Texas Bankruptcy Blog : Texas Bankruptcy Lawyer & Attorney : Fears Nachawati law Firm : Chapter 7, Chapter 13, Consumer Bankrutpcy : Dallas, Fort Worth, Austin, Houston, San Antonio

The United States Bankruptcy Code is comprised of several different chapters. Some chapters deal with administrative matters. Other chapters provide specific guidance on how a case must proceed. Chapter 13, a repayment bankruptcy, is reserved for debtors who are “natural persons,” as opposed to businesses or corporations. Businesses and individuals can file Chapter 7, a liquidation bankruptcy, but only individuals can receive a Chapter 7 discharge. When businesses need to restructure, they turn to Chapter 11, commonly called the “business bankruptcy.”

Recently the parent company of American Airlines filed for Chapter 11 bankruptcy protection. Chapter 11 is a business reorganization, not a liquidation, and has been used by several other airline companies (including Delta and United) to rewrite union contracts and reduce debt. American Airlines will continue to operate during the bankruptcy and travelers will see very little change – at least during the early phases of the bankruptcy.

American Airlines has declared bankruptcy because it needs protection from creditors to continue to operate while it reorganizes its finances. According to an article in the Wall Street Journal, AMR reports that it has $29.6 billion in debt and $24.7 billion in assets. On the day it filed for bankruptcy, AMR requested permission from a New York bankruptcy court judge to pay for fuel, labor, and other critical expenses to keep American flying. During Chapter 11 bankruptcy, all major financial decisions must be approved through the bankruptcy court.

Attorney Harvey Miller, who represents AMR, offered a great piece of bankruptcy advice for struggling businesses. At the AMR bankruptcy hearing, Miller said that debtors should not “wait too long. Don't wait until the course is irreversible. That is what American Airlines is doing today.”

If your business is fighting to stay alive, consult with an attorney and discuss how the federal bankruptcy law can help. Chapter 11 can stop creditor action while your business develops a plan for reorganization. Every debtor’s situation is different, and an experienced bankruptcy attorney can explain the process and benefits of Chapter 11 for your company.
 

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Can you get evicted for declaring bankruptcy? This is a tricky question and depends on the individual facts of your case. If you file a Chapter 7 and are not behind in your rent payments, then the general answer is, “No.” Filing a bankruptcy case does not breach or terminate the lease agreement, so the landlord cannot evict simply because you seek bankruptcy protection.

In a Chapter 13 case, the bankruptcy trustee may weigh whether terminating your lease agreement would benefit your creditors. The trustee might consider terminating the agreement if you are paying a great deal more in rent than what most people in your area are paying. The purpose is to reduce your expenses and free up money to pay creditors. The trustee may seek this termination regardless of whether you’re violated your lease or are behind in rents.

If you are behind in rents prior to the bankruptcy filing, the federal laws prevent the landlord from evicting you during the bankruptcy. This protection, called the “automatic stay,” stops all collection action against you, and forces the evicting landlord to seek relief from the bankruptcy court. However, if you are endangering the rental property or using controlled substances illegally on the premises, the landlord may be able to evict during the bankruptcy. The landlord must file a certification to the bankruptcy court and the tenant has 15 days to respond. The court must hold a hearing within 10 days.

The bankruptcy automatic stay will not relieve you from your obligation to pay rent after the bankruptcy filing date. If you fall behind on your rent payments after the bankruptcy is filed, your landlord may evict you, but cannot seek payment of past rents. If you are not behind on rents at the time the bankruptcy case is filed, your landlord is not a creditor and will not receive notice of your bankruptcy filing. However, you must account for any rent deposit on your bankruptcy schedules.

If your landlord has already obtained a judgment for possession and order of eviction before you file bankruptcy, the legal process is more complex. You must deposit one month of rent with the bankruptcy court along with a statement that the judgment permits you to stay in the premises upon satisfaction of the entire judgment amount. This filing stays the eviction process for thirty days. If you wish to remain longer, the entire judgment amount must be paid within the thirty day period.

Bankruptcy can stop an eviction and give you time to move or make arrangements to stay. If you are facing eviction from your rental home and contemplating bankruptcy, discuss your situation with an experienced bankruptcy attorney. Your attorney can give you legal advice that will help your specific case.
 

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Many homeowners unable to pay their monthly mortgage face several difficult decisions. The options for dealing with this issue generally boil down to the following: sell, modify the mortgage, walk away, or rent the property out. In some cases renting the property to a tenant may avoid foreclosure and allow you to generate some rental income.

For mortgage and bankruptcy purposes, investment property is treated differently than a primary residence. First, rental property is not eligible for many mortgage modification programs. Additionally, rental property does not qualify for homestead exemptions under state and federal asset protection laws. Consequently, if you have equity in your property, the Chapter 7 trustee may be able to seize the property during bankruptcy and sell it to pay your outstanding debts.

If you are considerably upside down on your property, lien stripping may be an option. The federal bankruptcy laws allow lien stripping of secured property in a Chapter 13, but this process is not available to modify the first mortgage on your primary residence. Lien stripping the first mortgage of investment property is allowed. The bankruptcy court will "cram down" the amount you owe on the loan to its fair market value. A second mortgage can be entirely stripped off if it is unsecured.

To understand how this works, consider the following example:

Value of property: $330,000
First mortgage: $360,000
Second mortgage: 40,000

The second mortgage is stripped off and becomes unsecured debt, and the first mortgage is crammed down to the value of the property, $330,000. Your monthly payment will be adjusted accordingly.

Since a Chapter 7 bankruptcy is a liquidation process, and the bankruptcy court and trustee are concerned with whether there is sufficient equity in the rental property to sell and pay creditors. Otherwise the trustee will abandon any interest in the property and you can keep it subject to paying the mortgage. There is some legal basis for a Chapter 7 bankruptcy trustee to collect rents from the tenants for six months after your bankruptcy filing. However, it is questionable whether the trustee would have any right to rents after abandonment of the property.

A Chapter 13 bankruptcy is for people who have income and restructures repayment of debts over three to five years. As long as the property is able to generate income, and so long as you are able to financially maintain the property, you will be able to keep it and the income it generates.

For more information on bankruptcy, and which bankruptcy option is best for your situation, consult with an experienced bankruptcy attorney. Your attorney is able to assess your financial situation and inform you of all your legal rights and options.
 

It is heartbreaking to meet older Americans who are struggling to pay utility bills, to buy needed medicine, or even unable to buy food. In some cases the elderly will forego these necessities to pay credit card debt from their modest, fixed incomes. It is often the adult children that discover the struggles of their parents and suggest speaking with a bankruptcy attorney.

Discussing a bankruptcy filing can be very difficult for older people. They may see bankruptcy as the ultimate failure or disgrace, or may have ideas that they will lose everything they own. Debt collectors can prey on these fears and force older Americans to pay for debts they cannot afford.

Fortunately, the federal bankruptcy laws can protect the elderly from these unscrupulous creditors, and free up money to pay for necessities. The federal law entirely protects Social Security income from creditor garnishment, and nearly all retirement funds are protected. A bankruptcy filing can permanently shield your loved one from creditor harassment.

Before speaking with a bankruptcy attorney, it is a good idea to obtain a complete picture of the person’s assets, debts, income, and expenses. Start by collecting monthly bills, bank statements, and any check stubs from retirement payments. Your attorney can also assist you in running a credit report. An accounting of personal property and real estate is also important to determine whether there are assets that may be problematic.

Speaking with a bankruptcy attorney does not commit you to filing bankruptcy! A bankruptcy attorney is very experienced in dealing with debt and may suggest a bankruptcy alternative. In some cases an older person may be judgment proof, meaning all income and assets are protected from creditors. Your attorney can discuss financial planning options specific to the case.

If you are older and struggling with debt, or know an older American who needs help with overwhelming debt, contact an experienced bankruptcy attorney and discover how the state and federal laws can help. Your attorney can advise you on protecting assets and income, while discharging debts.
 

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One of Ben Franklin’s most famous quotes goes, “"'In this world nothing can be said to be certain, except death and taxes."

U.S. taxpayers are taxed for so many transactions. One of the lesser-known taxes is the “cancellation of debt” tax. Many consumers who successfully resolve their debts for “pennies on the dollar” receive a nasty surprise at the end of the tax year. They are issued an IRS 1099-C: a “cancellation of debt” form. The U.S. Internal Revenue Service considers forgiven or canceled debt as income. Any creditor or debt collector who agrees to accept at least $600 less than the original balance is required to file a 1099-C form with the IRS and to send debtors a canceled debt notice. Taxpayers must report the forgiven or canceled debt as “income” on their federal income tax returns.

Fortunately, there are six exceptions to the rule that you must pay tax on forgiven or canceled debt:

Exception 1: If the debt is a foreclosure that qualifies under the Mortgage Forgiveness Debt Relief Act. Under this Act a debt that is reported as canceled after a foreclosure may be excluded from income.

Exception 2: Debts canceled while the taxpayer is insolvent. Insolvent means broke. This exclusion applies to an amount beyond your total assets. For instance, if you have a canceled debt of $20,000, and you have $5,000 in assets, you must report the first $5,000 of the canceled debt as income.

Exception 3: Student loans forgiven under a federal program. Some federal programs will forgive a portion or all of a person’s student loan debt after you worked a period of time. This forgiven debt is not taxed.

Exception 4: Any forgiven interest that would have been deductible as a business debt (that does not include personal credit card interest).

Exception 5: If the canceled debt is a gift, it is not taxable. This exception generally only applies when the debt is between family or friends.

Exception 6: If the debt was discharged in bankruptcy, it is not taxed as income.

Some bankruptcy debtors receive 1099-C forms in the mail. Simply tell the IRS that you have discharged the debt in bankruptcy and owe nothing. File IRS Form 982, Reduction of Tax Attributes Due to Discharge of Indebtedness, with your income tax form.

Most bankruptcy debtors do not receive 1099-C forms. If you receive one, speak with your bankruptcy attorney to confirm that the debt was discharged. Your bankruptcy attorney can assist you in resolving the debt and avoiding problems with the IRS.
 

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When a bankruptcy case is filed the individual debtor announces his or her intent to proceed under Chapter 7, 11, or 13 of the federal Bankruptcy Code. Each bankruptcy chapter has its own advantages and challenges. During some cases, the debtor’s circumstances may change and another bankruptcy chapter becomes more beneficial. In these cases the debtor may be able to convert the bankruptcy case to a different chapter.

Converting a bankruptcy case to another chapter is a very simple process. There is a filing fee and a notice that must be filed with the bankruptcy court. The debtor is required to update the bankruptcy schedules to include any changes or new information. Conversion can be beneficial to the debtor in that any debt incurred after the original bankruptcy filing date can be included in the converted case.

A converted case retains its original case number (so there are not two bankruptcy cases on your record). A different trustee is assigned to your bankruptcy case, and you are required to attend a (second) meeting of creditors. If you are converting from a Chapter 11 or 13 case to a Chapter 7, you may be entitled to a refund of plan payments, if the Chapter 13 trustee is holding money.

A case may be involuntarily converted when a Chapter 7 debtor is found to be ineligible. When the debtor has sufficient disposable income to make payments on debt through a Chapter 13 case, the trustee may ask the court to order the case dismissed or converted to a Chapter 13.

If you believe that you need to convert your case to a different bankruptcy chapter, consult with your experience attorney regarding the benefits of conversion. In many cases there are options to continue your case under its current chapter. In other cases conversion may be the best option.
 

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Before starting your holiday shopping, take a moment and view some sage advice from a “consumer expert:”

http://www.nbc.com/saturday-night-live/video/dont-buy-stuff/27169/

Sure, it’s a funny video, but only because we are laughing at ourselves! Of course you shouldn’t buy stuff you can’t afford. Bad things can happen when you abuse credit, especially if you have over-extended your finances.

This holiday season layaway is making a comeback as a financing option. Layaway was very popular with holiday shoppers years ago, but its popularity diminished as credit became easier to obtain during the 1990’s. The basic idea is that you set aside an item at the store, hold it with a deposit, and make payments over time. Once you have fully paid for the item, you can take it home.

Recently New York Sen. Chuck Schumer issued a public warning that the fees that retailers are charging for layaway purchases can add up to a higher interest rate than any credit card would be allowed to charge.

"These layaway programs are nothing more than hideaways for sky-high interest rates that consumers would never tolerate with a credit card," Schumer told the AP. "The holiday season is supposed to be about giving and not taking, but these layaway programs are taking advantage of people and charging them outrageous interest rates, under the guise of making it easier and more affordable to shop."

A good example of how the typical layaway program works is at Kmart. The retailer offers an 8 week layaway plan that charges an initial $5.00 “Service Fee” for all new layaway contracts. The customer is required to put down a minimum of $15.00 to hold the item, and must make four “easy” payments over the next eight weeks. There is a $10.00 “Cancellation Fee” if you change your mind. If you can’t pay for the item or change your mind, kmart keeps $15.00 and you get nothing.

Bankruptcy debtors are especially susceptible to high interest credit schemes since credit cards are generally not available. However you decide to pay for your holiday purchases, make sure you make a wise choice. If you decide to use layaway or some other form of credit, be sure that you understand the details of the deal. That way you can make an informed decision.

“We wish you a debt-free Christmas and a fresh start New Year!”

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Filing bankruptcy is serious business, but it’s not the end of the world. It is always good to have a positive perspective on things, and that includes the bankruptcy process. With this in mind, below are a few light hearted jokes about bankruptcy:

“If you don't pay your exorcist, you can get re-possessed.”

“Due to the slumping economy, Six Flags is filing for Chapter 11 bankruptcy protection. Ironically, when they get to bankruptcy court, they'll have to wait in a line a mile long for two hours only to realize later that this ride really isn’t all that great.”

“The courts allowed the bankruptcy proceedings for Chrysler to go forward this week. The bankruptcy was approved after the judge told Chrysler to sit in a room for a few minutes while the judge went to talk to his manager.”

“The Dodgers are so broke, when players steal bases, owner Frank McCourt asks that they please return them.”

“The Dodgers are so broke, three of their players tested positive for ramen noodles.”

“Q: What's the difference between a bankrupt attorney and a pigeon?
A: The pigeon can still make a deposit on a Mercedes.”

Maintaining a positive attitude throughout your bankruptcy will help you rebound quickly after your case ends. The federal bankruptcy laws can help you reshape your finances and get a fresh financial start. So put a smile on your face, and know that things are going to be better soon.

If you are struggling with serious debt, contact an experienced bankruptcy attorney and discover how the bankruptcy laws can help. Bankruptcy can stop creditor harassment, protect your assets, and put you on a road to recovery.
 

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Recently the commissioners of Jefferson County, Alabama, voted to file the largest Chapter 9 bankruptcy in history. The New York Times reports that the county is “roughly $4 billion” in debt. Jefferson County’s financial trouble stems from poor attempts to finance the court-ordered rebuilding of its out of date sewer system. Jefferson County is Alabama’s most populous county and home to the city of Birmingham.

The size of Jefferson County’s bankruptcy debt is staggering, and surpasses the previous record for largest Chapter 9 bankruptcy set by Orange County, Calif., in December 1994. Orange County listed $1.7 billion in debt. However, Jefferson County’s debt does not set the record for most debt in a bankruptcy case. It’s not even close.

When Enron filed for Chapter 11 in 2001, the company’s total debt was $31.2 billion. Worldcom, Inc. filed bankruptcy in 2002 and listed $41 billion in debt. But the grand daddy of them all is Lehman Brothers Holdings, who in 2008 filed Chapter 11 bankruptcy listing a whopping $613 billion in debt. Of course, much of this debt can be off-set against company assets, but consider that Lehman Brothers is still trying to gain approval for a plan to repay $65 billion to creditors.

No matter the size of your debt load, the bankruptcy code can offer you relief. There are no debt limits for a Chapter 7 bankruptcy case, which discharges personal debts without repayment. The Bankruptcy Code streamlines the reorganization process for individuals, but limits Chapter 13 eligibility to total unsecured debts less than $360,475, and total secured debts less than $1,081,400. If you exceed these limits, then your individual bankruptcy case can be filed under Chapter 11.

If you have debts that you cannot afford to repay, seek out assistance from an experienced bankruptcy attorney. The federal bankruptcy laws can help you restructure your finances, discharge burdensome debt, and provide you with a fresh financial beginning.
 

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EBay is an online auction website where people and businesses buy and sell goods. You probably already know that. What you may not know is how EBay can help you during your bankruptcy.

First, EBay can help you adequately value your household property. The bankruptcy laws require that the debtor account for all personal property and make a good faith effort to accurately provide a fair market value. EBay can help you determine a fair market value for a unique item. In the bankruptcy world, a fair market value means liquidation value, or the price you may receive at an auction. Whatever you own, no matter how unique, you can probably find someone selling it through an auction on EBay.

Second, after determining a value for your property, you need to discuss how state and federal exemption laws can protect your property during bankruptcy. Most debtors do not have difficulty retaining all of their personal property during bankruptcy. However, in some rare cases a debtor may own property that far exceeds the available personal exemptions. The bankruptcy trustee may ask you to turnover any unprotected equity.

There is nothing wrong or illegal about pre-bankruptcy financial planning, so speak with your attorney before selling or transferring any property. If your attorney advises you to sell property, EBay can help you sell an item at a fair market value prior to your bankruptcy filing. Generally, your attorney will advise you to sell your property at a public auction, and use the proceeds for necessary family expenses. Again, speak with your attorney before selling any property.

Finally, even if are able to exempt all of your personal property, you may need fast cash. Bankruptcy debtors are often cash strapped during bankruptcy, and EBay is a good way to sell personal items that are no longer wanted or needed.

If you are considering restructuring your personal finances through bankruptcy, consult with an experienced bankruptcy attorney before selling or transferring any property. Your attorney can provide legal and practical advice to help you make the best possible decisions for your financial future.

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The first step in assessing your personal finances is to obtain a copy of your credit report. Your credit report will provide several key pieces of information that will help you develop a clear picture of your financial condition. A credit report tells you: (1) who you owe; (2) how much you owe; and (3) whether you have missed payments to creditors.

Your credit report states the name and address of your creditors. This is the same information that you are required to provide should you decide to file bankruptcy. Often a creditor statement can be vague about where to send notices or correspondence. The information on your credit report is supplied by the creditor, and is presumptively correct.

Your credit report shows the total balance of your debt and the monthly payment. This information is also provided by the creditor to the credit reporting bureau. This information may or may not be correct, but it is a good estimate if you are unsure about what you owe.

Finally, your credit report contains information about payments and missed payments. It also contains information regarding collection agencies. This information can be important in calculating an arrearage for negotiating a repayment plan, or simply for giving notice to a collector about a personal bankruptcy.

The federal Fair Credit Reporting Act (FCRA) entitles you to a free copy of your credit report from each of the three major credit reporting bureaus: Equifax, Experian, and TransUnion. You are entitled to a free report every twelve months. The credit bureaus have established a central hub for accommodating consumer requests at AnnualCreditReport.com. Through this website you can order a completely free copy of your credit report from each of the three major credit reporting bureaus. You have the option to request all three reports at once or to order one report at a time.

The “free” reports provided by AnnualCreditReport.com are completely free and regulated by the federal law. There are no hidden costs or subscriptions, unlike other “free” services advertised on radio and television. You do not need a credit card to obtain your reports.

If you are overwhelmed with debts you cannot pay, contact an experienced bankruptcy attorney and discuss your options for restructuring your finances. Your bankruptcy attorney can help guide you in obtaining copies of your credit reports.
 

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Bankruptcy attorneys are good at hyping the bankruptcy discharge. Terms like “Erase Your Debts!” and “Start Fresh!” abound in consumer bankruptcy advertising. You may know that at the end of your bankruptcy case the court will enter an order discharging certain debts. But what exactly happens to debts that are discharged?

The bankruptcy discharge does not “erase” or “eliminate” the debt. The discharge is a permanent order injunction against certain creditors. The discharge forbids all action to collect the debt from the discharged debtor. This injunction applies to the original creditor, any collection agency or subsequent creditor, and to any attorney or other representative who may attempt to collect the debt.

The discharge injunction prohibits collection action against the discharged debtor. For instance, if a credit card debt is included in your discharge, then the creditor is barred from attempting to collect on the debt from you, personally. The debt still exists, but the creditor cannot take any legal action against you to collect.

A creditor may still have options to collect on a discharged debt. The bankruptcy discharge only applies to the individual debtor, so any co-debtor (who has not also filed bankruptcy) is fair game. In most cases, a co-debtor will be 100% liable for the entire remaining debt. The creditor cannot sue you for payment, but it can sue your co-debtor. Your co-debtor is also prevented from suing you for payment.

A creditor may also seek to collect from any property that was used as collateral for the discharged debt. Often property that was not acquired through financing (called “non-purchase money security”) can be protected, but the general rule in bankruptcy is that secured property must be paid for or returned. After the bankruptcy case is closed, a secured lender can repossess collateral that secures a discharged debt without violating the bankruptcy discharge injunction. Repossession after bankruptcy is actually very rare. There are several ways to protect property (especially a vehicle) during and after bankruptcy, including redemption, a Chapter 13 cram-down, or reaffirmation. If you have secured property you would like to keep, discuss your options with your attorney.

Many debts that are “forgiven” or “charged-off” can be taxed against the debtor. The IRS sees the forgiven debt as taxable income. Fortunately, the federal law contains an exception to this rule for debts discharged by bankruptcy. Discharged debts are not taxable as income by the IRS.

Since the debt still exists after the bankruptcy case, the discharged debtor may choose to make voluntary payments. The discharge injunction only applies to the creditor, and there is nothing that prohibits voluntary payments. Voluntary payments do not “revive” the debt, and it does not negate or suspend the discharge. The creditor is forever and always barred from contacting the debtor regarding the debt, and cannot call or even send reminder notices to pay.

If you have bills that you cannot afford to pay, contact an experienced attorney and discuss your options under the federal Bankruptcy Code. Bankruptcy is a powerful defense that can shield you from the negative effects of overwhelming debt.

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Corporate Knights, a Canada-based sustainability-focused media firm, publishes a unique list every year that predicts the world's most sustainable large corporations. Started in 2005, the Global 100 Most Sustainable Corporations in the World is a list of publicly traded companies that, based on research and analysis, are best equipped to manage the environmental, social and governance (ESG) risks and opportunities they face. The idea is to look at the company today and predict the company's future ability to thrive.

Predicting the financial future of a company is tricky business. Of the original 100 announced in 2005, ten companies on that list are now inactive. Another good example is Eastman Kodak, which appeared on the Global 100 list in 2005, 2006, 2007, 2008, and 2009. Kodak is synonymous with photography, and has a long and proud history. Kodak practically invented the amateur photography market back in 1888. Kodak is also responsible for the first digital camera in 1975 and developed cell phone photo technology. Unfortunately, in recent years Kodak has not changed fast enough to keep up with the changing marketplace. Kodak's shares once soared to an all-time high of $95 in 1997 and was a mainstay member of the Dow Jones industrial average for 74 years. In September 2011 its stock plummeted to close at $.69 a share.

Eastman Kodak is a lesson of how quickly the financial outlook of a company can change. Individuals, like companies, sometimes make bad decisions that can lead to financial trouble. Other times, circumstances happen that simply cannot be predicted. Fortunately, what looks bleak today can be better tomorrow. That is a hope that bankruptcy offers to individuals who are struggling with overwhelming debt. Bankruptcy offers the individual the "do over" opportunity to discharge or restructure debts.

If you need help reshaping your financial future, consult with an experienced attorney and discuss how the federal bankruptcy laws can help. Your attorney can offer you options for eliminating debt and making your finances sustainable for years to come.
 

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