Bankruptcy

Bankruptcy 101

Bankruptcy is a complicated area of law that is difficult for many to understand. Like any body of law, one of the most complicated factors is that it involves a unique group of keywords that are used by judges, lawyers, and individuals in the middle of the legal process. Anyone going through the bankruptcy process can benefit from understanding some of the essential terms used throughout the bankruptcy process. Important Bankruptcy Terms Some of the most important bankruptcy terms that should be known by individuals who are in the midst of the process include the following: Absolute Priority: When a person makes payments during the bankruptcy process, these amounts are distributed in accordance with the absolute priority, which is established in the federal bankruptcy code. Automatic Stay: An automatic stay refers to the block that is created when a person files for bankruptcy and prevents creditors from collecting on debts in any manner. Core Proceedings: There are many things that occur during the bankruptcy process, but core proceedings refer to steps that are decided on by the bankruptcy court. Dischargeable Debt: Debt that is eliminated when a person files for bankruptcy is considered to be dischargeable debt, while debt that     Read More

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Three Things to Avoid Before Filing for Bankruptcy

If you are considering filing for bankruptcy, you need to fully prepare for the many obstacles that can arise during the process. Failing to sufficiently prepare or taking incorrect steps during the bankruptcy process has the potential to significantly jeopardize your future. So that the bankruptcy process can continue as smoothly as possible, this article has been created to inform an individual who is planning for bankruptcy about various things that must be avoided before filing for either Chapter 7 or Chapter 13 bankruptcy. Error #1: Treating Family Members Differently Than Other Debtors Many individuals who have significant debt and who must ultimately file for bankruptcy believe that it is permissible to treat family members more preferentially than other debtors. This type of activity is not allowed, however. A bankruptcy trustee is able to reclaim any amount that a person repays to a family members within two years of filing for bankruptcy. As a result, individuals should treat family members like any other person to whom the individual owes money and wait to repay them. After the bankruptcy process is over, an individual will be able to pay back anyone that he or she chooses. Error #2: Not Appearing at     Read More

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How Long Will Bankruptcy Take?

While bankruptcy allows individuals a chance to rebuild their credit and start on new ground financially, this action is not for everyone. There are many distinct factors that can affect a bankruptcy and influence how long the process ultimately takes. This article will list some of the various factors that can influence how long a person’s bankruptcy process will take. Factor #1: The Number and Value of Assets a Person has In some cases, a person might have a great number of assets that the person wishes to save, while in other cases, a person might declare bankruptcy because the individual has fallen into debt. Generally, the greater and more valuable the assets that a person has, the longer that person’s bankruptcy process will take. Factor #2: Chapter 7 Bankruptcy Resolves Faster Than Other Types of Bankruptcy In many cases, Chapter 7 bankruptcy lasts between three to four months. Frequently this process will involving obtaining an experienced bankruptcy attorney, filing an issue with the court, and liquidating a person’s nonexempt assets. While Chapter 7 bankruptcy is good for many individuals, a person is at risk of losing many of his or her assets in the process. The advantage of Chapter     Read More

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Buying a House After Bankruptcy

Recovering after a bankruptcy is not something that occurs quickly. Many individuals who declare bankruptcy have questions about how long it will take before they will be able to purchase a home. In many cases, the type of loan that a person requires for a house and how the person handles credit after their declaration of bankruptcy influences this process. Mortgage companies offer different “seasoning periods” after a person declares bankruptcy. Lenders might also have additional requirements about the length of time a person must wait after declaring bankruptcy. While some individuals struggle to recover after declaring bankruptcy, other individuals discover that they are able to buy a house within few years. If you are interested in buying a house, it is important to increase your credit profile and sometimes even obtain the assistance of a skilled attorney. This article will list some of the various factors that can influence the amount of time that a person can expect it will take to obtain a loan to purchase a house after declaring bankruptcy. Factor #1: Whether a Person Declares Chapter 7 or Chapter 13 Bankruptcy Whether a person declares Chapter 7 or Chapter 13 bankruptcy will also determine how long     Read More

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Paying Utility Bills After Declaring Bankruptcy

In many cases, a person filing for bankruptcy might have fallen behind on his or her utility bills, which can include electric, gas, telephone, sewer, or water bills. As a result, many individuals are often left wondering how utility bills should be handled after they declare bankruptcy. This article will explain some important details about the bankruptcy process and your utility bills. Automatic Stays in Bankruptcy After initiating the bankruptcy process, a person needs to make sure that utility bills are listed as debts in his or her bankruptcy schedule. These schedules must list all delinquent accounts including utility debts that are owed and accounts that a person intends to keep paying. All companies included in the bankruptcy schedule will then receive notice that the person has filed for bankruptcy protection. As a result of these notices, the utility company is not permitted to discontinue a person’s utility services. Due to the automatic stay that is created when a person files a bankruptcy petition, all efforts by utility companies and associated collectors are prohibited. These efforts can include bills, lawsuits, or phone calls. Despite this protection, however, a person will be required to pay new bills that arise after filing     Read More

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The Difference Between Debt Consolidation and Bankruptcy

While many people are familiar with the bankruptcy process, debt consolidation is also a unique process. Debt consolidation involves combining debts into one, more manageable debt. Not only does debt consolidation simplify the repayment process for individuals, it also reduces monthly payment and interest rates. Many individuals confuse debt consolidation with debt settlement, which involves a person paying an amount lower than the total amount that is owed. Bankruptcy, however, follows a distinct process from debt consolidation. In Chapter 7 bankruptcy a person sells property to creditors to pay off debts, while in Chapter 13 bankruptcy a repayment or reorganization will be arranged with creditors. Deciding on bankruptcy or debt consolidation depends on a person’s financial goals. Advantages to Filing for Bankruptcy One of the largest advantages of filing bankruptcy is that it offers greater protection against creditors because an “automatic stay” is placed that prevents creditors from obtaining money. An automatic stay also prevents foreclosure, repossession, and shutting off utilities due to nonpayment. Bankruptcy also offers the advantage of clearing a person’s debts, which means that the process lifts financial difficulties from a person. After eliminating these debts, a person can then begin to rebuild their credit and move     Read More

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SCOTUS Ready to Settle Bankruptcy Issue

The Supreme Court recently granted certiorari to review a case that will require the Court to decide the question of whether bankruptcy courts should apply federal or state law when deciding how to recharacterize a debt claim as a capital contribution. The manner in which this case is decided will have a significant influence on how bankruptcy cases proceed. The Role of Recharacterization Recharacterization presents an important role to lenders and investors in companies facing financial difficulties. Current bankruptcy law allows secured creditors to receive top priority while equity interests have a lower priority and are frequently wiped out during bankruptcy. Applicable federal law currently results in the recharacterization of debt to equity, while state law does not always result in this type of recharacterization. The Circuit Split on Recharacterization of Debt Many circuits follow the federal rule in recharacterization of debts and apply a variety of multi-factor tests when determining whether to recharacterize debt as equity. The Third, Fourth, Sixth, Tenth, and Eleventh Circuit Courts hold the perspective that debt should often be recharacterized as equity, while the Fifth and Ninth Circuit apply state law. As a result, Oklahoma is part of the Tenth Circuit Court which characterizes debt     Read More

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Supreme Court Issues Decision on Debt Collectors

Debt collectors are known to use a variety of scare tactics to force individuals into paying a debt. A recent Supreme Court case, however, issued a decision on how to define the role of debt collectors. In the case of Midland Funding LLC v. Johnson, the Court held that a debt collector who files a claim that is barred by the statute of limitation will be considered to have engaged in deceptive, false, or misleading conduct and therefore will not be found to have violated the federal Fair Debt Collection Practices Act. The Case in Question The case in question is Midland Funding LLC v. Johnson, which arose in 2014 after Aleida Johnson filed a civil lawsuit against Midland Funding LLC on the basis that Midland had violated applicable law when it filed a proof of claim in Johnson’s bankruptcy case for a credit card debt whose state statute of limitations had already expired. The district court held that Midland’s conduct did not violate the law, but the Eleventh Circuit Court of Appeals later reversed this decision. The Supreme Court ultimately reversed the Eleventh Circuit’s decision and found that the creditor’s action was not deceptive, false, or misleading. The Supreme     Read More

United States Supreme Court to Hear Bankruptcy Case

The Supreme Court of the United States is poised to hear a bankruptcy case in Merit Management Group LP v. FTI Consulting Inc. This case has the potential to resolve a current circuit split about a section in the Bankruptcy code that protects certain types of payments made to a financial institution. In accordance with this law, individuals are unable to avoid payments made in connection with a securities contract, settlement payments, or other payments that are made to commodity brokers, financial institutions, financial participants, forward contract merchants, or securities clearing agencies. The way in which this case is decided has the potential to clarify the parties that a person who declares bankruptcy is obligated to pay. History Leading up to the Case Prior to the Merit Management case, the Eleventh Circuit was the only circuit court to hold that a financial institution must be more than an intermediary for a person who declares bankruptcy to be forced to pay. Five other courts including the Second Circuit, the Third Circuit, the Sixth Circuit, the Eighth Circuit, and the Tenth Circuit have held that a person who declares bankruptcy must pay financial institutions that are intermediaries. The Merit Management case was     Read More

Wage Garnishment

The process of wage garnishment can be very upsetting for individuals. Wages can be garnished when a creditor does not receive payment from an individual and receives an order of garnishment from a court. As a result of wage garnishment, money is directly transferred from a person’s paycheck to the creditor, which can result in significant financial obstacles. Some individuals decide to file Chapter 13 or Chapter 7 bankruptcies in an effort to prevent wage garnishment. After filing for bankruptcy, an automatic stay is placed that ends collection activity from a creditor. Provided that certain conditions are satisfied, individuals are often able to receive some of the wages that were garnished before a bankruptcy petition was filed. If an individual is over $600 in aggregate wages garnished and has a sufficient amount of exemptions to cover these debts, individuals can often successfully request a creditor to return garnished wages.   The Role of Automatic Stays   An automatic stay results in wage garnishment being stopped so long as a bankruptcy stay remains in effect. If a creditor wants to resume debt collection efforts, the creditor must ask the court to lift the bankruptcy stay. A court will require the creditor     Read More