When Should You Consider Bankruptcy?

When Should You Consider Bankruptcy

For many individuals, filing for bankruptcy relief can provide a way out of debt and a fresh financial start. But whether a bankruptcy filing is in your best interest will depend on many factors and your circumstances. Read on to learn more about what to consider if you are thinking about filing for Chapter 7 or Chapter 13 bankruptcy. Bankruptcy will impact your credit score for years to come. So it’s a good idea to evaluate all of your options before deciding to file for bankruptcy. Many creditors are willing to work with debtors to settle their debts. If you can resolve your financial issues outside of bankruptcy, you might not need to file for bankruptcy. Chapter 7 bankruptcy works well for people who can protect all of their property with exemptions, whose income is low enough to meet qualification requirements, and whose debt is the type that bankruptcy will discharge.

By contrast, Chapter 13 bankruptcy works best for people:
• whose income is too high to qualify for Chapter 7 bankruptcy
• who would like to save a house from foreclosure or a car from repossession, or
• who want to pay back nondischargeable debt, such as back child support or income tax debt, through a three- to five-year repayment plan.
So when considering whether it’s in your best interest to file for Chapter 7 or Chapter 13 bankruptcy, keep in mind that it will depend on numerous factors including:
• the type of debts you owe
• your income and expenses
• whether you’ll lose property, and
• what you hope to achieve with bankruptcy (such as keeping a house or car)
Before you file your case, you’ll want to think about the goals because a bankruptcy discharge doesn’t eliminate certain types of debt (called priority obligations). For instance, you can wipe out most credit card obligations, medical bills, and personal loans. But you can’t discharge domestic support obligations (such as child and spousal support), newer tax debt, student loans (unless you can prove undue hardship), and more. Filing for bankruptcy might not be in your best interest if you can’t get rid of your debt. However, bankruptcy can help in other ways. For instance, you can pay off nondischargeable debt over three to five years in a Chapter 13 case. If you have debts secured by your property (such as a mortgage or car loan), your lender can foreclose on the home or repossess the car if you default on your obligation (or take any other property that serves as collateral for the debt). Your lender has this right because of the lien you agreed to when you took out the loan. In most cases, you can’t wipe out your lender’s lien on the property with a bankruptcy discharge. Even after the bankruptcy, if you don’t make the loan payments, the lender can take back the property. However, bankruptcy’s automatic stay can stop or delay the foreclosure and repossession process. The relief afforded by the stay in Chapter 7 bankruptcy is usually temporary. But filing for Chapter 13 bankruptcy might allow you to:
• keep the property and catch up on your missed payments
• reduce the balance of your loan if you qualify for a cram down, and
• eliminate wholly unsecured junior liens from your house through a process called lien stripping.

If you don’t make the required payments on your debts, your creditors can take you to court to recover their money. A creditor that obtains a judgment against you in court can use it to garnish your wages or place a lien on your assets. Some creditors, like the IRS or your student loan lender, can take action without stepping into the courtroom. When you file for bankruptcy, an automatic stay goes into effect that stops almost all collection actions, including lawsuits and garnishments. Filing for bankruptcy relief can also eliminate the underlying debt. One of the most important things to consider before filing for bankruptcy is whether you’ll be able to keep all of your property. Bankruptcy exemptions allow you to protect a certain amount of assets in any bankruptcy chapter that you file. What will happen to nonexempt assets will depend on whether you file a Chapter 7 or Chapter 13 bankruptcy.
• Chapter 7 bankruptcy. A Chapter 7 bankruptcy trustee has the authority to sell any assets you can’t exempt and to use the proceeds to pay back your creditors.
• Chapter 13 bankruptcy. You can keep all of your property in a Chapter 13 bankruptcy. However, you’ll have to pay your unsecured debts (such as credit card balances, medical bills, and personal loans) at least an amount equal to the value of your nonexempt assets. If you have a significant amount of nonexempt property, filing for bankruptcy might not be in your best interest.

Exempt Equity

People who file for bankruptcy don’t lose all of their possessions. A bankruptcy filer can protect or exempt a certain amount of assets regardless of the bankruptcy chapter filed. The dollar amount of an ownership interest that you can protect is called exempt equity. Calculating exempt equity is a two-step process. First, you’ll find out how much of an item’s value you can protect, or exempt. You’ll do so by consulting your state’s exemption statutes. Although some exemption statutes tell you the number of items that you can protect, such as one motor vehicle or all prescribed health aids, others allow you to keep property valued up to a particular amount. For instance, you might be able to retain $50,000 in a home or $10,000 in household items. The dollar amount tells you how much equity you can exempt. The next step is figuring out how much equity you have in your property (the funds remaining after selling the property and paying off any outstanding loans). Suppose, for instance, that you were considering selling your house. To figure out the amount of your equity for bankruptcy purposes, you’d subtract your mortgage from the market value (the price your house would sell for). The remaining amount would be your equity.
By contrast, if you own a bicycle free and clear, you’d be entitled to all sales proceeds. Therefore, your equity would be its market value. You can own property without equity, too. If you do, you won’t use an exemption because there won’t be anything to protect.
Both Chapter 7 and Chapter 13 bankruptcy have eligibility requirements. Your income must be low enough to pass the Chapter 7 means test. By contrast, in Chapter 13 bankruptcy, the amount you owe cannot exceed certain dollar limits. Also, you must have enough income to support your Chapter 13 repayment plan.

Bankruptcy Do’s and Don’ts

If you are having difficulty paying your bills, bankruptcy may be a good solution for you. Carefully review the list below to avoid common mistakes, and get the maximum legal benefit, should you choose to file bankruptcy:
The Do’s
• Do seek competent legal advice! Filing for bankruptcy is an important personal decision. But bankruptcy law so complex that it’s almost impossible to understand all consequences of bankruptcy without talking to an experienced bankruptcy attorney. Before taking any financial steps, seek advice of experienced bankruptcy counsel.
• Be completely honest with your attorney. During your initial consultation, your attorney will ask you a series of questions to obtain an in-depth picture of your financial situation. You must answer these questions completely and honestly. An attorney cannot represent you effectively if you are not completely honest with us.
• Do provide your attorney with all the documents he requests. Your attorney will provide you with a list of necessary documents. Collecting all of these documents may take some time, but it’s important that you provide us with every item on that list.
• Do carefully read your bankruptcy petition: The Attorney will provide you with a draft copy of your petition before your appointment to sign the document. Please carefully review the petition before coming in to sign it. Do be completely honest on your bankruptcy petition. When you sign your bankruptcy petition, you are declaring that all the content in the petition is true and correct. Knowingly making false statements on your bankruptcy petition could result in your debts not being discharged, or, worse yet, result in criminal prosecution.
• Do fill out your Federal and State income tax returns. Our San Jose bankruptcy attorneys will need this information to effectively represent you. The bankruptcy trustee will also request to see these documents. Failure to provide copies of tax returns could mean that your debts won’t get discharged.
The Don’ts
• Don’t worry! Millions of Americans have filed for bankruptcy protection. Not being able to pay your debts is not a crime. It is not a sign of failure. You have a right to seek relief from bill collectors, wage garnishments, and foreclosures by filing bankruptcy!
• Don’t run up debts immediately before filing bankruptcy. Incurring debts prior to bankruptcy could result in those debts not being discharged. Worse yet, the court may deny your bankruptcy altogether!
• Don’t use a non-attorney “bankruptcy preparer” unless you have completely researched all relevant legal issues. The non-attorney “bankruptcy preparers” cannot give you legal advice. They cannot analyze your situation. In some instances, by filing unmeritorious petitions that eventually get dismissed, they can cause you to lose important legal rights!
• Don’t try to hide cars, homes, or other property from bankruptcy by transferring these assets to friends or relatives. This conduct can be bankruptcy fraud. The court may dismiss your bankruptcy case, or deny discharge of your debts.
• Don’t borrow from your 401K or a home equity line to pay off your credit card debts. You may be triggering unnecessary tax expenses, or risking losing your home.
• Don’t increase your overtime hours to try to pay off your debts. Increasing your pay may disqualify you for chapter 7 relief. It may also affect what you pay back in a Chapter 13 bankruptcy.
• Don’t negotiate debt reduction with your credit cards. Debt reduction may trigger tax consequences. Talk to an attorney before engaging in debt reduction.
• Don’t file bankruptcy without understanding the consequences. Filing a “skeleton petition” can stop foreclosure of your home. But it can also jeopardize important legal rights. Bankruptcy can provide you with debt relief and a fresh start. But make sure you understand your legal rights and obligations before filing bankruptcy.

What Happens After I File For Bankruptcy?

After you complete the process for filing personal bankruptcy, there is an immediate “stay of proceedings.” This part of the process protects you from unsecured creditors trying to begin or continue any legal actions against you, such as wage garnishees, lawsuits, or any type of contact with you to collect a debt. Within five days, your trustee will send a copy of the bankruptcy paperwork to all creditors so they can begin the process of filing a claim. Your trustee will also file any outstanding tax returns up until the date of bankruptcy. Any outstanding balances or penalties will be included. After your personal bankruptcy paperwork is complete, you will have obligations such as providing monthly income statements and attending credit counseling sessions. When your bankruptcy is discharged, your debts will be canceled. It is important to understand that there may be minor exceptions to the debt cancellations. A note about your bankruptcy will remain on your credit report for a minimum of 6 years after the date of discharge. Once your debts are canceled, usually 9 months after filing, you can begin rebuilding your credit.

When Should I File for Bankruptcy?

Despite what many think, filing for bankruptcy is not the end of the world. It can actually be the fresh start you have been looking for. The laws of bankruptcy were drafted with the purpose of giving people a second chance, and not to punish them. But that doesn’t mean you should file for bankruptcy at the first sign of financial distress. Declaring bankruptcy will have short- and long-term consequences and should only be done as a last resort.

Before You File, Evaluate Your Situation

When should I file for bankruptcy? This is a question most people under financial distress ask. You should probably consider other options before going this route. These options include:
• Getting credit counseling
• Trying to negotiate your debt or make a payment plan with your creditor
• Sticking to a budget
If, however, other options don’t seem feasible, filing for bankruptcy may give you the ability to get a fresh start. Bankruptcy is a process by which you can discharge some of your debt because you are unable to repay those debts. There are usually two ways bankruptcy is declared:
• You file for bankruptcy
• Your creditors ask the court to declare you bankrupt

Chapter 7 Bankruptcy

Chapter 7 bankruptcy, otherwise known as “straight bankruptcy” or “liquidation,” allows the debtor to sell their non-exempt assets to pay off their debts; after that, the debtor will be free from all dischargeable debts. There are specific eligibility requirements that you must meet to qualify for Chapter 7 bankruptcy. Some of the scenarios where you wouldn’t be eligible for Chapter 7 include:
• Your income is too high (this is determined using the “means test”): In such cases, your case may be filed under chapter 13 bankruptcy
• You have the ability to repay your debt
• You dismissed a bankruptcy case within the past 180 days
• You previously filed for bankruptcy and the time frame to file another bankruptcy case has not passed
• You attempted to defraud creditors

Chapter 13 Bankruptcy

Chapter 13 bankruptcy requires you to make a repayment plan to pay creditors over a period of three to five years. This method is usually used if your income exceeds the limits set for Chapter 7 bankruptcy. You also need to show you comply with the eligibility requirements before you can file Chapter 13. These include:
• You are not a business organization
• You took credit counseling
• You have not dismissed a Chapter 13 case within the past 180 days
• You have not filed for a Chapter 13 within the past two years
Things You Should Know Before You File for Bankruptcy
Before you decide to declare bankruptcy, there are a few things you should consider. These include:

Not All Debts Will Be Discharged

You should know that bankruptcy does not wipe out all your debts. Some debts that will not be discharged include:
• Student loans
• Child support
• Alimony
• Court fines or penalties
Debts such as credit card debts, loans, lease and contract obligations, and medical bills can be discharged.

Declaring Bankruptcy Will Affect Your Credit Score

In exchange for discharging your debt, filing bankruptcy shows everyone that you may be a credit risk, which will be reflected in your credit score. Thus, getting a loan, a mortgage, or a credit card may be very difficult after declaring bankruptcy. You should note bankruptcy filed under Chapter 7 will remain on your record for 10 years. If you filed under Chapter 13, it would stay on your credit report for 7 years. After that, it is erased.

Your Co-Signers May Be Required to Pay Your Debts

Co-signers are people who agree to pay your debt if you are somehow unable/unwilling to pay the debt. If you file a Chapter 7 bankruptcy, your creditors are allowed to go after the co-signer even if your bankruptcy case is successful. Under Chapter 13, your creditors can’t go after your co-signer as long as you make your regular payments per your agreement.

Filing for Bankruptcy During a Pandemic

Filing for bankruptcy during a pandemic or other national emergency may be challenging, as operational hours for courts may change. So, first, make sure your local bankruptcy court is open and taking cases before you file. You should also expect a delay in the processing of your case.

Utah Bankruptcy Lawyer

When you need legal help with bankruptcy in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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Should My Mom Declare Bankruptcy?

Should My Mom Declare Bankruptcy

Bankruptcy is a generalized term for a federal court procedure that helps consumers and businesses get rid of their debts and repay their creditors. If you can prove that you are entitled to it, the bankruptcy court will protect you during your bankruptcy proceeding. In general, bankruptcies can be categorized into two types – “liquidations” and “reorganizations.” Among the different types of bankruptcies, Chapter 7 and Chapter 13 proceedings are the most common for individuals and businesses. Chapter 7 bankruptcies normally fall in the liquidation category, meaning your property could be sold in order to pay back your debts. Conversely, Chapter 13 bankruptcies generally fall under the reorganization category, meaning that you will probably be able to keep your property, but you must submit and stick to a plan that will allow you to repay some or all of your debts within three to five years.

Chapter 7 Bankruptcy

Both individuals and businesses are allowed to file for Chapter 7 bankruptcy. These proceedings typically last between three and six months.
Liquidation of property: In a Chapter 7 bankruptcy proceeding, some of your property may be seized and sold to pay off some or all of your debts. However, as a benefit of this type of bankruptcy proceeding, any unsecured debts (debts that are not guaranteed by collateral) will be wiped out. In addition, there are certain types of property that cannot be sold in order to pay off your debts, such as the furniture in your home, you car and your clothes.

Secured debt: Secured debts are treated differently than unsecured debts in a Chapter 7 bankruptcy proceeding. In a Chapter 7 bankruptcy proceeding, you (the debtor) have to make a choice between allowing the creditor to repossess the property that secures the debt, continuing to make payments on your debt to the creditor, or paying the creditor a sum equal to the replacement value of the property that secures the debt. In addition, some types of secured debts can be wiped out during a Chapter 7 bankruptcy proceeding.

Chapter 7 Eligibility: Before you can file for Chapter 7 bankruptcy, you must be able to show that you are eligible to file for Chapter 7. To be eligible for Chapter 7, you cannot make enough money (minus certain expenses and monthly debt payments) to be able to fund a Chapter 13 bankruptcy repayment plan. There are other requirements to be eligible to file for Chapter 7 bankruptcy. Debts that will not be wiped out by Chapter 7 bankruptcy while credit card debt, unsecured loans, and other debts can be forgiven in Chapter 7, things like child support, taxes that are due, and alimony payments cannot be wiped out. For more debts that will remain after a Chapter 7 bankruptcy proceeding, see Debts that Remain after a Chapter 7 Discharge.

Chapter 13 Bankruptcy

Also known as the “wage earner” bankruptcy proceeding, only people with a reliable source of income are allowed to file for Chapter 13 bankruptcy.
Paying off your debt: In Chapter 13 bankruptcy in federal court, you must work with the court to come up with a repayment plan, and stick with the plan over the next three to five years. The amount you will need to pay is based upon your income, how much debt you owe, and how much the creditors of your unsecured loans would have received if you had filed under Chapter 7 instead of Chapter 13.

Limits on debt: In order to be eligible to file for Chapter 13 bankruptcy, you must be able to show that your debt is under the limits for filing. As of September, 2009, the limit on secured debt was $1,010,650 and the limit on unsecured debt was $336,900. If you have more than either of these amounts, you may not be able to file for Chapter 13 bankruptcy protection.
Repaying secured debts: Chapter 13 bankruptcy may allow you to repay secured debts, even if you are behind on payments, without having the property that secures the debt be repossessed. You may be able to put your past due payments into your debt repayment plan, and pay them off over a period of years.

Other forms of Reorganization Bankruptcy

There are two other types of reorganization bankruptcy in addition to Chapter 13. These are Chapter 11 and Chapter 12.

Chapter 11 Bankruptcy

Chapter 11 bankruptcy proceedings are normally used by struggling businesses as a way to get their affairs in order and pay off their debts. In addition, some individuals also file for Chapter 11 bankruptcy when they are not eligible for Chapter 13 bankruptcy or own large amounts of non-exempt property (like several homes). However, Chapter 11 can be much more expensive and time consuming when compared to Chapter 13.

Chapter 12 Bankruptcy

Chapter 12 bankruptcy is very much like Chapter 13 bankruptcy, except that it is only available to people that have at least 80% of their debts arising from a family farm.

Who Can File For Bankruptcy?

Generally, anyone can, however, not everyone qualifies to file for a particular kind of bankruptcy. If you are an honest person who can’t afford to pay your bills, you can qualify for bankruptcy. If you have previously filed for bankruptcy, it may affect your options. For example, if you have recently filed a chapter 7 bankruptcy, you cannot file another chapter 7 for eight years. Bankruptcy is for the honest debtor with too much debt and no real way to repay it. So, you cannot file for bankruptcy to defraud your creditors. If you are in financial trouble, you cannot intentionally run up large debts with the intention of filing for bankruptcy afterwards. There are records requirements. You must gather personal tax returns, proof of your income in the six months before filing, and a certificate of your attendance at a mandatory credit counseling class.

As layoffs, pay cuts and foreclosures pile up; debt-burdened Americans are toying with bankruptcy both personally and for their businesses. The number of filings reached 1 million in the fiscal year ending Sept. 30, 2008, leaping more than 30% from the same period a year earlier, according to the administrative office of the U.S. Courts. Chances are those numbers would be even higher but for social stigmas dating to back to 16th century Europe, when deadbeats were publicly humiliated or thrown into debtor’s prison. Shame aside, the fact is that seeking bankruptcy protection may well be the right choice. As for having to forever wear a scarlet “B” on your chest, so by no means will you remain permanently persona non grata with lenders. The fact that you filed stays on your credit report for 10 years, but you can get credit again well within that time period. Your ability to do that depends on your pre-filing payment history, current income, debt-to-income ratio and how well you’ve paid your debts after the discharge. “If you can’t pay your bills and your debt is mounting, you’re already bankrupt,” If you’re in that situation, filing may be your way out.

How to File for Bankruptcy

The first part of filing for bankruptcy is determining whether it is the right call for you. It’s a huge undertaking, so ask yourself the important questions. How long will you likely have to repay these debts for? Are you legitimately unable to make the necessary payments? Can you compile the necessary information and documents? And are you prepared to deal with any fallout that comes with filing for bankruptcy? It can do significant damage to your credit score. Does your existing debt outweigh that consequence?

• Filers will also want to look into a bankruptcy lawyer. It’s possible to file for certain bankruptcy types without one, but at a time when you’re at your most vulnerable financially, finding someone who understands how to guide you through the various intricacies of filing.

• Before one can file for bankruptcy, United States Courts require you to take credit counseling, and after you file, it requires debtor education courses. Certificates of completion are required before debts are discharged.

• With credit counseling courses completed, the next step is to fill out the petition to file for bankruptcy. This and other bankruptcy forms are available on the U.S. Courts website. A bankruptcy attorney can help determine which other relevant forms will need to be filled out, based on what type of bankruptcy the filer is filing for, and how the specific local laws affect the case.

• If the petition gets accepted, the case is usually given to a trustee, a party not employed by the courts who can help oversee the case. The trustees will comb through documents to make sure all assets have been accurately collected and that no fraud has been committed. They will also set up a meeting with the creditors wherein the party who filed for bankruptcy must testify under oath.

Why Do People File for Bankruptcy?

The amount of debt the average American has continues to rise exponentially each year. There’s now over $1.5 trillion in outstanding student loan debt alone in the country. With such astronomical debt hanging over so many American households, people look to drastic measures. Emergency medical situations have put many Americans in tens of thousands, if not hundreds of thousands of dollars in medical debt. Medical debt and student loan debt can be a toxic combination for someone’s bank account, especially if they are also dealing with a loss of their job. A combo of these three is an extreme, but many feel bankruptcy is still the “extreme” option, a last resort. Filing for bankruptcy can wreck a person’s credit score and take years to recover; for someone to declare bankruptcy, taking the time to build their credit score back up would have to outweigh the difficulties of living under their existing financial struggles and debt.

What Factors Lead to Personal Bankruptcy Filings?

Because filing a bankruptcy case can be a huge decision with long-lasting consequences positive and negative people who are contemplating filing bankruptcy often want to know if their reasons for filing are typical, reasonable, or sound. A 2005 study reported that 46 percent of bankruptcies were related to medical debt. This conclusion has been borne out by other studies as well. This doesn’t mean that medical debt is the sole reason. There are lots of contributing factors and contributing debts. In addition to medical debt, leading factors that contribute to bankruptcy filings include unemployment and domestic issues like divorce. Note that most of these factors involve circumstances the filer could not control. According to this report, only 15% of filers report having to file because of actions they took and decisions they made that led to excessive credit card debt, large mortgages, or high car payments.

• The average filer is married, has a high school education, and makes less than $30,000 a year.
• In 2007, those younger than 25 made up less than 2 percent of filers. About 20 percent of filers are 55 years or older. The median age is about 45.
• Women are slightly more likely to file than men: 52.4 percent vs. 47.6 percent. Women make up 51% of the US population.
• People ages 65 and older make up about 8% of filers. Those ages 34 and younger make up about 19% of filers.
According to the Institute for Financial Literacy,
• 73% of filers have a job or are self-employed
• 27% make more than $30,000 a year
• 94% graduated from high school
• About 58% have at least some college
• 5% have a graduate college degree
• 30% are 34-44 years old
• 14% make $50,000 or more a year
Bankruptcy affects all age groups and all socioeconomic classes. In fact, it’s easy to argue that there is no one “average” or typical bankruptcy filer. But if we were to build one, she would likely be a middle-aged woman, married, Caucasian, with some college, who makes less than $30,000 per year. Even so, the statistics bear out that outside circumstances more so than age, income, or educational level play a huge role in decisions to file or not file.

Declare Bankruptcy In Utah Free Consultation

When you need legal help with filing bankruptcy in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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Chapter 13 Bankruptcy

Chapter 13 Bankruptcy

How do I file for Chapter 13 bankruptcy?

According to Chapter 13 bankruptcy rules, it is necessary for a debtor to attend credit counseling prior to filing for bankruptcy. After the completion of counseling, the debtor must pay a fee and provide the bankruptcy court with information about income, debt, expenses, and creditor holdings of secured and unsecured debt. Once the court receives the appropriate paperwork, a trustee will review the case. The trustee will request information from the debtor, communicate with creditors, and hold a creditors meeting. The debtor is also responsible for filing a repayment plan with the court. Once the bankruptcy court approves the repayment plan, Chapter 13 bankruptcy is complete.

Does filing for Chapter 13 bankruptcy stop creditors from collecting a debt?

Chapter 13 bankruptcy rules state that a creditor may no longer pursue collection activities when a debtor files for bankruptcy. As soon as debtor files the appropriate paperwork and pays the filing fee, an automatic stay takes effect. An automatic stay prohibits creditors from further attempts to collect a debt. This means that any lawsuit proceedings must cease, a creditor may not report the debt to credit reporting agencies, and the debtor’s property and income are safe from seizure. Collection activities may continue for spousal and child support, tax debt, and pension loans, however.

Will a Chapter 13 bankruptcy erase my student loan?

No.

A bankruptcy court will require repayment of your student loan debt. Chapter 13 bankruptcy rules treat student loan debt similar to priority debt–it is payable in full like back taxes and child support payments. Prior to 2005, student loan debt was only dischargeable when funded by a private lender. With the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act, however, privately funded student loans are now treated the same as student loans guaranteed or issued by the federal government. This means that all student loan debt is only dischargeable upon a showing of undue hardship.

Typically, it is difficult to convince a bankruptcy court to discharge student loan debt. A bankruptcy court will consider such factors as poverty, the inability to pay the loan due to a permanent disability, and a debtor’s good-faith effort to repay the loan for a long period. To have a student loan debt dismissed, a debtor must file a separate action in bankruptcy court called a Complaint to Determine Dischargeability of a Debt.

If I miss a scheduled payment under my Chapter 13 repayment plan, can a creditor sue me?

If a debtor misses a scheduled payment, Chapter 13 bankruptcy rules allow the trustee to institute an action for dismissal with the bankruptcy court. Because the debtor agreed to repay creditors according to a court-approved Chapter 13 repayment plan, a trustee may request the dismissal of the case once those creditors are no longer receiving payments. A debtor may be able to prevent the dismissal of a case by establishing their ability to repay the debt under the current plan or by requesting that the court approve a new plan.

If the bankruptcy court dismisses the case, a creditor may reinstitute collection activities against the debtor. Bankruptcy laws that prohibit collection attempts no longer protect the debtor at this point. Consequently, creditors may collect the current amount owed on the debt and any interest on the debt that accrued while the debtor was in bankruptcy.

Changes to the Bankruptcy Law

In 2005, new bankruptcy laws required potential bankruptcy individuals to be involved in courses educating and informing them of their financial options. Before an individual files for a Chapter 13 or Chapter 7 bankruptcy, you must receive credit counseling from an approved agency. Any Chapter 7 Lawyer will tell you that it’s required. In addition, before a bankruptcy is discharged, the individual must attain a personal finance management course known as debtor education.

Do I have to get Credit Counseling?

The purpose of credit counseling is to assist an individual’s evaluate his or her financial options and to determine if he or she can repay debts through a repayment plan without filing bankruptcy. In credit counseling, the individual will usually provide information regarding his or her income, expenses, and debts. The counselor then evaluates the information and proposes a repayment plan.

Personal Financial Management and Debtor Education

Debtor education information is meant to instruct individuals to be responsible with their finances. The education is meant for the individual to learn from his or her mistakes and never be in the postion to file bankruptcy again. A debtor education course will usually provide tips in developing a budget, managing finances, using credit responsibly, and how to deal with financial emergencies.

As part of the new bankruptcy laws, people wishing to file for bankruptcy (under Chapter 7 or Chapter 13) must now complete a credit counseling program before they will be allowed to file a bankruptcy petition. In addition, bankruptcy filers must obtain debt management counseling before being allowed to complete the bankruptcy process. In order to comply with these credit counseling and post-discharge debtor education requirements, filers must work with agencies that have been approved by the U.S. Trustee Program (a branch of the U.S. Department of Justice that is responsible for overseeing bankruptcy cases).

Two lists of agencies that have been approved by the Department of Justice — the first a list of agencies that provide pre-filing credit counseling to those wishing to file for bankruptcy, and the second a list of agencies that offer post-discharge debtor education to people who are completing the bankruptcy process. The third link below includes tips on choosing a credit counselor, from the Federal Trade Commission (FTC).

On April 15, 2013, the Executive Office for U.S. Trustees (EOUST) announced new policies on credit counseling and debtor education requirements. The list below is some notable new rules.

Quality – The quality of counseling must be consistent whether the debtor takes the course on the Internet, in person, and over the phone. In addition, the counseling must not be generic but individually specific to the debtor.

Use the Cheapest One – Credit counseling agencies and debtor education information providers must charge a reasonable fee that is $15 or less. An individual’s income that falls 150% below the poverty line is eligible for a fee waiver. We reccomend that you use Debtorcc.org – they are fast and the cheapest one that we could find.

Is credit card debt included in a Chapter 13 bankruptcy plan?

To qualify for Chapter 13 bankruptcy, a debtor must repay all secured creditors and priority debts in full and must repay a portion of the amount owed to unsecured creditors. “Secured debt” is a debt obligation backed by collateral such as a car or real property; “priority debt” includes child support payments and back taxes; and “unsecured debt” are those obligations that are not backed by collateral. Unsecured debt includes money owed on a credit card.

A Chapter 13 bankruptcy places a filer’s debt into a repayment plan. A bankruptcy court will not approve a plan unless the arrangement requires that the debtor repay all priority and secured debt in full. The repayment plan must also require the debtor to repay unsecured creditors in an amount equal in value to the filer’s nonexempt property. Nonexempt property includes any interest held in real property, business assets, and artwork. Once a Chapter 13 repayment plan begins, a trustee will disburse the monthly payment made by the debtor to the creditors each month.

Free Consultation with Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you now. Come in or call in for your free initial consultation.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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4.9 stars – based on 67 reviews


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If I File Bankruptcy, Do I have to Go to Court?

For most people, lawyers and lawsuits conjure up images of wood-paneled courtrooms with scary judges presiding over heated exchanges. “ORDER IN THE COURT! OBJECTION, YOUR HONOR!” Many bankruptcy clients are concerned that a judge will be reviewing and second-guessing their petition.

If I File Bankruptcy Do I have to Go to Court

This concern is usually unwarranted. In the vast majority of cases, debtors never step foot in a courtroom and do not appear before a judge.

Here’s what you need to know about filing for bankruptcy and what will be expected of you.

The 341 Meeting of Creditors

Debtors are required to attend what is known as the meeting of creditors or section 341 meeting, a proceeding at which the debtor testifies under oath that the information contained in their bankruptcy filing is accurate.

In many jurisdictions, the 341 meeting doesn’t even take place in the courthouse. It might be across the street or nearby the federal court. Your bankruptcy trustee (not a judge) will preside over the meeting of creditors, but don’t worry, your bankruptcy attorney will be there to guide you through the process.

In most Chapter 7 cases, the 341 meeting is fairly painless and only lasts between 3 to 10 minutes. During that time, the trustee will ask you a series of questions about your property, debts, and financial history. Some debtors will receive very few questions; others with more complicated cases may receive more.

The key to success is being open and honest with your lawyer.

Here are five things to expect during your 341 meeting:

  1. Your attorney will attend the meeting with you, whether you filed for Chapter 7 bankruptcy or Chapter 13 bankruptcy;
  2. During the meeting, assets will be administered in a Chapter 7, and your disposable income will be verified in a Chapter 13 repayment plan;
  3. You’ll have to swear in. That means your testimony is under oath; you cannot lie, otherwise you will face severe consequences (least of which is having your bankruptcy denied);
  4. You’ll be asked if all of your financial documents are in order and accurate;
  5. In most Chapter 7 cases, no assets will be found. In Chapter 13 cases, you may be asked for additional verification of your income or expenses.

And that’s it!

When a Bankruptcy Court Appearance is Required

Although the likelihood of a court appearance is low, debtors must realize that filing for bankruptcy is more than just filling out some forms. A bankruptcy case can turn to litigation fairly quickly. Debtors may be required to appear in court when a trustee objects to one of their exemptions or the judge orders them to appear and show cause. In addition, an adversary proceeding will likely require a court appearance, as well.

Objections to Exemptions

When filing for bankruptcy, a debtor will state which of their property is exempt under bankruptcy laws. This allows the debtor to protect certain property, such as their house, car, retirement accounts, and more. However, debtors must carefully follow exemption rules in their state; in some states, you can choose between federal exemptions or state exemptions, while others only allow you to use state rules. Some states have better exemptions than others. A bankruptcy attorney will thoroughly review exemptions with you to determine which property you will be able to keep. The majority of Chapter 7 cases, if debtors qualify, will allow them to keep all their property.

Show Cause Order

A show cause order is typically used in cases of contempt, in which debtors can go to jail. Essentially, it’s used on either difficult debtors who have lied to the court, or debtors who simply forgot a step during their bankruptcy (failing to disclose assets, not providing documents to the bankruptcy trustee, etc.), who then have to show the court why their bankruptcy discharge should not be denied. While some debtors who have been given a show cause order have actually been honest, they may not have done their paperwork correctly. This happens often in pro se cases, in which a debtor tries to file bankruptcy themselves. This is when a good bankruptcy attorney needs to step in.

Adversary Proceedings

Adversary proceedings are lawsuits filed separate from your bankruptcy case, though it’s related. An adversary proceeding can be filed by anyone in a bankruptcy, including the debtor, when someone requires relief through a judge’s order.

Types of adversary proceedings include:

  • Fraudulent transfers: Bankruptcy trustees will file these if you’ve moved around any money or property in the two years leading up to your bankruptcy.
  • Preferential transfers: Bankruptcy trustees will file these if you pay back creditors more than $600 in the three months leading up to your bankruptcy, or a year in the case of family members.
  • Lien stripping: Debtors will file these during a Chapter 13 bankruptcy if they have more than one mortgage on a house.
  • Dischargeability of debt: Creditors will file these to request a debt not be discharged due to fraud of the debtor.
  • Joint property sale: A trustee can file these to split property from you and your spouse in order to sell it.
  • Objection to discharge: Trustees and creditors can file these when you’ve committed fraud or failed to comply with court order.

Free Consultation with Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you now. Come in or call in for your free initial consultation.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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Utah Bankruptcy Lawyers

utah bankruptcy lawyers

If уоu’rе fіlіng fоr bаnkruрtсу, уоu may bе іn fоr a lоng аnd соmрlісаtеd рrосеѕѕ with рlеntу оf rооm fоr еrrоr. Thаnkfullу, hіrіng Utаh bаnkruрtсу аttоrnеуѕ саn mаkе thе рrосеѕѕ еаѕіеr, аѕ thеу’ll wаlk уоu thrоugh еасh ѕtер and саn рrоvіdе уоu wіth аll оf thе dосumеntаtіоn уоu nееd tо fіlе уоur саѕе. Unfоrtunаtеlу, bесаuѕе thе dеmаnd fоr Utаh bаnkruрtсу аttоrnеуѕ hаѕ іnсrеаѕеd, ѕо hаѕ thе numbеr оf unрrіnсірlеd аnd соrruрt lаwуеrѕ whо wаnt tо еxрlоіt уоur nееd fоr ԛuаlіfіеd, hоnеѕt rерrеѕеntаtіоn fоr аn аffоrdаblе fее. Sо іf уоu’rе соnѕіdеrіng fіlіng fоr bаnkruрtсу, thеrе are ѕеvеrаl thіngѕ уоu should keep іn mіnd tо hеlр уоu fіnd a gооd bаnkruрtсу аttоrnеу.

Dоn’t Get The Cheapest Bankruptcy Attorney

Mаnу bаnkruрtсу lawyers сlаіm tо fіlе уоur саѕе fоr $700 оr even zero down, оr wіll ԛuоtе unrеаlіѕtісаllу lоw fееѕ thаt mіght ѕоund аttrасtіvе – but thеу dоn’t lеt уоu knоw thаt thеіr іnіtіаl quote dоеѕn’t іnсludе thе $335 соurt fіlіng fее. They don’t also tell you that they do nothing except file the case and you’ll end up paying about triple the cost of other law fimrs! Addіtіоnаllу, thеіr іmрrасtісаllу lоw ԛuоtе mау nоt еvеn аррlу tо уоu – thеrе аrе a numbеr оf еxсерtіоnѕ thаt уоu mау fаll undеr, іn which саѕе уоu wоn’t rесеіvе thе ԛuоtеd dіѕсоunt whеn fіlіng fоr bаnkruрtсу. Fоr іnѕtаnсе, thе fee mіght оnlу аррlу tо ѕіnglе fіlеrѕ, nоt mаrrіеd соuрlеѕ, оr tо іndіvіduаlѕ wіth a mіnіmаl аmоunt оf dеbt (е.g. $5,000 – $10,000) аnd nо аѕѕеtѕ. Bеfоrе уоu knоw іt, thе dіѕсоuntеd ԛuоtе оnlу аррlіеѕ tо a ѕmаll реrсеntаgе оf fіlеrѕ! The Utah Bankruptcy Court doesn’t like shenanigans, and you shouldn’t either.

If thеѕе unscrupulous аttоrnеуѕ lіе tо уоu frоm thе bеgіnnіng, whу wоuld уоu truѕt thеm tо hаndlе уоur саѕе? Nо mаttеr whісh bаnkruрtсу аttоrnеу уоu сhооѕе tо wоrk wіth, уоu ѕhоuld аlwауѕ dо уоur rеѕеаrсh рrіоr tо fіlіng fоr bаnkruрtсу. Hоw lоng hаѕ thаt fіrm рrасtісеd lаw? Hоw mаnу ѕаtіѕfіеd сlіеntѕ dо thеу hаvе? Whаt tуре оf ѕеrvісе wіll thеу рrоvіdе уоu? Lооk fоr a full-ѕеrvісе lаw fіrm сараblе оf mоrе thаn juѕt rерrеѕеntаtіоn іn соurt – thіѕ mеаnѕ thеу’ll hеlр уоu dеtеrmіnе whісh сhарtеr оf bаnkruрtсу іѕ bеѕt fоr уоu, аnd thеу’ll hаndlе thе соmрlісаtеd рареrwоrk, ассоmраnу уоu tо сrеdіtоr mееtіngѕ аnd will ultіmаtеlу ѕіmрlіfу thе fіlіng рrосеѕѕ.

Bаnkruрtсу Sресіаlіzаtіоn

Althоugh many lаwуеrѕ оffеr rерrеѕеntаtіоn tо сlіеntѕ fіlіng fоr bаnkruрtсу, іt’ѕ bеѕt tо hire a lаwуеr whо focus іn bаnkruрtсу, rаthеr thаn аn аttоrnеу whо рrасtісеѕ lаw іn a vаrіеtу оf dіffеrеnt аrеаѕ. Attоrnеуѕ whо ѕресіаlіzе рrіmаrіlу іn bаnkruрtсу wіll bе аblе tо рrоvіdе уоu wіth thе expertise аnd еxреrіеnсе thаt lаwуеrѕ ѕресіаlіzіng іn a multitude оf аrеаѕ саnnоt. The lawyers at Ascent Law for example have filed cases since before the federal bankruptcy law changed!

Addіtіоnаllу, bеfоrе hіrіng any Utаh bаnkruрtсу аttоrnеуѕ, find out how many cases they’ve filed. Since we’ve filed thousands of cases, we know what we are doing and we can get your case finalized and discharged. If you get the wrong attorneys who don’t know what they are doing, they can easily mess up your case and you’ll be the one to suffer for it. Don’t risk losing your home to foreclosure, getting stuck in a garnishment that won’t end, or having your property taken by the Constable’s Office because you didn’t get the right lawyer.

Cоnѕіdеr thе Bankruptcy Lawyer

Whеn сhооѕіng a bаnkruрtсу lаw fіrm, bіggеr іѕn’t аlwауѕ bеttеr – thеrе аrе ѕоmе drаwbасkѕ tо wоrkіng wіth a lаrgеr lаw fіrm, іnсludіng hіghеr fееѕ аnd lасk оf реrѕоnаl аttеntіоn. On thе оthеr hаnd, ѕmаllеr fіrmѕ mау bе mоrе attentive tо wаlkіng уоu thrоugh the рrосеѕѕ оf fіlіng fоr bаnkruрtсу; hоwеvеr, thе аttоrnеу’ѕ wоrklоаdѕ may bе mоrе hесtіс, аnd thеу mіght hаvе lеѕѕ tіmе tо dеvоtе tо уоur саѕе. Wеіgh the орtіоnѕ саrеfullу – уоu’ll wаnt tо hіrе ѕоmеоnе whо іѕ nоt оnlу еxреrіеnсеd, but thеу ѕhоuld hаvе thе tіmе tо see уоur саѕе thrоugh tо thе mоѕt роѕіtіvе соnсluѕіоn – wіth thе аttеntіоn уоu nееd.

Durіng уоur іnіtіаl соnѕultаtіоn оr оvеr a tеlерhоnе саll, аѕk thе hаrd-hіttіng ԛuеѕtіоnѕ that уоu nееd tо knоw – уоu hаvе a rіght tо knоw уоur lаwуеr’ѕ еxреrіеnсе, hоw іnvоlvеd thеу’ll bе іn thе саѕе, what thеіr соmmunісаtіоn ѕtуlе іѕ lіkе, hоw muсh they саn еxресt to рау (аnd whеrе еасh fee іѕ аllосаtеd), whаt thе tіmеlіnе fоr уоur саѕе іѕ lіkе, аnd mоrе. Alwауѕ аѕk – аnd іf ѕоmеthіng ѕееmѕ fіѕhу, сhеар оr unrеаlіѕtіс, іt рrоbаblу іѕ. Dо уоur rеѕеаrсh bеfоrе fіlіng fоr bаnkruрtсу, аnd уоu’ll fіnd аn hоnеѕt, hіgh-ԛuаlіtу bаnkruрtсу аttоrnеу whо саn rерrеѕеnt уоu tо thе fullеѕt.

Bankruptcy Attorneys in Utah

If you have a bankruptcy question, or need to file a chapter 13 or chapter 7, call the law firm of Ascent Law, LLC at (801) 676-5506. We know what we are doing because we’ve cumulatively filed over 1,000 bankruptcy cases. We can help you now. Come in or call in for your free initial consultation today.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.7 stars – based on 45 reviews


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