Getting Started

Knowledge is Key

Clients come to us with a range of information and financial situations, from an impending wage garnishment to an exploration of options. Bankruptcy involves a complex set of issues to determine whether or not it is in your best interest to file for bankruptcy and whether or not you qualify. The rules change daily depending on how the courts interpret the bankruptcy legislation. There are issues that you need to consider regarding whether or not it is in your best interest to keep property, what property you can keep based on legal exemptions that vary from state to state, what debts are dischargeable, what creditors you can pay, whether or not you can file separately if you are married or in a domestic partnership, how your income will be interpreted, whether you can operate a business, what debts are dischargeable and whether or not your conduct in the past will have an negative impact on the bankruptcy. In order to evaluate these issues you should seek assistance from a lawyer. A lawyer can sort through the issues and determine what will work best for you.

Chapter 13 Bankruptcy

A lot of people file Chapter 7 bankruptcy and just have their debts wiped clean. They get a fresh start that way, but they may also lose some of their assets, and not everyone is eligible. For people who are earning steady wages, Chapter 13 is often a much better option because it allows a person to come up with a plan to repay a portion of the debts that are owed and receive a complete discharge of the debts. You may also be able to keep your house, car and other assets. Chapter 13 allows you to reduce the amount you owe on certain secured debts to the value of the collateral. This remedy (called a cramdown) makes it easier to keep some kinds of collateral, like a car. Chapter 13 also allows you to strip off junior liens on a home if the value of the home is less than the first mortgage. The stripped loan is reclassified as an unsecured loan.
Unlike a Chapter 7 bankruptcy, a Chapter 13 bankruptcy requires a payment plan. The Plan requires you to keep current the debts that secure collateral that you want to keep like a mortgage or car note and pay off priority debts like back taxes, back child support owed to a child or ex-spouse, and any mortgage and secured debt arrearages that you owe. You also have to pay unsecured creditors as least as much as they would have received had you filed for Chapter 7 bankruptcy. This means the payments must be at least equal to the value of your nonexempt property, less the costs and fees that would have to be paid in order to sell the property. The repayment plan lasts from three to five years. If the debtor's gross monthly income for the six month period before filing is less that the median, the debtor may propose a three year plan and use actual expenses to calculate how much income will be devoted to the plan. Debtors whose income is more than the median must propose a five year plan and use standard expense amounts set by the IRS to calculate the plan payments.
There are many good reasons for choosing a Chapter 13 bankruptcy over a Chapter 7 bankruptcy. Chapter 13 may help you if you have steady income to fund a plan and any of the following apply:
You have a co-debtor who will be protected under the Chapter 13 plan, but would not be protected in a Chapter 7.
You have a retail business that you would have to close down in a Chapter 7 bankruptcy but can continue to operate in Chapter 13.
You would like to repay your debts, but you need the assistance of the bankruptcy court to create a plan for the repayment.
You are threatened with a foreclosure or repossession and you want to keep your house or car. Chapter 13 will allow you to pay arrearages in a payment plan and reinstate your original agreement.
Your car was purchased more than 2.5 years ago and is worth less than you owe. You can use the Chapter 13 cramdown option by repaying the replacement value in the plan, rather than the full amount of the loan.
You have more than one loan on your house and the value of the house is less than the first loan. Chapter 13 will strip the junior liens and convert them to unsecured debts.
Your vacation or investment property is worth less than the loan. You can have the loan reduced to the value of the property.
You have a tax obligation, student loan, or other debt that cannot be discharged in bankruptcy, but can be paid off over time in a Chapter 13 plan.
In order to qualify for Chapter 13 bankruptcy, your debts cannot be too high. Chapter 13 is the debt repayment chapter for individuals with regular income whose debts do not exceed $1,441,875 ($360,475 in unsecured debts and $1,081,400 in secured debts). Chapter 13 applies to individuals who operate businesses as sole proprietorships. It is not available to corporations or partnerships.
Some of your property may be exempt, as well, and you will need to make sure you exempt it properly if you want to keep it. You usually have between three and five years to repay the debts that are included in a Chapter 13 bankruptcy and most of the debts usually have their interest rates and principal amounts adjusted so that they are easier to repay. Payments must be made properly to minimize the damage to your credit, but if something serious and beyond your control keeps you from completing the plan, a hardship discharge is also possible, which would be more like a Chapter 7 bankruptcy proceeding.
Chapter 13 generally permits individuals to keep their property by repaying creditors out of their future income. Each chapter 13 debtor proposes a repayment plan which must be approved by the court. The amounts set forth in the plan must be paid to the chapter 13 trustee who distributes the funds for a percentage fee. Many debts that cannot be discharged can still be paid over time in a chapter 13 plan. After completion of payments under the plan, chapter 13 debtors receive a discharge of most debts.
After completing the schedules for a Chapter 13 reorganization of debt, consumers in Northern California need to make sure to avoid the following pitfalls:
1) Live with your payment plan. You've worked carefully to establish a workable monthly budget and it is vital to stick to it. Statistically most Chapter 13 bankruptcy plans fail because consumers do not anticipate unexpected expenses. Make sure you budget for expected and unexpected expenses such as car and home repairs or medical costs before you file your plan. The benefits of completing the plan far outweigh the added costs and inconveniences if your case is dismissed.
2) Even if you are surrendering your house, you may be responsible for debts such as property insurance, property tax, homeowners association dues and utilities accruing after the bankruptcy. Make sure that your budget considers these expenses so that you do not have unexpected debts that cause your plan to fail.
3) Home and vehicle loan payments. If your home or vehicle loans are designated to be paid outside the Chapter 13 plan make sure that you keep those payments current. If you default on those payments you are at risk for having the plan dismissed. Also keep in mind that you'll have to initiate the monthly payments on your own. Billing statements and/or automatic payments made from a bank account before the bankruptcy will cease immediately after filing for bankruptcy.
4) You will be required to file an income tax return and provide it to the trustee each year of your Chapter 13 bankruptcy. Make sure that you are paying the correct amount of tax and make adjustments if your income or deductions change because you will not be allowed to keep your tax refund if you over pay your taxes during the year.
If you are considering a Chapter 13, you need to see a lawyer. Like a Chapter 7, it is not something that you should try to do on your own. You will need a lot of paperwork. You have to itemize your debts and your income and provide details on the major financial transactions that you have taken part in during the last two years. You will need income tax statements, car titles, and a lot of other financial information. You will have to follow the guidelines that your Federal District has set out and adhere to the schedule and plan that is designed for you if you are eligible for a Chapter 13.

Chapter 7 Bankruptcy

San Francisco Chapter 7 Bankruptcy Lawyer
Chapter 7 is the liquidation chapter of the Bankruptcy Code. Chapter 7 cases are commonly referred to as "straight bankruptcy" or "liquidation" cases, and may be filed by an individual, corporation, or a partnership. Under chapter 7, a trustee is appointed to collect and sell all property that is not exempt and to use any proceeds to pay creditors. In the case of an individual, the debtor is allowed to claim certain property exempt. In exchange for this, the debtor gets a discharge, which means that the debtor does not have to pay certain types of debts. Corporations and partnerships do not receive discharges. Consequently, any individuals legally liable for the partnership's or corporation's debts will remain liable. Therefore, individual bankruptcies may be required as well as the corporation or partnership bankruptcy.
Sacramento Chapter 7 Bankruptcy Lawyer
You would generally file Chapter 7 bankruptcy if you wanted to 'wipe out' your unsecured debt when there is no way to pay it off. Most people try to find a way to continue paying on their home and their car if it is prudent to do so. Each person's situation is unique, not everyone may be able to keep their house or car depending on the amount of equity and the expense.
Chapter 7 bankruptcy is the simplest type of bankruptcy and the most common, because most people who file for bankruptcy do not have the means to reorganize their debts and pay them off. Chapter 7 takes only a few months, and the length of time depends on the complexity of the case and how busy the courts are. There are standards set by the districts to determine if you qualify for Chapter 7 bankruptcy by determining if your income is below California's median income. You must meet these standards to file for Chapter 7 and have your debts wiped away. The standards are based on IRS guidelines.
San Francisco Bankruptcy Attorney
If your income is at or over the state's median income level, there are other tests that are applied to see if you qualify for Chapter 7. The tests involve calculating your allowed expenses to determine whether or not you have income available to repay your debts. The calculations to determine whether you can qualify can become complicated and you should seek the advice of attorney to determine what expenses are included in the calculation. The rules change periodically based on decisions from courts and they vary between jurisdictions.
Chapter 7 bankruptcy is not a great option for you if your assets exceed the amounts allowed in the legal exemptions available to you. These exemptions vary from state to state and depend on where and how long you have been living in a location before filing. The exemptions have limitations on how much equity can be protected in property you own. Generally, in California your personal property items are protected and there are protections for retirement accounts, motor vehicle $3,525, jewelry $1,425, tools of trade $2,200, life insurance with cash value $11,800 and a wildcard $23,250. There are also exemptions that apply to houses that have equity depending on family size, age and other factors.
If you are contemplating filing for Chapter 7 bankruptcy, you need to see a lawyer about filing. It is not something that you should try to do on your own. It might seem simple, but it's actually quite complicated. Our Northern California Bankruptcy Lawyers are experienced at completing Chapter 7 bankruptcy filings quickly so that you can have a fresh start and begin your new life debt free.
Rust Armenis & Schwartz, A Professional Corporation has done extensive work for consumers and businesses in its history.
Rust, Armenis & Schwartz, A Professional Corporation is an AV-rated firm and was founded in January 1963. The firm has offices in San Francisco and Sacramento and conference centers in San Mateo, Walnut Creek, San Jose, and Tracy. The firm has a bankruptcy practice throughout Northern California. Our office filed approximately 300 cases last year in the various bankruptcy courts in the Northern and Eastern districts allowing our clients to obtain the relief provided by the bankruptcy laws. The cases resulted in millions of dollars of debt being discharged by the courts. Our office files an average of 30 cases each month. We've posted a fraction of the clients' testimonials that were sent to us on our website. They speak to the warm, thorough, professionalism of our team and to the relief experienced by our clients as their cases are discharged.
San Francisco law firm that helps individuals, consumers, business investors and small businesses file for bankruptcy protection under the United States Bankruptcy Code
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