Bankruptcy FAQs

One of the benefits of chapter 13 Is that you’re often able to get a superior discount than you would in a debt settlement program. It’s not always the case, but it’s often true.

Also, you’re able to get protection legally. So things like foreclosures and lawsuits and collection calls and garnishments and levies, all that stops if you file a Chapter 13 with debt settlement, that doesn’t necessarily that’s not necessarily the case.

• Doing nothing. This may be an appropriate strategy where the debts are small and/or where the debtor is elderly, judgment proof and likely to remain so.
• Negotiating. Creditors are sometimes willing to settle on delinquent debt for a percentage of the balance owed. The creditor typically requires that the settlement be paid in a lump sum. There may be tax consequences as the forgiven debt is treated as income unless the taxpayer is insolvent. There are companies in the business of “debt adjusting” that will represent you in such negotiations with creditors. These companies are always overpriced, often ineffective and on occasion, unscrupulous.
• Credit counseling. Credit counselors are funded by creditors and will often set up a debt management plan to pay back unsecured consumer debts. Oftentimes a credit counselor is able to negotiate reduced interest rates and late fees.
• Offer in compromise. For individuals who have primarily tax debts, offer in compromise with the federal or state taxing authorities is a very legitimate alternative.
• Foreclosure assistance services. There is nothing positive to say about companies that prey upon homeowners whose homes are in foreclosure.

Although the bankruptcy case file is a public record that is accessible from the internet, usually only creditors will learn of the filing. Current employers and governmental agencies cannot legally discriminate against a debtor because of a bankruptcy filing. Employers may be notified if the debtor’s chapter 13 payments are made by payroll deduction.

• Hire an attorney.
• Withdraw funds from a bank or credit union to whom the debtor owes money.
• Stop incurring additional debt.
• Continue to pay on certain debts that will survive the bankruptcy.
• Stop paying debts that will be discharged in bankruptcy.
• Stop repaying debts to family members and/or friends.
• Retain all pay stubs received over the past six months from all employers, credit statements and demand letters.
• Prepare all tax returns that are not filed.

Yes.

Yes.

A chapter 7 no-asset case where no adversary proceedings are filed generally takes about 100 days.

A chapter 13 case normally takes 3-5 years.

You may call at 919.319.7400 or use our contact form.

Bankruptcy is a legal proceeding where a person or company who is having difficulty meeting financial obligations can obtain a fresh start. The right to file for bankruptcy is provided by federal law, and all bankruptcy proceedings are handled in federal bankruptcy court. Filing bankruptcy generally stops most creditors from seeking to collect debts. The goal of most debtors is to obtain a discharge order from the bankruptcy judge. The discharge order has the effect of releasing the debtor from many forms of debt that were incurred prior to the bankruptcy filing.

• The amount of unpaid bills is such that repayment is unlikely or impossible in the foreseeable future.
• A secured creditor is threatening foreclosure or repossession.
• An unsecured creditor has commenced or threatened a lawsuit.
• Creditors and/or collection agencies are making frequent calls to collect on unpaid bills.
• The debtor’s credit report is irretrievably damaged.
• To stop execution on a judgment or to stop wage garnishment (note that wage garnishment in North Carolina is limited to creditors collecting taxes, domestic support obligations and student loans).

• Unemployment or underemployment.
• Business reversals.

• Health problems.
• Divorce or separation.

• Chapter 7. A debtor’s non-exempt assets are liquidated and many unsecured debts are discharged. Chapter 7 is sometimes referred to as straight bankruptcy.
• Chapter 13. A debtor retains his or her assets but proposes a payment plan through which creditors are paid part or all of what is owed over a period of 6-60 months. Chapter 13 is sometimes referred to as a wage-earner plan or debt-adjustment plan. A chapter 13 debtor must have a regular source of income, unsecured debts of less than $383,175.00, secured debts of less than $1,149,525.00 and an ability to set out a budget where he or she can realistically afford a monthly payment plan to a trustee.
• Chapter 11. Generally utilized for corporate reorganization or for individual reorganizations where the debtor is over the chapter 13 debt limits.
• Chapter 12. Family farmer reorganization.

• The debtor owns nonexempt property that would be liquidated in chapter 7.
• The debtor is behind on car or house payments and needs to cure arrears over time.
• Under certain circumstances a debtor may be able to modify a secured debt such as a vehicle or mobile home.
• The debtor is not eligible to file a chapter 7 or to obtain a chapter 7 discharge.
• The debtor owes debts that can be discharged in chapter 13 but not chapter 7.
• The debtor seeks to protect a co-debtor from legal action.
• The debtor may have the need for bankruptcy relief for future bills and wants to hold open the possibility for conversion or refiling [e.g. anticipated medical bills].

It depends on the debtor’s disposable income and how much the creditor would have received had the case been filed under chapter 7. It could range between 0%-106% based on the on those factors.

Debtors are normally required to undergo a credit briefing prior to filing for bankruptcy. This briefing generally takes no more than 90 minutes and can be conducted via the internet (For debtors filing their bankruptcy case through my office lacking access to a high speed internet connection, there is such a computer available for use at no additional cost). Additionally, all debtors must undergo a debtor education program prior to the entry of the debtor’s discharge.

All debtors are generally required to appear at a meeting of creditors (also known as a 341 meeting) 20-40 days after their petition is filed. At the meeting, a court appointed trustee will question the debtor in order to determine if the debtor was truthful on his petition and schedules. In chapter 7 cases the trustee will also be attempting to determine if liquidation of the debtor’s assets is appropriate, among other things. In chapter 13 cases the trustee is often concerned with whether the debtor’s plan of reorganization complies with the applicable provisions of the bankruptcy code. There are situations where it is necessary to appear before a bankruptcy judge.

If the prior case was filed more than 8 years ago, then it is not likely to have an impact on any new case. If the prior case was filed less than 8 years ago, then there may be relevance in terms of the availability of a discharge or a stay against creditor action.

No. Married persons are permitted to file jointly or individually.

A non-filing co-debtor remains liable to pay the debt. However, by filing a chapter 13 case a debtor can protect a non-filing co-debtor from legal action if the debt is a consumer debt.

• Domestic support obligations.
• Certain taxes.
• Student loans unless repayment is found by the bankruptcy court to constitute an undue hardship on the debtor.
• Criminal fines and restitution.
• Debts arising from driving under the influence.
• Debts found to have been incurred through fraud or defalcation of fiduciary duty.
• Restitution or damages awarded in a civil action as a result of a willful or malicious injury by the debtor that caused personal injury to an individual or the death of an individual.
• Debts where the creditor was not scheduled, listed or notified with regards to the chapter 13 case.

• Domestic support obligations.
• Certain taxes and debts incurred to pay nondischargeable taxes.
• Student loans unless repayment is found by the bankruptcy court to constitute an undue hardship on the debtor.
• Criminal fines and restitution.
• Debts arising from driving under the influence.
• Obligations incurred as part of a divorce or separation.
• Debts found to have been incurred through fraud, defalcation of fiduciary duty or willful and malicious injury.
• Certain homeowner association dues.
• Debts associated with violations of security laws.

• The debtor falsified his or her schedules or otherwise committed perjury in connection with the bankruptcy case.
• A debtor whose debts are primarily consumer in nature and whose family income exceeds the median is required to complete a “means test” form. If, under standards contained in the bankruptcy code, the debtor is found to have a certain amount left over that could be paid to unsecured creditors, the bankruptcy court may decide that a discharge is not appropriate unless there are extenuating circumstances.
• The debtor transferred away assets in the one year prior to filing with the intention of hindering, delaying or defrauding a creditor.
• The debtor has failed to provide a satisfactory explanation for a loss of assets or otherwise failed to cooperate with the bankruptcy trustee.

No.

**If a debtor has lived in North Carolina for less than 2 years, then he/she may not be eligible to claim the North Carolina exemptions and may be required to claim the federal bankruptcy exemptions or the exemptions of some other state.**

• Homestead. $35,000.00 in value in real or personal property used as a residence or burial plot. A widow or widower over the age of 65 may be entitled to an enhanced exemption.
• Motor vehicle. $3,500.
• Household goods. $5,000 plus $1,000 for each dependent.
• Tools of trade. $2,000.
• Life insurance policies where a spouse or child is the beneficiary.
• Professionally prescribed health aids.
• Personal injury compensation is exempted except for related legal, health or funeral expenses.
• Individual retirement plans. In addition to the IRA exemption, most 401k plans and other ERISA qualified plans are excluded from the bankruptcy estate.
• 529 plans not to exceed $25,000. If funds were contributed within 12 months of filing then the contributions must have been made in the ordinary course of the debtor’s financial affairs and must have been consistent with the debtor’s past pattern of contributions.
• Alimony, support, etc. to the extent that the funds are necessary for the support of the debtor and/or the debtor’s dependents.
• Tenancy by entirety. Real property held as entire ties is exempted in the absence of joint, unsecured creditors.
• Wages. Wages earned in the 60 days prior to bankruptcy are exempted if necessary for the support of the debtor and/or the debtor’s dependants.
• Recent purchases. Personal property purchased in the 90 days prior to filing may not necessarily be exempted.
• Other exemptions. The above list is not comprehensive. There are a number of other very significant exemptions available under federal and state law.

• File chapter 13.
• Compensate the bankruptcy estate in lieu of liquidation.

This is a form of exemption planning. Exemption planning is not prohibited per se but problems can arise.

No.

• Reaffirm the obligation with the secured creditor (both the debtor and creditor must agree to the reaffirmation).
• Surrender the collateral.
• Retain and keep current with creditor (a secured creditor with personal property for collateral may still be permitted to repossess the property should the debtor not reaffirm).
• Redeem the property by paying the creditor the value of the collateral (only available with tangible personal property used for personal, family or household use).

• Certain judgment liens (except arising from domestic support obligations).
• Nonpossessory, nonpurchase money security interest in certain household goods that the debtor has exempted.
• Wholly unsecured mortgages can be avoided in chapter 13.

No.

A corporation filing chapter 7 bankruptcy is entitled to retain no property and receives no discharge of debts. There is no requirement that an insolvent corporation file for bankruptcy and for that reason, state law dissolutions or simply walking away are common. Good reasons to file a corporation into chapter 7 might include:

• To stop a creditor from executing on valuable assets that could otherwise be utilized to pay favored creditors (e.g. trust fund taxes, wage claims or personally guaranteed debt).
• To recover preference payments that could be used to pay favored creditors.
• To help insulate the principals from allegations that the liquidation of the entity was handled improperly.
• The principals would rather turn over liquidation of the entity to a trustee rather than handle it themselves.

Good reasons to avoid a corporate chapter 7 might include:

• The assets of the corporation are very nominal.
• The time and expense of bankruptcy.
• The unwanted exposure and scrutiny of prior transactions.

AnnualCreditReport.com allows individuals to obtain one free credit report every year from Experian, Transunion and Equifax.

You may call at 919.319.7400 or use our contact form.

When a bankruptcy case is filed, a stay is automatically entered that prevents many types of collection activities against a debtor or a debtor’s property. Common examples of actions that creditors are often not allowed to take include:

• Commencing or continuing a lawsuit.
• Repossessing or foreclosing on a debtor’s property.
• Contacting the debtor by mail or telephone.

• Alimony and child support obligations are generally not discharged in bankruptcy unless determined to be a disguised attempt to divide property. Such claims are likely entitled to priority status among creditors if there is a distribution in the case.
• If the debtor has filed a chapter 13 bankruptcy, the child support creditor is likely prevented from pursuing the pre-bankruptcy child support outside the context of the bankruptcy case.
• If the debtor has filed chapter 7 bankruptcy, the creditor owed child support may have to limit his or her attempts to collect to property that is not property of the bankruptcy estate.
• Equitable distribution claims cannot be discharged in chapter 7 cases but can be in chapter 13 cases.

If the bankruptcy case was filed in the Eastern District of North Carolina, case information can be accessed through the Voice Case Information System at 866.222.8029 (Option 12). Documents are available for viewing through the PACER system or at the Bankruptcy Court at 300 Fayetteville Street, 4^th Floor, Raleigh, NC 27661 .

The URL is http://www.nceb.uscourts.gov.

Generally speaking, even informal notice will require a creditor to act in accordance with the bankruptcy code. If the case is a no-asset case, a discharge order will likely bind an unscheduled creditor unless there is some other basis for objecting to the dischargeability of the debt.

It depends on the case. It could take years.

It depends on the case. It could be zero, paid in full or somewhere in between.

A creditor can proceed with all available remedies against the debtor and/or his assets. Dismissal should not be confused with discharge. If the debtor is granted a discharge, most creditors are enjoined from seeking to collect on debts.

• The debtor’s bankruptcy filing is abusive pursuant to 11 USC 707.
• The debtor has falsified his schedules or otherwise perjured himself in connection with the bankruptcy case.
• The debtor transferred away assets with the intent to delay or hinder a creditor or bankruptcy trustee.
• The debtor has failed to provide a satisfactory explanation for loss of assets.

Common reasons would include that the debt was incurred through fraud, willful and malicious injury or defalcation of fiduciary duty. The complaint objecting to dischargeability must be filed within 60 days of the date originally set for the 341 hearing.

Common reasons would include that the debt was incurred through fraud, a willful or malicious injury by the debtor that caused personal injury to an individual or the death of an individual or defalcation of fiduciary duty. The complaint objecting to dischargeability must be filed within 60 days of the date originally set for the 341 hearing.

A judgment may be discharged in bankruptcy if no timely objection is filed. If the judgment creditor holds lien rights against the debtor’s assets, then those lien rights may survive the bankruptcy discharge if not avoided.

If the case is a chapter 7 then the codebtor may be pursued.

If the case is a chapter 13, a codebtor who owes consumer debt may not be pursued without obtaining relief from the bankruptcy court.

Under certain limited circumstances, an involuntary bankruptcy case can be filed.

A bankruptcy usually involving an incorporated or registered business that is either seeking to reorganize or effectuate an orderly liquidation.

The official title of the debtor after having filed a chapter 11 proceeding. The debtor in possession enjoys important powers and protections but is also burdened by significant duties and benefits.

• Excessive debt.
• Liquidity problems.
• Need to reject unprofitable leases or contracts.

When a chapter 11 is filed, the entity and/or its assets are in play. It is possible that the interest of the pre-bankruptcy owners will be extinguished in chapter 11.

No.

• Out of court workout. Possible benefits of a workout include the time, expense and scrutiny of chapter 11. Possible downsides include hold out creditors, lack of court protection and the debtor’s inability to extract sufficiently favorable concessions from creditors.
• Chapter 7 bankruptcy. The debtor’s assets are turned over to a trustee for liquidation and distribution.
• Receivership. A receiver is appointed pursuant to state or federal law.
• Dissolution. Under North Carolina General Statutes chapter 55, a corporation may dissolve itself, liquidate its assets and distribute funds to its creditors.
• Assignment for the benefit of creditors. Under North Carolina General Statutes chapter 23, a debtor can assign its assets to a trustee who marshals and distributes assets in a priority scheme.

• Does the debtor have an exit strategy? Common examples would be confirming a plan or reorganization, liquidating or arranging an asset sale. Reorganization plans may entail deleveraging the business or shedding unprofitable ventures or units.
• Can the debtor afford chapter 11? Professional fees and court fees can be quite significant.
• Can the debtor survive a chapter 11? Businesses in financial difficulty commonly hemorrhage employees, customers and vendors. Being a chapter 11 debtor may also prove a distraction for management.
• Does the debtor have sufficient capital or access to capital? The most common methods for chapter 11 debtors to obtain operating capital are through its operations, asset sales, DIP financing or use of its cash collateral.
• Is it advisable to subject to the debtor to scrutiny and/or court oversight? A chapter 11 proceeding is a public matter and certain transactions or dealings (e.g. preferential payments or fraudulent conveyances) may be exposed with unpleasant consequences for insiders, officers or directors. After chapter 11 is filed, executive compensation is subject to approval from the bankruptcy court.
• Would it be easier to shut down the entity and create a new entity conducting the same business? This is often the case with personal service businesses or businesses with low capitalization requirements.

It can range from a few months to several years depending on the case.

The plan of reorganization sets forth how the debtor will emerge from bankruptcy. Included in the many items found in a chapter 11 plan will be identification of the proposed ownership structure and the creditor repayment scheme.

Creditors vote on whether to approve a plan that is commonly (but not always) proposed by the debtor. A plan may be confirmed over the objections of some classes of creditors in certain instances.

You may call at 919.319.7400 or use our contact form.

How quickly we can file a Chapter 11 case for a small business?

the answer to that is simple, we can file really quickly. What’s harder, and is actually even more crucial, is what we were able to get from the client in a couple of days after the case is filed. And that is where specifically a 30-day budget becomes very important.