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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 ...
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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 ...
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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 ...
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Posted By
Dave Johnsen
A Chapter 13 bankruptcy affords a debtor the opportunity to cram down certain secured debts to their actual value, not merely the principal balance owed. This concept essentially takes the principal balance owed on a secured debt that is "underwater" and reduces the secured amount of the debt to what the value of the collateral actually is. This concept has its foundation in basic secured ...
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Posted By
Dave Johnsen
When you are preparing to file bankruptcy, it is best to discuss with your bankruptcy attorney whether you have any judicial liens against your property. These liens, even if the debt is included in your bankruptcy and discharged, can survive the bankruptcy and stay levied against your home. A judicial lien is secured through a legal process of securing a memorandum of judgment. It can be for ...
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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 ...
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Posted By
Dave Johnsen
According to a story published in the Chicago Tribune on November 13, 2013, Chicago-area foreclosure filings rose nearly 30% in October 2013. This number, while lower than this past summer and the past few years of extreme foreclosure rates, signals that the economic recovery is far from complete. A spike in foreclosure filings as winter comes indicates that for some, household income has gone ...
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Posted By
Dave Johnsen
Bankruptcy law is complex and difficult to understand. Attempting to navigate the various rules, laws, and legal framework, not to mention completing and filing the necessary schedules, paperwork, and documents, is a difficult task. For this reason, the first step in filing a bankruptcy is to consult an experienced and competent attorney. When you initially meet with your attorney, it is important ...
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Posted By
Dave Johnsen
In some Chapter 7 bankruptcies, particularly those where assets are found and thus available for distribution to unsecured creditors, and all Chapter 13 bankruptcies, creditors get paid by filing proof of claims. These proof of claims. These claims are governed by Bankruptcy Rule 3001, which states on a basic level that it is "is a written statement setting forth a creditor’s claim." Rule 3001(c) ...
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Posted By
Dave Johnsen
Once a bankruptcy case is filed, a bankruptcy restraining order is automatically issued. This restraining order, which functions much like a typical restraining order, is formally known as the automatic stay. This automatic stay prevents creditors from proceeding in collection actions against you. What this means is that creditors can't call you at home, at work, or on your cell phone; they can't ...
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Posted By
Dave Johnsen
The filing of a Chapter 13 has an interesting effect. It consolidates and reorganizes all of your personal debt into one payment to the trustee each month. The analysis that goes into this deals with all of your expenses, income, assets, and debt to determine the payment. The payment can go up if it includes payment for certain secured debt in the plan, like a car of mortgage. This can help ...
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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 ...
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Posted By
Dave Johnsen
One of the driving thrusts behind the 2005 Bankruptcy Reform laws (known as BAPCPA) was an effort to make it more "difficult" to file for Chapter 7 bankruptcy. There were several reasons and rationales behind this, not the least of which were credit card lobbying efforts, but the end result was the desired result: it has become more difficult to file for Chapter 7 bankruptcy because of income ...
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Posted By
Dave Johnsen
In today's upside down real estate market, it is quite common for prospective debtors to seek bankruptcy help in an attempt to remove a second mortgage on their property. These mortgages were taken out of the equity when the home still had good value, but with the recession's plummeting home values now sit as fully unsecured liens. A good portion of these prospective debtors are those who normally ...
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Posted By
Dave Johnsen
For a home on the brink of or in active foreclosure, the options to the homeowner(s) may seem limited. They can try a loan modification to save the home, but often they feel they have to ditch the home and move on. They try to do this through a short sale, deed in lieu of foreclosure, or perhaps even just abandoning the home altogether. Little do they know, however, that Chapter 13 offers perhaps ...
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Posted By
Dave Johnsen
You can call this the age of the student loan. In recent months, the total amount of outstanding student loan debt surpassed 1 Trillion dollars. That's 12 zeroes. This amount now goes back and forth with credit cards to comprise the majority of unsecured debt that Americans have. The problem is, however, that while the vast majority of credit card debt is dischargeable in any bankruptcy, student ...
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Posted By
Dave Johnsen
Often, when people purchase a home or condo, there is an association incorporated into the community where the new home is. This could be a homeowner's association or condo association, but the results are nearly always the same: you must pay them a separate bill each month. This bill, usually added as a standard rider to the sales contract on your home, could pay for any range of things. Failure ...
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Posted By
Dave Johnsen
Most of the time, there's a stage prior to filing bankrutpcy that can adequately described as "preparing for bankruptcy." This usually involves gathering the necessary documents, fees, and other information to hand over to your bankruptcy attorney to begin the process of filing. This is a process that can take some time and is usually up to the prospective debtor as to how fast they'd like to ...
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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 ...
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Posted By
Dave Johnsen
A common preceding cause of a bankruptcy filing is a car repossession. On a basic level, a car loan is a secured debt. This means that unlike failure to make your credit card payments, which can result in lawsuits and judgments down the road, failure to make a car payment gives the holder of that secured interest the right to repossess the vehicle in order to pay off the debt. Bankruptcy offers a ...
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Posted By
Dave Johnsen
One of the more common questions debtors encounter is what to do when they discover a bill that was incurred before they filed their case, but their case has already been filed. Their first instinct is that any efforts at including the bill are moot because the case has been filed, until they discover that they can simply amend the appropriate bankruptcy schedule. Amending a bankruptcy schedule is ...
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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 ...
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Posted By
Chicago Bankruptcy Attorney
In Chapter 7 bankruptcies, the amount of the debt owed by the debtor isn't as vital a consideration in the case because the obligation is going to be discharged 100% and not paid back. Thus, a debtor filing a Chapter 7 bankruptcy must only focus their analysis on whether they qualify because of income, assets, or other issues. This isn't necessarily the case in a Chapter 13 . Chapter 13's, you'll ...
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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 ...
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Posted By
Attorney Joseph P. Doyle
Pursuant to 11 USC 362, the filing of a bankruptcy petition serves to automatically stay certain activities against the debtor. These activities, outlined in 362(a), include any judicial action that can be taken against the debtor in terms of debt collection, the enforcement of a pre-petition judgment, or any action to collect property of the bankruptcy estate or things along those lines. The stay ...
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