-
Posted By
Dave Johnsen
11 USC 541(a) dictates that upon the filing of a bankruptcy case, an estate is created. This estate includes all legal and equitable interests of the debtor at the time of filing, and in certain instances, interests in property that arise after the filing of a bankruptcy within a certain period of time. Essentially, once the bankruptcy is filed, the resulting estate is comprised of everything the ...
Continue Reading
-
Posted By
Dave Johnsen
One of the most important protections bankruptcy affords - and one could make the argument that it is the most important - is the protection afforded debtors in the form of the automatic stay. Pursuant to 11 U.S.C. 362, the filing of a bankruptcy case automatically operates as a stay to almost all debt collection proceedings. These include (all listed in 362(a)(1)), lawsuits or other actions ...
Continue Reading
-
Posted By
Dave Johnsen
Bankruptcy can be a stressful time in someone's life. They're dealing with financial terms and issues they're not overtly familiar with, creditors are calling almost nonstop, and they're worried about the impact that bankruptcy will have on their lives. These stressors are, for the most part, alleviated when a debtor actively seeks bankruptcy protection, including Chapter 13 repayment plans. The ...
Continue Reading
-
Posted By
Dave Johnsen
The idea of going to court can bring trepidation to even the calmest individuals. This is especially true in bankruptcy situations, where financial issues are in play for those who might not be accustomed to the legal arena. At the same time, however, most Chapter 7 bankruptcies only involve one court-like proceeding, and that is the 341 meeting. We've covered the 341 meeting at length in previous ...
Continue Reading
-
Posted By
Dave Johnsen
The primary role of the Chapter 7 trustee is to administer your bankruptcy case. Once you file your Chapter 7 bankruptcy, a trustee is appointed to your case. This trustee is an impartial administrator appointed by the United States Trustee's office. This trustee is assigned to both administer your case and also liquidate any unexempt assets you have for distribution to your unsecured creditors. ...
Continue Reading
-
Posted By
Dave Johnsen
If you recall, a major theme of these posts, and bankruptcy in general, is the fact that assets can make a major difference not only in what chapter you file your case in, but the success that the case can have in general. Two major assets, social security cases and personal injury cases, are considered in this same analysis but also treated differently at the same time. Social security has a ...
Continue Reading
-
Posted By
Dave Johnsen
A common misconception in Chapter 7 bankruptcy is that the debtor's property will be lost when they file their case. For the majority of cases, this is not true for a couple reasons. First, if a person has a lot of assets they probably won't be filing in the first place. Secondly, though, even if a person does have assets when they file a Chapter 7 bankruptcy there are exemptions that can shield ...
Continue Reading
-
Posted By
Dave Johnsen
When someone files for bankruptcy, their case is assigned to an interim trustee who handles the administering of the case from the onset to discharge. In Chapter 7 cases, this is usually a short period of time, unless the case is determined at the 341 hearing to have assets that can be distributed to creditors. In Chapter 13, however, the trustee works on the case for three to five years and has a ...
Continue Reading
-
Posted By
Dave Johnsen
Bankruptcy deals, in large part, with assets. Before each Chapter 7 and Chapter 13 case, there is a determination of what assets the debtor has. In Chapter 7 cases, this is largely to determine which exemptions are needed to protect those assets and whether they are able to be protected at all. In Chapter 13 cases, a large amount of assets can determine how much you will pay back to unsecured ...
Continue Reading
-
Posted By
Dave Johnsen
With the advent of the income median level and the means test, debtors who previously might have been able to file a Chapter 7 bankruptcy have been forced to file Chapter 13. These debtors most often fulfill their bankruptcy case en route to a successful discharge. And yet there are those, along with those who needed to file Chapter 13 anyways, who encounter situations during their active Chapter ...
Continue Reading
-
Posted By
Dave Johnsen
The basis of every Chapter 7 case is a liquidation. The analysis involved looks at the assets listed by the debtor on the bankruptcy petition, along with any liens, encumbrances, or exemptions, to determine if there is any equity in property that would be worth liquidating for the benefit of the debtor's unsecured creditors. The appointed interim trustee also examines the debtor at the 341 Meeting ...
Continue Reading
-
Posted By
Chicago Bankruptcy Lawyer
On a fundamental level, the 341 Meeting of Creditors is the same regardless of chapter. The meeting presents an opportunity for creditors to be present while the debtor or debtors is being examined under oath by the trustee administering the case. Most of the time, creditors do not show. In Chapter 7 341 Meetings, the meeting is driven by the trustee's examination of the debtor to determine ...
Continue Reading
-
Posted By
Chicago Bankruptcy Lawyer
When most people think of bankruptcy , they think of Chapter 7's. Bankruptcies filed under that chapter are far more common than any other, as it involves discharging unsecured debt and liquidating assets. Chapter 13, however, is also available to consumer debtors. This form of bankruptcy is a debt consolidation/repayment plan. People may choose to file this chapter if they cannot qualify for a ...
Continue Reading
-
Posted By
Chicago Bankruptcy Lawyer
There's a big difference between preparing for bankruptcy and fraudulent activity prior to filing bankruptcy. Preparing for bankruptcy may entail waiting until the appropriate time to file, spending down certain funds that could possibly be liquidated, or generally deciding through cooperation with your attorney when the best time for filing is. On the other hand, if you engage in fraudulent ...
Continue Reading
-
Posted By
Chicago Bankruptcy Lawyer
One question that is asked, at nearly every single 341 Meeting of Creditors, is whether the debtor has reviewed the bankruptcy information sheet. This document, included in the bankruptcy petition, in large part explains some of the differences between the various chapters of the bankruptcy code. It briefly mentions what a Chapter 11 is (large-scale reorganization) and a Chapter 12 (bankruptcy for ...
Continue Reading
-
Posted By
Chicago Bankruptcy Lawyer
In any bankruptcy, whether it be a Chapter 7 or Chapter 13, the issue of real estate is nearly always at the forefront. In Chapter 7 liquidations, the amount owed on any liens on the property, together with what the value is of the home, go a long way to determining whether it will be shielded from liquidation. In a Chapter 13, numerous real estate assets can drive up the percentage to be paid to ...
Continue Reading
-
Posted By
Chicago Bankruptcy Attorney
As if the process of filing bankruptcy and going through the bankruptcy procedures aren't stressful enough for some debtors, circumstances can arise if there is a death of a debtor in an active bankruptcy case. Questions arise at that point as to what procedures need to be filed, and much of it depends on which stage the bankruptcy is in at the time of the death of the debtor. Federal Bankruptcy ...
Continue Reading
-
Posted By
Dave Johnsen
Chapter 13 bankruptcy is available to consumer debtors as a way of individually restructuring and reorganizing their debts without liquidation. If people qualify, most choose to file a Chapter 7 to discharge their unsecured debt. But if that individual or joint case cannot qualify for a Chapter 7 (whether because of income, a previous Chapter 7 filing, or a large equity or asset issue that would ...
Continue Reading
-
Posted By
Dave Johnsen
Pursuant to various sections of the bankruptcy code, the interim trustee assigned to a Chapter 7 bankruptcy case has the right to assume the role of the debtor in nearly all forms. The Trustee can step into the debtor's shoes to avoid fraudulent or preferential transfers, pursue claims that the debtor can collect on, take and sell property, administer and liquidate assets, and generally pursue any ...
Continue Reading
-
Posted By
Dave Johnsen
Chapter 13 bankruptcy consists of a 3 or 5 year plan that has been submitted to, and approved by, the bankruptcy court. During this time period, you are making regular monthly payments to the bankruptcy trustee to pay off anywhere from 10%-100% of your unsecured debt, as well as any secured debt or arrearages you are paying through the plan. Debtors often wonder, because their financial lives are ...
Continue Reading
-
Posted By
Dave Johnsen
The idea of going to court can bring trepidation to even the calmest individuals. This is especially true in bankruptcy situations, where financial issues are in play for those who might not be accustomed to the legal arena. At the same time, however, most Chapter 7 bankruptcies only involve one court-like proceeding, and that is the 341 meeting. We've covered the 341 meeting at length in previous ...
Continue Reading
-
Posted By
Dave Johnsen
The thought of attending a meeting of creditors can be daunting to those unfamiliar with the process. In reality, however, the process of the meeting is usually straightforward and relatively brief. You should discuss the specifics of the meeting in regards to your particular case with your attorney prior to attending the meeting, but the framework of the meeting is usually along the same lines ...
Continue Reading
-
Posted By
Dave Johnsen
Once a bankruptcy case is filed, there are still a few requirements needed from the client before they are discharged free and clear and ready for their fresh start. First, it is important that the client call and obtain from their attorney their case number right after filing their case. With their case number, they can then proceed to complete their Debtor's Education course, as well as give ...
Continue Reading
-
Posted By
Dave Johnsen
A common misconception, one routinely brought up by clients when interviewing with their bankruptcy attorney for the first time, is that they think they're going to lose all of their property. Whatever the reason the myth originated, it is simply not true in the majority of cases. Most of the time, a debtor will be able to keep their secured property when filing Chapter 7 bankruptcy. Secured ...
Continue Reading
-
Posted By
Dave Johnsen
We discussed previously that the primary role of the Chapter 7 trustee is to administer your bankruptcy case. The key question, then, is what does that specifically mean? At the onset, the trustee will review your bankruptcy petition and schedules. His primary role in this regard is to review the schedules where you have listed property to see if there is unexempt property that can be distributed ...
Continue Reading
