Most individuals file for bankruptcy protection under Chapter 7 in Utah. However if you do not qualify for filing a Chapter 7 bankruptcy in Utah, you can file under Chapter 13. Sometimes although you may qualify for a Chapter 7 bankruptcy, you may be better off filing a Chapter 13 bankruptcy.
Chapter 13 bankruptcy is a type of bankruptcy proceeding often referred to as the wage earner’s plan. In a Chapter 13 proceeding, the debtor files a repayment plan in the bankruptcy court and makes payments according to the plan. Chapter 13 bankruptcy helps you pay off the debt in installments. If you are facing foreclosure, Chapter 13 will allow you to keep your home if you include the mortgage in your repayment plan. If you have a regular source of income, then Chapter 13 is your best option as it allows you to retain your assets unlike Chapter 7 where the bankruptcy court appoints a trustee who takes over and sells your non-exempt assets to pay off your debts.
An experienced Utah bankruptcy attorney can help you get a bankruptcy discharge. There are many attorneys in Utah but if you are located in Lehi, an experienced Lehi Utah bankruptcy lawyer is your best option. Not all attorneys have the knowledge and skill required to get a bankruptcy discharge. You will need one that specializes in bankruptcy. If you are based in Lehi and considering bankruptcy filing, you should consult an experienced Lehi Utah bankruptcy lawyer.
Chapter 13 procedure is complex. A small error can cause your petition to be dismissed. Having an experienced Lehi Utah bankruptcy lawyer assist you can be invaluable. You must file your Chapter 13 petition in the bankruptcy court. Your petition must be accompanied by the following documents:
• List of assets and liabilities;
• Details of current income and expenditures;
• Details of unfulfilled unexpired leases and contracts;
• Financial statement
An experienced can help you prepare and file the petition along with the necessary documents. An automatic stay comes into operation immediately upon filing of a Chapter 13 petition in the bankruptcy court. Your creditors cannot take any further steps to collect the debts nor can they contact you.
You must submit a repayment plan along with the petition. If your repayment plan is not ready at the time of filing, you may file it within 15 days of the filing. If your repayment plan is still not ready, an experienced Lehi Utah bankruptcy lawyer can request the bankruptcy court to extend the time. Your repayment plan will require you to contribute a portion of your future income to make the payments under the plan. The payments must start within 30 days of filing of the repayment plan. You will be making the payments directly to the bankruptcy trustee who will then distribute it amongst your creditors.
About 30 days after you file the petition, a creditors meeting will be held. At this meeting the creditors can object to your repayment plan. An experienced Lehi Utah bankruptcy lawyer can draft your repayment plan and deal with the objections raised by the creditors. Generally creditors have 90 days from the date of filing of the Chapter 13 petition to file their claims. This period is extended to 180 days if the creditor is a government entity. Generally all Chapter 13 repayment plans require the payments to be made within 3 years. However in some case the bankruptcy court may allow the payments to be made within 5 years.
Cram Down Provision
An experienced Lehi Utah bankruptcy lawyer will also advise you on the cram down provision of Chapter 13 bankruptcy and use it to your advantage. An experienced Lehi attorney will use the cram down provision to legally reduce the balance on a secured loan. Generally under Chapter 13 bankruptcy you can retain the collateral of a loan if your repayment plan provides for repayment of the loan or the market value of the collateral.
An experienced Lehi Utah bankruptcy lawyer can use this cram down provision to reduce or strip second mortgages in Utah. The cram down provision can also be used to reduce mortgages on investment and rental property but cannot be used to reduce the mortgage on principal residence. Using the cram down provision, the mortgage is split into to parts: secured and unsecured. The secured part is the part of the mortgage which is equal to the present value of the property. The part in excess of the present value of the property is the unsecured part. You will only need to pay the secured part in full. As for the unsecured part, an experienced Lehi Utah bankruptcy lawyer can assist you discharge it by paying pennies for the dollar. This works well for debtors with second mortgages or mortgages on investment property. Cram down provision rules are complex and you will require the services of an experienced attorney.
Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) amended the debtor’s duties under 11 U.S.C. § 521 to, inter alia, require debtors to file and/or produce documents, including a Statement of Intention, payment advices, and federal tax returns, in addition to a list of creditors, schedule of assets and liabilities, schedule of current income and current expenditures including statement of current monthly income, statement of financial affairs, statement of the amount of monthly net income, and statement disclosing any reasonably anticipated increase in income or expenditures over the 12 month period following the filing date.
If your fail to file payment advices, or the other documents required by Section 521(a)(1), your petition will be automatically dismissed effective on the 46th day after the date of the filing of the petition. The bankruptcy court may extend the time within which you may file the required documents for up to an additional 45 days if you file a request “within 45 days after the filing of the petition,” and if the bankruptcy court finds “justification” for the request. A trustee may move during the first 45 days of the case for the case not to be dismissed if you attempt in good faith to file the information required under Section 521(a)(1) and the interests of creditors would best be served by administering the estate.
Income Tax Returns
Section 521(e)(2) requires you to provide a copy of her most recent federal income tax return, or a transcript of such return, to the Chapter 7 trustee within 7 days before the date first set for the Section 341 meeting of creditors. There is no provision for automatic dismissal of your petition upon the failure to provide tax returns. Instead, if you fail to comply with Section 521(e)(2), the court will dismiss your petition unless you show that failure to comply is “due to circumstances beyond your control of the debtor. Experienced Lehi Utah bankruptcy lawyer will ensure that you file all the required documents within time.
Credit Counseling And Financial Management
In order to be eligible for relief under the Bankruptcy Code, you must obtain from an approved nonprofit budget and credit counseling agency described in Section 111(a) of the Bankruptcy Code, an individual or group “briefing,” within the 180 day period preceding the date of filing of your bankruptcy petition. The initial requirement for the briefing is that it occurs before the filing of the petition. Some courts have held that this requirement is completed if done not later than the day before filing. Other courts have concluded that completing the briefing on the day of filing satisfies the requirement. Experienced Lehi Utah bankruptcy lawyer will review your case to see if you have completed the required credit counseling within the 180 period as required by bankruptcy law.
When you file your bankruptcy petition whether under Chapter 7 or Chapter 13 of the Bankruptcy Code, an automatic stay will come into operation preventing your creditors from contacting you or taking steps to recover the dues. Unless the bankruptcy court grants relief from the stay, an act against property continues until the property is no longer property of the estate. The stay of all other acts continues until the case is closed or dismissed, or, if the debtor is an individual, a discharge is granted or denied. You can claim damages from any creditor who violates this automatic stay.
Bankruptcy laws are complex. You will require the services of a bankruptcy attorney to help you get a discharge. Remember if your bankruptcy petition is dismissed, there are restrictions on future filing. You will need a deep knowledge of the bankruptcy laws to know the exact filing requirements. When you hire experienced Lehi Utah bankruptcy lawyer, you will have peace of mind knowing that your filing will meet all the filing requirements.
Creditors can seek relief against the stay in both Chapter 7 and Chapter 13 proceedings.
A creditor can seek a stay relief if there is an existence of debt (that is, amount) and lien (including proper Perfection or recordation) and
• There is existence of “cause” for stay relief, including lack of adequate protection, or
• The debtor lacks equity in the collateral.
In a Chapter 13 proceeding besides the above conditions, a creditor can also seek a stay relief if the collateral is not necessary to an effective reorganization.
To seek a stay relief, the creditor must file a motion. A preliminary hearing must be held within 30 days of the filing of the motion. If the court orders the continuation of the stay at that preliminary hearing pending final hearing, the final hearing must be concluded not later than 30 days after the conclusion of the preliminary hearing. The court must rule within 30 days after the commencement of the final hearing.
Some courts will not continue to exercise jurisdiction over collateral once stays have been lifted. This can be significant in some instances. For example, suppose a creditor obtains stay relief on a car, the debtor refuses to surrender the vehicle, and it cannot be repossessed without a breach of the peace. Arguably, the creditor’s only remedy is to seek possession through the state courts. It may be quicker and easier if the bankruptcy court could order turnover as an enforcement measure of its original stay relief order. If a debtor is required to make collateral available to a creditor following default pursuant to U.S.C. § 9- 503 and the security agreement, the order lifting stays could include language to that effect that could be enforced by the bankruptcy court through contempt proceedings. A creditor may therefore wish to include a provision providing for such turnover in the order lifting stays. Experienced Lehi Utah bankruptcy lawyer can represent you and oppose any motion for stay relief.
Experienced Lehi Utah bankruptcy lawyer can help you choose between Chapter 7 and Chapter 13
If you are located in Lehi, you must file your bankruptcy petition in the bankruptcy court that has jurisdiction over your place of residence. There are many bankruptcy attorneys all over Florida but if you are located in the Tampa area, your best option is to consult with experienced Lehi Utah bankruptcy lawyer. You can discharge most of your debts in bankruptcy. You can also prevent foreclosure and retain your home by filing for bankruptcy using the service of bankruptcy attorneys. An experienced Lehi Utah bankruptcy lawyer can review your circumstances and advice you on whether you should file under Chapter 7 or Chapter 13 of the Bankruptcy Code.
If you have defaulted on your mortgage payments or are facing foreclosure, you must consult an experienced bankruptcy attorney. Do not wait until it is too late. By using the services of an experienced bankruptcy attorney, you can catch up on past due mortgage payments and prevent foreclosure. Despite its drawbacks, potential pitfalls, and legal complexity, filing bankruptcy will let you avoid foreclosure and work out a long-term solution to keep your home. Chapter 13 bankruptcy is a legal way of catching up with past due mortgage payments and preventing foreclosure. Also you can strip a second mortgage with bankruptcy.
Lehi Utah Bankruptcy Attorney Free Consultation
When you need to stop a foreclosure, stop a garnishment or get some financial relief, please call Ascent Law now at (801) 676-5506 for your free consultation. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506