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

All bankruptcy debtors will tell their bankruptcy attorneys about cases in which they are defendants. Debtors are always anxious to stop a lawsuit and rid themselves of any dischargeable obligations.

The problem with lawsuits usually arises when the debtor is the plaintiff, or has a claim that has not yet been filed. For instance, suffering a personal injury caused by someone else and then filing bankruptcy to get rid of the medical bills.

Both a plaintiff’s lawsuit and a potential lawsuit are assets of the bankruptcy estate.

What happens to the plaintiff’s claim during bankruptcy can depend on a number of circumstances.

In some cases the bankruptcy attorney can exempt a portion or even all of the money received from winning or settling the lawsuit. In other cases the bankruptcy trustee may consider the lawsuit or potential lawsuit of little potential value to the bankruptcy estate (and your creditors), and may abandon the estate’s interest in the suit or claim.

The Bankruptcy Code requires the debtor to disclose all pending lawsuits and claims, whether as a plaintiff or a defendant. Failing to disclose a claim can cause serious headaches for both the bankruptcy attorney and the plaintiff attorney. Whether the failure to list the claim was intentional or an unintentional error, omitting a pending or potential lawsuit is the same as representing to the bankruptcy court that the debtor does not own the asset or have the right to sue. One appellate court said, that “a debtor in bankruptcy who denies owning an asset, including a chose in action or other legal claim, cannot realize on that concealed asset after the bankruptcy ends.” The legal term for this situation is “judicial estoppel,” and it can terminate your right to sue.

If you have a pending or potential lawsuit, discuss your situation with your bankruptcy attorney. Your attorney can advise you on your legal options for discharging your debts and keeping your lawsuit proceeds. Pending lawsuits is actually common, and an experienced bankruptcy attorney can guide you through the legal maze without terminating your rights.

Equity is a very important term when discussing your personal assets. Generally, equity is the difference between the market value of an item and the amount of the claims against it. For instance, if your car is worth $5,000, and your auto loan balance is $3,000, then you have $2,000 in vehicle equity. If you own the vehicle jointly with your mother, you have $1,000 in vehicle equity.

Equity is a common issue during bankruptcy, since the debtor is allowed to keep certain modest possessions. Once the amount of equity in an item of property is determined, the debtor can apply legal exemptions against the equity to protect the asset from the bankruptcy trustee and creditors.

When calculating equity, it is vital to not over-value the asset. For some items there are resources, such as the NADA Price Guide for automobiles. For other items you may need to do some investigation. Ebay is a good resource for collectibles. For real estate it may be necessary to speak to a realtor or conduct an appraisal to discover the market value.

Many bankruptcy debtors over-value furniture and jewelry. Most furniture and jewelry immediately depreciates a great deal after purchase. A used sofa may have cost you $700 at the furniture store, but the market value is only what you would get from a yard sale or through Craigslist. Probably not anywhere near what you originally paid.

After determining the market value, the second step in figuring equity is to subtract any claims against the property. The most common type of claim is called a purchase money security interest (PMSI), a fancy term that means you used a lender’s money to buy the item and used the item as security for the loan. This is usually the case with a car loan or a home mortgage, but many other credit purchases could be considered PMSI. A non purchase money security interest (NPMSI) is a loan secured by property you already own. Some finance companies use furniture or other property owned by the borrower to secure personal loans. Finally, a tax lien against real estate or even personal property may affect your equity, as can some legal judgments.

Once your equity is calculated, the next step is to apply legal exemptions to the equity. Most debtors are able to protect all of their equity using legal exemptions. If there is unprotected equity, the trustee must make a decision whether the amount of equity available is worth his time and will actually benefit creditors. Statistically bankruptcy trustees only take property or assets from debtors in about one out of every twenty five Chapter 7 cases.

It is very important to accurately calculate the amount of equity in your property. Discuss all of your property, its market value, and your legal claims with your attorney. Your attorney can then advise you on the best way to protect the property from creditors.
 

 If you are struggling with debt, chances are you are feeling powerless. Collection agents are skilled at making you feel stressed and hopeless through embarrassing phone calls at work and home; threatening letters; and sometimes legal action. The collection companies want you to feel that your only choice to stop the harassment is to “pay up.”

Fortunately, there is another option. The federal bankruptcy law can stop creditor harassment and put you back in control over your finances. The first way the Bankruptcy Code helps is by imposing an “automatic stay” against collection action against you. The automatic stay is an injunction issued by the United States Bankruptcy Court immediately upon filing your bankruptcy case. No hearing is necessary. This stay applies to creditors whether or not they have actual knowledge of your bankruptcy filing.

The purpose of the automatic stay is to give the “debtor a breathing spell from his creditors, stopping all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him into bankruptcy.” See Notes of Committee on the Judiciary, Senate Report No. 95-989. The breathing spell provides time for the debtor, the bankruptcy trustee, and the bankruptcy court to get a handle on the debtor’s financial problem and work out an appropriate solution.

The automatic stay prohibits a creditor with a claim that arose before commencement of the bankruptcy case from taking many actions, including:
• contacting the debtor to request payment (stops collection calls)
• initiating or continuing a lawsuit against the debtor (stops lawsuits)
• enforcing a judgment against the debtor (stops wage garnishments)
• repossessing personal property or foreclosing on real estate (stops repossessions and foreclosure)

The automatic stay is a temporary injunction which will last until either the bankruptcy judge lifts the stay at the request of a creditor; the debtor receives a discharge; or an item of property is no longer property of the estate. Lifting the stay requires notice and a hearing. There are a few exceptions to the automatic stay, for instance: the automatic stay does not prevent criminal prosecutions. Likewise the automatic stay does not stop lawsuits to establish or modify alimony, maintenance, or support.

The automatic stay stops creditor collection action immediately, and puts you back in the driver’s seat. The automatic stay provides you time to work out a plan to either discharge or repay your debts, and can also give you leverage when negotiating with your creditors. By working with an experienced bankruptcy attorney, the automatic stay is a powerful tool to restructure your finances and provide you with peace of mind.

Preparing to file bankruptcy is about as fun as preparing for a tax audit. Fortunately, the preparation is the most difficulty part of the bankruptcy process, and the end result of your bankruptcy case is financial relief, rather than a potential tax bill. To get you started on the right track, here are four tips for preparing to file bankruptcy:

Stop Using Credit Cards
If you are considering bankruptcy, you are likely already insolvent. Using credit when you cannot repay the creditor may be fraudulent. Your credit card charges may be found nondischargeable in bankruptcy, or, at worst, you could be charged with a criminal act. The safest advice is to stop charging immediately.

Assemble Important Documents
You will need to verify your identity and social security number with the court, usually in the form of a government issued photo I.D. and a Social Security Card. Additionally, the bankruptcy trustee may want to see important legal and financial documents, such as:
Pay stubs
Business income and expense records
Income tax returns for the past two years
Retirement and investment accounts
Life insurance policies
Vehicle titles and loan paperwork
Home documents such as deeds and notes

Collect Information Regarding Your Debts
Collect your monthly bills and obtain a copy of your credit report. A free (no-strings-attached) credit report can be obtained from www.annualcreditreport.com. If you do not have paper documentation concerning a debt, write down the name and address of the creditor, and the amount owed.

Find a Bankruptcy Attorney
Bankruptcy is a powerful legal and financial tool to help the honest individual who is overwhelmed with debt. However, this federal process can be very complicated and you need the guidance of an experienced bankruptcy attorney. Your attorney can help you make decisions before and during the case, and create a plan for you to get back on your feet after bankruptcy. Your attorney understands the bankruptcy laws and procedures and can take advantage of the streamlined nature of the bankruptcy system. Debtors represented by experienced counsel can expect their cases to proceed quickly and smoothly to resolution, without surprises. Don’t go it alone! Ensure your fresh start by hiring a skilled bankruptcy attorney.

In the early days of this country it was common for debtors to be imprisoned until their debt was paid. Popular history records that the last debtors’ prison was closed in the 19th century and the practice of incarcerating a person on account of a debt was abolished. However, the prohibition against debtors’ prison has always had its loopholes; the most well-known examples are tax evasion and child support delinquency. In one case a former corporate lawyer, H. Beatty Chadwick, was imprisoned for more than 14 years for failing to turn over money related to a divorce case. The judge who released him decided that after 14 years Mr. Chadwick either could not or would not pay.

Since the start of the recession more debtors are being arrested for not paying debts. The Washington Post reports that “more than a third of all U.S. states allow borrowers who can't or won't pay to be jailed.” This process generally occurs after an individual fails to show up to court, but sometimes results from failing to make court-ordered payments to a creditor. In one case the Post reports that a 26 year old woman was arrested for failing to show up to a court hearing over a $1,159.87 credit card debt. When she posted a $500 bond, that money was turned over to the creditor.

While many state judges appear to be using the power of their office to influence debtors to pay their creditors, these judges cannot circumvent the power of the federal bankruptcy laws. When a debtor files bankruptcy, all debts owed prior to the date of the bankruptcy fall under the jurisdiction of the federal bankruptcy judge. All state court proceedings must automatically stop, including the execution of a state court contempt of court warrant to coerce payment. This automatic stay is a very powerful protection and gives the debtor a chance to propose a plan to either discharge the debt or repay it over time.

If you are threatened with a lawsuit, don’t ignore it. Speak with an experienced bankruptcy attorney and learn how the federal bankruptcy laws can protect your income, your property, and even your freedom.
 

Once a bankruptcy case is filed, a creditor is prohibited from repossessing the debtor’s vehicle. The process for a creditor to repossess a vehicle during a bankruptcy case is both lengthy and costly. First the creditor must ask permission from the court to repossess through a formal motion. The court then gives the debtor time to respond to the motion and an opportunity to oppose the motion at a hearing. The bankruptcy laws also provide several options for retaining a vehicle during bankruptcy, even when you are significantly behind on your car payments. In many cases your monthly payments can be reduced by the bankruptcy court.

If your vehicle has been recently repossessed, the bankruptcy laws can force the creditor to return your vehicle. Section 542(a) of the Bankruptcy Code states that the estate of the debtor includes "all legal and equitable interests of the debtor in property, wherever located or by whomever held, as of the commencement of the case," with a few exceptions. The United States Supreme Court has held that the scope of section 541 is broad and estate property includes a repossessed vehicle that is still in the possession of the creditor. United States v. Whiting Pools, 103 S.Ct. 2309 (1983). The Court in Whiting Pools stated that section 542(a) does not require that the debtor have the property in his possession at the commencement of the case.

State laws vary, but most are governed by the Uniform Commercial Code (UCC). The UCC gives the vehicle’s owner an opportunity to pay for the vehicle and have it returned prior its sale or transfer. Therefore, even after the vehicle is repossessed, the debtor still has property rights in the vehicle which become part of a debtor’s bankruptcy estate. If the creditor refuses to return the vehicle, the bankruptcy court may impose sanctions. Once your vehicle is returned you must provide “adequate protection” to the creditor to assure that the property will be safeguarded (insured) and that the creditor will be adequately compensated. These requirements are generally met by submitting a Chapter 13 plan of repayment to the bankruptcy court.

Filing a bankruptcy case will stop the repossession of your vehicle. If your vehicle has already been repossessed, it is important to speak to an experienced bankruptcy attorney quickly to determine your rights. You will lose your rights in the vehicle once it is sold or transferred, so time is of the essence. Call today and learn how the federal bankruptcy laws can protect your property.
 

Fears & Nachawati Bankruptcy Law Offices

4925 Greenville Ave Suite 715, Dallas, TX 75206 (214) 890-0711
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There are many situations when a person needs credit during an open bankruptcy case.  Refinancing a home mortgage, redeeming an automobile, or simply applying for a new credit card are circumstances when a debtor needs to obtain credit during bankruptcy.  Fortunately, the bankruptcy process allows the debtor to obtain the credit he or she needs while concurrently pursuing a bankruptcy discharge.

When a debtor applies for credit during an open bankruptcy case, the application not only affects the debtor and the creditor, but also concerns the trustee and the bankruptcy court judge.  The creditor is concerned that the bankruptcy will interfere with the extension of credit, and the bankruptcy trustee and judge are concerned how the extension of credit will affect the bankruptcy case.

For Chapter 7 cases, the reach of the bankruptcy court is limited to those assets that you owned and debts that you owed on the date that you filed bankruptcy.  The judge does not have jurisdiction on post-petition matters.  While the bankruptcy court does have jurisdiction to approve or reject a reaffirmation agreement for a pre-petition debt, the court cannot forbid a post- petition extension of credit.

For Chapter 13 cases, the court has continuing jurisdiction over your finances during the bankruptcy case.  A Chapter 13 debtor is required to commit all of his or her disposable income to repay creditors.  Any new credit must be approved by the bankruptcy judge since a new payment obligation may impact the Chapter 13 repayment plan. 

Automobile credit is often a concern for bankruptcy debtors.  Obtaining a vehicle during Chapter 13 bankruptcy will generally require that the debtor show that the vehicle purchase is “necessary to the completion of the Chapter 13 bankruptcy plan.”  In plain language, you need the car to get to work to make the money to pay the creditors in the plan.  When a vehicle purchase is reasonable and necessary, the courts are generally willing to approve the purchase on credit.

If you have filed or are considering filing bankruptcy and are in need of credit, speak with an experienced bankruptcy attorney and discuss your situation.  Your attorney can offer advice and recommendations for obtaining both a bankruptcy discharge and the credit you need.

Occasionally an individual or couple cannot qualify for a Chapter 13 repayment bankruptcy and must file under Chapter 13. The procedure for proposing a Chapter 11 plan of reorganization is dictated by the Bankruptcy Code and is in many ways similar to a Chapter 13 bankruptcy. The Chapter 11 bankruptcy debtor may file a plan of reorganization during the first 120-day period after the case is filed, and the debtor has 180 days after the entry of the order for relief to obtain creditor acceptance of its plan. After that period a creditor may file a proposed plan with the court. A bankruptcy trustee, if one is appointed, will also file its own plan, or a recommendation for conversion or dismissal of the case.

The Bankruptcy Code lists mandatory and discretionary provisions of a Chapter 11 plan, including the designation of classes of claims and interests. Generally, a plan will classify claim holders as secured creditors, unsecured creditors entitled to priority, general unsecured creditors, and equity security holders. These classes will vote on the acceptance or rejection of the proposed plan(s).

Before confirmation of a plan of reorganization can be granted, the court must be satisfied that the plan is in compliance with all the requirements for confirmation stated in the Bankruptcy Code. In order to confirm the plan, the court must find, among other things, that: (1) the plan is feasible; (2) it is proposed in good faith; and (3) the plan is in compliance with the Bankruptcy Code. In order to satisfy the feasibility requirement, the court must find that confirmation of the plan is not likely to be followed by liquidation or the need for further financial reorganization.

A Chapter 11 bankruptcy case is a complex legal proceeding requiring the leadership of a skilled and experienced bankruptcy attorney. An experienced bankruptcy attorney can guide you through the Chapter 11 process, and help you reach the best possible financial outcome.

Bankruptcy is expensive. Whether you are in a repayment plan or a Chapter 7 liquidation, court fees, credit counseling fees, and attorney fees can really add up. Some bankruptcy debtors are tempted to "go it alone" and file a bankruptcy case without an attorney. However, before you file a "pro se" bankruptcy, consider how your choice will affect your case.

First, proceeding pro se (Latin meaning “for himself”) does not entitle you to special treatment during your bankruptcy case.  The court expects and requires that you file all of the bankruptcy paperwork correctly, obey all of the orders of the bankruptcy court, and follow all of the proper procedures outlined in the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, as well as in the bankruptcy court's local rules. These rules are often supplemented by case law and the procedural customs of the trustee and the judge. 

Bankruptcy attorneys have studied these laws, cases, and rules during three years in law school, and years afterwards in actual practice representing real clients in bankruptcy court. Bankruptcy debtors benefit from the knowledge and experience of experienced bankruptcy counsel.

Second, the federal and state exemption laws can be very complex. In some cases criminal laws or collection laws may be implicated. Protecting your property is one of the chief goals of the bankruptcy process, and one of the easiest to foul up. Failing to properly protect an asset during bankruptcy could result in the loss of that asset, including a home, vehicle, retirement account, or other valuable property.

Third, even if the pro se bankruptcy debtor is able to navigate the bankruptcy procedure and adequately protect her assets, can the case withstand the scrutiny of the bankruptcy trustee? Because the debtor is pro se, the trustee will spend extra time evaluating the case and closely inspecting the bankruptcy paperwork. Frankly, the trustee does not trust the pro se debtor and will assume that the debtor is concealing assets (either on purpose or by honest mistake). Pro se debtors are often placed at the end of the 341 meeting docket and receive "extra attention" from the trustee (never a good thing).

Fourth, a skilled bankruptcy attorney may be reluctant to step into the middle of a pro se case when things go wrong. The case may also degenerate to the point where dismissal or conversion may be the only options.

Bankruptcy cases are being filed in record numbers. The vast majority of bankruptcy cases are processed quickly and efficiently. On the other hand, pro se filings are always red flagged as potential problem cases and receive extra attention - and rightly so! Many of these cases have problems.  Some pro se cases result in loss of property, and others have allegations of bankruptcy fraud. Don't risk your property or your peace of mind. Hire an experienced attorney to guide you safely through the bankruptcy process.

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While the bankruptcy laws are complex and a mystery to most attorneys, filing a typical consumer bankruptcy case is a simple process for an experienced bankruptcy attorney. Preparing the usual debtor’s case for filing can be described in three easy steps: the initial interview, credit counseling, and preparing the petition and schedules.

The first step in the process is the initial interview. Most attorneys call this first meeting a "client interview," because it’s an opportunity for the attorney to ask questions about the client's finances and obtain information. During the initial interview your attorney will ask you to provide information concerning your debts, assets, income, and expenses. Any information requested by your attorney is extremely important to your case.

The initial interview is also an opportunity for you to ask questions and gain information about your attorney and the bankruptcy process. Don't be afraid to ask questions during this time! Your attorney is happy to share his experience and knowledge with you.

The second step is attending credit counseling. Since 2005, consumer bankruptcy debtors have been required to complete a session with a certified credit counselor prior to filing a bankruptcy case. This counselor must be approved by the U.S. Trustee and your attorney can provide you a list of approved counselors. Failure to complete credit counseling before filing will almost certainly result in the dismissal of the bankruptcy case.

The third and final step before filing your case is the preparation of the bankruptcy petition and schedules. The completed paperwork is usually a few dozen pages and provides the bankruptcy court with a clear picture of your finances. Once your paperwork is prepared, you will review the information and affirm its accuracy with your signature. While many television shows portray honest and cooperative individuals who freely disclose information to the courts as naïve or even self-incriminating, the debtor is expected to be honest about his or her financial condition bankruptcy. Speak with your attorney candidly and do not conceal information! This is a time to be completely honest.

Organizing and analyzing your financial information before filing is the most important part of the bankruptcy process. In the hands of an experience bankruptcy attorney, filing your bankruptcy can be a quick and simple process. When you and your attorney cooperate, most bankruptcy cases take only a few days to prepare and file, quicker when there is an emergency.

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Facebook is an internet social networking site that is just six years old, but it already boasts over 500 million active users.  That’s about 1 in 14 people in the world.  Facebook is a great way to stay in touch with friends and family, or even network for business.  Unfortunately, many debt collectors have discovered that Facebook can be a gold mine for personal and financial information.

The typical scenario goes like this: the “under cover” debt collection agent will make a friend request in order to gain access to the debtor’s private information and friends.  Once the friend request is accepted the agent will monitor the posts and updates of the debtor, or may contact the debtor’s friends for information.

In many cases the agent is successful in locating assets or income that can be attacked by the collection agency.  In some extreme cases collection agents have discussed the delinquent financial obligation with the debtor’s friends and family in order to cause embarrassment and coerce payment.

Is this legal?  In some cases yes, in some cases no.  In most cases the debtor has no idea that a debt collector is posing as a friend on the Facebook account.  Information you share on your social network regarding your job, your assets, and even your travel plans may be used against you to collect a debt.

The best strategy is to avoid discussing financial matters on any social networking site.  It is also a good idea to closely screen new friend requests and exclude people that you do not know from your account.  While this debt collection activity is a recent phenomenon, it is certain to continue.  Protect yourself by being cautious about the information you share on-line.

Finally, if you are experiencing a debt problem you can’t solve by yourself, discuss your options with an experienced bankruptcy attorney.  Once your bankruptcy case is filed any contact by a debt collector on a social networking site to your friends or family is a violation of the federal law and can be punished by a federal bankruptcy judge.  Don’t let debt collectors ruin your life.  The facts about bankruptcy and legally eliminate your debts.

A bankruptcy case is part lawsuit, part financial audit.  The debtor is asking the bankruptcy court to order creditors to accept payments over time, or in some cases to order the discharge of a debt without any payment.  Either way, the debtor is expected to make an accounting of assets, debts, income, and expenses and conclusively prove the debtor’s present inability to repay certain financial obligations. 

The Bankruptcy Code has streamlined the process for presenting the bankruptcy case to the court.  Every individual bankruptcy case filed under Chapters 7, 11, and 13 contains schedules that quickly and efficiently describe the debtor’s financial condition.  In order to complete these schedules for your case, your attorney needs a considerable amount of information and documents.

When you consult a bankruptcy attorney you should be prepared to provide the following documents:

1. Photo ID and social security card;
2. The last six months of pay check stubs.  Sometimes this information can be obtained from your employer;
3. Last two years of income tax returns;
4. Real estate deeds and mortgage paperwork;
5. Vehicle titles along with lease or purchase agreements;
6. All loan paperwork;
7. Any appraisal paperwork for real estate or personal property;
8. Any child support or maintenance (alimony) court order;
9. Any recent credit report (you can obtain a free credit report at https://www.annualcreditreport.com/cra/index.jsp);
10. Information regarding your debts, including bills and collection letters;
11. Any important documents that impacts your income, assets, debts, or expenses.  For instance: a foreclosure notice, or a notice of an upcoming bonus;
12. Investment records;
13. Any life insurance policies with a cash surrender value;
14. Last six months of bank statements;
15. Any tax bill showing assessed value;
16. Proof of insurance on all property secured by a lien; and
17. Any documents pertaining to a legal claim or pending lawsuit, which includes lawsuits on your behalf (e.g. a personal injury or worker’s compensation claim).

Providing these documents at your initial meeting will save you and your attorney valuable time and effort in the bankruptcy case.  This information is vital to your attorney’s ability to assess your financial situation and convey it properly to your creditors and to the bankruptcy court.

A person who files a bankruptcy case without an attorney is called a pro se debtor.  “Pro se” is Latin meaning “for oneself;” in other words, you are on your own.  Being on your own during your bankruptcy may save a few upfront dollars, but can cost you plenty in the long run.  There are many negative consequences that are often unexpected and sometimes disastrous. 

The savings pro se debtors receive is minimal and the risk is great.  Attorney fees during bankruptcy are supervised by the United States Bankruptcy Court.  The federal bankruptcy law allows an attorney to collect reasonable compensation for services rendered during a bankruptcy case.  Consequently, bankruptcy attorneys charge similar fees in order to stay competitive, and attorneys must disclose their fee to the bankruptcy court.   

When you are represented by an experienced bankruptcy attorney you receive several benefits.  Your attorney brings years of experience and knowledge in areas including the Federal Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, the bankruptcy court’s local rules, federal bankruptcy case law, and state and federal exemption and collection laws.  Your attorney is also familiar with the bankruptcy judge, the bankruptcy trustee, and local creditor practices. 

When you are represented, you will have counsel at the Meeting of Creditors with the bankruptcy trustee.  The trustee assumes that a pro se debtor has made errors in the bankruptcy, and will grill the pro se debtor and scrutinize the bankruptcy case.  When you are represented, your attorney helps you answer any trustee questions, and can file motions and responses via the court’s electronic filing system.  When you are on your own you must mail or personally file documents with the court and must appear before the bankruptcy judge to reaffirm a debt.