Multiple Bankruptcy Filings

You may file bankruptcy more than once in your life. The following rules are new under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. This article will cover information for people who have previously filed and received a discharge in a prior chapter 7 or chapter 13 bankruptcy case, and now wish to file another case.

Filing Under the Same Chapter.

Successive Chapter 7 cases: if filed a bankruptcy and received a discharge in your previous chapter 7 case, you cannot receive a discharge in a subsequent chapter 7 case that is filed within eight years from the date of the filing of the previous case.

Successive Chapter 13 cases: if you received your first discharge in a chapter 13 case, you cannot receive a discharge in a second chapter 13 case that is filed within two years from the date the first chapter 13 case was filed.

Filing Under Different Chapters:

Chapter 13, then Chapter 7: If you filed a Chapter 13 and received a discharge, you must wait 6 years from the date of that the previous case was filed in order to file a chapter 7 case and receive a discharge. There is an exception to this 6 year rule if you paid all of your chapter 13 creditors in full or if you paid at least 70% of the claims in your previous chapter 13 and the plan was proposed in good faith and was your best effort.

Chapter 7, then Chapter 13: If your first discharge of debt was in a chapter 7 case, then you must wait four years before filing a chapter 13 case that will discharge your debts.

“Chapter 20″ Cases: In some cases you might want to file a chapter 13 case directly after filing a chapter 7 case even though you are not eligible to erase any of your debt. This can be done to pay a tax debt under the protection of the bankruptcy court or to pay home owner’s association dues.

Multiple Filings and the Automatic Stay

If your previous case was dismissed without a discharge within one year of the new case you intend to file, the automatic stay (the protection from your creditors that is imposed automatically upon the filing of a bankruptcy) may not apply without some special attention from your lawyer.

The automatic stay will only apply for 30 days if you had a previous case pending within the last year. Your lawyer will have to file a special motion to impose the stay beyond 30 days in these circumstances. If you have had two cases dismissed in the last year, then the automatic stay will not apply at all unless your lawyer files a motion showing the court why the current filing is not “in bad faith.”

If your case was not simply dismissed but instead was denied owing to untruthful statements or failure to follow court rules, you may have problems dismissing those same debts in any subsequent case. In this circumstance, you must hire an experienced bankruptcy attorney to help you.

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21 Things to Know If You Are Considering Bankruptcy

21 Things to Know If You May Have to File for Bankruptcy

1. Meet with a bankruptcy lawyer sooner rather than later. Waiting until you have an emergency like a lawsuit or foreclosure just complicates the case. If bankruptcy is the best option, having time to plan will reduce stress, make your case go smoother, and quite possibly save you money.

2. Keep your bills. It is tempting to begin trashing bills when you don’t have the money to pay. Having your bills in order will make preparation of your bankruptcy case much easier. You should also get a free copy of your credit report from www.annualcreditreport.com

3. Do not repay friends or family members for personal loans. It is tempting to repay those closest to you, but if a bankruptcy is in your future this is a bad idea. You risk having the trustee go after that money in order to pay it to other creditors. This is called a “preference.” It is best to wait until after bankruptcy to repay friends and family.

4. Keep your pay stubs and keep good business records. Bankruptcy of course depends heavily on your income. Your bankruptcy lawyer will need all of your pay stubs and business records for approximately one year in order to prepare your case. It is easier to just have this information on hand if you decide to file.

5. File your tax returns. If you are owed refunds and get them before you file, you will be able to keep them. If you wait until after you file bankruptcy to do your taxes, you may lose the tax refunds. If you owe tax, it will help you qualify for bankruptcy and help you get a grasp on your financial situation.

6. Do not let parents put property in your name for estate planning purposes. Often times, parents will want to transfer property to their children in order to avoid probate. If you end up having to file bankruptcy, you risk losing that property to the bankruptcy trustee.

7. Get needed medical treatment and dental treatment if possible. It makes no sense to file a bankruptcy and then get hit with an expensive medical bill the month after your case ends.

8. Do not transfer property to friends or family members. It’s tempting to “give” your valuable property to friends in order to keep it out of your bankruptcy, but there are of course rules against this sort of thing, and that includes gifts or “fake”sales. When you work with a professional bankruptcy lawyer, there are a number of legal ways to avoid losing things of this nature. Do not run the risk of ruining your case, or going to jail, by hiding property.

9. Once you are sure you are going to need to file, stop using credit. Charges that are made close to the time of filing your case get special scrutiny and you may have to repay them in your bankruptcy case.

10. Do not choose the first bankruptcy lawyer you come across. Meet a few lawyers and ask questions. Do not choose the cheapest bankruptcy lawyer you find. Those lawyers are cheap for a reason. You are filing a document which will affect your entire financial future, choose wisely.

11. Do not beat yourself up. Many good people are forced to file bankruptcy. It is not something any of us expected to have to do, but it’s not the end of the world. Having too much debt is enormously stressful. You will not be able to help anyone or accomplish anything, if you are seriously ill or dead. Make a rational decision with the help of a professional. Accept that you’re not a bad person for considering the idea of bankruptcy.

12. Do not use retirement funds or home equity to pay credit cards. If you end up filing bankruptcy this is simply money wasted, money that you could have kept in a bankruptcy. If the situation is that drastic that a bankruptcy may be necessary, meet with a professional before deciding to use retirement funds or home equity to pay down credit cards.

13. Do not cancel your health insurance in order to save money. It’s tempting to take the chance, but access to healthcare is crucial. If you are sick or dead, you are not in a position to help anyone or accomplish anything. Don’t skimp on medical care or health insurance, it’s too important.

14. Do not turn off retirement plan contributions. You can keep qualified retirement funds in a bankruptcy, and if you end up doing a repayment program (a chapter 13) you may continue to fund your retirement during the plan. Having a history of making contributions will help establish your right to continue building that account during a Chapter 13.

15. Do not consider hiding anything from your lawyer. We are human beings, and believe me, we have seen it all before. It is our professional obligation to keep your confidences and there is almost always a way to handle something negative properly and legally, as long as we know about it before hand and it doesn’t come out in court as a “surprise.” We are not here to judge you, we are here to help you, so be honest.

16. Do not get involved with a shady “credit counselor”. There are many quality people in that industry, but you have to be careful to avoid dishonest and greedy debt and credit counselors. If you do decide to use a credit counselor, do your research with the Better Business Bureau and get references before making a choice.

17. Do not air your dirty laundry on Facebook.. It’s tempting to complain or vent on sites like Facebook, but creditors and all sorts of lawyers are increasingly doing online research on people in order to try to get an advantage in the courts. Keep your private financial information private.

18. Do not be overly concerned about your credit rating. Your lawyer will help explain that a bankruptcy is not the end of the world. A credit score is simply an industry tool used to determine how much interest creditors will likely be able to charge you over time. That’s it! It is not the measure of your self worth as an individual.

19. Do not listen to Uncle Fred. Uncle Fred isn’t a lawyer, he hasn’t been filing bankruptcies for 16 years and he did not go to law school. Same goes for Aunt Esther. Get professional help with your bankruptcy questions and ignore the “experts” you may encounter in life.

20. Don’t write bad checks and ignore lawsuits. Writing bad checks can get you into criminal trouble as well as cause more debt. Ignoring lawsuits and in particular, interrogatories (questions from creditors about your assets which the court orders you to answer) can also lead to criminal trouble.

21. In summary, you should rely on professional advice and make an honest assessment of your situation. Keep good records, file your taxes and go see a professional about the idea of filing for bankruptcy as soon as possible. It’s not the end of the world, and in fact it may open up a world of opportunity for you and your family.

I enjoy helping people through this process and I can be reached at (303) 670-4242. Robert Gauss, Esq. Bankruptcy Professional. More information is available at http:www.gausslaw.com

Preparation is the key to success in any type of legal matter. We have the bankruptcy experience necessary to prepare your case quickly and get it done right.

We offer a FREE phone consultation where YOU SPEAK DIRECTLY TO THE ATTORNEY. Call (303) 670 – 4242 in the Denver Metro Area during office hours, (303) 501-4028 after hours until 10PM.

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Bankruptcy and Retirement – Things to Consider

Many people who are in retirement nevertheless still have significant debt to contend with. Often this debt is driven by medical costs and helping needy family members and not unrestrained spending earlier in life. If the level of debt is manageable of course negotiation is an option but it is important in retirement to do everything possible to protect assets.

Bankruptcy is the ability to hit a financial reset button with respect to debt, yet keep valuable assets while doing so. Many people in their 60s and beyond need bankruptcy relief desperately but are very reluctant to file because of emotional hurdles. People who need bankruptcy in retirement often delay several years or more before actually getting it done. This is wasted time which can hurt not only your finances but your health. Bankruptcy does effect a credit score, but if the situation is so bad that a bankruptcy is necessary, chances are that your credit score isn’t going to be the greatest anyway. Long term, bankruptcy can help your credit score.

Whatever decision a person makes, they should do so after consulting with a qualified and experienced bankruptcy lawyer. Older citizens are often reluctant to go see a lawyer for fear of being judged or ignored. A decent lawyer will not pressure you to file and will listen to your specific situation before advising you.

One of the things to advise you on would be the possibility of settling your debts without filing a bankruptcy. In certain circumstances this can make sense for people. The key for retirement planning and bankruptcy is however, to preserve the assets and income stream you will need to live a decent life. That is entirely possible in bankruptcy because social security and pension income is exempt and in Colorado older citizens get a higher homestead exemption. The definition of “elderly” people who get more exemptions in bankruptcy is actually only 60 years of age.

I wrote this blog because I am continually helping retired people file bankruptcy cases and see many situations where the idea of bankruptcy should have been considered much, much sooner. I see people who have spent down retirement savings in a futile effort to keep things afloat. I see people who are extremely upset and who wrongly think they will be judged by a bankruptcy lawyer or by the bankruptcy courts….I see people filing on credit cards who have repaid the amount they borrowed many times owing to late fees and interest.

Guess what? No one cares. That’s right. No one cares. The bankruptcy trustees and the Courts get paperwork that explains your situation and the necessity of bankruptcy. When you go to your court hearing with your lawyer you sit in a room full of other people who are filing. Everyone is kind, and everyone is non -judgmental. Your lawyer is there in the event it doesn’t go that way for some reason. It is a public record but your neighbors won’t know and won’t care to know. You will not have to explain yourself or be embarrassed. You ought not live the rest of your life in a failing effort to impress people you don’t know and who do not really care about you.

You know who will notice? Who will care? Your family and friends. They will notice you are more relaxed and have more hope. You cannot help anyone if you are sick or dead, and sadly emotional hurdles or feelings of “failure” prevent people from seeking the help they need. You want to leave the assets you have worked so hard for to your family members, not bills. We can do this together.

We can get to a place where your assets are protected and you have a solid plan to protect and nurture the assets you have worked so hard for. We can get to a place where you can help family again and enjoy life. If a bankruptcy is NOT necessary, we can talk about other alternatives as well.

I enjoy this process because people who are in their later years often are the most deserving of bankruptcy relief and a fresh start. Not only do they deserve help from the bankruptcy system, they also tend to benefit the most from a fresh start health and lifestyle wise.

If you are a retired Coloradan and want to take an honest, non judgmental look at your situation please call today for a consultation. Robert Gauss 303 501 4028.

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