12 Ways a Bankruptcy Attorney Assists With a Chapter 13 Case
While Chapter 13 bankruptcy can be a great way to handle unmanageable debt, many people are confused by the process and the roles of their bankruptcy lawyers. If you file for Chapter 13 in San Jose, your bankruptcy attorney will do multiple things to help you with the process and prepare you for both the repayment plan and your life after receiving your discharge. Your attorney will advise you throughout the process and help you complete the necessary paperwork.
Here are 12 ways a bankruptcy attorney assists with a chapter 13 case:
1. Assessing the best strategy to address financial difficulties
When you meet with your bankruptcy attorney at the Shulman Law Office, he will want you to bring in a list of all of your debts and assets. Your lawyer can then analyze the types of debts you owe and their total amounts so that he can determine the most appropriate strategy to address your financial circumstances. The nature of your debts will help to determine whether Chapter 13 is the best option or if you should instead consider filing Chapter 7 bankruptcy.
2. Help you to create a workable budget
If you and your lawyer determine that Chapter 13 bankruptcy is the best option, you will be proposing a repayment plan that will last for three to five years. During this period, you will pay your priority debts and some of your unsecured debts. Having a budget in place can help you make your payments to the bankruptcy court while also meeting your living expenses. Learning to live on a budget can also help you in the future after you have successfully completed your repayment plan and have received a discharge of your remaining debts.
3. Evaluate the validity of secured debts and value them
Secured creditors have security interests in the property secured by their liens. For your secured debts, your attorney will examine them to determine their validity and whether they are avoidable. Your lawyer will also evaluate their value and take any necessary steps to protect your interest. Some liens might be avoidable in Chapter 13 bankruptcy through lien cramdowns or lien stripping.
If you have any secured interests that might be eligible for a cramdown or lien stripping, your attorney might file a motion with the bankruptcy court. For example, if you have owned your vehicle for a long enough period before filing for bankruptcy, your lawyer might be able to secure a lien cramdown in which what you owe is reduced to your car's value in exchange for you paying the reduced amount in a lump sum. Junior mortgages and liens against your home might also be stripped if you are underwater in your home, rendering them unsecured.
4. Help you create a workable and acceptable repayment plan
Creating a repayment plan for your debts is a central task of Chapter 13 in San Jose. Your attorney will help you draft a Chapter 13 plan that will meet your needs while also being acceptable to the court. In your repayment plan, you must plan to repay your priority debts and demonstrate to the court that you are making your best effort to repay your non-priority unsecured debts. Your attorney can help you understand what must be repaid and how to propose a plan for your non-priority unsecured debts that is more likely to be accepted by the court.
5. Prepare the pleadings and Chapter 13 bankruptcy forms
Filing for Chapter 13 bankruptcy will require you to file multiple forms and pleadings. Your bankruptcy attorney can help by properly drafting all of the required pleadings and forms. This is crucial for helping you to avoid critical errors that could result in problems in your case once your paperwork is filed.
6. Filing the pleadings and Chapter 13 forms with the bankruptcy court
Once you have completed the required pre-filing credit counseling course, and your attorney has drafted all of the relevant forms and pleadings, he will then file them for you with the U.S. Bankruptcy Court together with your certificate of completion of the credit counseling course, your required schedules, and your proposed repayment plan. Filing the petition and supporting documents with the court will then trigger the automatic stay, preventing your creditors from engaging in further collection activities while your bankruptcy case is pending. The automatic stay can offer immediate financial relief by stopping collection lawsuits, garnishments, and other types of collection activities.
7. Attending the required hearings
Several weeks after you file your Chapter 13 bankruptcy case, you and your attorney will be required to attend the 341 meeting of creditors. During this meeting, you will meet with the trustee assigned to your case. Creditors can attend if they choose and question you, but they frequently do not. At the 341 meeting, the trustee will look over your forms, identification, supporting documents, and proposed repayment plan and will ask you questions about them. Your attorney will appear with you at this meeting and help you with answering any questions you might be asked.
Creditors can file objections to your proposed plan by filing an opposition with the bankruptcy court. If a creditor files an opposition with the court, a hearing will be scheduled. At this hearing, your attorney can present arguments about why the court should reject the opposition and confirm your plan.
If no objections are filed, the court will schedule a confirmation hearing. At this hearing, the judge will decide whether or not your plan should be approved. If your plan is confirmed, you will then continue making your payments as called for by your plan for the requisite period.
In addition to the 341 meeting and confirmation hearing, there might be other court hearings scheduled in your case, depending on its complexity. If any other hearings are necessary, your attorney will attend them with you and fight to protect your interests.
8. Help you to secure the court's approval of your Chapter 13 plan
Your repayment plan is key to your Chapter 13 case. Through your repayment plan, you can make affordable payments to the bankruptcy trustee in your case. If your plan is approved, the trustee will then distribute the payments you make to your creditors. Your plan must provide for full repayment of your priority debts unless a creditor agrees to treat the priority debt differently or you plan to use all of your disposable income to repay your domestic child or spousal support obligations over five years. For your secured debts, your plan must either provide for you to continue making your payments, or you can surrender your secured property. Finally, your plan must show that you are making your best effort to repay your unsecured debts by planning to devote any disposable income you have left after paying for your family's living expenses. Your attorney can help you create a plan that should both meet your needs while also being acceptable to the court.
9. Review all creditor claims and object to improper claims
After your attorney files your Chapter 13 petition, all of the creditors listed in your schedules will be notified by the bankruptcy court and can file claims. Other creditors might also submit claims in your case. For any claims that are filed, your attorney will carefully review them and file objections to any improper claims that might be filed. He will then attend any hearings scheduled by the court for objections.
10. Make modifications to your plan if needed to deal with changed circumstances
After your plan has been approved, and you have been making your payments as agreed, events might occur that change your circumstances. For example, if you get divorced, have a major vehicle repair, or lose your job, you might have trouble making your Chapter 13 repayment plan payments. In these types of situations, your attorney might suggest that you file a motion asking the court to modify your plan. If your circumstances change before your plan is confirmed, your attorney can file an amended plan with the court to reflect your changed circumstances. If your circumstances change after your plan has been confirmed, your attorney will file a motion to modify your plan to a more affordable payment.
11. Help you overcome legal obstacles during your case
A variety of different legal obstacles might arise during your Chapter 13 case. Whenever you encounter obstacles in your case, your attorney will work hard to help you overcome them so that your Chapter 13 case can be successful.
12. Help you secure a discharge
Once you complete your Chapter 13 repayment plan, your attorney will help you secure a discharge of any remaining unsecured debts. You will then be free of the burdens you previously faced from unmanageable debt and can then move forward with your life with a fresh financial start.
Contact a Chapter 13 attorney in San Jose
If you are struggling under the weight of overwhelming debt and are unsure of what to do, bankruptcy might be the right option. At the Shulman Law Office, our experienced and knowledgeable bankruptcy lawyer can help you to decide the best approach to managing your debt and whether Chapter 13 or Chapter 7 might be a good option. Call us today to schedule a free consultation at 408-297-3333.
Is it Possible to Rent or Buy a Home After Filing Chapter 13 Bankruptcy?
Is it Possible to Rent or Buy a Home After Filing Chapter 13 Bankruptcy? Most people in California will encounter financial difficulties at some point in their lives, including job losses, periods of unemployment, or serious illnesses that cause their levels of debt to swell to unmanageable levels. When people are unable to repay their debt, they might consider filing for Chapter 13 bankruptcy to allow them to restructure their debts through a repayment plan lasting from three to five years.
Chapter 13 bankruptcy is a different type of personal bankruptcy than Chapter 7 and does not involve the liquidation of assets. However, a bankruptcy trustee will oversee the repayment plan and must approve any plan to take on new debt during the repayment period. In some cases, a person who is in a Chapter 13 repayment plan might undergo circumstances that lead him or her to want to rent or purchase a new home. Here is some information about the factors that might influence whether or not you can rent or buy a home during Chapter 13 bankruptcy.
Factors considered by prospective landlords
Landlords consider several factors when deciding whether or not to accept an application for a rental apartment or home, including the following:
- The applicant's available income
- The applicant's employment history
- Status of the bankruptcy case
- When the bankruptcy was filed
- Your credit history
In Chapter 13 bankruptcy, you cannot take on any new debt, including a lease, without first getting written approval from the trustee or the bankruptcy court judge. If you want to incur new debt, you will need to first ask for permission to avoid jeopardizing your Chapter 13 bankruptcy case. Once you have approval, you can then enter into a lease to rent a home.
Many landlords understand that people who go through bankruptcy will not be able to discharge new debts for several years after they receive their discharges and might not especially consider your being in bankruptcy a bad thing. A prospective landlord may be more likely to want to make sure that you have enough money to pay your rent in addition to your payments to the bankruptcy trustee. To demonstrate that you are a reliable tenant, you might want to show several years of receipts showing that you have paid your current rent on time.
The stability of your job will also be important. To be approved for Chapter 13 bankruptcy, you also had to demonstrate that you had enough income to make your plan payments. A landlord will similarly be interested in seeing that you have stable employment and might look at how long you have worked at the same job, your past employment history, and your pay rate. You will want to show a prospective landlord that you have sufficient discretionary income from your employment to pay rent as well as your Chapter 13 plan payments.
Some landlords are hesitant to rent to tenants who are currently in a Chapter 13 repayment plan. If you have to take time to get the lease approved by the bankruptcy court, the prospective landlord might not want to wait.
The filing date of your bankruptcy case will also be important. The more time that has passed since you filed your Chapter 13 petition, the less impact your bankruptcy case will likely have on your ability to rent a new home or apartment. Showing a prospective landlord that you have made all of your Chapter 13 payments on time as well as your current rent, utility bills, and other expense payments might help.
When you apply for a lease, the landlord will likely pull your credit report to check for evictions, repossessions, judgments, defaults, and late payments. If it looks as if you are still struggling to pay your expenses, a landlord is unlikely to approve your application. However, if you can show that you have kept current with your repayment plan and have not been late on your other obligations, your application to rent a new home might be approved.
Buy a home after filing Chapter 13 bankruptcy
Since a Chapter 13 repayment plan is overseen by the trustee and the bankruptcy court, you must get court approval before you can take out a new loan, including a mortgage. The bankruptcy court will only approve a request to take out a new mortgage if it makes financial sense for you. If you have enough income to fund your Chapter 13 bankruptcy plan, this might make Chapter 13 a better option if you also want to purchase a home as soon as you can.
Mortgage loans after filing for Chapter 13 bankruptcy
The best types of mortgages you can take out after filing for Chapter 13 bankruptcy are government-backed mortgages, including FHA loans, USDA loans, and VA loans. Conventional mortgages will be harder to get after you file for bankruptcy. Both government-backed mortgages and conventional mortgages will require you to complete a waiting period after filing your Chapter 13 petition before you can purchase a new home. The lender will be able to see the date you filed for bankruptcy when it checks your credit reports.
Government-backed mortgages
FHA loans are insured by the Federal Housing Administration for purchasing new homes. If you default on an FHA loan, the government will pay the lender. However, the lender can still foreclose on your mortgage if you default.
The FHA will not approve an FHA loan for people who have received a Chapter 7 discharge within the past two years, and some individual lenders might have longer waiting periods. However, people who file petitions for Chapter 13 bankruptcy can be approved for FHA loans before their bankruptcy discharge. FHA loans have a waiting period of one year after a person files a petition for Chapter 13 bankruptcy.
However, you will need to find a lender who is willing to extend credit to you and then seek written approval from the bankruptcy court before taking on the new debt required to buy a home. The court will consider the mortgage payment versus your current rent payment to determine whether or not the new mortgage makes financial sense for you.
VA-backed mortgages
If you are a military veteran or the spouse of a deceased veteran who died as a result of his or her service, you might be eligible for a VA-backed loan, which is guaranteed by the Department of Veterans Affairs. Before you can be approved for a VA-backed loan after filing for Chapter 13 bankruptcy, you will have to wait at least one year from your filing date.
USDA-backed mortgages
If you are interested in purchasing a new home in a rural area, you might be eligible to apply for a USDA-backed mortgage. A USDA-backed mortgage has a waiting period of three years after a Chapter 7 discharge or one year after a Chapter 13 discharge, so you cannot take out this type of mortgage while you are still in repayment on your Chapter 13 plan.
However, if you have extenuating circumstances, you might be able to apply for a USDA-backed loan after completing one year of timely payments in your Chapter 13 plan. These circumstances must have happened within the 12 months preceding your filing date and can include such things as a temporary illness or job loss that caused the financial circumstances resulting in your bankruptcy.
Conventional mortgages
Freddie Mac and Fannie Mae are private companies that underwrite conventional mortgages and some government-backed loans, and they have their own requirements for extending loans to prospective homebuyers. Both companies frequently require buyers to purchase private mortgage insurance to protect against default on conventional loans.
Fannie Mae will not allow lenders to extend mortgages to people who have had a Chapter 7 bankruptcy discharge within the past four years. The waiting period for a Chapter 13 bankruptcy is two years after a discharge or four years after dismissal. Extenuating circumstances, including high medical bills, divorce, and job loss might shorten the waiting period. Freddie Mac's requirements are the same as Fannie Mae's.
Credit score requirements
Ultimately, the waiting period that might be required by different agencies might not be the most important factor. Instead, your credit score will be a critical factor in whether or not you will be approved for a mortgage. The credit score requirements vary between lenders and loan types. For example, the FHA requires a minimum credit score of 500. If your score is at least 580, a smaller down payment will be required.
VA loans do not have minimum credit scores. However, lenders that offer FHA-backed or VA-backed loans can set their own requirements, and most require borrowers to have a minimum credit score of at least 620. This makes it important for you to take steps to improve your credit score after you file for Chapter 13 bankruptcy while you complete the waiting period.
If you want to get a USDA-backed loan, you will want to try to improve your credit score to at least 640. The application process for a USDA-backed mortgage is streamlined for borrowers with credit scores of 640 or higher. If your score is less than 640, your lender will scrutinize your credit history to determine whether or not you are an acceptable risk.
Fannie Mae's minimum credit score for approval is 620. However, if you want to get an adjustable-rate mortgage instead of a fixed-rate loan, the minimum acceptable score will be 640. Freddie Mac's credit score requirements are the same as Fannie Mae's.
Get Help From an Experienced Chapter 13 attorney San Jose Today
It is not impossible to rent or buy a home after filing a Chapter 13 petition. Since you will obtain debt relief through bankruptcy, it can help to speed up the process of improving your credit and your ability to purchase or rent a new home. However, it will be important for you to get approval from the court before entering into a new lease or purchasing a new home with a mortgage. To learn more about your options after filing a Chapter 13 petition, call The Shulman Law Office for a free consultation at (408) 297-3333.
Your Step-by-Step Guide to Filing Chapter 7 Bankruptcy in California
Many people in California find themselves in situations in which they are no longer able to keep up with their debt payments. Things like unexpected medical expenses, ballooning credit card debts, and job losses can all leave you facing unmanageable levels of debt. Filing Chapter 7 bankruptcy in California may be a good choice if you are unable to pay your bills. In this type of bankruptcy, any assets that are not exempt will be taken by the trustee to repay a small portion of what you owe to your creditors. Most of your leftover unsecured debts will be discharged, including medical bills, credit card debts, and personal loans. This means that you will no longer be obligated to repay them. Here is how Chapter 7 bankruptcy works in California.
What is Chapter 7 bankruptcy?
While there are four different types of bankruptcy that individuals can file in California, Chapter 7 is the most popular type. In a Chapter 7 bankruptcy, people who meet the means test can liquidate their non-exempt assets. However, in most cases, the exemptions allow people to keep most or all of the assets they have. When you file for Chapter 7 bankruptcy protection, the court will issue an automatic stay or injunction to your creditors to stop all collection activities. This stay will end garnishments, collection on judgments, creditor lawsuits, collection calls, and other attempts to collect on your debts by your creditors. If your Chapter 7 bankruptcy petition is approved, most types of unsecured debts will be discharged in as little as three months. Here are the steps that you can expect in a Chapter 7 bankruptcy case.
1. Making the decision to file for bankruptcy
Before you file for bankruptcy, you will need to decide whether it is the right choice for you. You will want to gather information about all of your debts and assets. You should divide your debts between your unsecured and secured debts. Your secured debts cannot be discharged in a Chapter 7 bankruptcy petition. Your unsecured debts, including credit card and medical debts, can be discharged.
Certain types of unsecured debts normally cannot be discharged in bankruptcy. Some of these include most student loan payments, tax debts, back child support, back spousal support, and restitution in criminal court cases. If you are overwhelmed by a combination of these types of debts as well as other unsecured and secured debts, you might want to talk to your bankruptcy attorney about filing for bankruptcy under Chapter 13. A Chapter 13 bankruptcy can give you the chance to catch up with your payments on certain types of priority debts at a lower rate of interest than you might otherwise have to pay.
2. Mandatory credit counseling
Once you have decided to file for bankruptcy and have figured out that Chapter 7 is the right choice, you will need to complete a credit counseling course no longer than six months before you file your petition. The government has a list of approved credit counseling agencies to provide this counseling session. The session can be completed in person, over the phone, or online, depending on the provider you choose. Once you complete the session, you will receive a certificate of completion. Make sure to save this. It must be filed together with your bankruptcy petition.
3. Meet with your bankruptcy attorney
While you are not required to hire an attorney to file for bankruptcy, working with a bankruptcy attorney can help you to avoid mistakes so that you will likely receive a discharge of your debts. Bankruptcy is a complicated legal process. When you meet with a bankruptcy lawyer at the Shulman Law Office, bring your financial information, including your debt and asset lists, with you. You will also want to bring your tax returns for the last three years and information showing your earnings from work. Your lawyer will review your documents and help you to understand whether Chapter 7 bankruptcy or Chapter 13 bankruptcy might be the appropriate choice.
4. Filing a bankruptcy petition
If you determine that Chapter 7 bankruptcy is the right approach for you, your lawyer will draft the paperwork and file it with the court. Your attorney will submit a petition, asset and debt schedules, information about your income and expenses, and several types of financial transactions from the past few years. He or she will also attach a copy of your certificate of completion from your credit counseling course and the required filing fee.
Once your petition is filed, the court will issue the automatic stay to order your creditors to halt all collection activities. If any of your creditors persist in trying to collect from you, they can face punitive measures from the court. Your attorney will want to know all of your creditors so that they can be properly notified that you have filed for bankruptcy.
5. Appointment of a trustee
Once your bankruptcy petition is filed, a trustee will be appointed to your case. The bankruptcy trustee will review your case and is tasked with managing all of the aspects of the process. The trustee will work to ensure that both you and your creditors act honestly. Your assets will be evaluated to determine whether they are non-exempt. While some states allow you to choose between the state exemptions and the federal exemptions, California does not. Instead, you will choose between two different state-offered lists of exemptions. Your attorney can help you choose the list of exemptions that allows you to keep more of your property.
The bankruptcy trustee will also analyze any major financial transactions over the past few years to determine if any of them can be undone to benefit your creditors. For example, if you transferred a vehicle or piece of property to one of your family members within a few months of filing for bankruptcy, the court might view it as a fraudulent transfer meant to protect the asset from bankruptcy. In most cases, however, most or all of your assets and property will be exempt, and the trustee will not find that you have made any fraudulent transactions.
6. The creditors' meeting
Once the trustee has completed his or her review, your case will be scheduled for a meeting of creditors or 341 hearing. You will need to appear with your lawyer at this hearing. You can expect it to occur from 21 and 40 days after the date you file your petition. While your creditors can appear, they normally will not unless they have an objection to your bankruptcy petition. The trustee will ask you some questions after you are sworn in. You might need to bring some financial documents together with your photo ID and Social Security card.
Once the trustee has finished asking you questions, any creditors who have chosen to attend can ask you questions. A secured creditor might show up to your hearing to ask you about whether you will continue making your mortgage or auto loan payments, for example. After everyone is finished asking questions, you might be asked to return to a second hearing with additional documents. If this does not happen, this hearing will likely be the only one in which you have to appear in person during your bankruptcy case.
7. Deciding what to do about your secured debts
You will need to decide what you will do about your secured debts. If you have fallen behind on your payments, your creditor might ask for the automatic stay to be lifted so that it can pursue foreclosure or repossession proceedings. If you are not behind, you can either choose to reaffirm your debt or give the asset up. If you reaffirm your secured debt, you will agree to continue making your normal payments. Once you reaffirm a debt, it cannot be discharged in a future bankruptcy.
8. Surrender of non-exempt assets
If you have any non-exempt assets, you will need to surrender them to the trustee. The trustee will sell them and divide the proceeds between your creditors. However, most of your assets will likely be exempt, meaning you might not have to surrender any property.
9. Discharge of debts
After any non-exempt assets have been sold, and you have handled any of your secured debts, the court will issue a discharge of your remaining unsecured debts. You will no longer be responsible for paying your discharged debts, and your creditors cannot try to collect on them any longer. This means that you will have a fresh financial start.
10. Post-bankruptcy
Once you receive a discharge of your unsecured debts through a Chapter 7 bankruptcy, you can start afresh with a clean slate. While your credit score might be damaged, you can begin the process of rebuilding your credit. If you take out new credit, make sure to make the payments in full each month. By doing this, you can rebuild your credit much faster than you might realize.
Get help from an experienced bankruptcy attorney
At the Shulman Law Office, we understand that choosing to file for bankruptcy is not an easy decision for most people. However, it is the right choice for resolving unmanageable debt for many people. If you are facing levels of debt that you simply cannot handle, you should talk to an experienced San Jose bankruptcy attorney at the Shulman Law office. Contact us today at 408-297-3333 to schedule a free consultation.
Will I Lose My Home and Car if I File Bankruptcy in California?
Bankruptcy is a legal process through which people can address unmanageable debt. While bankruptcy can offer people a fresh financial start, many people are hesitant to file for bankruptcy because of concerns that they will lose their property, including their homes and cars. Depending on the type of bankruptcy that is filed, some of your property may be at risk. However, many types of property are exempt from the bankruptcy estate under state or federal law. Determining how much of your property might be at risk will depend on the bankruptcy chapter you file and the total value of those assets.
Will you lose your home under Chapter 7 bankruptcy?
Chapter 7 bankruptcy is the most common type of consumer bankruptcy. This type of bankruptcy is called liquidation bankruptcy because some of your assets may be seized and sold to repay a portion of your debts. Your remaining debt balances will be discharged after a few months, meaning that you will no longer be obligated to repay them.
Certain types of assets are exempt from bankruptcy under California's exemptions up to a specific value. The value of your property is its current fair market value rather than the amount that you paid for it. For a property like your home, you can also subtract your mortgage from the property's value and claim the exemption for the equity you have in your home. For example, if your home is worth $150,000 and you have $50,000 in equity in your home, you can claim the homestead exemption for the equity that you have and save your home. However, Chapter 7 bankruptcy will not extinguish your obligations to pay your mortgage since it is a secured debt. If you are behind on your mortgage payments, you could still lose your home through foreclosure. To qualify for Chapter 7 bankruptcy, you must pass the means test.
Will you lose your home under Chapter 13 bankruptcy?
Chapter 13 bankruptcy is the second-most common type of consumer bankruptcy. This type of bankruptcy works differently than Chapter 7 bankruptcy. When you file for bankruptcy under Chapter 13, you will propose a repayment plan of between three and five years. During the repayment period, you will pay your priority debts in full and small portions of your unsecured debts. If you complete your repayment plan, your remaining unsecured debt balances will be discharged.
Chapter 13 bankruptcy provides a way for you to save your home if you are in danger of foreclosure. The court issues an automatic stay when you file for Chapter 13 bankruptcy, which will freeze any foreclosure proceedings. You can use the repayment period to catch up on your missed mortgage payments while you continue to make your current payments. To qualify for Chapter 13, your total debt cannot exceed certain limits. You must also have a sufficient, regular income to make your payments under the plan.
Can you keep your personal property under Chapter 7 bankruptcy?
If you file for Chapter 7 bankruptcy in California, you will be able to keep the personal property up to the exempted amounts. If you want to keep your personal property that is worth more than the exemption amount, you can pay the bankruptcy court the difference between its value and the exemption amount. Remember that the value of your personal property is its fair market value rather than its replacement or purchase cost. Your personal property may be worth far less than what you initially paid for it.
You can also subtract any liens from the value of your property. For example, if you have a car that is worth $20,000 and still owe $19,000 on it, You can subtract the auto loan from the value to arrive at $1,000. You can use the state's exemption against that amount. Like the mortgage on your home, an auto loan is secured against your vehicle. This means that your obligation to continue making your auto loan payments will continue even after your unsecured debts are discharged. If you are behind on your car payments, the lender can repossess your vehicle to try to recoup its losses.
Many other types of personal property also fall under exemptions. When you file for Chapter 7 bankruptcy, you can keep your furnishings, appliances, clothing, and other similar items. Any personal property that you own that is not exempt or that exceeds the exemption amount may be seized by the trustee and sold to repay your creditors. However, you can pay the difference between the value of your personal property and the exempted amount if you want to keep it.
Most people who file for Chapter 7 bankruptcy can keep most of their property because of the exemptions. Even if you lose some of your property, Chapter 7 bankruptcy can be a good option if you are unable to afford your debts.
Will you lose your personal property if you file for Chapter 13 bankruptcy?
If you file for Chapter 13 bankruptcy, your assets will not be seized and sold. Instead, you will be restructuring your debts and repaying a portion of them over three to five years. Your remaining unsecured debt balances will be discharged after you complete your repayment plan successfully.
If you are behind on your car payments, you can use the repayment plan to catch up as long as you continue making your payments as agreed under your loan going forward. Under Chapter 13, you can keep all of your property.
Talk to an experienced bankruptcy lawyer at the Shulman Law Office
It is not an easy decision to file for bankruptcy. However, many people face unexpected circumstances and are unable to pay their debts. Bankruptcy can help you to get out from underneath the weight of overwhelming debt so that you can enjoy a fresh start. To learn more about bankruptcy and whether it is the right option for you, contact the Shulman Law Office in San Jose at 408-297-3333. We offer free, confidential consultations and can assist you with making the right decision for your situation.
Questions to Ask Your San Jose Bankruptcy Attorney
If you are overwhelmed by your financial circumstances and are unable to manage your debts, bankruptcy might be a good solution. Many people undergo circumstances beyond their control and need a fresh start. By filing for bankruptcy protection, you might have your unsecured debts discharged so that you can enjoy a new start. If you are thinking about bankruptcy and have scheduled a consultation with a bankruptcy firm, knowing the questions to ask can help to guide you in making your decision. Here are some questions that you should ask during your bankruptcy consultation.
1. Are you a lawyer?
While this question might at first seem silly, some law firms use support staff to handle consultations. These firms may have you meet with a legal assistant for your first meeting to try to secure your business. However, you will want to meet with an attorney during your first meeting so that you can receive the benefit of his or her legal analysis of your situation. Support staff cannot give you the type of analysis that you need.
2. Do I qualify for chapter 7?
Depending on your income, you may have to pass the means test to qualify for Chapter 7 bankruptcy. Your lawyer will analyze your income at your consultation to determine whether you are eligible to file for protection under Chapter 7. If your income is higher than the median income for the area, you might still pass the means test, depending on your debts and income. Your attorney will talk to you about your situation and help you to understand whether Chapter 7 bankruptcy is an option for you.
3. Do I have any non-exempt assets?
Certain types of assets are exempt in bankruptcy. This means that they cannot be taken from you and sold by the trustee to repay your creditors. While some states allow people to choose between the state and federal bankruptcy exemptions, people in California must use the state's exemptions. California allows people to choose between two sets of state exemptions under CCP § 703 or CCP § 704. Any exempt assets that you have will not be taken from you. Your attorney should be able to review your assets and tell you if you have any non-exempt assets.
4. What are my options for my non-exempt assets?
If you have assets that are non-exempt, your lawyer should give you information about the different strategies that you can take. For example, you might be able to keep the non-exempt asset by making an offer to the bankruptcy trustee.
5. Will my transfers in the past two years possibly be considered fraudulent?
To try to avoid bankruptcy, many people sell off some of their assets to get by. This will not raise any problems for you unless you sold assets for less than their fair market value or if you have not received the money for the assets before you file for bankruptcy. You should ask your lawyer to analyze any transfers that you have made during the last two years to determine if they might be problematic.
6. Have I made any preferential payments?
Preferential payments are payments that you might have made to a single creditor without paying others. For example, if you paid down a credit card balance with your tax refund while not paying other debts, it may be considered to be a preferential payment. The court may undo a preferential payment by suing the creditor that received the payment so that it can be divided between your creditors. If you paid off a family member, this could potentially be problematic. Your attorney should help you sort through these types of issues when you talk to him or her.
7. Have you handled any 707b objections, and what were the outcomes?
In some Chapter 7 cases, a 707b objection might be raised. This type of objection may be raised by the trustee to claim that the person should be in Chapter 13 bankruptcy because he or she allegedly makes too much money. Asking this question should give you an idea about the lawyer you are meeting with. Consider his or her reaction and whether he or she knows what a 707b objection is.
8. If the attorney recommends Chapter 13, what is the reason?
There are five main reasons why a Chapter 13 bankruptcy might be recommended, including the following:
- To save your home from foreclosure
- Keep your car from being repossessed
- Income too high for Chapter 7
- Non-exempt assets
- Previously filed Chapter 7
If your lawyer recommends that you file for Chapter 13 bankruptcy, make sure to ask why. Attorneys typically charge higher fees for Chapter 13 bankruptcy cases but can include them in the Chapter 13 plan. Deciding to file for Chapter 13 bankruptcy should be based on a proper legal analysis rather than on the fees that can be charged.
9. If a Chapter 13 petition is recommended, what is the estimated monthly payment?
While it is not possible to give an exact figure for the plan payment in a Chapter 13 case, your attorney should be able to give you a range of values within which your payment will likely fall. If the lawyer cannot give you an estimate, he or she may not have much experience with Chapter 13 bankruptcy cases.
10. If Chapter 13 is recommended, how long will the repayment plan last?
Repayment plans in Chapter 13 bankruptcy cases can last from three to five years. If you qualify for a three-year plan, you will want to avoid getting locked into a five-year plan. Your attorney should give you an idea of the number of months you might expect to make payments based on your income and debts.
11. What are your fees, and how will you receive your payment?
Your attorney will want you to pay for your Chapter 7 bankruptcy fees in full before you can file. Legally, your attorney cannot collect fees after you file your Chapter 7 petition. If you will be filing a Chapter 13 petition, your attorney can include some of his or her fees in your repayment plan.
Talk to a bankruptcy lawyer at the Shulman Law Office
If you are struggling with your debts, you are not alone. Many people encounter difficult financial circumstances at some point in their lives. A bankruptcy lawyer at the Shulman Law Office understands the difficulties people sometimes face and can answer any questions that you might have. Contact us today to schedule a consultation by calling us at 408.297.3333.
Is It Too Soon To Talk To A Bankruptcy Lawyer About My Debt Problems?
Is It Too Soon To Talk To A Bankruptcy Lawyer About My Debt Problems?
“Hi, this is Ike Shulman of Shulman Law Office. No, it’s never too soon to talk to a bankruptcy lawyer if you have debt problems. More importantly, don’t wait until it’s too late. A lawyer can help you go over your dischargeable debts, your non-exempt assets and any actions being taken or threatened to be taken by your creditors.Read more
The Automatic Stay: How It Protects You When You File Bankruptcy
By: Carron Armstrong
Calling a debtor after a bankruptcy is filed can be a violation of the automatic stay. One of the most powerful tools in your bankruptcy tool box is the automatic stay. The automatic stay is an injunction that goes into effect when the case is filed. Read more