I highly recommend this great article in the New York Times about bankruptcy and the elderly. Everyone should understand the issues related to protecting your own or your parents’ hard earned retirement funds when faced with a financial crisis.
According to an article in the New York Times, Bank of America and JP Morgan Chase are finally agreeing to properly identify debts that were discharged in bankruptcy.
Ten years after the passage of the “new” bankruptcy law we find a new class of Americans “the permanently insolvent”. You won’t find reference to this group in any financial magazine. But, hundreds of thousands of Americans are in a position of being hounded mercilessly by debt collectors, but unable to afford to file for […]
Housing counselors can provide advice on buying a home, renting, defaults, foreclosures, and credit issues. Advice from housing counselors can be provided at little or no cost to consumers.
Why is this “ground breaking”? This is the first time that payment processors are held to the same standard of responsibility as the debt collectors.
According to Bloomberg News: Fannie Mae will begin bulk auctions of mortgages, including some sales targeted for non-profit groups and small investors, as Fannie Mae moves to reduce the number of non-performing loans “sour mortgages” on its books.
This page is for individuals; if you would like to learn about a bankruptcy for a business please follow this link.
Welcome back. This next stage will take you through entering data (on-line), meeting with me (twice) and preparing for filing your bankruptcy.
There is a great deal of commitment in helping a client navigate the bankruptcy process. Each of our clients receive individualized attention, with a focus on their unique needs. I promised you earlier that we are here to help you. I also promised that our firm is not a bankruptcy “mill” because we feel you deserve better than to be treated like cattle headed down a chute. I also mentioned that it is very rare for one person’s financial and life circumstances to be the same as another. I customize my legal advice in order to respect your unique history, needs and wants.
Everything takes planning in order to avoid unnecessary surprises.
Taking time to plan a bankruptcy is an absolute necessity. No one should ever file a bankruptcy without looking at the big picture. There is far too much is at stake – like losing your tax refunds, surrendering a vehicle you need or asking mom to give back the money you just repaid her. Sometimes our clients need to move forward quickly due to a foreclosure or garnishment. We try to accommodate those needs, but all of these issues must be balanced in such way that you understand possible consequences.
The information that you are now going to provide me will help to paint an accurate and detailed picture. Make notes of any questions. You will have several opportunities to ask questions or make corrections. Remember – you are not on your own. Instead, we are your guide as you traverse this rocky mountain called “bankruptcy”.
Now that we talked what should you do next?
Obtain credit reports from all 3 reporting agencies. If you are married obtain credit reports for each spouse. Here is a link to your free annual credit reports at Annual Credit Report. Why free? – The federal law requires that every Arizona resident be able to obtain a free annual credit report from each of the three credit reporting companies.
Do your best to obtain these credit reports (all three for each spouse) in order to fill out the Online Asset and Debtor Information (see below) completely. The law requires that you list every creditor address on every piece of mail received in the last 90 days before filing a bankruptcy. There are creditor addresses on both the front and back of each statement/bill. These credit reports are intended to supplement, not replace the demands and statements that you have recently received from your creditors/collection companies.
After your free telephone conference Diane sent you an invitation to enter data to a secure on-line portal: www.MyCaseInfo.com. Please call us if you cannot find that invitation. MyCaseInfo is a secure site and only our firm will receive your financial information.
STOP AND READ: Before going any further print and read Instructions for Entering Data on MyCaseInfo. There is a lot of work to do this properly and these instructions will make your work much easier. Please call Jay (602-246-7106) if you still have questions after reading the instructions. This information becomes the foundation for your entire bankruptcy.
You and I will go over all the information during our in-person appointments. When your bankruptcy is filed you will be asked to swear under oath that the information in your documents is complete and accurate. I want you to be very comfortable with this affirmation. Now you can see why it is very important to commit the time and effort now so as to avoid complications later.
Congress requires that you take a credit counseling class before filing bankruptcy. If you are married and filing together then both of you must take on-line course.
1) Abacus Counseling – http://www.abacuscc.org/
a. The cost is $25 to $35 – good report from other clients)
2) Start Fresh Today: https://www.startfreshtoday.com
a. Online and telephone consultations available
b. Prices for household advertised to be the “lowest”
3) Access Counseling – www.accesscounselinginc.org
a. The cost is $15 to $25. (Note – one client was very unhappy with this company.)
Note from Diane: Please let me know immediately if you have any problems with the providers I suggested. Always confirm the provider is approved by the US Trustee’s Office. Several non-approved providers are preying on naive folks charging for unapproved services.
NOTE: The credit counseling course certificate is good for only 6 months so please do not take it until you are ready to meet with me and ready to file your bankruptcy.
Other options for providers are: CINgroup, GreenPath, DebtHelper and DECAF.
Beware of offers from fraudulent educational services. They must be approved by the US Trustee’s Office.
Note: Dave Ramsey provides some very good materials and links:
Please give us a call at 602.246.7106 to confirm we received notice that you completed the on-line intake process. Diane will call to schedule your first meeting and e-mail a list of items to bring to your meeting. The following is an advanced look at that list:
As a favor to us:
Thank you for your courtesy.
LIST OF ALL STEPS FOR THE ENTIRE BANKRUPTCY PROCESS FROM BEGINNING TO END
Please Note:
The information in this web site is not intended to constitute legal advice or to create an attorney-client relationship. It is also important to note that the information contained in this article may be outdated.
It is very important that you obtain legal advice from an experienced bankruptcy attorney regarding your particular situation. Consultation before you take action will certainly cost you less than what it will cost to fix your unintentional errors.
The following is an excellent article by another attorney. I like to give credit where credit is due – so I offer to you Mr. Blades insights. These also are true for Arizona residents.
Written by Rock Hill Bankruptcy Lawyer, Showell Blades
A client who has a good bankruptcy lawyer usually has a calm experience once the case is filed. The idea is to, as my mentor explained to me twenty years ago, disclose everything and fly under the radar. You do not want to do anything which draws unnecessary attention to your file or your fact situation so that your creditors or the United States Trustee’s office decides to take a closer look at the file. Even if nothing comes of that closer look, the process can be stressful for the clients.
Recently I had a woman storm out of my Rock Hill bankruptcy office after a free thirty-minute consultation which she ended by calling me an unpleasant orifice. My crime: I told her she had to wait four months to file bankruptcy and she wanted to file right then. She would best be served by remembering Ovid’s quote: “Bear patiently with a rival.”
The reason a client with a good bankruptcy attorney usually has a calm experience once the case is filed is because that attorney knows of the pitfalls that can come from taking simple actions, or by not taking them, before the case is filed. If all the bases are covered properly, there is nothing for anyone to scrutinize, or the client is at least prepared for those items which will come under closer scrutiny.
Be advised: the bankruptcy system can be a system where you encounter strong, well-funded and well-prepared rivals. Ovid’s advice can come in handy.
First, Debtors need to make sure that they do not have any deposits in any banks to which they owe money, whether in the form of CDs, checking or savings accounts, or other forms of deposits. This is because a bank has the right of setoff. If you file bankruptcy and owe a bank any money, then that bank has the right to administratively freeze the account and take the funds to pay the loan which you are not likely to pay in bankruptcy. For that reason, most good bankruptcy attorneys will make sure that you move your accounts to which you owe no funds so that you do not file bankruptcy and have your checking account frozen and all of the money that you would have going to pay bills that month disappear. You will not get it back. Also, keep in mind that many clients have automatic payroll deposits which need to be moved and drafts to pay important things like life and health insurance which need to be moved (both of which often take thirty days to change) .
Second, your attorney will ask you to whom you’ve paid payments on debts within the ninety days prior to filing bankruptcy and to whom you’ve paid payments on debts within the one year prior to filing bankruptcy if the lender was a family member. Take time to think about your answers. If you say “No one” and the bankruptcy trustee finds out that you have, then you have not told the truth which means you’ve committed at least three federal crimes. Additionally, any payment on a debt which qualifies as one of the above payment can be taken back by the trustee (preferential treatment) and given to the rest of your creditors. In other words, if you gave Aunt Zelda the $15,000 you owed her eight months ago and then you file bankruptcy, your bankruptcy trustee can sue Aunt Zelda to get all of the money back and will win causing her great concern because she probably doesn’t have it. Christmas will never be the same.
Also, if you paid the four mortgage payments you were behind all at once a month before you file bankruptcy and do not wait ninety-one days after that check clears, then the trustee may be able to get all of that money back from the mortgage company. You would find yourself in bankruptcy and still four mortgage payments behind which could put you in foreclosure. Tell your attorney about these things and expect to have to wait to file bankruptcy.
Third, if you are remotely thinking about filing bankruptcy or feel overwhelmed, but you have a 401(k) or IRA or a similar investment vehicle, and are thinking about solving your problems by cashing it in, DON’T. Go talk to a bankruptcy attorney and get some advice. This is for several reasons. Initially, you need to understand that your creditors cannot take that investment from you no matter how broke you are. It is exempt, protected from the reach of creditors or the bankruptcy trustee. So leave it alone. Don’t cave to the creditors’ threats and take what may be your last or only safe asset.
Another reason to consider disposing of this asset very carefully is this: I cannot tell you how many people I have seen who have cashed in their 401(k) and paid their credit cards down only to find themselves overwhelmed and now without their 401(k) still needing to file bankruptcy. Get advice before you try to pay off your debts with your 401(k). The only way I would advise that would be if you could pay off all of your debts in full, be able to handle any tax ramifications of cashing it in early, and be able to make it on your family budget after the debts are gone so that you do not find yourself upside down very soon so that cashing in the 401(k) was a waste.
Finally, if you cash in your 401(k) within the six months prior to filing bankruptcy, this could cause you to fail the Means Test. This is one of the things that the Court looks at to see if you qualify for bankruptcy and, if so, which type and what a payment would be if you filed a chapter 13. (This reason MAY have been negated by a Supreme Court decision that came out this week, but I wouldn’t want to be the first person to try to make sure of that). So talk to your attorney before you do it.
A fourth trap for the unwary is to renew loans or taking out loans prior to filing bankruptcy. You need to tell your attorney what you’ve done with your credit in the last six months or so. This is because creditors have the right to object to your discharging, or getting rid of, their debts. There are a number of reasons creditors can use to do this but one of them involves your borrowing money right before you file bankruptcy. What IS “right before filing bankruptcy” is not defined. I have had a creditor object to charges that were made four and a half months prior to my client filing bankruptcy. If this happens you have to pay me extra money to defend that lawsuit or you have to settle it by paying back the creditor. It can be avoided by figuring out when you last used credit, telling your attorney, and waiting to file. Renewals of loans before filing count also.
The fifth and final trap involves not making sure you know what your assets (your property) is worth. Your attorney is going to be asking you all kinds of questions. Many of them deal with the value of your house, your cars, your furniture, antiques, an other property. The Court expects you to know what they are worth. If you do not it could have bad results for you for several reasons.
Most of the reasons involve the trustee’s selling your stuff because he can make money by selling them, paying off the liens on them, paying you your share of the money (your exemption) and, if he still can make more money after all of that, it is his to use pay to your creditors. If you make sure that you have an accurate value for your assets, then it will be close to what a trustee could get by selling them and your attorney can claim the correct exemptions and protect your assets. Since sometimes you have to make choices about what you want to protect and what you don’t, knowing a good value is important.
Also, a recent U.S. Supreme Court opinion (“Schwab” exemption case) says that, if a debtor undervalued his assets when he claimed his exemptions and a trustee can sell them for more, the Debtor cannot get the money that the trustee made over the debtor’s exemption amount even if he could have claimed more but did not. Thus, you need to know the value so you can claim the full amount of protection.
Another reason value is important is that, in some cases, if your collateral is worth less than you owe, you can pay the value of the collateral to the creditor and not the larger amount that you owe. If you undervalue your stuff and file a motion to value and the property turns out to be worth close to what you owe, then you wasted everyone’s time and you and your attorney look stupid.
Finally, if you undervalue your assets and they turn out to be worth significantly more, not only could you lose them but you could find yourself being criminally prosecuted for bankruptcy fraud. This could happen even if you did not intentionally undervalue them; rather, you were too lazy or irresponsible to try to find out a good value. Debtors have the burden of investigating their affairs and reporting everything truthfully and completely to the Court.
In summary, there are many considerations which must be addressed before you file bankruptcy. Attorneys know that everyone who needs to file bankruptcy wants it done as soon as possible. However, it also is their job to help Debtors make the best decisions. Debtors must understand that sometimes they must fully apprise their attorneys of the facts and think about what they are telling their attorneys (and of what their attorneys are telling them). They also need to understand that, sometimes, they are going to have to be patient before they enter Bankruptcy World because the wolves are at the door.
Many people ask whether or not a student loan company or SBA creditor can garnish their wages without first obtaining a court order. The answer is “yes”.
