Articles Posted in Chapter 13

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protect-money-umbrella-150x150One of the best bankruptcy exemptions offered to those filing bankruptcy is the retirement account exemption. As long as your 401K or IRA is ERISA (Employee Retirement Income Security Act of 1974) qualified, then your 401k or IRA will be protected if you file bankruptcy. Amazingly, there are not a lot of limitations to this rule. This is a wonderful law as it is very common for a person’s biggest asset to be their retirement account. Some of the qualified ERISA retirement accounts include 401(k)s, 402(b)s, IRAs (Roth, SEP, and SIMPLE), Keoghs, profit-sharing plans, money purchase plans, and defined-benefit plans. It is important to note that most employer-sponsored retirements plans are ERISA safe in bankruptcy.

401k Loans

Many who file bankruptcy may have also taken out a 401k loan in an effort to avoid having to file bankruptcy. It is important to understand how your 401k loan will be treated in your bankruptcy. First of all, a 401k loan is not considered a regular debt and will not be treated as any other creditor. In other words, a 401k is not dischargeable through bankruptcy and you will still have to repay it after your bankruptcy is completed. Additionally, in a Chapter 7 in which assets are available to be liquidated, your 401k loan would not receive any portion of the liquidated funds as a normal creditor would. In a Chapter 13, your 401k loan would not be part of your chapter 13 plan. However, you most likely will be allowed to still make payments towards the loan through automatic deductions on your paystubs. Continue reading →

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One thing people do not talk about when contemplating whether they should file a Chapter 13 Bankruptcy, is just how difficult being in a Chapter 13 Bankruptcy is going to be and how it is going to affect your day-to-day life. It is not only difficult because it requires a payment plan which will last three to five years, but it is going to be difficult to find extra money for unexpected expenses.

A Chapter 13 Plan requires you to pay all of your disposable income into your plan. What this translates to could be the following:

Based on the median income and median expense numbers for your state, the average household of 4 spends an average of $2,000.00 per month on rent/mortgage payments, food, gas, electricity, and all other necessary monthly expenses. Your monthly gross income is $4,000.00 per month when you file a Chapter 13 Bankruptcy. Luckily, you have a car payment of $400 per month, which you can use as a deduction on your MEANs test. In this scenario, you could potentially be paying well over $1,000 per month to your Trustee. This leaves barely any extra funds for any other expenses other than necessities. Not to mention anything that unexpectedly pops up such as a necessary home repair, or the need for new tires for your car. (It is important to note that your necessary monthly expenses are not based on what your family actually spends. It is based on what the average family of your size spends in your state.)

Another thing that makes being in a Chapter 13 Bankruptcy so difficult is that even funds received through an insurance payout might be subject to your bankruptcy estate. For example, if you get into a car accident and total your vehicle, the proceeds you receive from your insurance company or the party-at-fault’s insurance company might have to be turned over to your Trustee. Another example would be if you file a claim against your homeowner’s insurance policy. Those proceeds would be treated in the same way. Continue reading →

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Filing bankruptcy with assets can be very stressful. You want to know how filing for bankruptcy will affect those assets before you file so that there are no surprises. One type of asset that you might be concerned about is an investment property. Can you keep it if you file bankruptcy? Possibly, but most likely not without some consequences.

Chapter 7

A Chapter 7 Bankruptcy is a liquidation of your assets. If your investment property has any equity in it all, meaning it’s worth more than what you owe on it, then your Chapter 7 Trustee will most likely want to take possession of the property. The Trustee will sell it, and then distribute the proceeds of the sale to your creditors after first paying off all mortgages and liens.

If your property is upside down, meaning you owe more on it that it is worth, then your Trustee MIGHT not go after it because they would get little if anything from selling it. HOWEVER, since all of your assets are liquidated in a Chapter 7 Bankruptcy, your Trustee can still choose to take possession of the property and short sale it. This applies even if you elected to keep the property and reaffirm the mortgage on your bankruptcy schedules. Continue reading →

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rsz_underwaterhouse-150x150When Texas and Florida, along with several other states along the eastern seaboard of the United States, were hit by Hurricane Harvey and Hurricane Irma, many mortgage companies offered their borrowers who had been affected by these storms participation in a forbearance program. A forbearance program is where your mortgage company agrees to suspend your mortgage payments for a set period of time. Forbearance programs are usually good for borrowers who are going through a short-term financial situation. The forbearance of mortgage payments is meant to allow the borrower the time they need to get back on their feet and then recommence their regular mortgage payments. The idea behind the forbearance programs after the hurricanes was to allow homeowners time to repair or rebuild their homes that had been damaged by the storms.

Unfortunately, not all forbearance programs have reached their goal. What I have come to learn through the last several months as forbearance programs are coming to an end, is that some of these programs require the borrower to bring their mortgages current at the end of their forbearance period. This means that borrowers must make all missed mortgage payments at one time when their program ends. The issue that many borrowers who have chosen to take advantage of one of these programs is that they were not aware that they would have to make all of the payments at the end of the designated time period. By the time they learned they would be expected to pay their mortgage company all of the payments that were deferred through the forbearance program, it is far too late for them to prepare for such a large payment at one time. This has put many borrowers between a rock and hard place, because they are unable to bring their mortgages current. Continue reading →

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mediation-150x150When someone thinks of bankruptcy, one of the very first things that come to their mind is that they do not want to lose the property and assets they currently have. If you own property such as a home, vehicle, or any other property of value, you might automatically assume that bankruptcy is not an option for you because you will have to surrender your assets to your bankruptcy estate.

However, you will be happy and surprised to learn that a Chapter 13 Bankruptcy might present some very unique opportunities for you that you were not previously aware of. For those of you facing financial difficulties while owning an investment property you do not want to lose, a Chapter 13 Bankruptcy might be the perfect solution for you.

You will be happy to know that under Title 11 of the United States Bankruptcy Code, Section 1322(b)(1), you can cram down a mortgage on an investment property. Cram down essentially means that if your mortgage is more than the fair market value of your investment property, then you can lower the principle balance of your mortgage to match the fair market value or secured value of the property. Basically, you can modify the mortgage’s contract by changing the principal balance, interest rate, and term. AND… the creditor cannot object to it. Continue reading →

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Abby Lee Miller of the famous reality television show “Dance Moms” recently plead guilty to bankruptcy fraud and was sentenced to 1 year and 1 month in a federal prison to be followed by supervised release for another 2 years. Fraud is not something taken lightly by the federal court system and can have devastating and life changing consequences.

Fraud in bankruptcy can take a couple of different forms.

  1. When a debtor, the person who is filing for bankruptcy, tries to hide their assets in order to prevent losing them. When filing bankruptcy, you are provided certain exemptions that allow you to protect a portion of your assets. Any asset that is not protected by one of these exemptions can be taken from you by the trustee and then distributed to your creditors.
  2. When a debtor tries to bribe the bankruptcy trustee.
  3. When a debtor deliberately files falsified or incomplete bankruptcy forms in order to protect their assets from being seized by the trustee.
  4. When a debtor files for bankruptcy multiple times this can be viewed as an abuse of the right to file bankruptcy and enjoyment of the protections that bankruptcy affords. As soon as someone files for bankruptcy, an automatic stay is put into place that prevents any of their creditors from continuing to collect the debt that is owed to them. This is often seen when someone is facing foreclosure. The debtor files for bankruptcy on the eve of a foreclosure sale date with no intention of completing the bankruptcy. The intentions are to have more time in the home. The bankruptcy is later dismissed by the court because the forms are incomplete or because the debtor does not comply with the bankruptcy court, or the debtor dismisses the case themselves. Once the bankruptcy case has been dismissed and a foreclosure sale date has been reset, the debtor again files bankruptcy on the eve of the sale date with the same intentions as the prior bankruptcy. Some debtors do this over and over again, and this is an abuse of the bankruptcy system.

Continue reading →

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When you file bankruptcy all, if not most, of your debts are discharged, which means you are no longer responsible for them. A Reaffirmation Agreement is a brand new agreement or contract between you and your creditor in which you voluntarily choose to remain liable for the debt after you receive your bankruptcy discharge. The terms of the Reaffirmation Agreement are generally exactly the same as the terms of your original contract. There are two major types of debts that you most likely will have to sign a Reaffirmation Agreement for if you wish to keep the property secured by the debt. These two types of debts are car loans and mortgages.

Ok, so you filed bankruptcy. Your vehicle is financed and you believe that by filing bankruptcy it will be much easier to continue making your car payments. When you are contacted by the finance company about reaffirming the car loan, you do so without hesitation. However, a month or two into the reaffirmation agreement, you realize that it is still very difficult to make the monthly payments and decide it would be a better decision to surrender the vehicle and purchase a new vehicle with lower monthly payments. Can you change your mind and rescind the Reaffirmation Agreement? The answer is, as usual in the legal field, possibly and it depends. Continue reading →

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marriage-150x150One thought that many people think about when getting married, is what their future spouse’s credit history is and their ability to obtain new debt. A correlating question is how will their future spouse’s credit history affect their own ability to obtain new debt. Why? Because they most likely, one day in the future, would like to know they have the option to purchase a new home, motor vehicle, or simply just obtain new debt. It can become much more concerning if your future spouse has filed bankruptcy within the last few years. How will their bankruptcy affect your ability to obtain new debt? Unfortunately, there are a lot of factors that can affect the answer to this question. So, regrettably, the answer is that it will depend.

Most importantly, it is crucial to make note that the fact alone that your future spouse filed bankruptcy, regardless of when, is absolutely immaterial to your individual credit report. Your credit report will not merge with your future spouse’s credit report simply because you got married. You both will maintain separate and apart credit reports. In other words, your individual credit report will remain the same as it was before getting married. However, by being married, your spouse may have to sign certain types of contracts. Continue reading →

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When filing for bankruptcy, regardless of what chapter of bankruptcy you are filing, you must disclose in your Petition if you have any pending claims. In laymen’s terms, this means that if you have any reason to file a lawsuit against any person or entity, such as against a business because you slipped and fell while in their store, you must inform the Bankruptcy Court. The reason for this is any money you might be entitled to recover from said person or entity for any harm they caused you will most likely be considered a part of your bankruptcy estate and distributed to your creditors.

Properly disclosing a possible claim was recently considered by the Illinois Second District Appellate Court. Prior to filing bankruptcy, the Debtor in question was visiting a store. While in the store, another customer caused some of the store’s inventory to be knocked over, which then fell onto the Debtor. As a result, the Debtor was injured and later had to have surgery. Shortly after having surgery, the Debtor filed a Chapter 7 Bankruptcy and did not list any pending claims in his Bankruptcy Petition. However, the Debtor later amended his Bankruptcy Petition to include a possible pending claim for around $15,000.00. Continue reading →

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Protect_thumb-150x150The first and most important thing to keep in mind when trying to rent after filing bankruptcy is the fact that you having filed bankruptcy, in itself, is not going to completely inhibit you from finding an apartment or home to rent. Nonetheless, and of course, a potential landlord will take filing bankruptcy into account as well as the circumstances around your decision to file bankruptcy, as well as where you stand today.

Here are some other items your future landlord is going to look at, some of which might just completely overshadow the fact you ever filed bankruptcy.

Your Rental History

If you have a good rental history, in that you can show that you have always been on time with paying your rent and have not broken any of your leases with previous landlords, then your potential landlord should not be too concerned about the fact you filed bankruptcy. Continue reading →

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