Category Archives: bankruptcy abuse

Can I File for Bankruptcy Again? Understanding the Rules and Timing

Leave a reply

Filing for bankruptcy can be a lifeline for those overwhelmed by debt. But what if you’ve already gone through the process once and find yourself in financial trouble again? Can you file for bankruptcy a second time? The short answer is yes, but there are specific rules and waiting periods you need to understand.

Filing for Bankruptcy More Than Once: Is It Possible?

Yes, you can file for bankruptcy more than once. The U.S. Bankruptcy Code allows individuals to file multiple bankruptcies throughout their lifetime. However, there are important restrictions and time limits between filings, depending on the type of bankruptcy you filed previously and the type you plan to file next.

How Long Do I Have to Wait to File Bankruptcy Again?

The waiting period between bankruptcy filings depends on the chapters under which you filed and plan to file. Here’s a breakdown:

1. Chapter 7 to Chapter 7

  • Waiting Period: 8 years from the date of the first filing.
  • If you previously filed for Chapter 7 bankruptcy and received a discharge, you must wait eight years before you can file for Chapter 7 again. This extended period is designed to prevent abuse of the bankruptcy system.

2. Chapter 7 to Chapter 13

  • Waiting Period: 4 years from the date of the first filing.
  • If you initially filed for Chapter 7 and received a discharge, you can file for Chapter 13 bankruptcy after four years. Filing for Chapter 13 after a Chapter 7 discharge is sometimes referred to as a “Chapter 20” bankruptcy. While you won’t be able to discharge your debts in Chapter 13, you can use it to catch up on missed mortgage or car payments.

3. Chapter 13 to Chapter 13

  • Waiting Period: 2 years from the date of the first filing.
  • If your previous bankruptcy was a Chapter 13, you must wait at least two years before filing for Chapter 13 again. Since Chapter 13 plans typically last three to five years, this means you can file again almost immediately after your previous case is discharged.

4. Chapter 13 to Chapter 7

  • Waiting Period: 6 years from the date of the first filing.
  • If you previously filed for Chapter 13 and received a discharge, you must wait six years before filing for Chapter 7. However, there are exceptions. If you paid back 100% of your unsecured debts or 70% with a good-faith effort, you may be able to file Chapter 7 earlier.

Why Are There Waiting Periods?

The waiting periods between bankruptcy filings exist to ensure that bankruptcy is used as a last resort and not as a regular financial strategy. These rules are meant to encourage individuals to work toward financial stability rather than relying on multiple bankruptcies. Multiple bankruptcies in a relatively short period of time may be considered a form of bankruptcy abuse.

What If I Didn’t Receive a Discharge?

If your previous bankruptcy case was dismissed or you didn’t receive a discharge for some reason (e.g., you didn’t complete the required paperwork, or the court denied your discharge due to fraud), the waiting periods mentioned above don’t apply. You may be able to file again immediately, but the outcome of your case will depend on the reasons for the dismissal or denial.

Considerations Before Filing for Bankruptcy Again

Before deciding to file for bankruptcy again, consider these important factors:

  1. Impact on Credit: Multiple bankruptcies will significantly impact your credit score, which may make it more difficult to obtain loans, mortgages, or credit cards in the future.
  2. Legal and Filing Fees: Filing for bankruptcy multiple times can be costly. Make sure you understand the financial implications, including attorney fees and court costs.
  3. Alternatives to Bankruptcy: Explore other debt relief options, such as debt consolidation, negotiation with creditors, or financial counseling, before resorting to bankruptcy again.

Final Thoughts

Filing for bankruptcy more than once is possible, but it’s important to understand the rules and waiting periods that apply. Bankruptcy can provide relief, but it’s not a decision to be taken lightly. If you’re considering filing again, consult with a bankruptcy attorney to discuss your options and develop a plan that’s right for your financial situation.

By understanding the timing and implications, you can make an informed decision that helps you regain control of your financial future.

Schedule a free bankruptcy consultation with Jennifer Weil, a New Jersey bankruptcy attorney, to discuss your options.

Bankruptcy Fraud: Understanding the Offense and Its Consequences

Leave a reply

Introduction:

Bankruptcy is intended to provide individuals and businesses with a fresh start and relief from overwhelming debt. However, in some cases, individuals may attempt to exploit the system through fraudulent practices. Bankruptcy fraud is a serious offense that undermines the integrity of the bankruptcy process. In this article, we provide a comprehensive guide to bankruptcy fraud, its various forms, and the significant consequences associated with this illegal activity.

  1. Understanding Bankruptcy Fraud: Bankruptcy fraud refers to any intentional and deceptive act committed during the bankruptcy process to unlawfully obtain financial benefits or deceive creditors, the court, or the trustee. It encompasses a range of fraudulent practices aimed at concealing assets, manipulating financial information, or abusing the bankruptcy system for personal gain.
  2. Forms of Bankruptcy Fraud: Bankruptcy fraud can take different forms, including: a) Concealing Assets: Failing to disclose or intentionally hiding assets to prevent them from being included in the bankruptcy estate, thereby evading creditors and the trustee; b) False Information: Providing false or misleading information on bankruptcy documents, including inaccurate income, expenses, debts, or other financial details; c) Multiple Filings: Illegally filing for bankruptcy in multiple jurisdictions simultaneously or filing for bankruptcy multiple times without proper disclosure; d) Insider Collusion: Colluding with insiders, such as family members or business associates, to transfer assets or funds out of reach of creditors or the bankruptcy estate; e) Fraudulent Transfers: Engaging in fraudulent transfers of property or funds to others with the intent to hinder, delay, or defraud creditors; f) Bribery or Corruption: Attempting to bribe a court official, trustee, or other party involved in the bankruptcy process to gain preferential treatment or manipulate the outcome of the case.
  3. Consequences of Bankruptcy Fraud: Bankruptcy fraud is a serious offense with severe consequences. The penalties for bankruptcy fraud can include: a) Criminal Charges: Individuals convicted of bankruptcy fraud may face criminal charges, including fines, imprisonment, or both, depending on the severity of the offense; b) Asset Forfeiture: Assets acquired through fraudulent means may be seized or forfeited to repay creditors or compensate for the losses resulting from the fraud; c) Denial of Discharge: Bankruptcy fraud can result in the denial of a bankruptcy discharge, meaning the individual remains liable for the debts, losing the benefits of bankruptcy protection; d) Legal Liabilities: Committing bankruptcy fraud can lead to civil lawsuits, where creditors or the bankruptcy estate may seek damages or recovery of funds due to the fraudulent actions; e) Criminal Record: A conviction for bankruptcy fraud can result in a permanent criminal record, affecting employment prospects, professional licenses, and personal reputation.
  4. Reporting Bankruptcy Fraud: Bankruptcy fraud undermines the integrity of the bankruptcy system and affects both honest debtors and creditors. If you suspect bankruptcy fraud or have evidence of fraudulent activities, it is crucial to report it to the appropriate authorities, such as the United States Trustee Program or the Federal Bureau of Investigation (FBI). Reporting fraud helps protect the fairness and legitimacy of the bankruptcy process.

Conclusion:

Bankruptcy fraud is a serious offense that compromises the integrity of the bankruptcy system, which is designed to provide relief to honest debtors. Understanding the various forms of bankruptcy fraud and its significant consequences is essential for individuals considering bankruptcy and creditors involved in the process. By maintaining transparency, providing accurate information, and adhering to the legal requirements of bankruptcy, individuals can benefit from the true intent of the system while avoiding the severe penalties associated with bankruptcy fraud.

Schedule a free telephone appointment to discuss your unique debt situation with attorney Jennifer Weil at my Setmore page.

The Role of the Trustee in Bankruptcy: A Comprehensive Guide

Leave a reply

Introduction:

In the bankruptcy process, a trustee plays a crucial role in overseeing the proceedings and ensuring the fair and efficient administration of the case. Whether it’s Chapter 7 or Chapter 13 bankruptcy, understanding the role of the trustee is essential. In this article, we provide a comprehensive guide to help you grasp the significance of the trustee’s role in bankruptcy and their responsibilities throughout the process.

  1. Appointment of the Trustee: Upon filing for bankruptcy, a trustee is appointed by the court to administer your case. The trustee is an impartial party responsible for safeguarding the rights of both debtors and creditors. They play a vital role in overseeing the bankruptcy proceedings and ensuring compliance with bankruptcy laws.
  2. Reviewing the Bankruptcy Petition: One of the trustee’s primary responsibilities is to review the bankruptcy petition, schedules, and other relevant documents filed by the debtor. They examine the accuracy and completeness of the information provided, ensuring that all required information is included and that it aligns with the debtor’s financial situation.
  3. Conducting the Meeting of Creditors (341 Meeting): The trustee presides over the meeting of creditors, also known as the 341 meeting, in both Chapter 7 and Chapter 13 bankruptcies. During this meeting, the trustee verifies the debtor’s identity, examines their financial situation, and ensures that the information provided in the bankruptcy documents is accurate. Creditors may attend the meeting to ask questions regarding the debtor’s financial affairs.
  4. Evaluating Assets and Exemptions: In Chapter 7 bankruptcy, the trustee evaluates the debtor’s assets to determine if any non-exempt property can be liquidated to repay creditors. They assess the value of assets, review exemption claims, and determine the extent to which creditors can be repaid from the proceeds of any liquidation. The trustee ensures that the liquidation is conducted in a fair and lawful manner.
  5. Overseeing Repayment Plans (Chapter 13): In Chapter 13 bankruptcy, the trustee plays a critical role in reviewing and evaluating the proposed repayment plan submitted by the debtor. They assess the feasibility of the plan, review the debtor’s income, expenses, and proposed payments to creditors. The trustee ensures that the plan complies with bankruptcy laws and treats creditors fairly.
  6. Collecting and Distributing Payments: In Chapter 13 bankruptcy, the trustee collects the payments made by the debtor as outlined in the approved repayment plan. They distribute these funds to creditors according to the plan’s provisions. The trustee ensures that the payments are made promptly and accurately to facilitate the repayment process.
  7. Investigating Fraudulent or Preferential Transfers: The trustee has the authority to investigate and challenge any fraudulent or preferential transfers made by the debtor before filing for bankruptcy. If the trustee discovers such transfers, they may take legal action to recover the transferred assets or funds to distribute them equitably among creditors.
  8. Providing Guidance and Education: Throughout the bankruptcy process, the trustee may provide guidance to debtors, helping them understand their rights and responsibilities. They may offer educational resources and advice to debtors regarding financial management, budgeting, and rebuilding credit after bankruptcy.
  9. Finalizing the Bankruptcy Case: Once the bankruptcy process is complete, the trustee prepares a final report, detailing the administration of the case, any distributions made to creditors, and the trustee’s fees. They also ensure that any remaining assets or funds are appropriately distributed, and the case is closed in accordance with bankruptcy laws.

Conclusion:

The trustee plays a pivotal role in the bankruptcy process, overseeing the administration of the case and ensuring fairness for both debtors and creditors. Their responsibilities encompass reviewing bankruptcy documents, conducting the meeting of creditors, evaluating assets, overseeing repayment plans, collecting and distributing payments, and investigating fraudulent transfers. By understanding the trustee’s role, you can navigate the bankruptcy process more effectively and work towards a fresh financial start.

Schedule a free telephone appointment to discuss your unique debt situation with attorney Jennifer Weil at my Setmore page.

Should You Use Your 401(k) to Pay Off Credit Card Debt? The Truth About Retirement Savings and Debt Relief

Leave a reply

Are you considering using your 401(k) to pay off credit card debt? While some financial experts may suggest this as a solution, it is not always the best option. In many cases, using your retirement savings to pay off credit card debt can have negative consequences and end up depriving future you of the funds you will need for basic living expenses after retirement.

Is it a good idea to use your 401(k) to pay credit card debt?

Your 401(k) contains the money that you will need in order to live after retirement.

Instead, bankruptcy may be a better, cheaper solution for those who cannot afford to pay back their debts. In New Jersey, bankruptcy laws allow individuals to keep their 401(k) money untouched throughout the process. This means that, with the help of a bankruptcy attorney, you can achieve debt relief and protect your retirement savings at the same time.

It is important to carefully consider your financial situation and weigh the costs and benefits of each option before making a decision. Dipping into your 401(k) may seem like a quick fix, but it can have long-term consequences. Bankruptcy, on the other hand, is a solution proposed by Federal law for individuals who cannot afford to pay back their debts.

In conclusion, if you are struggling with credit card debt, it is best to consider bankruptcy as a solution before using your 401(k) to pay off your debts. With the help of a bankruptcy attorney, you can achieve debt relief, protect your retirement savings, and start fresh towards a financially stable future.

Not sure if bankruptcy is right for you? Well, it’s not right for everyone, but it’s a great solution for a lot of people. Schedule a free telephone appointment to discuss your unique debt situation with attorney Jennifer Weil at my Setmore page.

5 Tips For A Smooth Bankruptcy Case

Leave a reply

Here are 5 tips for a smooth bankruptcy case that you can implement both before and after you’ve hired a bankruptcy attorney.

Tip #1: Have You Filed Bankruptcy Before?

If you have filed bankruptcy in the past, whether or not you received a discharge, you should immediately tell your attorney about the prior bankruptcy. This is important because it can affect how long you must wait before filing a new bankruptcy case, if you want to receive a discharge in the new case. Prior cases can affect other things, including, but not limited to, the length of time creditor must stop trying to collect debts from you.

If you’ve had a prior bankruptcy filing, your bankruptcy attorney should advise you about whether a new bankruptcy filing is a good idea for you and if so, when you should file the new case.

Tip #2: Don’t Repay Relatives Before Filing

If you are considering filing for bankruptcy and you owe money to relatives, don’t repay them before you file the bankruptcy. Instead, tell your bankruptcy attorney about these kinds of debts and ask them what to do. There are special bankruptcy rules about repaying relatives before bankruptcy and, if you do the wrong thing, the bankruptcy trustee can try and recoup the money you’ve repaid from that relative.

You may be able to easily repay that relative after your bankruptcy is finished, or in the case of a Ch. 13, during the bankruptcy. Ask your bankruptcy attorney for advice first before making any payments to relatives, to avoid any special difficulties such as the trustee wanting to sue your relative to claw back those funds.

Tip #3: Decide Whether To Keep Your Car

Whether to keep your car may be obvious to you, but it’s worth asking your bankruptcy attorney about your options. It is important to know that if you want to keep your car, and you took out a loan for that car, you must keep making all of your car payments in full and on time.

While bankruptcy gives you a break from your debts, you cannot get behind in your car payments when you expect to keep your car. If you’re behind on your car payments during your bankruptcy, then at some point, your car lender will be able to repossess your car.

If you have very high car payments or if your car is too expensive to keep due to repair problems, then discuss with your bankruptcy attorney the timing of getting rid of the car and of getting a replacement, if needed. If you’re doing a Ch. 13 case, you may be able to cram down the car loan closer to the actual value of the car.

Tip #4: Don’t give away or otherwise transfer any property

Especially before filing the bankruptcy, do not give away or transfer any property, such as real estate, a car, money, etc. If you are in doubt about whether you can, or should, transfer something you own out of your name and into someone else’s name, ask a bankruptcy attorney for advice first.

Transferring property to someone else can be a big problem that can prevent you from filing bankruptcy or get you into big trouble in your bankruptcy case. Some people naturally believe that the less they own on filing bankruptcy, the better. While that may be the case to some extent, it is far worse to have transferred something valuable out of your name just so that you didn’t own it at the time your bankruptcy was filed. This can lead to allegations of bankruptcy fraud, which will cause you a lot bigger problems than if you had never made the transfer in the first place.

Tip #5: Don’t Borrow Any More Money

Generally, you should not borrow money soon before filing your bankruptcy case. For most people, this means not using your credit cards anymore. There are detailed nuances to this general rule that you should discuss with your bankruptcy attorney, so be sure to ask for advice if you already have used credit cards recently, or if you feel that you need to do so.

If you need to discuss issues with a bankruptcy attorney, schedule a free phone consultation with attorney Jennifer N. Weil through her Setmore page or by calling (201) 676-0722.

When Chapter 7s Are Not So Simple

Leave a reply

The goal of most Chapter 7 cases is to get in and get out—file the petition, go to a hearing with your attorney a month later, and two months after the hearing, your debts get written off. Mission accomplished, end of story. And usually that’s how it goes. What are some reasons that a Chapter 7 case doesn’t go that way?

Four main kinds of problems can happen:

Income

Under the “means test,” if you made or received too much money in the 6 full calendar months before your Chapter 7 case is filed, you can be disqualified from Chapter 7. As a result, you can be forced into a 3-to-5 year Chapter 13 case, or have your case be dismissed altogether. These results can be avoided by careful timing of your case filing, or by making changes to your income beforehand, or by a proactive filing under Chapter 13.

Assets

In Chapter 7, if you have an asset that is not “exempt” (protected), the Chapter 7 trustee will be entitled to take and sell that asset, and pay the proceeds to your creditors. You might be happy to surrender a particular asset you don’t need in return for the discharge of your debts, in particular if the trustee is going use the proceeds in part to pay a debt that you want paid, such as a child support arrearage or an income tax obligation. But you may not want to surrender that asset, either because you think it is worth less than the trustee thinks or because you believe it fits within an exemption. Or you may simply want to pay off the trustee for the privilege of keeping that asset. In all these “asset” scenarios, there are complications not present in an undisputed “no asset” case.

Creditor Challenges to Discharge of a Debt

Creditors have the limited right to raise objections to the discharge of their individual debts, on grounds such as fraud, misrepresentation, theft, intentional injury to person or property, and similar bad acts. In most circumstances, the creditor must raise such objections within about three months of the filing of your Chapter 7 case. So once that deadline passes you no longer need to worry about this, as long as that creditor got appropriate notice of your case.

Trustee Challenges to Discharge of Any Debts

If you do not disclose all your assets or fail to answer other questions accurately, either in writing or orally at the hearing with the trustee, or if you fail to cooperate with the trustee’s investigation of your financial circumstances, you could lose the ability to discharge any of your debts. The bankruptcy system relies on the honesty and accuracy of debtors. So the system is quite harsh toward those who abuse the system by trying to hide things.

To repeat: most of the time, Chapter 7s are straightforward. That’s especially true if you have been completely honest and thorough with your attorney during your meetings and through the information and documents you’ve provided. In Chapter 7 cases that I do for my clients, my job is to have those cases run smoothly. I do that by carefully reviewing my clients’ circumstances to make sure that there is nothing troublesome, and if there is, to address it in advance in the best way possible. That way we will have a smooth case, or at least my clients will know in advance the risks involved. So, be honest and thorough with your attorney, to increase the odds of having a simple Chapter 7 case.

Discuss your financial situation with bankruptcy attorney Jennifer N. Weil by scheduling a phone appointment at (201) 676-0722 or by emailing weilattorney@gmail.com.

Avoid using credit cards before bankruptcy

Leave a reply

Using credit cards to buy holiday gifts could mean that you will have to pay back those credit charges if you file for bankruptcy. This is a possibility even if you intended to pay on the cards when you made those purchases.

The Bankruptcy Code has specific rules about the consequences of using credit to buy “luxury goods or services” during the months before a bankruptcy filing.  One rule is that if you use a credit card—or any other type of consumer credit—to buy more than $500 of consumer “luxury goods or services” through a single creditor within the 90 days before filing bankruptcy, a “presumption” is created that this debt is not dischargeable in bankruptcy.

Don’t let the word “luxury” deceive you – it is used to mean anything not “reasonably necessary” to support you or your dependents. Anything not used for survival is arguably not reasonably necessary. Even modest holiday gifts could be considered luxuries under this rule.

Another, similar rule applies to cash advances, except that the trigger dollar amount is $750 per creditor, and the period of time is within 70 days before filing bankruptcy, with the same presumption that the debt would not be dischargeable.

While it is true that such presumptions can be defeated, it is not likely in practice. This is because coming up with the evidence necessary to overcome the presumption (you’d have to prove that you intended to pay the money back at the time you borrowed it) is usually not easy. And the high cost of showing the evidence to the court during a separate proceeding normally makes trying to do so not worthwhile. The attorney fees it would cost you to fight the issue would likely be more than the original amount you’re fighting over.

The bottom line is that if  you use consumer credit exceeding these dollar limits this holiday season and then file bankruptcy within the applicable 70 and 90-day periods, you will most likely have to pay for whatever credit charges you incurred during those periods. You can avoid these presumptions by waiting to file the bankruptcy until after those time periods have passed, but that isn’t always possible due to pending wage garnishments or other types of judgment execution. And even if you do wait, the creditor can still try to show that you had a bad intention when you made these credit charges. It’s best to just avoid the problem altogether by not using your credit cards or other lines of credit when there’s even an outside chance that you might need to file for bankruptcy.

Got debt problems? Call (201) 676-0722.

When the automatic stay doesn’t apply

Leave a reply

In VERY RARE circumstances, ALL of your creditors can pursue you even if you file bankruptcy. Here’s how to avoid those rare but dangerous circumstances.

In my last post I listed three special classes of debts for which you can still be pursued in spite of filing bankruptcy. They are exceptions to the automatic stay, the broad protection from creditors that you get immediately when your case is filed.  But in this post today I’m talking about a circumstance in which the automatic stay does not apply to your case AT ALL, regarding ANY of your creditors. And about another circumstance in which you can lose the protection of the automatic stay 30 days after your case is filed. 

Because of the huge importance of the automatic stay, you absolutely want to avoid these circumstances, as rare as they might be.

For anybody who is thinking about filing a bankruptcy and has NOT had a previous bankruptcy case filed in their name in the last year, and then dismissed, you can stop worrying about this. Or if you have already filed a bankruptcy case recently and I’m getting you worried here, stop worrying if you did NOT have a previous bankruptcy case filed in your name, and then dismissed, in the year before your present case was filed.

But, IF you filed TWO OR MORE prior bankruptcies in the year before your new one, AND they were dismissed, the automatic stay does NOT go into effect with the filing of the new case.  The automatic stay CAN go into effect AFTER the case is filed if certain conditions are met.

Or, IF you filed ONE prior bankruptcy in the year before your new one, the automatic stay EXPIRES 30 days after the filing date, unless certain conditions are met before then. 

The details of the conditions for imposing or preserving the automatic stay are beyond the scope of this post. What IS of immediate and absolute importance is that you must tell your attorney—AT the BEGINNING of your INITIAL CONSULTATION—if you have filed ANY prior bankruptcy cases, and especially any recent ones.

Now if you’re wondering who goes around filing multiple bankruptcy cases in one year?—it happens more often than you might think.  It tends to come up two ways: 1) A person files a bankruptcy without an attorney, gets overwhelmed by the process and doesn’t follow through, so the case gets dismissed. 2) Or a person hires an attorney, signs some papers, and the case gets filed, maybe without the person even realizing it, and then gets dismissed because he or she doesn’t follow through. In either case, eleven months later they’ve forgotten all about it. Or don’t think it’s important.

The point of these anti-automatic stay rules is to stop “serial bankruptcy filers,” the very, very small minority of folks who file multiple cases, arguably abusing the bankruptcy process, usually to repeatedly delay a foreclosure or some other creditor action.  But these rules can also seriously penalize innocent people in situations like the ones I just mentioned.

Avoid this happening to you by 1) thinking carefully about whether there is ANY possibility that you filed a prior bankruptcy case within the last year, and 2) then telling your attorney if there’s ANY chance that you did. If so, there’s a good chance the bankruptcy court can be persuaded to impose or retain the automatic stay, but only if your attorney knows about the issue in advance and determines whether your case so qualifies.

Photo by MSVG.

Could you sue? List it in your bankruptcy papers.

Leave a reply

Yet another question that I always ask clients is whether they have any claims against anyone that they could file in court. In other words, I ask whether or not they have any potential lawsuits against anyone.

Of course, I do need to know about actual, ongoing lawsuits, but in this post I’m talking about claims the debtor might have against another individual or against a company.

Why would I want to know about possible lawsuits you might have against others that you never filed in court? Because they are assets. They are assets because, if filed, they might bring in some money to you.

Now, it’s true that court fees, attorney’s fees and expert witness fees might eat up a lot (or maybe even all) of a recovery you might get in a lawsuit, depending on how much in damages you stand to recover. But a danger of not telling the bankruptcy court about your potential lawsuits is that you might no longer have the right to sue after the bankruptcy is over.

This is because a person who is filing for bankruptcy has an obligation under the law to disclose all of his or her assets or potential assets to the bankruptcy court. When you fail to disclose a potential lawsuit to the bankruptcy court but then you later (after the bankruptcy discharge) file that lawsuit, you have taken an inconsistent position – you’ve sworn to a bankruptcy court that you had no assets other than those you disclosed, and those assets didn’t include a potential lawsuit; and yet, you then filed a lawsuit after the bankruptcy based on a pre-bankruptcy claim. The law basically says that you cannot have it both ways.

When you file for bankruptcy, a bankruptcy estate is created. All of your assets, including potential lawsuits, become property of the bankruptcy estate, except for those assets you have managed to exempt. If you do not specifically list and exempt an asset, it is property of the bankruptcy estate. The rule of thumb is that it is always a better idea to list it and exempt it than not to list it at all.

Got real estate? Tell your bankruptcy attorney ASAP.

1 Reply

When I initially speak to a potential client, one of the questions I ask is whether or not they’ve ever owned any real estate, even a partial interest in land that they’ve inherited and had nothing to do with.

Why do I ask about real estate? For starters, I ask about real estate because the Chapter 7 trustee who reviews your case is likely to ask you at your meeting of creditors whether you’ve ever owned real estate. If you say yes, the trustee will want to know what you did with the real estate, how much it’s worth, and so on. I like to know the answers to important questions like these before they pop up at the meeting of creditors so that if there are going to be any potential problems, we can address them ahead of time.

What are some potential problems with real estate ownership that could crop up? One example is that even in this economy, you might have equity in your real estate – i.e., it might be worth something – and the amount of equity you have in the property can take up some or all of the limited exemptions available to you. This can have an effect on how much property (including personal property) you’d be allowed to keep after the bankruptcy.

Also, if, for whatever reason, you gave away your real estate – including signing it over to someone else (like a relative) just because you couldn’t afford the mortgage payments anymore, you are likely to have a problem. A transfer like this can look like a fraudulent transfer prior to bankruptcy.

In case you’re thinking ” I didn’t commit fraud,” the term “fraudulent transfer” as used in the bankruptcy setting is a specific legal term that has a specific meaning and is defined broadly in the law. It does not necessarily require intent to commit fraud. It’s just that Congress decided it didn’t like the idea of people dumping assets before filing, probably because it didn’t want people trying to look poorer when they had assets they could have sold to pay their debts but gave away those assets instead.

As a result, I like to ask people about real estate ownership. In case you are thinking of not disclosing current or prior real estate ownership to your attorney, think again – the trustee can take steps to independently research your property ownership situation and find things out. It’s better for everyone that you disclose everything to your attorney so that they can help you figure out the best course of action before you file for bankruptcy.

If you are in NJ and thinking of filing for bankruptcy, consider calling Jennifer Weil for a free telephone consultation to discuss your financial situation at 201-676-0722.

Photo by The-Lane-Team.