from responsibility
for repaying certain debts. The final order is called a "discharge
order."
- What
are the different types of bankruptcy?
- For individual
debtors, there are basically two types of bankruptcy proceedings
available: Chapter 7 and Chapter 13.
- Chapter
7 bankruptcy as of October 17, 2005
- The major
intent of bankruptcy reform is to require people, who can
afford to make some payments towards their debt, to make
these payments, while still affording them the right to have
the rest of their debt erased. These people MUST file Chapter
13.
Chapter
7 bankruptcy is most often referred to as a "fresh start bankruptcy." In
a Chapter 7 bankruptcy, you discharge all of your debts (with
some exceptions) and get a fresh start. In exchange for the
promise of a fresh start, the Bankruptcy Court requires you
to disclose on your bankruptcy schedules all of your debts
and all of your assets. A trustee of the court is appointed
to administer your bankruptcy case. The trustee reviews the
documents to see if any scheduled assets are subject to liquidation
for purposes of repaying creditors. In most cases, sufficient
exemptions exist to exempt most if not all of the scheduled
assets. Therefore, in most cases, there are no assets to administer
and the bankruptcy is treated as a no-asset case. You do not
lose anything and you receive a discharge of your debts. However,
if the trustee discovers assets that are not exempt, the trustee
will liquidate those assets and make a distribution to creditors.
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2005 Bankruptcy Abuse Prevention and Consumer Protection Act
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On April 20, 2005, President Bush signed into law the Bankruptcy
Abuse Prevention and Consumer Protection Act (BAPCBA). The
law became effective October 17, 2005. The BAPCPA instituted
new rules and procedures for filing bankruptcy. The most significant
change in the law relates to "Attorney Certification" as
to the truthfulness of the information provided to the bankruptcy
court and the "Means Test" requirements which require
the attorney to perform a weighted test using state median
income figures and local and national expense allowances as
determined by the IRS. Attorney Certification and Means Test
requirements have added substantial amounts of work, time,
expense and responsibility to the bankruptcy attorney which
have not previously been required.
In most cases the new requirements do not result in the denial
of access to bankruptcy protection but getting from Point A
to Point B is more time consuming and requires more work by
the attorney. The intended result of the BAPCPA is to slow
down the bankruptcy filings by making them more expensive and
time consuming.
Another notable change in the BAPCPA is the requirement that
a Debtor obtain both pre-filing and pre-discharge credit counseling
from an approved credit counseling agency in order to file
and obtain a Discharge in bankruptcy.
If you are reading this, chances are you are about to meet
the attorney for a bankruptcy consultation. To assist the attorney,
please have the following information ready and available at
your meeting:
1 - Last two (2) years income tax returns (if married, both
husband and wife)
2 - Current paycheck stubs (if married, both husband and wife)
3 - List of creditors with amounts owed
4 - All paperwork relating to lawsuits, if applicable
5 - List of assets (both real estate and personal) with values
6 - List of specific questions you may wish to ask the attorney
The initial appointment is offered at no cost to you. New client
appointments are scheduled every half hour, therefore, it is
very important that you have the required information and that
your questions be organized. The intent of this appointment
is to familiarize yourself with the attorney and the process,
have the attorney address your primary questions and concerns,
and to allow the attorney to determine what, if any, legal
issues exist which need to be addressed relating to eligibility
for bankruptcy protection or protecting certain assets in bankruptcy.
No specific fees or payment arrangements will be discussed
at your initial consultation. A number of issues effect the
fees charged and payment arrangements offered and it is impractical
for the attorney to complete a fee analysis in the time allotted
for your initial appointment. You will receive a WRITTEN PROPOSAL
for representation within 48 hours of meeting the attorney.
For more specific information on fees, please read "How
Do I Pay the Attorney?" .
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Why someone might need bankruptcy.
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Car payments behind
- House payments behind
- Owe IRS
- Repossession
- Foreclosure
- Can't afford to pay living expenses with debts
- Charging living expenses each month because all money is going to
credit card payments
- Garnishments of wages or bank accountst>
- Lawsuits
- Tax Levy
- Credit Cards current but getting further behind on living expenses
- Behind on real estate taxes
- No provision in budget for real estate taxes, insurance, tags, or other
non-monthly expenses
- Unrealistically low figures in budget for living expenses such as $100 for
food
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- Who
can file for Chapter 7 bankruptcy?
- An individual,
partnership, or corporation may file a Chapter 7 bankruptcy.
Legally married persons may file together (which is called
a joint bankruptcy). Married persons can file individually,
if they so desire.
You must pass the first stage of the means test. You
can check here to see if your income is below the median
income for your state. If it is you can file Chapter
7.
A person filing Chapter 7 bankruptcy will have to take
an approved Credit Counseling Course before he or she files.
Your bankruptcy lawyer can set this up for you. In some
cases the course can be taken over the Internet. Click
here to find an approved Credit Counseling center.
An approved Financial Management Course will have to be
completed before you can be discharged. Your bankruptcy
lawyer can set this up for you.
You must also pass the second stage of the means test.
If your income is slightly over the state's median
income you may still be able to file Chapter 7. Your bankruptcy
lawyer will be able to make this calculation and also advise
on allowable expenses you can use in the calculation.
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- What
debts are not discharged in bankruptcy?
- The
following debts are not discharged in a Chapter 7 bankruptcy
proceeding:
- debts
not listed on the creditor list filed with the
court
- certain
taxes
- a
claim based on money, property, services, or credit
obtained by fraud or false pretenses. This involves
a situation
where there were misrepresentations made to the
creditor that were false and/or fraudulent such that
the creditor
can legitimately argue that the extension of credit
would not have been made had the creditor been told
the truth.
This includes misrepresentation of income, marital
status, home ownership status, and other forms of fraud
and false
pretense.
- consumer
debt of more then $1,000.00 for luxury goods or
services to a single creditor incurred within 60 days
of the petition
date
- cash
advances of more than $1,000.00 under an open-end
credit plan made within 60 days of the bankruptcy filing
- damages
for willful or malicious injury
- alimony,
child support, and certain other court-ordered
marital debts
- any
debt for death or personal injury caused by the
unlawful operation of a motor vehicle while intoxicated.
This
includes motorcycles, boats, 4-wheelers, and other
types of motor vehicles in addition to automobiles.
- certain
governmental penalties
- educational
loans
- Will
a Chapter 7 bankruptcy discharge the debt for bad checks?
- A bankruptcy
will discharge the debt owed; however, it will not discharge
the potential criminal liability for writing the bad
check. We generally recommend that you make bad checks good
in order
to avoid criminal prosecution on the checks.
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Will a bankruptcy remove a lien?
- As a general
rule, a bankruptcy will not remove a lien. If the lien
is a non-judicial, non-possessory, non-purchase money security
interest
in household goods that are otherwise exempt, a lien
avoidance may be filed with the court and the lien may be
avoided. This
is a very limited remedy. A bankruptcy will not eliminate
a lien on a car or house or a lien on personal property that
is subject to a purchase money security interest.
- Does
filing bankruptcy discharge debts that others have
co-signed with me?
- No. The
discharge in bankruptcy will discharge only your liability
on the debt and not the debt owed by the non-filing co-debtor.
In most instances, the debt owed is owed on the basis
of joint and several liability. Whatever was owed prior to
filing remains
owed by the non-filing co-debtor. This means that the
non-filing co-debtor is responsible for 100% of the remaining
debt.
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Will I lose my car, home, or other valuable personal
property?
- In most
cases you will not; however, the answer to this question
depends on the extent to which non-exempt equity exists in
the asset.
Helping you determine this is where an experienced bankruptcy
attorney can be most valuable.
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Will I lose my retirement if I file bankruptcy?
- The United
States Supreme Court has held that pension plans, 401(k) plans,
and other erisa-qualified plans are generally excluded from
the bankruptcy estate under 11 U.S.C. section 541(c)(2). For
nonerisa-qualified plans, you must look to the applicable exemption
laws of your state.
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- Will
I lose any inheritance money that is owed to me?
- There is
a period of 180 days from the petition date where, if someone
dies entitling you to money, the property reverts back to the
petition date and the trustee will liquidate the inheritance
proceeds to pay your creditors. It is important to note that
you do not have to receive the money within the 180-day period
after filing the entitlement need only to occur within the
180-day period. The entitlement event is most commonly death.
Thus, if someone dies within the 180-day period following the
filing and that death ultimately entitles you to money (regardless
of when you get the money), the money reverts back to the petition
date and the trustee will administer it.
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- What
if I am on a joint account or on the deed to real estate
with someone else purely for the purposes of estate planning
and have not contributed any money to the account or any
money for the fractional interest in the real estate? Will
the Bankruptcy Court say that I own part of those assets
and try to take them?
- Yes. If
you are on a bank account or deed or you co-own anything with
someone else, it is an asset that you own and the Bankruptcy
Court will take your interest to satisfy creditors. Most often,
a parent or grandparent will put a son, daughter, grandson,
or granddaughter on a checking account or on a deed to avoid
probate. This may be a good arrangement for estate planning
purposes, but for bankruptcy purposes, it represents a very
real hazard that should be avoided at all costs.
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- Can
I get out of debt in a Chapter 7 bankruptcy that I have
been ordered to pay in a dissolution proceeding?
- Alimony,
maintenance, and child support payments are generally not dischargeable.
11 U.S.C. section 523(a)(15) provides that certain other divorce-related
obligations (such as payments to others, hold harmless agreements,
and property settlement obligations) are not dischargeable
if the debtor has the ability to pay them and the detriment
to the spouse outweighs the benefit of the discharge to the
debtor. In order to take advantage of 523(a)(15), the spouse
must obtain an order from the bankruptcy court declaring the
debt non-dischargeable.
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- If
I am married, can I file bankruptcy by myself and not include
my spouse?
- Yes.
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- Are
there situations in which you cannot file a Chapter 7 bankruptcy?
- Yes. If
you were granted a discharge in a previous Chapter
7 bankruptcy and the petition date for the previous Chapter
7 is within
eight years, you will not be allowed to discharge
in a new Chapter 7 case. If you filed a previous Chapter
7 and
the proceeding
was dismissed within 180 days, you may not be able
to go forward with the second filing pursuant to 11 U.S.C.
section 109(g).
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- Can
I file a Chapter 7 bankruptcy to delay a creditor?
- No. Rule
9001 of the Rules of Bankruptcy Procedures requires you or
your attorney to certify that the bankruptcy is not filed for
any improper purpose such as to harass or to cause unnecessary
delay. A Chapter 7 bankruptcy is supposed to give you a fresh
start, not a head start. You should not file a bankruptcy petition
if the sole purpose is to delay a creditor's actions.
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- How
do I know if I should be thinking about a Chapter 7? What
are the indications?
- You file
for a Chapter 7 bankruptcy if
- you have
no disposable income with which to feasibly re-organize (that
is, you have nothing left at the end of the month after paying
ordinary expenses such as rent, utilities, food, and insurance)
- you are
not going to lose any property that is important to you
- you will
receive a discharge on substantially all of your debts
- you do
not expect to have recurring unpaid or un-reimbursed bills
in the future
- you are
current on your secured debts
- you
have not been in a previous Chapter 7 within eight years
- your
debts are primarily consumer debts, medical debts, signature
loans, or auto or house deficiencies
- you want
a fresh start rather than the ability to more favorably repay
your debts
- How
long does it take to be discharged once the petition is filed?
- The discharge
order is normally entered immediately after the deadline to
file a complaint objecting to discharge expires. The deadline
to object to the dischargeability of a debt is set for approximately
14 weeks from the original petition date (the date the case
was originally file stamped with the court). Therefore, the
discharge order is normally entered with the court approximately
4 months from the petition date. In certain circumstances,
the discharge can be delayed.
- Why
would the entry of the discharge order be delayed?
- Normally,
a discharge order is delayed because the debtor is not cooperating
with either the trustee or a creditor. In these instances,
the court enters an order extending the time of the entry of
the discharge order.
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- Is
my case over once the discharge order is entered?
- In some
limited circumstances, a discharge can be revoked. Also, in
some limited circumstances, there is a continuing obligation
to report the occurrence of certain events that extend beyond
the discharge date.
- Can
I transfer assets to someone else prior to filing and get
them out of my name so that they are not my assets when
I go to file bankruptcy with the court?
- No. You
cannot give away your assets prior to filing. Doing so is a
very serious matter. In all instances, the trustee will determine
to whom you transferred property within one year of filing.
Some trustees go back as far as five years. This is designed
to prevent people from giving their property away before filing
in order to prevent it from being liquidated by the trustee
for payment to creditors. Transferring property to others prior
to filing is a serious matter and should be avoided at all
costs.
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- When
and how are the creditors notified of the bankruptcy filing?
- When you
file for bankruptcy, the court will send an order to all the
creditors listed in the creditors matrix filed with the court.
This order forbids your creditors from taking any action to
collect a debt. After retaining our office, we will provide
you with a standard form letter on our letterhead that you
should mail to your creditors. This letter notifies your creditors
that you have an attorney representing you. Your creditor should
then call us instead of you between the time you retain us
and the time the bankruptcy documents are filed with the court.
Once the documents are filed with the court, the court will
notify your creditors directly.
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- Do
I have to disclose all of my debts?
- Yes. However,
some debts are not routinely part of a bankruptcy. These debts
include utility bills, insurance bills, and other types of
monthly recurring debt (for example, car insurance, house insurance,
or karate lessons). As a general rule, all debts are scheduled
on the bankruptcy schedules, including all credit card debts,
medical bills, house loans, car loans, student loans, taxes,
signature loans, credit union loans, and any other loans.
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- What
if I forget to list a debt?
- The discharge
order in bankruptcy discharges only those debts that are included
on the bankruptcy schedules. In addition, you must sign a document
that is filed with the court stating all of your debts are
listed. You should make every effort to ensure that you listed
all of your debts. However, in some limited circumstances,
it is not possible to know all of your creditors at the time
of filing. In these instances, the Bankruptcy Court will allow
you to amend your schedules to add debts that you owed prior
to the filing but did not list. There are, however, time limits
in which to do this. The time frame for amending your schedules
is rather specific. Therefore, you should contact your attorney
immediately upon discovering omitted creditors. Any delay in
informing your attorney may prevent the addition of the creditor
to the bankruptcy schedules and, therefore, may make the unlisted
creditor's debt excepted from discharge. It is very important
to make sure all of your debts are listed the first time and,
if not, to timely amend your schedules to add the unlisted
creditors.
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- Do
I have to disclose all of my assets?
- Yes. Assets
are rights to property as well as property that you presently
possess. For example, the right to insurance proceeds, tax
refunds, or marital assets are assets even though you do not
currently possess them. If you knowingly and fraudulently conceal
any asset from the Bankruptcy Court, you have committed a felony
and could be fined up to $5,000.00, imprisoned for up to five
years, or both. The court can also deny your discharge, revoke
your discharge, or dismiss or convert your bankruptcy proceeding.
Failure to list assets is taken as a very serious matter by
the Bankruptcy Court and trustees.
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- Will
my employer or landlord be notified of the bankruptcy filing?
- No. However,
if you owe your employer money, then you are required to include
your employer on the creditor schedule and your employer would,
therefore, receive notice from the court.
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- Can
I keep some of my credit cards?
- As a general
rule, you should not expect to continue to use credit cards
after the petition is filed. In some narrow circumstances,
the creditor may allow you to do so, but this depends on a
number of factors including the balance owed as of the petition
date and the types of purchases made on the card. We generally
recommend that, after the filing, you obtain a collateralized
credit card rather than expect to continue using a card that
you listed as a debt on your bankruptcy schedules.
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- Will
I go to court?
- Not necessarily.
In most cases, you never see a judge or enter a courtroom.
In all cases, you are required to attend a 341 meeting, which
is conducted by the trustee appointed to your case. This is
an administrative proceeding and not a judicial proceeding.
No judge is present. It is also not conducted in a courtroom.
The hearing is normally conducted 30 to 40 days after filing
the bankruptcy petition. This hearing is referred to as "the
meeting of creditors." At this meeting, the trustee will ask
you questions that are intended to clarify and expand on the
information contained in your bankruptcy schedules. Your answers
to the trustee's questions are made under oath and are tape
recorded for later playback if necessary. It is absolutely
critical that your answers be truthful. At the meeting, creditors
are also given the opportunity to ask you questions under oath.
The meeting normally lasts an hour or less. Your attorney is
present at the meeting with you to assist you in the process.
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- What
happens if I am physically unable to attend the 341 meeting
of creditors?
- In certain
limited circumstances, the United States trustee's office will
allow a waiver of appearance upon request based on physical
disability or unavailability due to geographical consideration
due to employment. It is important to understand that a waiver
of appearance is only allowed in very exceptional circumstances.
Normally, this requires a doctor's order or a letter from your
employer and, even then, the request for waiver is routinely
denied. You should expect to be required to appear at the 341
meeting of creditors.
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- What
if I miss the originally scheduled 341 meeting?
- The trustee
will issue a show cause order to you requesting you to explain
your non-appearance and will reschedule the meeting for another
date. If you miss the second meeting, your case will be dismissed.
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- What
if I do not want my house or car loan creditors notified
of the bankruptcy?
- This is
not possible. These creditors are required to be listed as
debts in your bankruptcy schedules. These creditors will, therefore,
receive notice from the Bankruptcy Court. It is important to
recognize that bankruptcy does not prevent you from repaying
any debt. Typical debts that debtors continue to repay after
filing are house loans, car loans, dentists, doctors, and credit
unions.
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- Do
I have to schedule my credit union?
- Yes, if
you owe them money on the petition date. You are required to
list all of your debts.
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- If
I have a loan against my 401(k), does my employer have
to be notified of the filing?
- Yes; however,
we recommend that, before filing for bankruptcy, you treat
the loan as a distribution and recognize the tax consequences.
The monthly loan repayment amount is not allowed by the Bankruptcy
Court as an allowable expense.
- Can
an employer fire me for filing bankruptcy?
- No. 11 U.S.C.
section 525 prohibits government units and private employers
from discriminating against you because of a bankruptcy filing
or because you failed to pay a non-dischargeable debt.
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- Can
I be discriminated against in other areas if I file Chapter
7 bankruptcy?
- The federal,
state, county, or municipal government may not discriminate
against you with respect to the issuance of a license or permit
because you filed bankruptcy. No employer, government or private,
can lawfully terminate your employment or discriminate with
respect to your employment as a result of filing bankruptcy.
Utility companies cannot discontinue service or refuse to provide
you services because of a bankruptcy. They can, however, require
to you pay a reasonable deposit. This is normally construed
as an amount twice the amount of your average monthly bill.
You may not be discriminated against in obtaining future student
loans on the grounds that you filed bankruptcy or failed to
pay a student loan that is discharged in bankruptcy.
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- Which
is better on my credit report: Chapter 7 or Chapter 13?
- Ironically,
Chapter 13 (in which you repay your debts) is more damaging
to your credit than a Chapter 7 bankruptcy. There are a number
of reasons for this:
- In
Chapter 13, you are actually in bankruptcy for 3 to 5
years.
- In
Chapter 13, you are required to stay on a cash basis
so you are not allowed to rebuild credit after filing.
- When
you fill out a credit report in the future, it typically
will not distinguish between which chapter you filed
so you are not rewarded for repaying in a Chapter 13.
- Most
people involved in the credit side of the industry do
not understand Chapter 13. Chapter 13 is too complicated
and convoluted. In a Chapter 7, there is a distinguishable
beginning and ending: the time frame is 14 weeks as opposed
to 3 to 5 years.
- How
long after filing a Chapter 7 will I be able to get a
car loan?
- You will
be able to apply for a car loan immediately after discharge,
which is typically 14 weeks from the petition date.
- How
long after filing a Chapter 7 will I be able to get a
house loan?
- You will
be able to apply for a home loan two years from the petition
date. This is the standard used in the industry.
- How
long does bankruptcy stay on my credit?
- For purposes
of real estate, a bankruptcy will stay on your credit for up
to 10 years.
- If
I am married and I file individually, will the filing
affect my non-filing spouse's credit?
- No. Expect
possibly to the extent that you default on an obligation to
which both you and your non-filing spouse are obligated. In
that case, it is nonpayment, not the bankruptcy filing, that
would blemish the non-filing spouse's credit.
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- How
do I pay the Attorney?
- Your initial appointment is offered for no fee. In order
to make the most of the limited available (generally around
a half-hour), there will be no discussion of fees during your
appointment. The information contained here is an effort to
familiarize you with the basic fee structure of Debt Relief
Center, P.C. In most cases, it is NOT necessary to pay the
fees in full prior to filing. We offer a number of payment
options including the ability to make monthly payments by ACH
debit from your checking account. Specific fee arrangements
in your case will be by written proposal following your initial
consultation. Payments may be made by cash, personal check
or certified funds. All payments made are non-refundable.
The enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act
(BAPCPA), significantly restricted eligibility for Chapter 7 bankruptcy. It
now takes a considerable amount of time and effort to determine whether or
not you qualify for Chapter 7 bankruptcy and then further demonstrate that
to the Court.
The most common question I am asked after explaining to family
and friends that I am a consumer bankruptcy attorney is "If your clients are filing bankruptcy,
how do you get paid?". You may be wondering the same thing.
Your case will fall into one of the following case types:
In Chapter 13, you are actually in bankruptcy for 3 to 5 years.
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- Case Type III (Simple): $1,200.00 to $1,500.00
- No income or fixed income - No Means Test required
- No real estate
- Little or no personal property
- Unmarried or married filing jointly
- Small total debt/all medical debt/limited number of creditors (Under 10)
- No garnishments, lawsuits or judgement issues
- Taxes up-to-date/Compliant
Case Type II (Semi-Complex): $1,500.00 to $2,000.00
- W2 income below median income - No Means Test required
- Small business owner of Self-employed
- Real Estate and/or automobile loans or leases to be reaffirmed, redeemed, surrendered or assumed
- Married filing individually
- Non-exempt assets
- Dischargeability issues
- Unfiled tax returns/Non-compliant
- Identity and/or residency issues
- Divorce/Separation
Case Type I (Complex): $2,000.00 and up
- W2 income above median income - Means Test required
- Small business owner Self-employed
- Commercial eases and/or vendor accounts
- Real Estate and/or automobile loans or leases to be reaffirmed, redeemed, surrendered or assumed
- Married filing individually
- Significant non-exempt assets
- Large unsecured debt amounts
- Dischargeability issues
- Cross collateralization issues
- Co-debtor issues
- Lien avoidances on home and/or personal property
- Significant pre-petition planning (over three (3) months)
- Unfiled tax returns/Non-compliant
- Identity and/or residency issues
- Divorce/separation
In addition to the attorney fees, there is a filing fee to the Court of $274.00
as well as a fee for mandatory credit counseling required by BAPCPA to be conducted
prior to filing and prior to Discharge (approximately $70.00 total).
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How
do I start the process of filing with Debt Relief Center,
P.C.?
- Set an appointment
to come into any of our four
locations to meet with an attorney to discuss your debt-related
problems. You will have the opportunity at that time to formally
retain the attorney or you can wait and do so at a later date.
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- What
should I do to prepare for filing Chapter 7 bankruptcy?
- First,
you should consult with an attorney. An attorney can help you
plan for the bankruptcy and decide when to file a bankruptcy
petition. Additionally,
- You
should stop using your credit cards. If you borrow money
with the specific intent of discharging the debt in bankruptcy
rather than repaying it, the debt is not dischargeable.
For example, certain luxury purchases over $1,000 made
within 60 days of the bankruptcy filing are not dischargeable.
Cash advances aggregating $1,000 made within 60 days
of the bankruptcy filing are not dischargeable. Debts
involving materially false financial statements are not
dischargeable.
- You
should not transfer your assets to friends, family, or
business associates to protect the assets from your creditors.
The transfer may be considered a fraudulent conveyance.
If it is, you may lose both the property and your right
to a bankruptcy discharge.
- You
should not destroy any business or financial records.
If you do, you can lose your right to a bankruptcy discharge.
- You
should carefully choose the creditors you do pay. Some
creditors (for example, landlords, secured creditors,
and some utilities) should be paid under most circumstances.
Conversely, if you pay a credit card debt that will eventually
be discharged, you may be throwing money away. Your attorney
will advise you on which creditors to pay.
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Mark
Allen Roy, B.A.,J.D.
Attorney at Law
President and Founder
Copyright © 2004
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Debt Relief Center, P.C. |