Can your Creditor Arrest you for Non-payment of Debts?

Very often, debtors call inquiring whether they can be arrested if they have not been paying on certain debts.  They continuously receive hostile phone calls from creditors threatening them if they are unable to make their payments.  In fact, many of these creditors, especially payday loan companies, threaten to have debtors arrested.  The creditor will state something along the lines of issuing a warrant if no payments are made immediately, sometimes within a few hours. Often, this threat is only used to scare debtors into making payments.  The information given by the creditor attempting to collect the debt is almost always incorrect or misstated.

In order for a debtor to be arrested for a civil matter, such as an issue involving non-payment of a debt, there is a process within the legal system that must be followed.  In other words, a creditor cannot arrest you immediately for not paying a debt.  What they can do is summon you to court to attempt to receive a judgment against.  If you appear for this court date, you can buy yourself more time to avoid the judgment by asking for a continuance, or you can decide to enter into a consent judgment, where you will set up a repayment plan.  If you choose not to appear at the court date, your creditor can enter a default judgment against you, and begin to garnish your wages.

If you have written a bad check recently, the place it was written to can turn the check over to the prosecuting office, and then they CAN decide to pursue legal action against you, such as issuing an arrest warrant.  However, if this does happen, you will receive notice of the arrest warrant from a sheriff or other police agency. Your creditor cannot issue arrest warrants themselves.

If you are being threatened with being arrested for a particular debt, and are unsure of what your options are, contact a St. Louis bankruptcy attorney today!

 

 

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Judgment Liens in Bankruptcy

If you have received a judgment against you and you own real property, such as a house, it is very likely that you have had a judgment lien put against your house.   A lien is a notice attached to your property that states that you owe a creditor a certain amount of money.  When a lien is placed on your property, it shows up on the title to the property.  To some, this may not seem like a big deal; why would it matter if a lien shows up on your property title?  The reason why placing a lien on a property should be important to someone is that to be able to sell or refinance the property, one must have a clear title.  The only way to clear the title of the lien is to pay the lien off in full.  Because of this, creditors know that putting a lien on the property is an almost guaranteed way to collected the money that they are owed.

Many people assume that if they file for bankruptcy, all debts that they owe will be taken care of; they will no longer be responsible for paying off the creditor that they owe.  Unfortunately, though, judgment liens survive a bankruptcy, meaning they will still be on your house even after you file.  Because of this, there are some important steps a debtor should take regarding liens on their property if they are considering filing for bankruptcy.  If you have received a judgment against you from one of your creditors, and you own real property (such as a house) it is likely you will have a judgment lien on your house.  One of the easiest ways to tell if you have a lien on your property is to obtain a copy of your title; any lien that is on your property will be listed on your title.   If you find that you have a lien on your property, it is best that you inform your attorney right away.

A judgment lien will survive a bankruptcy, meaning even though your personal liability to pay the debt will go away, your property’s liability will not. This means if you wish to sell your property post-filing your bankruptcy, you will still have to pay the lien before you can sell the property.  However, in some cases, your attorney may be able to assist you with “avoiding the lien” through your bankruptcy case.    By doing this, your attorney would be able to calculate if you would be able to get rid of the entire lien or part of it through your bankruptcy case.  This would ensure that if you decided to sell your property in the future, your title would be clear, and you wouldn’t have to pay off any liens to do so.

If you would like more information about avoiding judgment liens through your bankruptcy, contact a St. Louis Bankruptcy attorney today!

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Preferential Payments to Creditors Prior to Filing Bankruptcy

One of the questions that your attorney will ask you while preparing you bankruptcy petition is: “have you made any payments to any creditors that total $600 or more in the last 90 days?”.  This may seem like a strange question, but this is something that the bankruptcy trustee will want to know.  Your trustee is appointed to your case to ensure that any assets found in the estate are distributed equally amongst a debtor’s creditors.  Often, prior to filing, debtors will feel guilty about discharging large amounts of debt from a particular creditor.  To make up for this, the debtor will attempt to pay as much of the debt off as possible, or even pay the debt off in full, in an attempt to maintain a good relationship with the creditor.  Unfortunately, this is not permitted by the Bankruptcy Code.  In Missouri, any payments given to one creditor totaling $600 or more can be viewed by the trustee as a preferential payment.   Because of this, if any single creditor receives payments totaling $600 or more in the 90 days prior to filing, the trustee can void the amount given to the particular creditor, obtain the funds, and disburse them equally among all of a debtor’s creditors.   Typical creditors that a debtor would pay more than $600 to in a 3 month span would be a car creditor, for the loan a debtor has against their car, or a mortgage payment.  With creditors like these, where the regular debt repayment amount is much higher than average creditors, the trustee would not file anything to recover those funds.  However, if a debtor made a large lump sum payment to a creditor such as a credit card, the trustee may want to recover those funds.

Another creditor that the trustee will be interested to see if you have given large quantities of money to is a friend or family member.  Many times when debtors find themselves in financial turmoil, they turn to friends and family members to borrow money.  Something that many people do not realize is that a friend or family member that you owe money to is treated the exact same way a credit card or medical bill is: it is unsecured debt that will be discharged through a bankruptcy.  While it can be tempting to pay back a friend or family member the money you owe them, it is important to consider that they will be treated like the creditors discussed above. If you give a friend or family member a large amount of money in the one year before filing, the trustee can void this transaction and require your friend or family member to give this money back.  Even if your friend or family member has already spent the money you gave them, the trustee can legally require them to return the funds.  It would be better to wait until after filing your bankruptcy case to begin voluntarily repaying your friends if you truly want to pay them back.

 

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Different Types of Bankruptcy

When determining if filing for bankruptcy is the best option, many debtors are surprised to learn that there are several different types of bankruptcy.   Which type of bankruptcy that is best for you depends on certain qualifications for each, set out by the bankruptcy court.  While doing your research on bankruptcy, you may come across the different chapters of bankruptcy, most commonly including Chapter 7, Chapter 11, Chapter 12, and Chapter 13.   Knowing the difference between the different chapters of bankruptcy is an important step in your decision to file.

Very often, especially due to numerous media ads targeting struggling businesses, people at some point or another have heard of Chapter 11 and Chapter 12 bankruptcies.  Chapter 11 bankruptcy applies to corporations, partnerships, and businesses.  This type of bankruptcy typically proposes a plan of reorganization to keep the business alive, and provides the opportunity for the business to pay off debts over a period of time.  This type of bankruptcy is regularly heard about on the news, when large corporations are facing bankruptcy.  Despite large corporations regularly using Chapter 11 bankruptcy for relief, people in businesses and individuals can also seek relief through a Chapter 11 bankruptcy.  Chapter 12 bankruptcy is less common, and provides for adjustment of debts of a “family farmer” or “family fisherman” as those terms are defined in the Bankruptcy Code.

The most common types of bankruptcy for individuals who are personally filing are Chapter 7 bankruptcy, and Chapter 13 bankruptcy.  A chapter 7 bankruptcy is the type of bankruptcy that people typically think about when they hear the term “bankruptcy”.  Chapter 7 provides the opportunity for the sale of a debtor’s nonexempt property and the distribution of the proceeds to creditors.  Essentially, this type of bankruptcy allows for the trustee in the case to sell off any unprotected assets to benefit the creditor.  Often, people who file a Chapter 7 bankruptcy do not have many unprotected assets to sell.  With the application of exemptions, it is very common for debtors to have a “no asset chapter 7” case, which means the creditors will not be receiving any money from the bankruptcy estate.  As for benefits for the debtor, it allows the debtor to no longer be responsible for any unsecured debts, such as credit card bills and medical bills.  Chapter 7 bankruptcy can be used by individuals who are personally filing, and it can also be used by business owners who are interested in liquidating their companies.

A Chapter 13 bankruptcy varies from a Chapter 7 bankruptcy, in that it provides for the adjustment of debts for individuals with regular income.  This allows individuals to pay back their debts over time, usually three to five years, through a Chapter 13 plan payment.  This type of bankruptcy is especially beneficial to individuals with over-median income, and individuals who have large amounts of arrears on their homes and/or cars.

If you would like to know which type of bankruptcy is right for you, contact a St. Louis Bankruptcy attorney today!

 

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Banks Agree to pay $8.5 Billion to Foreclosure Victims

The United States Comptroller of the Currency and the Federal Reserve announced on Monday, January 7, 2013, that many of the Nation’s largest banks have agreed to pay $8.5 billion in damages to millions of foreclosure victims who were affected by wrongful foreclosure practices.  The agreement ensures that more than 3.8 million borrowers whose homes were in foreclosure in 2009 and 2010 with the banks involved will receive cash compensation for damages in a timely manner.  The Banks included in this settlement include large banks such as: Aurora, Bank of America, Citibank, JPMorgan Chase, MetLife Bank, PNC, Sovereign, SunTrust, US Bank, and Wells Fargo.   According to a press release, the $8.5 billion sum includes $3.3 in direct payments to eligible borrowers, and $5.2 billion in other assistance to borrowers such as loan modification and forgiveness of deficiency judgments.

The victims of the wrongful foreclosure practices do not have to prove damages under this settlement; they will not be required to execute a waiver of any legal claims they may have against their servicer as a condition for receiving payment.  The amount of the compensation will, however, vary; eligible borrowers are expected to receive anywhere from hundreds of dollars upwards to $125,000.  The full amount received by borrowers will depend on the type of possible service error.  As for borrowers receiving the settlement amount, a payment agent will be appointed to administer payments to borrowers on behalf of the bank involved.  Eligible borrowers should expect to be contacted by the agent by the end of March 2013 with payment details.  Some critics of this settlement agreement think that this deal is letting some banks off easier than they should be.  However, with this settlement, the banks involved hope to put the entire mortgage mess behind them.

Some people may be wondering how this could effect their bankruptcy case.  If you filed for bankruptcy and could potentially be receiving money from this settlement, your bankruptcy case could be effected by this.  Because this is a large, lump sum of money that you are going to receive, your bankruptcy trustee could either hold your case open, or re-open your case, to wait until you receive the settlement check.  Your trustee could then take an interest in a portion of the check to disburse to your creditors.  If you know you are going to be receiving a settlement check, or have the potential to, you should contact your St. Louis bankruptcy attorney immediately to discuss your options.

 

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When is a Chapter 13 Bankruptcy a better Alternative than a Chapter 7 Bankruptcy?

There are several situations where a Chapter 13 bankruptcy is a better alternative than a Chapter 7 bankruptcy; however, this very much depends on an individual’s particular situation.  While many people assume that a Chapter 7 bankruptcy will be a better option than a Chapter 13 bankruptcy, this can prove to be untrue.  Certain situations including income, types of property, and property value can play a large part in determining if a Chapter 13 bankruptcy is a better option than a Chapter 7 bankruptcy.

Income become a factor in bankruptcy when you make “over median” annual income.  “Median Income” varies from state to state, and also varies with household size.  Median income is a figure determined by the bankruptcy court that takes into account reasonable, average living expenses accounting for household size, based on the state you live in.  Depending on how much you make compared to how many dependents you have, you could be “over median” or “under median”.  If you are “over median” it is very likely that you will have to file a Chapter 13.

A Chapter 13 bankruptcy is also a better alternative to a Chapter 7 bankruptcy if you are behind on your mortgage and/or have a pending foreclosure.  If you own a home, are behind on your mortgage payments and have a foreclosure scheduled or pending, filing a Chapter 13 bankruptcy would be an option for you to keep your home.  Not only will the bankruptcy stop the foreclosure process, but it will also allow you to catch up on your late mortgage payments through your Chapter 13 plan payments.

Property value can also play a large role in determining if a Chapter 13 bankruptcy is a better alternative than a Chapter 7 bankruptcy.  If you have a large amount of equity in your house or car, or have certain personal property that has a large monetary value, and you want to keep that property, a Chapter 13 bankruptcy would be a better alternative for you.  Because the bankruptcy code only allows debtors to exempt a certain amount of property based on value, if you have any particular property that is worth a large amount of money, you may need to file a Chapter 13 bankruptcy.

If you would like help determining if a Chapter 13 bankruptcy is a better alternative than a chapter 7 bankruptcy, contact a St. Louis Bankruptcy attorney today.

 

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Unexempt Tax Refunds in a Chapter 7 Bankruptcy

One of the most frequently asked questions by people who are planning on filing a Chapter 7 bankruptcy near the end of the year or the very beginning of the year is “what will happen to my tax refund?” When filing for a Chapter 7 bankruptcy near the end of the year or the very beginning of the year, your attorney will advise you about what will happen to your tax refund. Because many debtors are entitled to a large, lump sum of money from the government in the near future post filing, the bankruptcy trustee may take an interest in that money. This means that he or she may require you to turn over a portion of that money to the bankruptcy estate so that it can be distributed to some of your creditors.  The amount that the trustee will require you to turn over will greatly depend on a few things, including how much you receive as a tax refund, if you are filing singly or jointly, how many dependents you have, and how much property you have.  These factors influence how much you will be able to use in exemptions, which determine how much property you can keep.  Any un-exempt portion of your tax refund is what will have to be turned over to the trustee.

The first thing to consider is how much you expect to receive as a tax refund. A good way to determine this is to look at how much you received the previous year when you filed your taxes.  If your income has not changed in the past year and you do not have any more dependents than you did from the previous year, it is very likely that you will be receiving around the same amount as you did the prior year.  However, if you recently had a child, or can now claim children as dependents that you did not claim the previous year, it is likely that your tax return will increase.  Likewise, if you have received a pay increase, it is likely your tax refund will go up. Conversely, if you have recently lost your job or received a pay decrease, or can no longer claim a child on your taxes, it is likely your tax refund will go down.

Assuming you have very little personal property and/or property with low monetary value (like household goods, a car that is not worth much, or low amounts in bank accounts), you will have a significant portion of the “wildcard” exemption to use to exempt some of the tax refund you are expecting to receive. In Missouri, if you are filing a Chapter 7 singly, you will be able to use the $600 exemption to put toward exempting your tax refund; if you are married and filing jointly, you will have $1,200 to put toward exempting your tax refund.  If you have more than a one-person household, you can also use the “head of household” exemption toward exempting your tax refund.  If it is just you and a spouse, you will be able to use $1,250.  If you have children who are dependents, and are under the age of 21, you can add $350 of exemptions per child on top of the $1,250 exemption.  As an example, if you have two children under the age of 21, you would be able to exempt an additional $1,950 of your tax refund.

Determining how much of your tax refund is exempt and non-exempt is something to consult with your attorney about.  Your attorney will be able to look at your case, and give you a relative idea about how much you will be able to keep.  Many people who file for bankruptcy around tax season will end up having to turn over a portion of their tax refund.  Because of this, you may want to consider your options regarding when you are going to file.  If you are expecting to receive a large tax refund (example $5,000-$10,000), it may be in your best interest to wait to file for bankruptcy.  If you wait to file bankruptcy until after you file your taxes, receive your tax refund, and spend it, you will not have to lose any unexempt portion of the refund to the trustee. You will be able to spend the tax refund on things you were planning on spending it for that are legitimate expenses, such as car or house repairs.

However, if you decide not to wait to file, and end up having an unexempt portion of your tax refund, it is imperative that you speak with your attorney about what that decision means.  If you have an unexempt portion of your tax refund, it is important that when you receive that money, you do not spend it! When you file your bankruptcy petition before you receive your tax refund, you list it as property that you are expecting to receive, so the amount listed is not an exact number.  Your attorney can give you an estimate of what you will be able to keep; however, they can’t give you an exact number since you will not know for sure what you will receive until you receive it.  Because of this, you will want to hold onto the money until you receive notice from your trustee about how much you will have to turn over.  Your trustee will be able to look at your tax refund and your bankruptcy petition, and give you an exact amount that he or she wants for the bankruptcy estate.  The trustee will send you and/or your attorney a notice that tells you how much you need to send in to him/her.   Once you receive this notice, you must send in the amount requested.  Your trustee may keep your case open until he or she receives this money.

Debtors should also keep in mind that the trustee requesting this money is not something that will go unnoticed if it is not paid.  Some debtors think that if they simply do not pay the trustee the unexempt portion of their tax refund, the trustee will not notice or just will not do anything.  This is not the case.  Additionally, some debtors think that if they spend the tax refund before the trustee requests the unexempt portion, there is nothing that the trustee can do.  This is also not the case.  In fact, if you decide to spend all of the unexempt portion of your tax refund, the trustee will make you pay that money back.  Many trustees will be willing to work out a repayment plan; however, they will still receive that money from you, one way or another.  If you still decide not to pay the trustee at this point, your trustee will file a complaint with the United States Bankruptcy Court and request that your discharge be revoked.  If this happens, you will not only be responsible for paying back all of your creditors again, but you will also not be able to file a Chapter 7 bankruptcy on those debts to have them discharged again.

With this being said, it is important to put things into perspective; even though it may not be ideal that the trustee is taking a portion of your tax refund, you are still going to be able to get rid of any unsecured debts that you owe.  For many people, a trade off of a couple thousand dollars definitely beats having to pay tens of thousands of dollars to creditors.

Determining how much of your tax refund you can keep can be somewhat complicated since it greatly depends on so many factors.  If you would like information about how your tax refund will be handled through a chapter 7 bankruptcy, contact a St. Louis bankruptcy attorney today!

 

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Median Income

When considering filing bankruptcy, many debtors begin researching on their own what their options might be.  To many, this means “google”-ing the word “bankruptcy” and seeing what results come up.  By researching options in this way, it is easy to be mislead about which type of bankruptcy you might qualify for.  Chapter 7 bankruptcy is the type of bankruptcy that most people are familiar with; this chapter of bankruptcy allows the majority of your debts to be discharged, or wiped out.  A Chapter 13 bankruptcy involves a repayment plan over the course of three to five years.  Knowing that there is a type of bankruptcy that wipes out all of your debts leads many debtors to want to file a Chapter 7. However, depending on your income, you may not qualify to file a Chapter 7 bankruptcy.

When determining if you qualify for a Chapter 7 or a Chapter 13 bankruptcy, your attorney will look at if you are above or below median income.  Each state has different amounts that will state what the median income is. For Missouri, median income is as follows:

1 Person Household:  $40,123 annually

2 Person Household:  $52,200 annually

3 Person Household:  $60,197 annually

4 Person Household:  $69,378 annually

As you can see, the median income increases with larger household sizes.  Your household size can be determined by looking at how many people you can claim as dependent; as a general rule you can count anyone who you can claim on your taxes.  You can count yourself, your spouse, and your children if they are 18 and under.  If you have a child who is over 18, but still dependent (a college student, for example) you can count him or her as well.  Additionally if you have a parent or relative who is financially dependent on you living at your home, you can count that person

If you are at or below median income, you will qualify for a chapter 7; however, if you are above median income, you may have to do a Chapter 13 bankruptcy.  An experienced St. Louis Bankruptcy attorney will have to do what is called a “Mean’s Test” to see if some of your qualified expenses will actually put you under median, allowing you to file a Chapter 7 bankruptcy.

If you have questions about which type of bankruptcy you will qualify for, contact a St. Louis Bankruptcy attorney today!

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Who Will Find out you are Filing for Bankruptcy?

When considering filing for bankruptcy, many people are concerned about the perceived stigma surrounding filing for bankruptcy, and are worried about people finding out that they have filed.  Although certain debtors may feel they are part of the small few who get into financial trouble, this is truly not the case. In fact, according to the United States Court system, about 1.5 million people filed for bankruptcy in 2011 alone. This number has nearly doubled in the past 5 years.  With the struggling economy, many people across the nation have fallen on hard times.  Numerous people have found it hard to find and retain gainful employment, and as a result, have accrued large amounts of debt.  Even people who were not hit by the failing economy may have experienced one major life event, like a medical issue or losing employment, that pushed them into a tough financial situation.  Many people find that filing for bankruptcy is their best option to assist them with turning their financial situation around.

Even though pursuing bankruptcy may be a good option, many people worry that individuals from their community will find out that they have filed.    Bankruptcy filings are a matter of public record, so it is possible that someone could find out that you have filed.  However, to find this information requires a bit of digging, so chances are your friends and neighbors are not going to be sifting through public records to see whether or not you have filed a bankruptcy recently.  It is very likely that none of the people in your community will find out that you have filed, assuming you do not tell them yourself.

The only other people who will find out about you filing for bankruptcy are going to be the people associated with your case: your attorney, your creditors, the bankruptcy court and the bankruptcy trustee (including the United States Trustee’s office).  All of these people deal with bankruptcies on a daily basis, and have received notices of individuals filing for bankruptcy. In fact, some get these notices on a daily basis.

Some debtors may worry about who may ask if they have ever filed.  That is something that could vary, but the most common people who ask this are mortgage lenders and leasing agencies at apartment complexes.  You will not be banned from buying or renting property after you file for bankruptcy; however, many lenders and leasing agencies will want to know if you have filed.  It is always best to be honest about this, especially since they will most likely be able to tell if you have filed anyway by looking at your credit history.

If you have questions, or would like to set up a free consultation, contact a St. Louis Bankruptcy Attorney today.

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Will a Co-Signer be Negatively Effected if I File for Bankruptcy?

For various reasons, many people find themselves in a situation where they need a family member or loved one to co-sign for them on a certain type of property.  Typically, debtors will have a co-signer on property like a car or a house.  Having a co-signer can help people with little or no credit obtain loans when they otherwise could not.  However, when debtors find themselves in trouble financially, one of the many things they worry about is if their co-signer will be negatively effected.  Quite often, when people file for bankruptcy, they worry that not only will their co-signer be responsible for the property, but that their credit will be negatively effected as well.

When a debtor files for bankruptcy, the effect this has on their co-signer’s credit depends greatly on what the debtor’s intentions are with the type of property in question.  If a debtor has a car with a co-signer, it would depend on a few different scenarios:

– is the debtor keeping the car and paying the loan balance back as agreed?

-is the debtor keeping the car and paying the loan balance over a longer period of time through a Chapter 13 repayment plan?

-is the debtor surrendering the car, or walking away from the loan balance and the vehicle?

-Is the debtor filing a Chapter 7 or a Chapter 13 Bankruptcy?

If the debtor filed a Chapter 7, the only way to make sure that the co-signer is not negatively effected is to ensure that the loan payments are being paid as they were originally agreed on the loan agreement.  This will mean the debtor will most likely need to enter into a reaffirmation agreement, which can incur additional attorney fees.  If the debtor decides to surrender the car through the bankruptcy, this would make the debtor no longer liable for the loan; HOWEVER, the co-signer would still be solely liable for the car loan. This means that they car creditor would be able to pursue collecting the remaining loan balance from the co-signer, unless the co-signer also decided to file for bankruptcy.

In a Chapter 13 bankruptcy, the effect on the co-signer is a bit different than when a debtor files a Chapter 7 bankruptcy.  When a debtor files a Chapter 13 bankruptcy, the co-signer is effected depending on how the car loan provider is paid.  If the car loan creditor is being paid through the debtor’s Chapter 13 plan, the co-signer would not be negatively effected due to protection provided by the automatic stay.  The co-signer will continued to be protected by the automatic stay as long as the debtor continues to make their Chapter 13 plan payments on time. If the debtor decided to pay for the car loan outside of the Chapter 13 plan and/or they are not receiving payments, they can file a “Motion for Relief from Automatic Stay” as well as a “Motion for Relief from Co-Debtor Stay” to attempt to collect from the debtor and co-signer.  This could mean that they would attempt to repossess the car if the motions were granted.

There are a variety of different ways a co-signer can be effected if you decide to file for bankruptcy. If you have any questions or concerns, contact a St. Louis Bankruptcy Attorney Today!

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