WHAT IS BANKRUPTCY? - ATTORNEY IN HACKENSACK NEW JERSEY (201) 646-3333

 1. What is Bankruptcy?

Bankruptcy is a legal proceeding in which an individual who cannot pay his or her bills can get a fresh financial start. The right to file for bankruptcy is provided by federal law, and all bankruptcy cases are handled in federal court. Filing bankruptcy immediately stops all of your creditors from seeking to collect debts from you, at least until your debts are sorted out according to the law.

2. What Can Bankruptcy Do for Me?

Bankruptcy may make it possible for you to:

- Eliminate the legal obligation to pay most or all of your debts. This is called a “discharge” of debts. It is designed to give you a fresh financial start. 

- Stop foreclosure on your house or mobile home and allow you an opportunity to catch up on missed payments. (Bankruptcy does not, however, automatically eliminate mortgages and other liens on your property without payment.)

- Prevent repossession of a car or other property, or force the creditor to return property even after it has been repossessed.

- Stop wage garnishment, debt collection harassment, and similar creditor actions to collect a debt.

- Restore or prevent termination of utility service.

- Allow you to challenge the claims of creditors who have committed fraud or who are otherwise trying to collect more than you really owe.

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3. How can I get a copy of a bankruptcy filing?

The federal judiciary proves public access to federal appellate, district and bankruptcy court documents through Public Access to Court Electronic Records (PACER), an electronic public access service.

4. What Doesn’t Bankruptcy Do?

Bankruptcy cannot, however, cure every financial problem. Nor is it the right step for every individual. In bankruptcy, it is usually not possible to:

- Eliminate certain rights of “secured” creditors. A “secured” creditor has taken a mortgage or other lien on property as collateral for the loan. Common examples are car loans and home mortgages. You can force secured creditors to take payments over time in the bankruptcy process and bankruptcy can eliminate your obligation to pay any additional money if your property is taken. Nevertheless, you generally cannot keep the collateral unless you continue to pay the debt

- Discharge types of debts singled out by the bankruptcy law for special treatment, such as child support, alimony, certain other debts related to divorce, some student loans, court restitution orders, criminal fines, and some taxes. 

- Protect cosigners on your debts. When a relative or friend has co-signed a loan, and the consumer discharges the loan in bankruptcy, the cosigner may still have to repay all or part of the loan.- Discharge debts that arise after bankruptcy has been filed.

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5. How often can I file bankruptcy?

You cannot receive a discharge in a Chapter 7 case if you received a discharge under a Chapter 7 case filed in the last eight years or a Chapter 13 filed in the last six years.  You cannot receive a discharge in a Chapter 13 case if you received a discharge under a Chapter 7 case filed in the last four years or a Chapter 13 filed in the last two years.  If didn’t received a discharge in the previous bankruptcy filing, depending on why this is the case, you can file and receive a discharge without any time restrictions.

CHAPTER 13 BANKRUPTCY - LAWYER IN HACKENSACK NEW JERSEY (201) 646-3333

 

 Chapter 13 - Bankruptcy Basics

This chapter of the Bankruptcy Code provides for adjustment of debts of an individual with regular income. Chapter 13 allows a debtor to keep property and pay debts over time, usually three to five years.

Background

A chapter 13 bankruptcy is also called a wage earner's plan. It enables individuals with regular income to develop a plan to repay all or part of their debts. Under this chapter, debtors propose a repayment plan to make installments to creditors over three to five years. If the debtor's current monthly income is less than the applicable state median, the plan will be for three years unless the court approves a longer period "for cause." (1) If the debtor's current monthly income is greater than the applicable state median, the plan generally must be for five years. In no case may a plan provide for payments over a period longer than five years. 11 U.S.C. § 1322(d). During this time the law forbids creditors from starting or continuing collection efforts.

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This chapter discusses six aspects of a chapter 13 proceeding: the advantages of choosing chapter 13, the chapter 13 eligibility requirements, how a chapter 13 proceeding works, making the plan work, and the special chapter 13 discharge.

Advantages of Chapter 13

Chapter 13 offers individuals a number of advantages over liquidation under chapter 7. Perhaps most significantly, chapter 13 offers individuals an opportunity to save their homes from foreclosure. By filing under this chapter, individuals can stop foreclosure proceedings and may cure delinquent mortgage payments over time. Nevertheless, they must still make all mortgage payments that come due during the chapter 13 plan on time. Another advantage of chapter 13 is that it allows individuals to reschedule secured debts (other than a mortgage for their primary residence) and extend them over the life of the chapter 13 plan. Doing this may lower the payments. Chapter 13 also has a special provision that protects third parties who are liable with the debtor on "consumer debts." This provision may protect co-signers. Finally, chapter 13 acts like a consolidation loan under which the individual makes the plan payments to a chapter 13 trustee who then distributes payments to creditors. Individuals will have no direct contact with creditors while under chapter 13 protection.

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WHAT SHOULD I EXPECT FROM A BANKRUPTCY ATTORNEY? - ATTORNEY IN HACKENSACK NJ (201) 646-3333

 

What Should I Expect from a Bankruptcy Attorney?

Bankruptcy, like most legal matters, is a process and the safest route is to have an attorney guide you through the process if you want to succeed.

A good bankruptcy attorney will give you peace of mind if they provide at least these four things:

• An initial consultation to get an overview of your case
• Advice on options available, including what type of bankruptcy to file
• Completed paperwork necessary for filing bankruptcy
• Representation when the case goes to court

The bankruptcy process begins with a 30-60 minute interview between you and a lawyer. If you are married, both of you should attend so that all questions can be answered honestly and accurately.

Making guesses about how much you owe and who you owe it to is not a good idea. The attorney will want some paperwork that backs up your answers on how many assets you have and how much you owe. Don’t hold anything back if you want an honest and accurate assessment of your situation.

When the attorney has enough documented evidence to evaluate your case, he should offer advice on how to proceed. A good attorney does not always recommend filing bankruptcy. It’s possible your problem could be resolved through less drastic means like debt settlement or maybe even a debt management program.

If your decision is to file bankruptcy, the next thing to expect from an attorney is filing paperwork with the court. Remember that the attorney is there to protect as many of your assets as he/she can, so chime in on what is most important to you.

Then, there is the matter of appearing before a judge. The lawyer should be experienced enough to give judges convincing evidence that you made some mistakes, have learned your lesson and will do much better financially if the judge will give you a second chance. This often is no problem in a Chapter 7 bankruptcy, but can get tricky in Chapter 13 when the lawyer must lay out a plausible payment plan that you can complete in less than five years.

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Do I Need a Bankruptcy Attorney?

Consumers may choose whether to hire an attorney or represent themselves in filing bankruptcy, but as the numbers cited above from the American Bankruptcy Institute clearly demonstrate, hiring an attorney is a huge advantage.

The math on this subject is overwhelming:

• Only one in 25 consumers using an attorney loses a case when filing Chapter 7. One out of three who files on their own, loses in Chapter 7 cases.
• Only about one in 50 consumers filing for themselves in Chapter 13, wins a case. Hire a lawyer and your chance for success is better than four-out-of-10.

The reasons are fairly obvious. Bankruptcy is a complex subject. Creditors want to get paid by consumers who say they don’t have the money. Lawyers on both sides are trying to convince judges that their client is right.

If you are not experienced in filing legal documents or arguing your case persuasively, you could lose on ridiculously simple mistakes. An experienced attorney knows what papers must be filed and what deadlines must be met. An experienced attorney knows the judges involved and what arguments they must make to get the result.

That is why hiring an attorney has so much higher a success rate that attempts to file on your own.

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CREDIT COUNSELING CLASSES - BANKRUPTCY LAWYER IN HACKENSACK NJ (201) 646-3333

Credit Counseling Classes

HACKENSACK BANKRUPTCY LAWYER (201) 646-3333

Credit counseling is a crucial part of any bankruptcy case. In fact, it is required that you complete a briefing with a certified credit counseling agency that has been approved by the U.S. Trustee’s Office. Since October of 2005 this requirement has been in place, and a failure to complete credit counseling within 180 days prior to filing may result in the rejection or dismissal of your Chapter 7 or Chapter 13 bankruptcy case. After you complete your credit counseling course, you will receive a certificate of completion that must be filed with your bankruptcy petition.

The average cost for a credit counseling course is approximately $50, but the exact cost may vary depending upon what type of session you undergo and where you live. This briefing may be completed in person, over the phone or online. The basic steps of the briefing will usually include an evaluation of your finances, a personal budget plan and the discussion of alternatives to bankruptcy, if any.

Generally speaking, there are very few exceptions to the requirement that a debtor complete a credit counseling course prior to filing for bankruptcy. Bankruptcy court judges have little to no authority to waive this requirement, so it is important that you discuss this with your attorney prior to filing. A dismissed bankruptcy case may result in your being unable to file for a certain period of time.

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BERGEN COUNTY NJ BANKRUPTCY - (201) 646-3333

 

Considering Filing for Bankruptcy?

(201) 646-3333

HACKENSACK BANKRUPTCY LAWYER

 

With the economy in its current state, hearing that people are struggling with debt is, sadly, not as uncommon as one would like to hear. Too many people find themselves slipping further and further down the slippery slope, caught between the fast paced world that we live in and the simultaneous culture of plastic money and wanting more. Credit card companies are of no help either, as at the end of the day they are only concerned with making a profit, not helping you get your feet back underneath you to successfully move forward with your life.

If you are currently facing a situation similar to this, it is in your best interest to talk to an experienced  New Jersey bankruptcy lawyer about the possibility of filing for bankruptcy. By talking to someone knowledgeable about this process, you can have your questions answered; questions about bankruptcy warnings signs, if you qualify, what chapter is right for you, the bankruptcy benefits, exemptions, what you will lose and the types of debts that can be eliminated. Bankruptcy can be a terrifying, confusing process to try and take on, but with the proper guidance, you have no reason to fear it. It can merely be a way for you to move forward into the next chapter in your life.

 

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Why Hire a Bankruptcy Lawyer?

 

At the law firm of Rafael Gomez, we understand the questions and concerns you will have if you are considering filing for bankruptcy. We know that it appears complex and the ideas of Chapter 7, and Chapter 13 may appear foreign and overwhelming. There, are, however many things that you can do to help yourself. By closely working with your case, and giving you the undivided personal attention that you deserve, you can breathe easier knowing that you are dealing with someone devoted to getting you to the optimum outcome. No matter if you are concerned with credit card debt or life after bankruptcy, we will be here to help you.

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If you are currently considering filing for bankruptcy, contact Rafael Gomez by calling (201) 646-3333.

RELIEF FROM STAY IN CHAPTER 13 - ATTORNEY IN HACKENSACK (201)-646-3333

Relief from stay in Chapter 13

ATTORNEY IN HACKENSACK (201)-646-3333

A secured creditor of a debtor in Chapter 13 (except a creditor secured only by a lien on real property used as the debtor's principal residence) faces the prospect of a repayment plan forced upon it if the bankruptcy court confirms the debtor's plan. Confirmation usually follows the filing of a petition by fewer than six months. Thus, unless the secured creditor is concerned about uninsured property having significant value, or unless the secured creditor seriously doubts the likelihood of prompt confirmation of a plan, the expense of seeking relief from stay may not justify the benefit. Moreover, as suggested by In re Radden, it may be difficult for the secured creditor to prevail on a motion seeking relief from stay.

     As in a Chapter 7 case, a secured creditor with a consensual lien on a Chapter 13 debtor's residence will often seek relief from stay in order to foreclose if the debtor is in arrears on mortgage payments and if it appears unlikely that the debtor will be able to fund a plan that both cures arrearages and maintains ongoing mortgage payments.

A bankruptcy petition, once it is filed, immediately operates as an automatic stay, holding in abeyance various forms of creditor action against the debtor. Automatic stay provisions work to protect the debtor against certain actions from the creditor, including: (1) beginning or continuing judicial proceedings against the debtor, (2) actions to obtain debtor's property, (3) actions to create, perfect or enforce a lien against a debtor's property, and (4) set-off of indebtedness owed to the debtor before commencement of the bankruptcy proceeding.

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A court may give a creditor relief from the stay if the creditor can show that the stay does not give the creditor "adequate protection" or if it jeopardizes the creditor's interest in certain property. The court may give relief to the creditor in the form of periodic cash payments or an additional or replacement lien on the property.

Concerned that debtors may exploit some of the advantages of automatic stay provisions, Congress provided some relief to certain creditors, such as those creditors who have a secured interest in a single real estate asset, from the automatic stay in 1994. Congress required such debtors to either file a plan that has a reasonable chance of being accepted within a reasonable amount time or to make to each such secured creditor monthly payments in the amount equal to interest at a current fair market rate on the value of the creditor's real estate.

Also in 2005, Congress added two more exceptions to the automatic stay provisions. These exceptions concern landlords seeking to evict tenants. First, any eviction proceedings in which the landlord obtained a judgment of possession prior to the filing of the bankruptcy petition may be continued. Second, eviction proceedings filed after bankruptcy proceedings are exempt from the automatic stay if they involve evicting the tenant on the basis of using illegal substances or "endangerment" of the property.

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Pursuant to the new provisions of BACPA, certain restrictions were added to section 362 as to the automatic stay. If the debtor had a case dismissed in a case pending during the year before the bankruptcy case was filed, the automatic stay will expire to a certain extent unless the debtor obtains an order extending it within one month. If the debtor had two cases pending in the year prior to filing, the automatic stay does not go into effect unless the debtor files a motion.

WHAT IS THE AUTOMATIC STAY? - HACKENSACK BANKRUPTCY LAWYER (201)-646-3333

What Is The Automatic Stay?

HACKENSACK BANKRUPTCY LAWYER (201)-646-3333

In bankruptcy law, an automatic stay is an automatic injunction that halts actions by creditors, with certain exceptions, to collect debts from a debtor who has declared bankruptcy. Under section 362 of the United States Bankruptcy Code, 11 U.S.C. § 362, the stay begins at the moment the bankruptcy petition is filed. Secured creditors may, however, petition the bankruptcy court for relief from the automatic stay upon a showing of cause. As noted in a Senate Report:

The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors, stopping all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him into bankruptcy.

Notes of Committee on the Judiciary, Senate Report No. 95-989.

For example: a creditor with a claim that arose before commencement of the bankruptcy case cannot contact the debtor requesting or demanding payment, cannot request from the debtor security for existing unsecured or undersecured debt, cannot initiate a lawsuit against the debtor or pursue litigation activities in a pending lawsuit against the debtor, cannot attempt to enforce a judgment against the debtor and must act to stop enforcement activities that are already in motion (e.g. notify a sheriff to stop a wage garnishment or to refrain from a scheduled execution sale), cannot perfect a lien against property of the estate, cannot repossess collateral that is property of the estate, and cannot initiate or pursue non-judicial or judicial foreclosure against property of the estate.

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This debtor protection is truly automatic. No hearing is held, no judge's signature required. It is invoked simply by the stamp of the bankruptcy clerk's time clock when a petition is presented for filing. Creditors are bound by the automatic stay even before they know of it, but sanctions attend only wilful violations (see Bankr. Code 362(h)).

     There are some exceptions to the automatic stay (see Bankr. Code 362(b)) and the stay does not preclude a creditor from taking action against any entity other than the debtor (e.g. a co-debtor, guarantor, or insurer).

     The automatic stay is temporary. It terminates automatically upon the occurrence of specified events (see Bankr. Code 362(c)). Also, upon an appropriate showing in a noticed hearing in bankruptcy court, creditors may obtain relief from the stay that either annuls, terminates, or modifies the stay, or conditions continuance of the stay upon certain events, such as interim payments by the debtor to the secured creditor (see Bankr. Code 362(d) and Bankr. Code 361). A secured creditor may seek relief from the stay in order to pursue its state law rights against the collateral or may seek relief from the stay as a way to force a debtor to make interim payments to the secured creditor as a condition to the stay remaining in effect. 

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Relief from stay in a consumer Chapter 7

     Creditors secured by liens on personal property do not often seek relief from the automatic stay in a consumer Chapter 7 case.  With respect to much of the collateral securing debt in a consumer Chapter 7 case - - an automobile, household furnishings, or jewelry - - other solutions are common: (1) the debtor continues payments of the secured debt, uninterrupted by the filing of the bankruptcy petition; or, (2) the debtor reaffirms the secured debt and begins making payments under the reaffirmation agreement; or, (3) the debtor redeems collateral from the lien; or, (4) the debtor surrenders the collateral to the secured creditor.  If the debtor does none of the above, the creditor may simply wait until the grant of discharge and then pursue its state law remedies against the collateral.

     A secured creditor of a Chapter 7 debtor is most likely to seek relief from stay and not await automatic termination of the stay in three situations:

     (1) When property of significant value, such as an automobile, is uninsured or is otherwise subject to unacceptable risk;

     (2) When property of significant value, such as an automobile, is depreciating rapidly and the creditor has reason to believe that the debtor will not promptly surrender the collateral, reaffirm the debt secured by the collateral, or redeem the collateral from the lien;

     (3) When the creditor holds a consensual lien on a debtor's residence and the debtor has defaulted on mortgage payments and appears unable to maintain continuing mortgage payments or promptly cure arrearages. 

PROS AND CONS OF FILLING BANKRUPTCY - ATTORNEY IN HACKENSACK

CONTINUATION..

The disadvantages  of bankruptcy

Despite  all of the advantages that bankruptcy may provide, there are many valid reasons  for choosing not to file a petition. Some of these concern problems in the  cases of particular debtors; others relate simply to the fact that bankruptcy  is not the only means to address the debtor's legal problems and may not be  necessary.

Loss of property

One consequence of a Chapter 7 bankruptcy is the loss of nonexempt property or  its value in cash. This is not a problem for many debtors because consumer  debtors rarely have any nonexempt property. Except in those few states that  have low exemptions and have passed laws making the federal bankruptcy  exemptions unavailable to their residents, the amount of property a debtor is  allowed to keep is generous enough to protect the property of most  nonhomeowners and many homeowners. As of 2011 (these figures change periodically) only debtors with equity of substantially  more than $21,000 per debtor in a home, $3,225 in a car or $10,775 in household  goods and certain other property are likely to have problems under the federal  exemptions. Even in those cases, a Chapter 13 bankruptcy often presents a  viable alternative through which debtors may retain all of their possessions.

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Effect on credit and reputation

A bankruptcy will be part of a debtor's credit history for as long as the law  allows, that is, 10 years under the Fair Credit Reporting Act. This means that  anyone who requests a credit report will be informed of the bankruptcy filing.  The effect this will have on future credit cannot be predicted, but it is an  understandable concern of many people who are considering bankruptcy.

There is no definite response to this concern. However, debtors who owe  substantial amounts, especially if they are in default, already have poor  credit ratings. In the eyes of some creditors, a bankruptcy that wipes the  slate clean will be an improvement. Not only will the potential customer be  free of other financial obligations, but he or she will also be unable to  obtain a Chapter 7 discharge for another eight years in most cases. For these  reasons, some creditors have been known to actively solicit recent bankruptcy  debtors.

As bankruptcy has become more prevalent in the United States, creditors have  increasingly considered it only one factor in their decision about granting  credit, and most have chosen not to automatically exclude the ever-growing  number of people who have filed a bankruptcy case. Even mortgage lenders are  often willing to disregard a bankruptcy that is more than a few years old.

Bankruptcy's effect on a debtor's reputation in the community is almost always  imperceptible. In a small town, however, especially if debts are owed to local  people, the stigma of bankruptcy cannot be entirely discounted. The potential  harm can only be evaluated locally, on a case-by-case basis, and weighed  against the advantages that bankruptcy offers. Again, the possibility of  voluntarily paying selected debts should not be overlooked if it would  ameliorate the problem.

Possible discrimination after bankruptcy

Closely related to the problem of reputation is that of discrimination against  debtors who have filed bankruptcy cases. To a large extent, the Bankruptcy Code  alleviates this problem.

Government bodies generally may not discriminate on the basis of a bankruptcy  or because of a debt discharged in bankruptcy. Thus, a housing authority or  grantor of government assistance benefits cannot deny benefits to a person  based on previously discharged debts. Similarly, utilities may not deny service  based on a bankruptcy or discharged debts, though they may demand a security  deposit for continued service. Private employers may not discriminate with  respect to employment or terminate employment based on bankruptcy or discharged  debts. Debtors can rest assured that the law protects them in this regard and  that they will be able to enforce their rights in court, if necessary.

However, the distinction between discrimination based on bankruptcy or  discharged debts and discrimination based on future financial responsibility  should be clearly understood. That is, even creditors who are precluded from  discrimination based on bankruptcy may refuse new credit or other services if  the refusal is properly based on other considerations.

The law regarding discrimination by other private entities, such as creditors  who provide essential services, is not as clear. It should be pointed out that  this type of discrimination is extremely rare, especially in urban areas where  many providers of goods and services are available. It would be most likely to  occur in a small town, where only one merchant offered a particular product or  service. In that case, if it could be shown that later discrimination was a  prohibited attempt to coerce payment of the debt, the debtor could go to court  to seek damages because the creditor violated the bankruptcy laws.

Again, the situation can best be assessed locally, on a case-by-case basis.  Discrimination against debtors who have filed bankruptcy cases is normally not  a problem, but if a debtor is in doubt, he or she should consult an experienced  bankruptcy attorney.

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Cost of filing a petition

Besides any attorneys' fee, which are reasonable in the Law Firm of Rafael Gomez, bankruptcy  carries an out-of-pocket cost of at least $284-$299 for the court fees and fees  for a prebankruptcy credit counseling briefing and a credit education course  requierd after the case is filed. Other fees may raise this figure somewhat. In a Chapter  13 case, for example, the trustee is usually entitled to a commission of up to  10 percent of the payments made through the plan. In some cases, various  utilities may require security deposits to ensure continued service.

These costs, like the less tangible costs, must be weighed when deciding  whether to file a bankruptcy case. Where the debts are not large or  troublesome, it may simply not be worthwhile to spend the amount necessary to  eliminate them.

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Failure to solve the underlying problem

In some cases, bankruptcy is simply the wrong tool to use, and none of the  advantages will be realized. One such situation is that of the debtor whose  debts are fully secured by security interests or other liens on property that  cannot be impaired through bankruptcy and who does not have sufficient income  to remedy a default even with all of the help bankruptcy provides. Unless there  is some advantage to litigating in bankruptcy court, bankruptcy will not solve  this debtor's basic problems. At most, it may discharge the debtor's personal  liability for the debts and gain the advantage of the automatic stay for a  month or more. Although in some cases this could be worthwhile, in most it will  not ultimately benefit the debtor.

The problem of debtors in this predicament is often that their current expenses  exceed their income. Because bankruptcy (except for Chapter 13's ability to  stretch out or reduce certain types of short-term expenses) basically deals  with assets and liabilities, it does not address this problem directly in most  cases.

The opposite situation can also sometimes cause problems. If a debtor has  substantial and valuable nonliened property that cannot be exempted, a  premature bankruptcy will generally hasten property loss rather than prevent  it. Because unsecured creditors must sue the debtor to obtain judgment liens or  levies on the debtor's property, loss of the property outside bankruptcy may be  quite slow. On the other hand, liquidation of nonexempt property generally  occurs quickly in the bankruptcy process. And, because unsecured creditors are  entitled to the present value of nonexempt property in Chapter 13, a case under  that chapter would be quite costly. In this situation, the best option is  probably to wait at least until execution on the property appears imminent,  unless the debtor can afford the necessary Chapter 13 case.

Some debtors may be barred altogether from filing a bankruptcy for some period  of time. An individual cannot file if he or she had a previous bankruptcy case  dismissed in the past 180 days and the dismissal was (1) for willful failure to  abide by court orders or to appear in court in proper prosecution of the case  or (2) a voluntary dismissal following a request for relief from the automatic  stay of section 362 of the Code.

Finally, some debtors may stand to gain little from a Chapter 7 bankruptcy  because they cannot receive a discharge due to a prior bankruptcy. For these  people, the prospect is somewhat brighter. In most cases, a Chapter 13 case can  still provide significant relief.