FAQ's. Common Questions answered here.
Going through something as difficult as a major legal event can leave you filled with questions about the past, present, and what to expect in the future. Get answers to some of the top questions I receive, to help put your mind at ease. Check back often for even more answers to your legal questions. Better yet, give us a call to see how we can help.
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I filed a Chapter 13 bankruptcy and forgot a few documents. Now there's a Motion to Dismiss. Can I save it?
The odds are against you from the outset if you filed a bankruptcy case on your own. The Bankruptcy Code is incredibly complex and often times, it is what you don't know or what you left out that can get you into trouble with the U.S. Bankruptcy Trustee, which is why it is a good idea to get the help of a bankruptcy lawyer as early on as possible. Even though you filed Pro-Se (representing yourself), it might not be too late to enlist the help of an attorney who can review the Trustee's Motion to Dismiss your bankruptcy and see if it can be saved. Perhaps the missing documents can be filed right away before the court date. If they are filed correctly and within the appropriate time frames, you have a better chance of either the Trustee withdrawing the motion or the judge allowing your case to proceed. It would be a good idea to have the attorney review the Chapter 13 plan as well, so that you don't face further issues with having it confirmed.
While it is tempting to try and save money by filing for bankruptcy without a lawyer, it is generally not a good idea- especially in Chapter 13. The majority of the fees will be paid by the plan itself over a three to five year period and should not change the amount that you pay each month into your Chapter 13 plan, because of how chapter 13 works. This means that money which would have gone to unsecured creditors such as credit card companies will now go your lawyer instead which is a direct benefit to you.
My Chapter 13 Bankruptcy is being dismissed for missing payments. Can I re-file?
Chapter 13 Bankruptcy means that you are making one payment each month to the bankruptcy trustee, for distribution to your creditors. If you fall behind and stop making your payments, the trustee will file a motion with the court asking that your Chapter 13 case be dismissed, leaving you without the protection of the court or your 13 plan. If the trustee has filed a motion but it has not yet been dismissed by the judge, it might not be too late. Before making any decisions, look at your reason for falling behind. Was the plan unrealistic to begin with or did something happen in the meantime which is now resolved, allowing you to stay current with your payments in the future? If there was a problem with your plan, speak with your bankruptcy lawyer immediately to see what possibilities exist for you to modify your plan, which may be easier if there has been a change in your circumstances such as reduced hours at work. Another possibility might be working something out with the bankruptcy trustee to defer your default to the end of the plan. However, if your bankruptcy has already been dismissed, you may be able to re-file but first, look into whether or not it makes sense to do so. If you do refile your chapter 13 bankruptcy, be sure to also file a motion to extend the automatic stay, as they are only good for 30 days on a refiled case.
I am moving or just moved. Where do I have to file my bankruptcy?
Your bankruptcy petition will be filed in the district bankruptcy court where you live. But, if you recently moved- you will have to have lived in the court’s jurisdiction for the last 180 days (roughly six months). If you are a business, then where you have your principal place of business, where the business is organized or where there is a pending case of an affiliate or your partner. 28 USC 362.
Will I lose my retirement if I file for bankruptcy?
Your Pension, IRA, and 401k are protected in bankruptcy in the State of Illinois. When the bankruptcy laws were written, lawmakers wanted to make sure to protect people's retirment plans. However, they must be properly 'exempted' on Schedule C of your bankruptcy schedules in order to be protected. Also, your retirmenet plan must be an acutal retirement plan like a pension, IRA, 401k, etc. You cannot protect a regular savings account, for example, and declare that your intention was always to put that away for retirment. In that case, it would be treated as any other bank account which most people will protect using their "wildcard' exemption of $4,000 in Illinois.
Retirmenet plans are their own category of assets with its own special section of the law which protects it. There are many, many 'categories' of property in bankruptcy, all of which make up the bankruptcy estate. And for each item you own, a determination must be made as to whether or not it can be protected and if so, how much. This should be looked at before you file and certainly before determininig which chapter of bankruptcy you wish to be filing under. Bankruptcy laws are very complex. If you are considering filing, give us a call at 630 250-8813 for our Itasca location or 630 250-8809 for Schaumburg. We'd be glad to help.
What will happen at my 341 First Meeting of Creditors for my Chapter 7 Bankruptcy Case?
A member of the panel of private trustees, usually an attorney, will be assigned to ask you questions at your 341 First Meeting of Creditors. Every Chapter 7 and Chapter 13 debtor has to attend. It is a matter of routine but still must be taken seriously. You will be placed under oath and asked to provide identification. The Trustee's job is to make sure that all of the paperwork was properly filled out, that you understood it, that you disclosed all of your assets and all of your liabilities, to determine in a Chapter 7 if you have anything above and beyond what you are allowed to keep for distribution to your creditors, and so forth. In Chicago and suburban Illinois courthouses, this is usually done inside a tiny room across a desk from the trustee with a small tape recorder on the table with your attorney sitting right next to you.
To call it a first meeting of creditors is a bit of a misnomer because it implies that there will be a second (just like you don’t want to call the first person you marry your “first wife” or “first husband” while you are still married to them). Usually there is only one 341 meeting, unless there is something that needs to be looked into further or if your paperwork needs to be amended. Bankruptcy is a very rule-specific area of law where everything required must be followed strictly. To have a second meeting happens far more often for people who file without an attorney. Your attorney will give you an idea ahead of time as to what to expect so that you are not nervous, and will come with you to the meeting but cannot answer questions for you.
Creditors have the right to show up but rarely do. When and if a creditor shows up, it is usually to talk to your attorney to find out if you would like to sign a reaffirmation agreement so that you can keep some item of secured property, like a washing machine, for re-negotiated terms. This is another of many reasons why you should have an attorney with you for your bankruptcy case, as you may be asked to sign legal documents that may or may not be in your best interest to sign.
What is my Bankruptcy Estate?
When you file for bankruptcy, it creates something called your “bankruptcy estate”, governed by 11 USC 541 of the Bankruptcy Code. Basically, this is everything that you own or have an interest in. Some of it is obvious, for example your house is a part of your bankruptcy estate (even if you have a mortgage on it). Some of it is not so obvious but is still a part of the bankruptcy estate, like what you inherit when someone dies, what you get as part of a divorce settlement, or what you acquire as a beneficiary under a death benefit plan or life insurance policy within 180 days after the petition date.
It is the job of the bankruptcy trustee to review your bankruptcy schedules in order to determine what is in your bankruptcy estate. On your schedules you must list all of your assets and all of your liabilities. You must also answer a series of questions on your statement of financial affairs which further assists in determining the extent of your bankruptcy estate. Your job is to answer all of the questions honestly and completely. You cannot leave anything out or it could be a basis of bankruptcy fraud, which should be taken very seriously. Just because something is part of your bankruptcy estate does not mean that you will lose what you own. Your bankruptcy attorney helps to legally protect what you own by the bankruptcy exemptions that are available to you.
Why are bankruptcy types called Chapters and what do the different bankruptcy chapters mean?
Bankruptcy law is written into the federal law in what is called the Bankruptcy Code. The code is divided up into 9 parts which are called “chapters”.. Unlike books where the chapters are sequential, bankruptcy chapters are 1, 3, 5, 7, 9, 11, 12 (an even number to disrupt the pattern), 13, 15. The first Chapter is very general and applies to all other chapters in the code. Chapter 3 deals with case administration. Chapter 5 is about the bankruptcy estate, creditors and debtors. Chapter 9 applies only to municipalities going bankrupt. Chapter 15 is about international bankruptcy procedure. The four remaining chapters are the ones we most often hear about.
Chapter 7 cases are “liquidation” cases commonly used by people who don’t have any money left at the end of the month and who have lots of debt, typically unsecured debt like credit cards. Chapter 13 is also often used for wage earning individuals who repay a portion of their debt over a number of years as administered and regulated by the bankruptcy court. Chapter 11 of the Bankruptcy Code deals with the reorganization of individuals who used to be affluent and corporations. Chapter 12 is set aside for family farmers.
The bankruptcy code has been re-written several times. The largest change of our time was the 2005 re-write by the Bankruptcy Abuse Prevention and Consumer Protection Act (fondly known as BAPCPA – pronounced Bapseepa). The Bankruptcy Code is one of the most legally complex laws ever written and while bankruptcy is a very useful tool, it is best to seek professional advice as to what chapter, if any, is right for your unique situation. While it is complex, my free paperback book available on this site will help you understand it a bit better. Or, if you are ready to speak to an Illinios lawyer, give us a call at O'Connor Cadiz Law for a no obligation consultation.
Joint Debts with your Spouse? To file bankruptcy alone or together?
If you and your spouse hold joint debt that you are both liable for, you might want to consider a joint bankruptcy. If your spouse does not file, creditors can and most likely will pursue him or her for debts that they were also legally liable for. If you file for Chapter 7, creditors can start pursuing your spouse right away as the law affords them no protection. If you file for Chapter 13, the creditor must wait until your bankruptcy plan is over and can then come after your spouse. In most cases, it just makes sense to file a joint bankruptcy with your spouse. However, if your spouse is only joint on one or two smaller and manageable debts, then it might not make sense for him or her to also file. In deciding whether to file your bankruptcy joint or individually, a good starting point is to find out exactly what all of the debts are in your marriage and who is liable for what. Keep in mind that if you are considering a joint bankruptcy, you can only do one jointly with your spouse. You cannot file a joint case with a siginficant other, parent, child, roommate, etc., even if you have debt together.
Bankruptcy laws are tricky and what you don't know could hurt you, or your family. Give us a call and we will be happy to help you figure out whether or not your spouse should also join you in the filing for bankruptcy.
Can Chapter 7 Bankruptcy save my house?
Many people want to know if a Chapter 7 bankruptcy can help save their house. It depends on what you mean by "save the house". You won't lose your house in a chapter 7 if you don't have over the allowable amount of equity in the house (homestead exemption), and you are current on the mortgage. But most people who ask this question really want to know if a chapter 7 will allow them to stop a foreclosure or prevent it from going into foreclosure to begin with. The answer is no. A chapter 7 will delay a foreclosure due to the automatic stay, but the stay only last so long, and during the course of the case itself, the stay can be removed by the bank if they file a motion seeking relief from (or "lifting") the stay. A chapter 7 is usually only a temporary fix to a pending foreclosure and is not what most people use if they want to save their house. The reason that chapter 7 doesn't usually help much for people who are behind on the mortgage is because chapter 7 eliminates unsecured debt, like credit cards and medical bills. It doesn't elimiate debt that is secured, meaning debt that is backed up by collateral- in this case, your house. The bank's lien on the house stays put in bankruptcy.
If you are behind on the mortgage and want to keep your house, a strategy session with a bankruptcy lawyer is in order. We will first look at whether or not saving the house makes good financial sense, and if it is feasible for you. If so, you may wish to consider a chapter 13 bankruptcy. Chapter 13 would allow you to pay back what you fell behind on, over a period of 3- 5 years. It stops a foreclosure dead in its tracks. That being said, chapter 13 is not for everyone. I strongly encourage you to give our office a call if you live in the Chicagoland area and are considering your options when it comes to keeping your house. We can be reached at 630 250-8813 for a free, confidential and no-pressure consultation.
Can I protect an Inheritance from my Bankruptcy?
An inheritance can be a mixed blessing for those thinking about filing for bankruptcy. I've seen people who are the perfect candiates for bankruptcy, only to have a wrench thrown into their plans when someone dies and leaves them money or a house. On the one hand, this is the time in their lives when they probably most need their inheritance, yet it disrupts what could have otherwise been a successful bankruptcy. Under bankruptcy law, you are entitled to the inheritance once the person leaving it to you actually dies, regardless of when you actually receive it. The inheritance is usually a real asset. In other words, real money or real property is coming in. If someone has already filed for bankruptcy, they must notify the bankruptcy court - usually through their lawyer- if an inheritance becomes an issue. The law says that if someone receives an inheritance within 180 days after they file, it is part of the bankruptcy estate. This means that a bankruptcy trustee can take it to pay off creditors. Everyone is allowed certain "exemptions"- or money/property that they can keep, but only up to a certain dollar amount. Anything above and beyond this is usually going to be fair game.
If you are facing the possiblitly of bankruptcy but also know that an inheritance is coming your way, give us a call to discuss your options.