The Chapter 7 Bankruptcy Process

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If your financial situation is dour and you do not expect it to improve, you may want to consider a Chapter 7 bankruptcy. You’ll know you are experiencing difficulties when you begin to miss credit card, car note, house note and other payments. You also may begin to experience significant harassment by these creditors aimed at forcing you to pay. They may call you at all hours, inundate your mailbox with dunning notices and generally make your life miserable. Eventually, some might turn your debts over to collection agencies that may employ the same tactics only with more intensity.

A Chapter 7 bankruptcy is often referred to as “liquidation” and is a common form of “consumer” bankruptcy. It can generally wipe out the following types of balances:

*Credit card balances
*Utility bills
*Judgments obtained by unsecured creditors
*Debt from lines of credit
*Billings and invoices from healthcare organizations
*Personal unsecured loans
*Deficiency judgments (balance owed after a home foreclosure or car repossession)

You can file bankruptcy without a lawyer but the bankruptcy process is complex and will require you to understand and complete financial schedules and statements. In fact, a typical complete bankruptcy petition will run up to 50 pages. Also, Bankruptcy Code contains strict deadlines within which you must complete certain filings and tasks.

The Means Test

Usually, the first step is to consult with a bankruptcy attorney. Your attorney will explain the Means Test. The first part of this test is a comparison of your last six month’s income to the median income for your state. In Pennsylvania, currently it is $44,688 (single), $53,011 (two-person family),
$67,262 (three-person family) and $78,780 (four-person family).

If your income was less than that over the prior six month period, you will qualify for Chapter 7. If your income exceeds those levels, whether you qualify for relief under Chapter 7 will depend upon other factors.

Gathering Creditor Information

Once the means test is settled the bankruptcy attorney will gather your creditor information from your credit report and add them to your bankruptcy schedules so that they (your creditors) will receive a notice of your bankruptcy filing. By law, nearly all kinds of adverse creditor actions are immediately stayed.

The attorney will also record the amount you owe to each creditor. You will be asked to check your petition, schedules and related documents for accuracy and completeness.

Certain kinds of debt are not dischargeable. Tax obligations for which you have not filed a tax return and recently incurred taxes are usually not eligible for discharge in a Chapter 7 bankruptcy. Also, unless your federally guaranteed student loans impose an undue hardship, you will remain responsible for them after your bankruptcy case is closed.

After you are certain that all of the eligible debts are listed and your bankruptcy petition is complete and accurate, the attorney will file your bankruptcy case.

Asset Exemptions

In a Chapter 7 case, the trustee has the authority to liquidate assets and distribute the proceeds to your creditors according to the priority scheme set out in section 507 of the United States Bankruptcy Code. However, under section 522 of the Bankruptcy Code, most or all of your property can be kept from the reach of the trustee by the conscientious application of exemptions. Available exemptions vary from state to state but, typically, exemptions exist for your primary residence, automobile, household furnishings and other items.

Meeting of Creditors

Soon after you file your bankruptcy case, you will receive a notice for a meeting of creditors. This usually occurs within four to six weeks after the bankruptcy petition is completed. At the hearing, the trustee will ask you questions regarding your assets, income and other information contained in your bankruptcy petition. The trustee will report to the bankruptcy court regarding the information you provide during the meeting of creditors. For most consumer debtors, this is the only hearing they will attend in their bankruptcy case.

Contact Robleto Law now to find out more about the bankruptcy process and for an immediate, confidential consultation about your financial situation by calling the number at the top of the screen, or simply fill out our quick contact form.

Types of Commercial Bankruptcy

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Declaring bankruptcy is almost always a difficult decision. Just as individuals might file personal bankruptcy cases to address problems in their financial lives, commercial bankruptcy is available to financially distressed businesses. Though many people view bankruptcy a last resort, it can be a good decision. For individuals, most common types of bankruptcy are chapter seven and chapter thirteen bankruptcies. Less talked-about online are commercial bankruptcies. If your business is failing and it owes more money than it is taking in, a commercial bankruptcy might allow it to restructure some or all of its debt while continuing to operate.

Commercial bankruptcy can impose some restrictions on the day-to-day operations of your business, but it can also be critical to turning things around and becoming profitable once again. For nearly all types of American businesses, there are two relevant types of bankruptcy cases: cases under Chapter 7 and cases under Chapter 13 of the United States Bankruptcy Code.

Commercial Bankruptcy – Chapter Seven

Chapter seven bankruptcy is available to both individuals and businesses and is the most common type of bankruptcy declared in the United States. While many assume that declaring bankruptcy frees a business from paying on its debts, that is only half true. A business that is liquidating under Chapter 7 must pay its creditors pursuant to the priority scheme set out in section 507 of the Bankruptcy Code. If, after that distribution, creditors remain unpaid, the debtor does not receive a discharge–it’s just that nothing remains from which those creditors can be repaid.

Upon filing chapter seven bankruptcy, a bankruptcy Trustee is named to examine and, if necessary liquidate the assets of the business. A business that files a case under Chapter 7 must immediately cease all business operations and turn over its books and accounts to the Chapter 7 Trustee.

Commercial Bankruptcy – Chapter Eleven

So far as business operations go, chapter eleven bankruptcy is much less disruptive than chapter seven bankruptcy. The business can keep its pre-bankruptcy management and continue to operate as a “debtor-in-possession.” Chapter 11 bankruptcy is often referred to as “corporate restructuring.” Less profitable or only slightly valuable parts of the business – often certain departments or little-used assets –can be liquidated to fund a plan of reorganization. Debtors in Chapter 11 cases will usually seek to preserve mission-critical and highly profitable assets.

Just as in a case under Chapter 7, the “automatic stay” applies in chapter eleven bankruptcy cases to stop adverse creditor actions. The automatic stay will stop the collection calls and eliminate any court action against your business until the automatic stay is lifted or dissolved. This is often a significant relief to many business owners, especially those facing asset sales or seizures.

Sole Proprietorship

Sole proprietorships are businesses that are owned by a single individual and have no legal existence apart from that individual. Nevertheless, individuals who act as sole proprietors have bankruptcy rights that are slightly different from the normal, consumer bankruptcy debtor. If their debt arises primarily from the operation of their business, they may be eligible for Chapter 7 relief in situations where other, non-business debtors would be required to file a case under Chapter 13 and repay their creditors some or all of what they owe.

Bankruptcy is never an easy choice, but when expenses exceed income for a number of months or years, commercial bankruptcy might be a reasonable option for your business. Call (412) 925-8194 now for an immediate, confidential consultation and to discuss options for you and your business.

Bankruptcy Exemptions and “The Price is Right”

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Bankruptcy exemptions are a privilege belonging to individual debtors in bankruptcy cases. An exemption permits a debtor to shield property that a trustee might otherwise take to pay creditors. Most, but not all exemptions are subject to dollar limits (e.g., a debtor may exempt $3,450 in one motor vehicle, 11 U.S.C. § 522(d)(2)). Under the Federal exemption scheme, a debtor also has a “wildcard exemption” of $1,150, that can be amplified by the unused portion of the debtor’s homestead exemption up to $10,825. The wildcard exemption can be applied to protect any interest of a debtor in property.

Often, debtors face difficult valuation questions for certain assets. What is the value of a one-third interest in a nascent business? How much is a gas lease worth when the lessee has not begun production and the debtor does not know when she will receive royalties or how much those royalties will be?

In 2010, the United States Supreme Court decided that a debtor’s exemption is limited to the dollar amount scheduled (even when the scheduled value and the value of the exemption are equal). Schwab v. Reilly, 130 S. Ct. 265 (2010). Thus, in the context of a gas lease, if production begins after a case is commenced and the debtor exempted $1.00 of her interest under the lease, she could find the royalties in excess of $1.00 are subject to claims by her creditors or a bankruptcy trustee. The Schwab case involved a debtor that understated the value of an asset but argued that, since the exempted value was equal to the scheduled value, the asset was no longer within the reach of the debtor’s creditors. The Court disagreed and limited the value of the exemption to the amount the debtor actually claimed exempt. The United States Court of Appeals for the Third Circuit recently ruled that Schwab was not limited to cases in which debtors purposefully understated the value of assets in order to protect more property than envisioned by the exemptions scheme. In re Orton, No. 11-4157 (3d Cir. Jul. 20, 2012). Rather, debtors are stuck with the value of their claimed exemptions. Therefore, even when a debtor puts a good faith estimate on the value of the asset and exempts the property up to that value, future appreciation (think of the gas well that starts producing after the debtor claims exemptions) in excess of the claimed exemption inures to the benefit of the debtor’s creditors.

Debtors and their bankruptcy lawyers are now forced to play a game of “The Price is Right” with assets. The Schwab and Orton decisions mean that, more than ever, it is important to develop a well-considered bankruptcy strategy with your bankruptcy lawyer.

The History of Bankruptcy

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Despite the somewhat negative connotations that some people associate with bankruptcy, this type of consumer protection has been in existence since at least the time of the Greeks. This indicates that societies have nearly always recognized that sometimes, the best choice for the individual and for the community is to declare bankruptcy and start over with a “clean slate.” The following is a brief account of the history of bankruptcy; an approximate time span of nearly 4,000 years.

Bankruptcy among the Greeks

When Greece was the world’s leading military power and cultural center, only men could become debtors. But when a man became insolvent and could no longer pay his debts, he could be forced into indentured servitude for years in order to repay his debts – often under deplorable conditions.

However, because women, children and slaves were considered the property of men, they could also be sold into slavery or indentured servitude. This means that going bankrupt could literally cost a man his entire life including his family.

Bankruptcy among Romans

Two thousand years later the term bankruptcy is theorized to have been born in the form of its earliest Latin ancestor for the words “broken bench.” During this time, lenders often operated from a public bench that would be broken in the event the lender went bankrupt. This is the equivalent of a modern “out of business” sign.

Unfortunately, Romans often jailed or tortured people who were unable to pay their debts, and many were sold into slavery or traded for property, cash, influence or power.

Spain’s National Bankruptcy

Spain became the first country to officially go bankrupt. This occurred under the rule of Phillip II as he presided over one of the darkest periods in human history: the Spanish Inquisition. The Inquisition brought in a lot of money, but it was also hemorrhaging money as well, and with Phillip’s blundering expansionist nature, it wasn’t long until the entire country was overextended and unable to repay its debts, declaring a series of bankruptcies in the middle of the sixteenth century.

Other countries would follow over the next two hundred years, including France and Russia. (Wikipedia entry for Sovereign Default. Accessed 07/20/2012)

Bankruptcy in Early America

The Revolutionary War bankrupted the newly founded America, but the country quickly recovered and for many years thereafter took a dim view to bankruptcy. Consumers and businesses that went broke were often subject to ridicule and even criminal charges and jail time.

1898 Bankruptcy Act

Numerous bankruptcy laws and acts were passed between the end of the 1700’s and 1898, when corporations were officially extended bankruptcy protections and the basis for most modern bankruptcy laws were put into place by congress.

Bankruptcy Act of 1938

This Act expanded significantly upon the 1898 Act, most importantly improving the voluntary status of petitioners and the appointment of trustees to handle bankruptcy cases.

1978 Bankruptcy Reform
This Act made bankruptcy far more attractive to people and businesses struggling with debt. The Act spelled out the numerous bankruptcy types that we know today, including Chapter 7 liquidation and Chapter 13 reorganization – the two most common types of bankruptcy.

A lot has changed with bankruptcy over the years, but one thing that hasn’t changed is the fact that if you’re drowning in debt and you need help, bankruptcy may be the right choice for you. Find out for yourself right now with an immediate, free consultation from an expert with our Pittsburgh Bankruptcy Firm. Call the number at the top of your screen and learn more about taking advantage of consumer protections that were set aside to help people in financial distress. Don’t wait – make the call now.

Do I need a Bankruptcy Attorney?

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In today’s internet-based age of Do It Yourself divorces, incorporations and other legal matters, it’s not surprising that many people consider filing for bankruptcy protection on their own. In fact, some websites on the internet even claim to allow people to file for bankruptcy for just a few hundred dollars. While this might appear to be a good value on the surface, the fact of the matter is that you get what you pay for. Therefore, unless you’re already an experienced bankruptcy professional, you could be setting yourself up for significant troubles down the road – troubles that will come after your bankruptcy protection rights have already been fully exercised.

The following are 4 primary reasons why bankruptcies should always be handled by an attorney who specifically practices in this area of law:

1.) Ever-changing Bankruptcy Laws

Bankruptcy legislation and laws are constantly changing and evolving – and these are not just small changes. Some of them are major and can have a significant impact for everyone involved in a bankruptcy case, including debtors, lenders, attorneys and trustees. Keeping up with these laws isn’t easy and generally requires a full time bankruptcy practice in order to manage changing information and regulations.

Attempting to handle your own bankruptcy case without an up-to-date understanding of recent changes to bankruptcy laws can result in serious legal and financial consequences that could further deteriorate what is already a sensitive situation. While it might seem prudent to save a little money by managing your own case, the end result could be much, much more expensive if you’re not aware of the most current laws.

2.) Tricks of the Trade

Dog trainers, chefs, auto mechanics, doctors and virtually all professions have certain “tricks of the trade” that require immersion in the field to understand and wield successfully. Bankruptcy attorneys are no different and can often cite and establish precedent, uncover special rules and use their influence in the field to create outcomes that, quite frankly, a layperson couldn’t hope to accomplish on their own.

3.) Potential for Costly Mistakes

Bankruptcy cases are complex at a minimum and unmanageable at worst. Mistakes made during a case can have serious implications for years and for some people, for life. For instance, a legitimate mistake such as unaccounted for assets could possibly lead to criminal charges or the dismissal or your case altogether. Other mistakes such as not including all creditors or not providing correct income information could lead to serious consequences.

Even simple mistakes such as filling out a form wrong or submitting it in an incorrect format or with improper timing can lead to lengthy delays in your case and other penalties.

4.) Not Being Taken Seriously

As the old adage goes, “The man who represents himself has a fool for a lawyer.” This is true for all of the reasons outlined above, but ultimately, it’s also true because if you represent yourself in a bankruptcy case it’s likely that you won’t be taken seriously and may find it much more difficult to navigate the waters of bankruptcy court than you had thought. This could come in the form of fewer concessions made, more rigid enforcement of documentation requirements, and even passive hostility from the trustee, judge, or others involved in your case.

Bankruptcy is a solemn concern and one that should not be entered into lightly or without proper counsel. Seeking representation from an experienced bankruptcy attorney is critical in order to ensure that your case stays abreast of the most recent laws, utilizes the most effective tricks of the trade, is filed and managed free from mistakes and is taken seriously by officials. To get this level of assurance and security for your bankruptcy case, call us for an immediate, confidential consultation from a proven Pittsburgh bankruptcy attorney.

Cramdown on Secured Creditors in Chapter 11 Bankruptcy Case

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For a bankruptcy court to confirm a chapter 11 plan, generally a debtor’s creditors must either be unharmed by that plan or have accepted it. 11 U.S.C. § 1129(a)(8). Under certain conditions, a debtor may cramdown or, have a plan confirmed over the objection of impaired creditors. 11 U.S.C. § 1129(b). Recently, the Supreme Court examined the conditions under which a debtor can sell property that secures a debt to creditor over the objection of that creditor. RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065 (May 29, 2012).
In the RadLAX case, the debtor proposed to sell its property over the objection of its secured lender, without permitting that lender the right to credit-bid, or bid using its secured claim as credit instead of new money. The secured creditor argued that 11 U.S.C. § 1129(b)(2)(A)(ii) provided it with a right to credit bid at the sale of its collateral. The debtor relied upon 11 U.S.C. § 1129(b)(2)(A)(iii), claiming that the sale gave the secured creditor the “indubitable equivalent” of its claim.
The RadLAX court reasoned section 1129(b)(2)(A) provided three paths to confirm a plan over the objection of a secured party. First, the plan could provide that the secured party retain its lien and accept deferred payments. Second, the plan could provide for the sale of the collateral securing the debtor’s obligation to the secured creditor (allowing the secured party to credit-bid) and, third, it could provide the secured party the “indubitable equivalent” of its claim. Since the second cramdown method applied specifically to sales of collateral and the third related, more broadly, to “the realization of such holders of the indubitable equivalent of [their] claims,” the more specific provision had to be given effect of the general one. RadLAX Gateway Hotel LLC at 2071-72. Thus, Supreme Court affirmed the opinion of the Court of Appeals, rejecting the debtor’s proposed sale.

Fewer US Bankruptcies after the Affordable Care Act? Probably Not.

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Speculation abounds that the Affordable Care Act – commonly referred to as Obamacare – will have a significant impact on the number of bankruptcies in the United States. Many experts think that as a result of healthcare being more affordable and accessible, fewer people will declare bankruptcy as a result of medical bills. However, the issue isn’t as clear cut in this regard as it may seem, and there’s compelling evidence to suggest that the ACA will have little to no impact whatsoever on the number of bankruptcy filings.

The Affordable Care Act is speculated to reduce the number of bankruptcies because it will significantly lower the total medical debt of many people. The Act is theorized to accomplish this feat via the following provisions:

*Medicaid is to be expanded at the state level, offering more people care at higher income levels

*People at certain income levels will have their health insurance costs subsidized by the federal government

*The same rates will be available to people regardless of age and location. The same coverage will also be available

*More people will be able to get approved for coverage despite pre-existing conditions

All of these benefits will reduce the rate of bankruptcy filings because they will reduce the amount of medical debt that many Americans are saddled with. In thousands of cases filers often quote medical bills as being a primary reason for declaring bankruptcy. In fact, a 2007 research study published in the American Journal of Medicine stated:

“Using a conservative definition, 62.1% of all bankruptcies in 2007 were medical; 92% of these medical debtors had medical debts over $5000, or 10% of pretax family income. The rest met criteria for medical bankruptcy because they had lost significant income due to illness or mortgaged a home to pay medical bills.” (1)

So at first glance it’s easy to see why some people might rush to the easy conclusion that the Affordable Care Act will alleviate a large number of bankruptcies considering that the number one cause of filings is related to overwhelming medical bills. However, this doesn’t appear to be the case, and the very same study offers up its own evidence to the contrary.

In direct continuation from the above referenced passage:

“Most medical debtors were well educated, owned homes, and had middle-class occupations. Three quarters had health insurance.”

In reality, the study tells us that even though medical bills were cited as the primary cause of bankruptcy, 75% of those who filed already had medical insurance. Therefore, it’s not exactly prudent to argue that the ACA will reduce the US bankruptcy burden. In fact, the issue seems to go much deeper than just medical bills. And considering that people who could not afford healthcare before won’t be in much of an improved position to afford it now, it’s difficult to imagine exactly how the ACA is going to affect bankruptcy filings in the years to come.

However, the effects of the Act won’t be seen for some time, and before they can be reasonably measured it’s possible that the Act will be repealed or drastically revised. In the meantime, bankruptcy remains a powerful consumer protection regardless of the types of debts involved.

To learn more about your personal financial options and to find out if bankruptcy or reorganization is right for you, call the number at the top of your screen now for an immediate bankruptcy consultation, or use our simple contact form and we’ll get back to you straight away.

 

 

(1) David U. Himmelstein, MD, Deborah Thorne, PhD, Elizabeth Warren, JD, Steffie Woolhandler, MD, MPH, Department of Medicine, Cambridge Hospital/Harvard Medical School, Cambridge, Mass;Department of Sociology, Ohio University, Athens; and Harvard Law School, Cambridge, Mass. Medical Bankruptcy in the United States, 2007: Results of a National Study

Pittsburgh Bankruptcy Attorney

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Pittsburgh bankruptcy attorneys can help you through some very difficult situations. Bankruptcy Attorneys in Pittsburgh know that, like the rest of the nation, Pennsylvania residents have seen their unemployment rates rise over the past few years.  The loss of income from losing a job can make it impossible to pay credit card debt.  Worse, unemployment can result in falling behind on your mortgage payments and home foreclosure.  For tough situations, you need a tough bankruptcy lawyer.

If you are working and want to stay in your home, a Pittsburgh bankruptcy lawyer may be able to keep you in your house by forcing your mortgage lender to accept payments over a period of 36 to 60 months.  If you owe tens or hundreds of thousands in credit card, medical or business debt, a pittsburgh bankruptcy attorney could help you discharge some or all of that debt with little or no payment.  Unlike debt consolidation and negotiation companies, a good bankruptcy lawyer does not merely take money from you and permit creditors to file judgments against you, leaving you defenselessly hoping to settle at some uncertain point in the future.  The best bankruptcy lawyers will tell you the effect of your filing a bankruptcy case before you ever sign a voluntary petition.

To make your decision, call today for a free consultation with a Pittsburgh Bankruptcy Attorney.

The Best Time to File Bankruptcy

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Bankruptcy is often the last resort for people in Pittsburgh, Pennsylvania.  But there is a good argument for why most people should consider it sooner:  waiting often results in further debt accumulation, frustration and payment of credit card minimums that barely move the needle on the total debt load.  On the other hand, filing sooner often allows individuals to start repairing their credit and accumulating cash savings more quickly.  It is true that a bankruptcy filing is an adverse credit even but it paying late fees, minimum payments and penalty interest rates while living paycheck to paycheck is not a better option.

The most simple form of bankruptcy is chapter 7 bankruptcy.  In chapter 7, all of a consumer debtor’s non-exempt assets are sold and the proceeds are distributed for the benefit of the debtor’s creditors.  At the conclusion of the case, most kinds of debt are discharged.  Very often, debtors have no “non-exempt assets.”  That is all of their assets are protected by statutory exemptions preventing them from being sold for the benefit of their creditors.

Chapter 13 bankruptcy is a reorganization of debt.  In a foreclosure case, a debtor may wish to keep her house but, may not be able to catch up on the mortgage payments without some extra time.  Chapter 13 allows debtors with a regular source of income to pay some or all of their debts over a period of three to five years and, at the conclusion of that period, have most kinds of remaining debt discharged.

You can start rebuilding your credit immediately after your bankruptcy case.  Many debtors are surprised to receive credit card offers promptly after their debts are discharged.  These are not typically low interest, no fee accounts but they give debtors the opportunity to re-establish credit.

Whether financially troubled people in Pittsburgh decide to file bankruptcy when they are out of options, or do so in order to plan for their futures, it is critical that they find an experienced Pittsburgh bankruptcy lawyer.  The bankruptcy process, while fair, is not intuitive.  For that reason, it is best to take advantage of a free initial consultation with a Pittsburgh bankruptcy lawyer.

What is a Bankruptcy Exemption?

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Bankruptcy exemptions are critical to individual bankruptcy filers.  Exemptions give debtors in bankruptcy cases the ability to shield certain of their assets from the reach of their creditors.  A fresh start would not be very meaningful if it meant that you had to turn over every stitch on your back and every cent you have.  The United States Bankruptcy Code permits states to provide their own set of exemptions to debtors or to allow debtors to use the exemptions contained in section 522(d) of the Bankruptcy Code.  Some states, including the Commonwealth of Pennsylvania, allow debtors to select between the federal exemption scheme and the exemptions provided under state law.  The Pennsylvania exemptions are scattered through numerous statutes and still others are “common law exemptions,” contained within the written opinions of state courts of law.  Debtors should consult with a bankruptcy lawyer to determine which set of exemptions would protect more assets.

Generally speaking, the federal exemptions permit a debtor to exempt $21,625 in property that the debtor or a dependent of the debtor uses as a residence.  If debtors are married, filing a joint bankruptcy and own their home together, they can protect even more equity by applying both exemptions to their property.  In the case of a married couple where only one spouse has significant debt but both spouses own the home, it may make sense to apply the Pennsylvania exemptions.  In Pennsylvania, married couples who own a home usually hold it as “tenants by the entireties.”  The couple’s interest in property is not divisible and, therefore, creditors of only one spouse cannot resort to that property for payment.

Under the federal exemptions, debtors may exempt $3,450 of their interest in a vehicle.  In a simple example, if you own a vehicle that is worth $10,000 but, upon which you still owe $8,000, you may exempt your $2,000 interest in the vehicle in a bankruptcy case and continue paying on the $8,000 loan to keep the vehicle.  The federal exemptions also permit a debtor to exempt $1,450 of jewelry, $11,525 in household goods, furnishings, wearing apparel, appliances, books, animals, crops or musical instruments, $2,175 in “tools of the trade” of a debtor and most life insurance and retirement assets.  Additionally, the federal exemptions allow for  a “wild card” exemption of $1,150 in any property, which is increased up to $10,825 by any unused homestead exemption.  Thus, if a debtor does not need to exempt equity in a home, that debtor has more flexibility to exempt other property through the use of the wild card exemption.

Knowing how your exemptions work is a prerequisite to getting a meaningful fresh start in a bankruptcy case.  If you have questions about bankruptcy exemptions, you should consult with a bankruptcy attorney for a free consultation.  To find out how, call (412) 925-8194 now.