Bankruptcy Made Easy - What you need to know

Transcription

1 Midwest Bankruptcy Attorneys Bankruptcy Made Easy - What you need to know Presented by: (312) contact@midwestbankruptcyattorneys.com Midwest Bankruptcy Attorneys LLC is a debt relief agency. We help people file for bankruptcy under the Bankruptcy Code. Our assistance will likely involve you filing for bankruptcy relief under the Bankruptcy Code.

2 1 Understanding Bankruptcy 1

3 What is bankruptcy? Bankruptcy is a term that is generally recognized but not always understood. Bankruptcy is, for all intents and purposes, the fact of being unable to pay your debts as they become due. A bankruptcy case is where consumers/debtors seek relief in a Federal Bankruptcy Court to eliminate their debt or repay creditors under a proposed repayment schedule. A bankruptcy case begins when a debtor files a voluntary petition for relief under the Bankruptcy Code. Upon the commencement of a bankruptcy case, a bankruptcy estate is created and a stay (the automatic stay ) arises, which prevents creditors from enforcing almost every type of pre-bankruptcy claim against the debtor. What happens next depends on many factors, including the type of bankruptcy case filed and the actions taken by the various parties involved in the case. Why file for bankruptcy? The purpose of you filing an individual bankruptcy case is to end creditor harassment by eliminating or managing your debts. Debts that can typically be eliminated include those arising from credit cards, medical bills, bank loans, judgments, auto and home loan deficiencies and rent arrears. What happens to my debts? The ultimate goal in any individual bankruptcy case is for you to receive a discharge of your debts. A discharge is an order granted by the bankruptcy court and it releases you, as an individual debtor, from personal liability for your debts incurred prior to you filing your bankruptcy case. It also prevents creditors owed those debts from taking any collection actions against you in the future. In other words, you are no longer legally required to pay any debts that are discharged. 2

4 In a Chapter 7, the court usually grants the discharge 60 days after the 341(a) Meeting of Creditors. Typically, this means you will obtain a discharge about four months after filing your Chapter 7 petition. In a Chapter 13, a debtor will be granted a discharge upon the completion of all payments under the confirmed chapter 13 plan. In addition, the debtor in a Chapter 13 case will receive a slightly more inclusive discharge than a debtor under chapter 7. But your discharge is not without exceptions. Certain types of debts are generally not allowed to be discharged by the debtor under the Bankruptcy Code. And under certain circumstances, there may be grounds to deny the debtor s discharge completely. Non-dischargeable debts a creditor may claim that the debtor performed certain bad acts toward the creditor while incurring the debt and that such act or acts should cause the particular debt to be excluded from the debtor s discharge. There are also certain types of debts that may not involve bad acts (e.g., certain taxes and student loans) that are nondischargeable under the provisions of the Bankruptcy Code for public policy reasons. Certain debts are determined to be nondischargeable under the Bankruptcy Code and require no action on the part of the creditor, while others require the creditor to file an action (an Adversary Proceeding) within the debtor s bankruptcy case for the court to determine. What is a discharge? A bankruptcy discharge releases the debtor from personal liability for certain specified types of debts. Here are some common debts that cannot be discharged: Student Loans Any educational loan that is either made, insured, or guaranteed by a governmental unit or made under a program funded in whole or in part by a governmental unit or nonprofit institution or that is a qualified education loan as defined in section 221(d) (1) of the Internal Revenue Code of 1986 is not dischargeable. Any educational benefit loan made, insured, or guaranteed by a governmental unit or made under a program funded in whole or in part by a governmental unit or nonprofit institution is not dischargeable. There is an exception when repayment of the loan will impose an 3

5 undue hardship on the debtor and the debtor s dependents. Alimony and Support Obligations Domestic Support Obligations All domestic support obligations are nondischargeable. Domestic support obligation is defined in the Bankruptcy Code as alimony, maintenance and support (among other things). Non-Dischargeable Taxes Income tax claims that are not dischargeable include: 3-Year Rule: Those taxes for which a return was last due within three years of the filing of your bankruptcy case Trust Fund Taxes: Generally, trust fund taxes (e.g., sales, employee withholding, collections by lottery agents) are not dischargeable. Luxury Goods or Services A consumer debt owed to a single creditor, aggregating more than $ for luxury goods or services, incurred within the 90 days prior to the filing of the bankruptcy, is presumed to be non-dischargeable. Cash Advances Cash advances aggregating more than $ made within the 70 days before the filing of the bankruptcy are presumed non-dischargeable. 240-Day Rule: Those taxes assessed within 240 days of the filing of the filing of your bankruptcy case Assessability Rule: Those taxes that are still assessable after the filing of your bankruptcy case 2-Year Rule: Income tax for which no return was filed or a return was filed within two years of filing your bankruptcy case; or with respect to a fraudulent return or willful attempt to evade tax. What happens to my assets? Filing for bankruptcy, even under Chapter 7, does not mean that you will lose all of your property. In a chapter 7 filed by an Illinois debtor, the law allows you to keep your exempt property. Exempt property is certain property that is out of the reach of your creditors pursuant to Illinois Law (see the list of Illinois exemptions below). 4

6 The following is a summary of exempt property of Illinois debtors: Your Homestead Exemption Every individual is entitled to up to $15,000 (to the extent of its value) of his or her homestead. If 2 or more people share a homestead then each individual is entitled to the value of each proportionate share (based on ownership percentage) not to exceed $30,000. But keep in mind that no homestead property is exempt from real estate taxes or assessments (including certain condominium assessments) and the homestead exemption can be waived by written agreement (for example, you may have waived your homestead exemption in your home mortgage). Your Personal Property Exemptions The following personal property is a list of other exempt property: A. Necessary wearing apparel, bible, school books, and family pictures of you and your dependents; B. Up to $4,000 in value, in any other property (called the wildcard exemption which can be applied by you to any property not otherwise already fully covered by another exemption); C. Your interest, not to exceed $2,400 in value, in any one motor vehicle; D. Your equity interest, not to exceed $1,500 in value, in any implements, professional books, or tools of your trade; E. Professionally prescribed health aids for you or a dependent; F. All proceeds payable because of the death of the insured and the aggregate net cash value of any or all life insurance and endowment policies and annuity contracts payable to a wife or husband of the insured, or to a child, parent, or other person dependent upon the insured, or to a revocable or irrevocable trust which names the wife or husband of the insured or which names a child, parent, or other person dependent upon the insured as the primary beneficiary of the trust, whether the power to change the beneficiary is reserved to the insured or not and whether the insured or the insured s estate is a contingent beneficiary or not; G.Qualified Retirement Plans (i.e. 401k, pension, profit sharing, IRAs) 5

7 H. Your right to receive: 1. A social security benefit, unemployment compensation, or public assistance benefit; 2. A veteran s benefit; 3. A disability, illness, or unemployment benefit; and 4. Alimony, support, or separate maintenance, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor. I. Your right to receive, or property that is traceable to: 1. An award under a crime victim s reparation law; 2. A payment on account of the wrongful death of an individual of whom the debtor was a dependent, to the extent reasonably necessary for the support of the debtor; 3. A payment under a life insurance contract that insured the life of an individual of whom the debtor was a dependent, to the extent reasonably necessary for the support of the debtor or a dependent of the debtor; 4. A payment, not to exceed $15,000 in value, on account of personal bodily injury of the debtor or an individual of whom the debtor was a dependent; and 5. Any restitution payments made to persons pursuant to the federal Civil Liberties Act of 1988 and the Aleutian and Pribilof Island Restitution Act, P. L J. The debtor s right to receive an award under Part 20 of Article II of this Code relating to crime victims awards. K. Money held in an account invested in the Illinois College Savings Pool of which you are a participant or donor, except the following non-exempt contributions: 1. Any contribution to such account by the debtor as participant or donor that is made with the actual intent to hinder, delay, or defraud any creditor of the debtor; 2. Any contributions to such account by the debtor as participant during the 365 day period prior to the date of filing of the debtor s petition for bankruptcy that, in the aggregate during such period, exceed the amount of the annual gift tax 6

8 exclusion under Section 2503(b) of the Internal Revenue Code of 1986, as amended, in effect at the time of contribution; or 3. Any contributions to such account by the debtor as participant during the period commencing 730 days prior to and ending 366 days prior to the date of filing of the debtor s petition for bankruptcy that, in the aggregate during such period, exceed the amount of the annual gift tax exclusion under Section 2503(b) of the Internal Revenue Code of 1986, as amended, in effect at the time of contribution. Your Home Filing bankruptcy does not necessarily mean you will lose your home. Many Chapter 7 debtors simply continue to pay their mortgage loan payments during and after filing for bankruptcy and do not face home foreclosure. In some instances, for example if you have significant equity in your home or if you are behind in your mortgage loan payments, you may consider filing Chapter 13 in order to cure home mortgage loan arrears, keep your home and continue to make payments under a Chapter 13 plan. Your Car Filing bankruptcy does not necessarily mean you will lose your car. Many Chapter 7 debtors simply continue to pay their auto loan payments during and after filing for bankruptcy and do not face losing their car to repossession. In some instances, you may consider seeking to reaffirm your auto loan in a Chapter 7 or filing Chapter 13 in order to cure auto loan arrears and then continue to make payments under a Chapter 13 plan. What happens once a petition for bankruptcy is filed? One of the benefits of filing for bankruptcy is that, once your bankruptcy petition is filed, your creditors are temporarily prohibited from taking any further action to collect on your debts. This is known as the automatic stay. Once you have filed for bankruptcy, the automatic stay immediately protects your assets and stops your creditors from harassing you. The automatic stay stops home foreclosure, car repossession, wage garnishment and other types of action 7

9 against a debtor s property, including litigation. If a creditor continues collection efforts without court approval, that action will likely violate the automatic stay. If that happens, you may be entitled to damages against that creditor. Exceptions Like most rules, there are exceptions to the automatic stay. The following is a list of some of the proceedings that do not stop as a result of the automatic stay: Criminal Proceedings: If you are the subject of an existing criminal proceeding, the automatic stay will generally not stop that proceeding. Some courts, though, have found that if the criminal proceeding involves the collection of a debt, then the automatic stay remains intact and the matter will not proceed until the bankruptcy process is complete. Alimony/Support Payments Some, but not all, eviction actions where a judgment of possession was obtained before your bankruptcy filing Governmental police powers (you can still be arrested). Home Foreclosure If you have a mortgage, the automatic stay applies to stop the bank or mortgage company from continuing the foreclosure process. In a Chapter 7 bankruptcy, the automatic stay temporarily stops the foreclosure process for at least 45 days. While you may not be able to permanently stay in your home, the stay will give you some breathing room to delay the foreclosure process so you may find a new home. In a Chapter 13 bankruptcy, you may pay off your late mortgage payments, under the terms of a plan, which gives you up to 5 years to pay off certain debts. Properly structured repayment plans give you the ability to repay debts under a budget you can afford, saving you thousands in interest and penalties. As long as you stay current on your ongoing and past mortgage payments under the repayment plan, you should be able to keep your home. Repossession of Your Car Under both a Chapter 7 and Chapter 13 bankruptcy, the automatic stay prevents lenders from continuing any collection efforts on your car loan. However, lenders can receive relief from the automatic stay to repossess your vehicle. There are ways 8

10 to fight this as a debtor. Many lenders would prefer to work out a new payment plan than repossess the car. If you can propose a payment plan that is acceptable to the lender, you may be able to keep your car. You may also be able to work out a deal with the Trustee appointed in your case to repurchase the car from the Trustee for its fair market price. Under either scenario, there are ways for you to keep your car if it is feasible. also be entitled to the return of your previously garnished wages if more than $600 was garnished in the 90 days right before your bankruptcy filing. Wage Garnishment Wage garnishment is the deduction of money from an individual s income for the purpose of paying off debts that he or she owes. If your wages are being garnished, filing for bankruptcy can not only stop that process, but also help to return some of your previously garnished wages. If you file for bankruptcy, the automatic stay will stop the wage garnishment process. It is a good idea to immediately notify your company s accounting department if you file for bankruptcy in order to ensure that any garnishments are stayed. If your debts are discharged in your bankruptcy case, creditors cannot resume collecting wage garnishments if the debt was included in the discharge. You may 9

11 2 Filing for bankruptcy 10

12 Filing for Bankruptcy The most common types of bankruptcy cases filed by individuals are cases under Chapter 7 and cases under Chapter 13. Chapter 7 Chapter 7 of the Bankruptcy Code, commonly referred to as a straight bankruptcy, helps individuals with little to no income receiver a fresh start by eliminating almost all types of debts. Chapter 13 Chapter 13 is the second most common type of bankruptcy case for individuals. It is an alternative for individuals with regular income and is utilized in most cases to permit the debtor to keep certain nonexempt assets (in particular, the debtor s home). Should I file Chapter 7 or Chapter 13? That s a complicated question. The primary reason for you to choose to file Chapter 13 instead of Chapter 7 is to keep your home or your car or some other nonexempt property. Chapter 13 provides you with the ability to either pay creditors back in part or at least get current on home mortgage loan or car loan payments. In some instances, depending on your current income, you will not be eligible to file Chapter 7 and Chapter 13 will be your only viable option. Another reason to file Chapter 13 is that certain debts, such as parking tickets are not dischargeable in a Chapter 7 but are in a Chapter 13. Filing for Chapter 7 Bankruptcy Prior to filing, you must take credit counseling from an approved provider within 180 days prior to filing your petition, but before the actual day on which you file your petition The Means Test Congress requires that you prove that your Chapter 7 case is not an abuse of the bankruptcy system. People who make less than the median income for their family-size are not presumed to be abusing the system by filing Chapter 7. Effective April 1, 2015, bankruptcy courts consider the median income in Illinois to be as follows: $48,239 (1 person household), $62,440 (2 person), $73,516 (3 11

13 person), $84,901 (4 person), $93,001 (5 person), $101,101 (6 person), $109,201 (7 person), $117,301 (8 person) and $8,100 for each additional person. We still have to examine your budget of income and expenses to see if your case might be considered to be an abuse. People who have disposable income are supposed to file Chapter 13 cases in most instances. People earning more than the median income are presumed to be abusing the bankruptcy system by filing Chapter 7 unless they pass the means test. To see whether you pass the means test, we complete a detailed analysis. Analysis of Your Financial Situation In order to determine whether you are eligible to file a Chapter 7 case, an attorney must analyze and evaluate your financial situation. And in order to do this, he or she is required to perform a means test analysis. To do this, you must provide certain financial documents, including: Pay stubs or payment advices from your salaried employment for the past six months. If you have not been employed during this period, you should provide your unemployment records including payments of unemployment benefits If you are self-employed, you should provide evidence of your gross income and any business expenses deducted from your gross income for the past six months Attorneys typically like to see records from the six-month period before your filing date. It is also recommend that you obtain a recent credit report from all three major credit reporting agencies (Experian, Equifax, TransUnion) prior to meeting with your attorney. Completed Means Test Questionnaire If you earn less than the median income for a family your size, you pass the means test without the need for additional analysis. However, if you make more than the median income, you must provide the following additional information for us to determine if you are eligible to file a Chapter 7 case: 12

14 Last 90 days of bills that you got from your creditors regardless whether you paid them. Last 90 days of bank statements and check registers Documents regarding any sale or transfer of any property within the last 2 years Documents regarding any transfer or payments to relatives within the last 2 years Income Tax Returns for the past 3 years Copies of motor vehicle certificates of title Copies of mortgages recorded against your real estate Copies of any listing contracts for your real estate Copies of any pension plan, IRA or other retirement accounts and data concerning any withdrawals within the past 6 months Copies of life insurance policies you currently own, particularly with cash surrender value Copies of any pleadings for any lawsuit involving you Copies of any financing documents for any refinancing or non-purchase money, second or third mortgage loans obtained with the last 3 years. Copies of the most recent bills on mortgages, auto loans, life and health insurance policies Records of actual medical expenses during the past six months Records of tuition for private or parochial school paid during the past six months. Records concerning charitable contributions given during the past six months. Records concerning internet or telecommunication expenses during the past six months Records concerning child support or alimony paid or received during the past six months. Disclosures for the petition You must provide accurate and complete information for your bankruptcy petition, schedule and statement of financial affairs You must disclose all lawsuits you are involved in whether you are a plaintiff or 13

15 defendant, even if they haven t started in court yet You must disclose all transfers of property to friends or relatives within the past 4 years You must disclose all transfers of anything for less than it was worth within the past 4 years You must disclose all payments to creditors 90 days before you file your bankruptcy case You must disclose all payments to friends or relatives on account of debts within the year before you file your bankruptcy case You must decide whether to keep, surrender, or redeem (refinance) loans secured by real estate or personal property and indicate that on your bankruptcy petition You must provide your most recent income tax return or tax transcript and all pay advices or pay stubs received in the 60 days before you file your bankruptcy petition After filing You must cooperate fully with the bankruptcy trustee appointed to oversee your case If your case is selected for audit, you must cooperate with the auditor You must appear at the meeting of creditors, which is referred to as the 341 Meeting with the trustee appointed to oversee your case, which will happen within days of filing of your case. Creditors are free to attend this meeting and ask you questions regarding your financial situation. Discharge In most instances, you will have nothing further to do after the 341 Meeting other than take a follow up financial management course within 45 days of the 341 Meeting. Sometimes, the trustee or the United States Trustee may ask for additional information. Each case is different. On rare occasions, creditors will object to your discharge for a variety of reasons. For example, if a debt was incurred by reason of your fraud, a creditor may object to the dischargeability of that debt. If so, the court will conduct a 14

16 hearing to determine the facts of the particular situation and render a ruling regarding dischargeability. Your lawyer will consult with you if anything further is required. In most cases, you will receive your discharge from the clerk of the bankruptcy court 60 days after your 341 Meeting. Filing for Chapter 13 As an alternative to Chapter 7, Chapter 13 offers debtors an opportunity to reorganize their debts through a 3 to 5 year payment plan. Procedurally, many of the steps in a Chapter 7 are similar in a Chapter 13. As in a Chapter 7, prior to filing, you must take credit counseling from an approved provider within 180 days prior to filing your petition, but before the actual day on which you file your petition In addition, the documentation that you must provide to conduct a thorough Means Test analysis under a Chapter 7 must be provided in order to determine an appropriate repayment schedule, in terms of both amount and timing. petition. The plan sets forth a proposed monthly payment schedule, which you must begin paying immediately. After the filing of the petition and plan, you must appear at the 341 Meeting with the trustee appointed to oversee your case, which will happen within days of filing of your case. Like a Chapter 7 case, creditors are free to attend this meeting and ask you questions regarding your financial situation. Approximately 90 days after filing the petition and repayment plan, the court will schedule a confirmation hearing. If the trustee or any creditors object to the plan, the court will either overrule the objection and confirm the plan or give you an opportunity to amend the plan to satisfy the objections. Once all of the payments are made under the plan, you will receive a discharge from the court. If you make some, but not all, of the required payments, you will not receive a discharge. Unlike a Chapter 7 case, a Chapter 13 repayment plan is filed with the bankruptcy 15

17 3 Common Bankruptcy Questions 16

18 Bankruptcy questions answered Here are the answers to some of the most common bankruptcy questions: Will I lose all of my property? No, you will not lose all of your property. The law allows you to keep some of your property (your exempt property) even if you wipe out all of your debts. In some instances, you will be able to retain all or most of your property if you chose to pay your creditors back over time. Can filing bankruptcy stop the foreclosure on my home? Yes, the filing of a bankruptcy case will automatically stop the foreclosure of your home to give you time to consider your options (for example, sell your home, cure your defaults through a bankruptcy plan or possibly refinance). Can filing bankruptcy prevent the repossession of my car? Filing bankruptcy does not necessarily mean you will lose your car. Many Chapter 7 debtors simply continue to pay their auto loan payments during and after filing for bankruptcy and do not face losing their car to repossession. In some instances, you may consider seeking to reaffirm your auto loan in a Chapter 7 or filing Chapter 13 in order to cure auto loan arrears and then continue to make payments under a Chapter 13 plan. How long does the bankruptcy process take? Chapter 7 bankruptcy typically lasts about 4 months. Chapter 13 bankruptcy lasts between 3 to 5 years. Are Parking Tickets Dischargeable? Yes, but only through a Chapter 13 process. 17

19 Can I change to Chapter 7 if my Chapter 13 is still pending? Yes, if your Chapter 13 plan becomes too burdensome or undesirable, you can convert it to a Chapter 7 or you can, in some instances, attempt to amend your chapter 13 plan. Does my spouse have to file too? No, the law does not require that you both file, but to the extent your spouse is jointly liable for some of your debts your bankruptcy will not keep creditors from pursuing their claims against your spouse. If you are married, the Bankruptcy Code allows you and your spouse to file a bankruptcy case together (jointly) as a couple. Do I have to have a certain amount of debt to file Chapter 7? No, there is no minimum amount of debt requirement to file Chapter 7. There are practical limits however. Do I have to list all of my creditors? Yes. You are required to list all of your creditors. Can I just keep one credit card? If you have a credit card with no balance you might be able to keep it. But don t. Pay in cash or with a debit card instead. Credit card debt is often the reason an individual needs bankruptcy relief. 18

20 Will bankruptcy stop people from harassing me to collect debts? Do you charge for an initial consultation? No. Your initial consultation with an experienced bankruptcy attorney at Midwest Bankruptcy Attorneys is free. Yes. Under the Bankruptcy Code, once a creditor learns of your bankruptcy filing that creditor must cease all collection activities against you or your property. Will I ever be able to obtain a credit card again after filing bankruptcy? Believe it or not, most debtors get numerous credit card offers after they file for bankruptcy. Filing bankruptcy will have a serious effect on your credit score. There is no way around that fact. However, through responsible financial management you can rebuild your credit by paying your post bankruptcy bills on time. 19