CHAPTER 7 BANKRUPTCY

Transcription

1 CHAPTER 7 BANKRUPTCY This brochure has been made available in your community by the following CALDA member: Name: Phone Number: Wilhoff Lane Granite Bay, CA Phone: (916) Fax: (916) Website:

2 U.S. BANKRUPTCY COURT GUIDELINES This guide will help you understand some of the procedures that will be required if you determine that filing a Chapter 7 bankruptcy is right for you. There are many resources available on the internet or in your public library and you should inform yourself about the process before you file. One good source of information is offered by Nolo Press; Chapter 7 Bankruptcy. You can order the publication online or may be able to find it in your bookstore or library. THE DIFFERENT TYPES OF BANKRUPCY CHAPTER 7: Liquidation of debts. In a Chapter 7 bankruptcy your unsecured debts (credit cards, medical bills, etc.) will be discharged. Secured debt (car or home loan) will usually pass through the bankruptcy but you have to continue to make your payments. If you want out of the loan, chapter 7 will allow you to do so without having to pay for any deficiency. You will be able to protect most, if not all, of your property using either the System 1 or System 2 set of Exemptions (you can t mix and match). A copy of the exemption codes (CCP 704 and CCP 703) is attached. OTHER CHAPTERS ARE NOT ADDRESSED IN THIS BROCHURE Chapter 13: Repayment of all or part of your debts Chapter 11: Reorganization of Business must be done by an attorney only Chapter 12: Designed for family farmer or fisherman THE BANKRUPTCY PROCESS STEP 1: DETERMINE YOUR ELIGIBILITY TO FILE CHAPTER 7 Debtor must be an individual, partnership or corporation irrespective of the amount of debt. You cannot file Chapter 7 bankruptcy if you have previously filed within the last eight years or you obtained a discharge in a Chapter 13 which provided less than 70% payment to unsecured creditors. If debtor was previously involved in a bankruptcy he/she may not be able to file if the previous bankruptcy petition was dismissed because the debtor failed to comply with court orders, or c) the debtor voluntarily dismissed a previous bankruptcy case after a creditor sought relief from the bankruptcy court to recover secured debt. 2

3 STEP 2: DETERMINE WHETHER YOU PASS THE MEANS TEST All debtors who want to file Chapter 7 must pass the means test. The means test was introduced in 2005 with the Bankruptcy laws were re-written. The means test is used to prevent abuse of the Bankruptcy system. The debtor s average income is compared to the average income for their state or area to determine whether or not they are eligible to file a Chapter 7 bankruptcy. The means test is based on heads on beds (how many people make up the household) and income from all sources within the living unit. If you do not pass the test, you may have to file a chapter 13 bankruptcy to obtain relief from your creditors. STEP 3: UNDERSTAND WHICH DEBTS CANNOT BE DISCHARGED Chapter 7: Non-Dischargeable Certain taxes (must meet specific rules in order to discharge any taxes) Student loans Government fines, penalties and restitution ordered by the court Debts owned because of a death or personal injury resulting from drunk driving or other substance abuse Criminal restitution Debts that can survive Bankruptcy: Debts incurred on the basis of fraud Debts for luxury items purchased on credit shortly before filing Debts for fraud or defalcation (embezzlement) while acting in a fiduciary capacity Debts that are part of a domestic support obligation or that the court orders paid as part of a dissolution. STEP 4: CHAPTER 7 DOCUMENTS INCLUDE: Statement of Social Security Number(s) Voluntary Petition Exhibit C to Voluntary Petition (if Exhibit C yes box is checked on page two of the Voluntary Petition) Statement of Related Cases (local form in some districts) Notice of Available Chapters (required for individuals whose debts are primarily consumer debts) (local form in some districts) Summary of Schedules Schedules A through J Declaration Concerning Debtor s Schedules Statement of Financial Affairs Chapter 7 Individual Debtor s Statement of Intention 3

4 Disclosure of Compensation of Attorney for Debtor (if applicable) or Statement Regarding Assistance of Non-Attorney with Respect to the Filing of Bankruptcy Case* Disclosure of Compensation of Bankruptcy Petition Preparer* Bankruptcy Petition Preparer Guidelines* Payment advices may be submitted to the Court or to the Trustee, check your local rules Most recent tax return must be submitted to the trustee. STEP 5: GETTING STARTED 1. Selecting your Exemptions: California offers two sets of exemptions that can be used to protect your property from the Trustee. You must select one set of exemptions or the other (no mixing or matching). (Tables are attached for your reference.) 2. If you use a Bankruptcy Petitioner Preparer (BPP) you will probably be given a questionnaire to complete that will assist in organizing information and preparing the final bankruptcy forms. 3. In all cases you will need to provide the court with the following information: What you owe: You will need to list all your creditors, including correspondence address (not payment address), account numbers (if available), the amount owed and the nature of the debt. Be sure to include medical or other past-due bills that may not be on your credit report. You may want to order a credit report to make sure you capture all of your creditors.. You can order a free report from Experian, Equifax and Transunion annually. What you own: You must list all of your assets: cars (look up Kelly Blue Book Private Sale value), furniture, furnishings, clothes, jewelry, retirement plans, money people owe you, potential claims (lawsuits) you may have against others, etc. What you earn: List all income from all sources, even child or spousal support. Your average income is based on the last six months of earnings before you file bankruptcy. If you get an annual bonus or got a tax refund, try to wait six months so it won t be counted in your average income. What you spend: List all expenses use a monthly average so if you only have an expense once a year (for example getting your taxes prepared) 1/12 th of that should show up as a monthly expense. 4. If you are married: all income and expenses in California are community property. If community property funds are used to buy personal property (furniture, real estate, clothes) then that property is community property. You can file bankruptcy without your spouse, but the community property assets must all be listed and would be available for seizure by the trustee. 5. Credit Counseling You will have to take a pre-filing credit counseling class and a predischarge financial management class on line or by phone. Look on line for bankruptcy credit counseling. Make sure the company offering the class is authorized for your bankruptcy court! Prices vary from $25 to $50 per class, so shop around. The pre-filing credit counseling certificate must be submitted when you file your forms with the court. 4

5 STEP 6: COMPLETING YOUR FORMS SCHEDULES Schedule A Real Property (i.e. unimproved land, house, land lease etc.) you own. Schedule B- Personal Property. Schedule C- Property Claimed as Exempt. (Refer to Exemption tables make sure you have a current list as the codes are updated periodically) Schedule D Creditors holding secured claims. Schedule E - Creditors holding unsecured Priority claims. (Taxes, Domestic Support, Fines ) Schedule F - Creditors holding unsecured non-priority claims. Schedule G - Executory contracts and unexpired leases. (Residential leases, rental agreements, service contracts (like your cell phone) and time-share contracts.) Schedule H - Co-debtors. (Any co-signers, guarantors, a non-filing spouse, non-marital partner or individual who is also responsible for the debt by signing of a contract.) Schedule I Current income of debtor and spouse, if filing jointly. Schedule J - Current expenses. THE STATEMENT OF FINANCIAL AFFAIRS: Provides the court with recent financial transactions. 1. Your income from employment or operation of business for the preceding two calendar years 2. Income from other sources (unemployment, disability, gambling, etc.) 3. Payments to creditors in the past 90 days 4. Payment to insider creditors (relatives, business partner or corporation, etc) 5. Any lawsuit or court proceeding in which debtor(s) is, or was, a party 6. Garnishments, attachment or seizures of property - previous 12 months 7. Repossessions, foreclosures and/or voluntary returns of property - previous 12 months 8. Assignments or transfers of property for the benefit of creditor - previous 12 months 9. Property of the debtor under the control of a custodian, receiver or court official - previous 12 months 10. Gifts or charitable contribution made by debtor(s) - previous 12 months 11. Losses incurred by the debtor from fire, theft, gambling or other casualty - previous 12 months 12. Payments offered to a third party for services pertaining to bankruptcy (attorney, credit counseling, bankruptcy petition preparer) 13. Other transfers of property, either absolute or as security - previous 12 months 14. Bank and other financial account closures - previous 12 months 15. Setoffs (a creditor, etc. a bank uses money in a customer s account to pay a debt owed to the creditor) - previous 90 days 16. Property you have borrowed from, are storing for or hold in trust for someone 17. Prior address - previous three years 18. Spouses and former spouses during the previous eight years 19. Environmental issues and information and business financial information (for selfemployed individuals) 5

6 20. There is a whole section of questions for business owners, partners, officers. NOTE: Descriptions are general in nature and are not a substitute for seeking legal counsel. If you have any questions or concerns you must seek legal advice. FOR FURTHER INFORMATION ON PROPERTY OF THE ESTATE, PAYING OR REAFFIRMING CERTAIN DEBTS AND AVOIDING (ELIMINATING) LIENS, PLEASE SEEK LEGAL ADVICE or REFER TO OTHER SOURCES OF INFORMATION ABOUT BANKRUPTCY. USE OF THE INTERNET OR BOOKS LIKE CHAPTER 7 BANKRUPTCY CAN PROVIDE INFORMATION BUT IS NOT A SUBSTITUTE FOR SEEKING LEGAL ADVICE. STEP 7: COURT DATE AND COST Presently the cost of filing your Chapter 7 Bankruptcy is $ You will have to attend a 341 hearing (creditor s meeting) about four to five weeks after you file your case. You and your spouse must appear. The trustee s office will send you a notice of the date and time of the meeting. Do not miss the meeting or your case may be dismissed. You must have current ID and a social security card with you at the meeting. The trustee will out you under oath and ask you questions about your case. If you are using a Bankruptcy Petitioner Preparer to assist you, the court has mandated limits on what the BPP can charge for their services. Southern District - $ Central District - $ Northern District - $ WHAT IS A BANKRUPTCY PETITION PREPARER? A Bankruptcy Petitioner Preparer is a non-attorney who are permitted to prepare bankruptcy paperwork pursuant to Bankruptcy Status 11 U.S.C. 110 and must follow guidelines established by the Office of the United States Trustee in individual federal districts. Please check with your district for specific local rules. A Bankruptcy Petition Preparer may only type forms according to your instructions. They are not attorneys and cannot give legal advice. TIME PERIODS After you file your forms and get a case number, you will be scheduled to attend a creditor meeting/ 341 hearing, with the trustee. Watch for notice from the Trustee s office. A trustee will be assigned to you. When you file your case, take a second set of documents with you and have the clerk stamp your papers with proof of filing. You should receive your case number with in a few days after you file IF you do not get the case number when you take in the papers. This is your protection. All legal actions against you must stop. A creditor can ask for a Relief from the Automatic Stay. if it feels you can t possibly pay or have filed a fraudulent case. Make sure to file the Financial Management course certificate with the court as soon as you take it after filing. Failure to file may result in your case being dismissed and you may lose your chance to get a discharge. 6

7 Your case will remain open for a total of about three months from the date you file your case. This time period allows creditors or the trustee to object to you getting a discharge of your debts. After the set period is complete, you will get a discharge of your debts and the case will be closed. CALIFORNIA BANKRUPTCY COURT JURISDICTION Central District: Los Angeles, Orange, Riverside, San Bernardino, San Luis Obispo, Santa Barbara, and Ventura Counties. Los Angeles: Central and Southern Los Angeles County Los Angeles Northern Division: San Luis Obispo, Santa Barbara, Northern Ventura County Riverside: Riverside County San Fernando Valley: Northern Los Angeles County, Southern Ventura County Santa Ana: Orange County (These boundaries are general in nature and you should check the Central District Court s Zip Code search to verify the division.) Eastern District: Alpine, Amador, Butte, Calaveras, Colusa, El Dorado, Fresno, Glenn, Inyo, Kern, Kings, Lassen, Madera, Mariposa, Merced, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Stanislaus, Sutter, Tehama, Trinity, Tulare, Tuolumne, Yolo, Yuba Counties Sacramento Division: Alpine, Amador, Butte, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, Shasta, Sierra, Siskiyou, Solano, Sutter, Tehama, Trinity, Yolo, Yuba and portions of San Joaquin Counties Modesto Division: Calaveras, Stanislaus, Tuolumne and portions of San Joaquin Counties Fresno Division: Fresno, Inyo, Kern, Kings, Madera, Mariposa, Merced and Tulare Counties Northern District: Alameda, Contra Costa, Del Norte, Humboldt, Lake Marin, Mendocino, Monterey, Napa, San Benito, Santa Clara, Santa Cruz, San Francisco, San Mateo, Sonoma Counties TYPICAL QUESTIONS ASKED BY THE CHAPTER 7 TRUSTEE AT 341(a) HEARING (as outlined in the Handbook for Chapter 7 Trustees) ROUTINE STATEMENTS/QUESTIONS State your name and current address for the record. Have you read the Bankruptcy Information Sheet provided by the United States Trustee? Did you sign the petition, schedules, statements and related documents you filed with the court? Did you read the petition, schedules, statements and related documents before you 7

8 signed them and is the signature your own? Please provide your picture ID and social security card for review. Are you personally familiar with the information contained in the petition, schedules, statements and related documents? To the best of your knowledge, is the information contained in the petition, schedules, statements and related documents true and correct? Are there any errors or omissions to bring to my or the court s attention at this time? Are all of your assets identified on the schedules? Have you listed all of your creditors on the schedules? Have you previously filed bankruptcy? (If so, the trustee must obtain the case number and the discharge information to determine the debtor(s) discharge eligibility.) 8

9 California Bankruptcy Exemptions -- System 1 Homestead Real or personal property occupied at time of filing for bankruptcy, including mobile home, boat, stock cooperative, community apartment, planned development or condominium, up to the following limits: $75,000 if single and not disabled; $100,000 if family and no other member has homestead; $175,000 if 65 or older or if physically or mentally disabled; $175,000 if creditors are seeking to force sale of your home and you are either (a) 55 or older, single and earn under $15,000 per year, or (b) 55 or older, married and earn under $20,000 per year. Sale proceeds are exempt for up to 6 months after sale Homestead declaration may be filed to protect the proceeds of a voluntary sale up to 6 months or to protect the exemption amount from a judicial lien. Personal Property Motor vehicle or auto insurance if vehicle lost, destroyed or damaged up to $2,725 (spouses may not double) Food, clothing, appliances and furnishings Building materials to repair or improve home up to $2,875 (spouses may not double) Jewelry, heirlooms and art up to $7,175 total (spouses may not douoble) Health aids Bank deposits from Social Security Administration up to $2,875 for single payee ($4,300 for husband and wife payees) and unlimited if funds are not commingled; Bank deposits from other public benefits up to $1,425 ($2,150 for husband and wife) & Personal injury causes of action and wrongful death causes of action. Wrongful death and personal injury recoveries that are needed for support Burial plot. Fin Funds held in escrow. Wages % of wages paid within 30 days prior to filing bankruptcy Public employee vacation credits (75% minimum if receiving installment payments). Pensions 11 U.S.C Tax exempt retirement accounts (including 401(k)s, 403(b)s, profit-sharing and money purchase plans, SEP and SIMPLE IRAs, and defined benefit plans). 11 U.S.C. 522(b)(3)(C)(n) - IRAS and Roth IRAs to $1,171, Public retirement benefits Private retirements benefits, including IRA and Keogh. Government Public employees. Government County employees. Government County peace officers. Government County fire fighters. Public Benefits Unemployment benefits and union benefits due to labor dispute Workers' compensation Aid to blind, aged and disabled or other public assistance Relocation benefits Financial aid to students. 9

10 Tools of Trade Tools, implements, materials, books, uniforms, instruments, one commercial vehicle, equipment, and furnishings up to $7,175 total, or up to $14,350 if used by both spouses in the same occupation. Commercial vehicle up to $4,850, or $9,700 if used by both spouses in the same occupation. Insurance Matured life insurance benefits needed for support of unlimited value, or unmatured life insurance policy up to $11,475 in value Fraternal unemployment benefits Disability or health benefits Fraternal benefit society benefits Homeowners' insurance proceeds for 6 months after received, up to amount of homestead. Labor Fidelity bonds. Ins , Ins , Ins Life insurance proceeds if policy prohibits use to pay creditors. Misc Business or professional licenses Trust funds of inmates up to $1,425 (spouses may not double). Corp Business partnership property. Other Add any applicable Federal Nonbankruptcy Exemptions. California Bankruptcy Exemptions -- System 2 Homestead (b)(1) Real or personal property, including co-op, used as a residence up to $22,075. Personal Property (b)(1) - Burial plot up to $22,075, instead of homestead (b)(2) - Motor vehicle up to $3, (b)(3) - Clothing, household goods, appliances, furnishings, animals, books, musical instruments and crops up to $550 per item (b)(4) - Jewelry up to $1, (b)(5) - $15,000 of any property, less any claim for homestead or burial plot (b)(5) - $1,100 of any property. The unused portion of the burial or household exemption for any property (b)(9) - Health aids (b)(11) - Wrongful death recoveries needed for support (b) (11) - Personal injury recoveries up to $22,075, not to include pain, suffering or pecuniary loss. Pensions 11 U.S.C Tax exempt retirement accounts (including 401(k)s, 403(b)s, profit-sharing and money purchase plans, SEP and SIMPLE IRAs, and defined benefit plans). 11 U.S.C. 522(b)(3)(C)(n) - IRAS and Roth IRAs to $1,171, (b)(10) - ERISA-qualified benefits needed for support. 10

11 Public Benefits (b)(10) - Unemployment compensation, Social Security, Veterans' benefits, and public assistance (b) (11) - Crime victims' compensation. Tools of Trade (b)(6) - Tools, books and implements of trade up to $2,200. Alimony & Child Support (b)(10) - Alimony and child support needed for support. Insurance (b)(7) - Unmatured life insurance policy, other than credit (b)(8) - Unmatured life insurance contract accrued interest, dividends, loan, cash or surrender value up to $11, (b)(10) - Disability benefits (b)(11) - Life insurance proceeds needed for support. Wildcard (b)(5) - $1,175 of any property. Any unused amount of burial or homestead exemption of any property. THIS INFORMATION IS PROVIDED AS A PUBLIC SERVICE OF THE CALIFORNIA ASSOCIATION OF LEGAL DOCUMENT ASSISTANTS. IT IS NOT A SUBSTITUTE FOR LEGAL ADVICE. IF YOU HAVE ANY LEGAL QUESTIONS YOU SHOULD SEEK THE ADVICE OF AN ATTORNEY. FOR FURTHER INFORMATION REGARDING OUR ORGANIZATION PLEASE WRITE OR CONTACT US THROUGH OUR WEB SITE: A Legal Document Assistant (LDA) is not a lawyer. LDAs provide professional self-help services at your specific direction. Although LDAs cannot select your forms or offer legal advice they can offer self-help reference materials written or approved by attorneys, such as this brochure. LDAs can also assist you procedurally. Many LDAs have self-help manuals in their personal libraries available for purchase or reference. Informational books are also available to you in your local Law Library and book stores. Be sure to seek legal counsel from a licensed attorney if you have any legal questions or require legal advice not addressed by this brochure or other publications. 11