Chapter 7 & Chapter 13 Consumer Bankruptcy:
There are many reasons for financial difficulties, such as loss of a job, death of a breadwinner or too many credit card purchases. Money problems can be emotionally wrenching and seriously damage family relations.
However disturbing the idea of bankruptcy might initially seem, in fact, bankruptcy laws are there to help those who are unable to pay their bills. Once the required credit counseling from an approved United States Trustee agency is completed, the firm can advise you whether you should file under Chapter 7 or Chapter 13 Bankruptcy.
The filing of a Chapter 7 bankruptcy to a qualified consumer debtor, permits a debtor to discharge all dischargeable debts. To determine if you qualify for a Chapter 7 discharge, the debtor must undergo a means test. The means test will assist the court in determining if there is a presumption of abuse by the filing of the Chapter 7 bankruptcy. If the presumption arises, then you may need to consider filing under Chapter 13. In some situations, despite the presumption arising, the court may permit the Chapter 7 filing to move forward. Otherwise, your case may either be dismissed or converted to a Chapter 13 bankruptcy. Certain types of debts are not dischargeable under Chapter 7: taxes; debts for alimony; maintenance or support, for most student loan debts; and debts for money or credit obtained through the use of false financial statements – but only if the creditor files a complaint to determine their dischargeability within the required time and proves their nondischargeability. In addition, the filing of a Chapter 7 petition automatically stays all actions and proceedings against the debtor and his or her property, except criminal proceedings, certain governmental proceedings, and certain actions for the collection of alimony, maintenance or support. The trustee or a creditor may file an objection to the granting of the debtor’s Chapter 7 discharge within a time set by the court. Finally, in order to obtain and retain a Chapter 7 discharge, the debtor must cooperate with the trustee. The most common grounds for denying a Chapter 7 discharge are the failure of the debtor to pay the filing fee in the Chapter 7 case, the failure of the debtor to obey an order of the bankruptcy court, and where it is shown that the debtor received a discharge in another bankruptcy case filed within the last 8 years.
The filing of a Chapter 13 bankruptcy, permits a debtor who has successfully completed their Chapter 13 plan, to be granted a full discharge, which is broader than a Chapter 7 discharge. Upon filing a Chapter 13 petition or within a specified period of time from the petition date, debtors must file a plan for the adjustment or repayment of his or her debts. Debts of any kind may be dealt with in a Chapter 13 plan, including nondischargeable debts. The debtor must usually apply all of his or her disposable income for the period of the plan toward the making of payments under the plan. The debtor is expected to begin making these regular plan payments to the Chapter 13 trustee within 30 days after the plan is filed. The chapter 13 trustee collects the debtor’s payments and pays the expenses of administering the plan, any unpaid portion of the fee allowed to the debtor’s attorney, and the creditors as provided in the plan. During the pendency of the case, most creditor actions against the debtor and the debtor’s property are stayed. A debtor who is unable to complete the payments called for in the plan due to circumstances for which the debtor should not justly be held accountable, may be granted a partial Chapter 13 discharge. Otherwise, an unsuccessful Chapter 13 case may be either dismissed or converted to Chapter 7 (provided the debtor qualifies for a Chapter 7 discharge).
Typically most people think of large corporations as being the users of Chapter 11. However, this is inaccurate as Chapter 11 is suitable for many other debtors, individuals and business entities alike. For instance, consumers with large or complicated estates and assets can be better served by filing for Chapter 11. Small businesses with solid revenue can get relief through Chapter 11. Single asset LLCs can get streamlined treatment through the chapter process. The Gwynn Law Firm handles Chapter 11 cases at competitve prices.
The Gwynn Law Firm, PLC creditor representation includes efforts to restructure debt and equity through informal workout negotiations as well as legal proceedings to foreclose security interests or mortgages and for replevin of personal property. On behalf of creditors, we seek to recover funds or property from debtors in bankruptcy. The firm can advise you on
Preference Actions - Section 547 of the U.S. Bankruptcy Code permits the avoidance of transfers in the 90 days (or, in the case of insiders, one year) before the petition that give the creditor an advantage to which it is not entitled in bankruptcy. A trustee administering the bankrupt estate will file a preference action against a creditor seeking to recover these transfers as property of the estate. However, section 547 does not allow the trustee to impugn every transfer to creditors in this period --- only those that satisfy all of the elements listed under 11 U.S.C. section 547(b). If any one of the elements is not satisfied, then the transfer cannot be avoided. Even if all of the elements are satisfied, the trustee may still be prevented from avoiding the transfer to the extent the transfer fits within one of the exceptions in 11 U.S.C. section 547(c).
Claim Filings – A proof of claim is a creditor’s formal submission of a claim against the estate. If it is clear that the estate is too insolvent to make any distribution to unsecured claims, the clerk of the bankruptcy court will notify these unsecured creditors and save them the trouble of proving claims. Otherwise, the proof of claim form needs to filed by the specified bar date to be allowed.
Relief From Stay Motions - The automatic stay is provided for in 11 U.S.C section 362. Its effect is to impose a wide-ranging prohibition on all activity outside the bankruptcy forum to collect prepetition debt from the debtor or to assert or enforce claims against the debtor’s prepetition property or estate property. The stay of a particular activity may be lifted by the court following application for relief from stay under 11 U.S.C section 362(d).
Reaffirmation Agreements - A reaffirmation agreement is a contract between the debtor and a creditor under which the debtor agrees to pay a debt that would otherwise be discharged. To be enforceable, the reaffirmation agreement must comply with a number of conditions set out in 11 U.S.C sections 524(c) and (d).
Nondischargeability & Objection to Discharge Complaints - Creditors may need to file formal complaints against the debtor in various situations. They are handled in bankruptcy as adversary proceedings or trials.
Given our attorney's experience in construction and bankruptcy we are completely comfortable and experienced in handling bond issues in bankruptcy.
Creditors who often need advice in dealing with the bankruptcy issues listed above include:
- Financial institutions, banks, credit unions, and other institutional lenders
- Eliminate credit card bills, medical bills, and signature loans
- Stop creditors phone calls and harassment
- Stop creditor lawsuits
- Stop garnishments
- Stop foreclosures
- Keep your house
- Stop re-possessions
- Emergency financial issues.
- Call (951) 684-3774 to schedule your free bankruptcy consultation in person or save time with Skype.