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When Bankruptcy Is Not An Option
The purpose of a discharge is to “release an honest debtor from his financial burdens and to facilitate the debtor’s unrestricted `fresh start'”. In re Pelkowski, 990 F.2d 737, 744 (3d Cir.1993) (citing Kokoszka v. Belford, 417 US 642, 645-46, 94 S.Ct. 2431, 2433-34, 41 L.Ed. ( 1974). The general purpose of a bankruptcy case is to fully disclose everything you own or have an interest in and hand over assets to the owner that exceed the amount that can be protected under the laws of the exemptions. Otherwise, if you’re not willing to give up assets, you can also create a payment plan under Chapter 13 of the bankruptcy code.
Bankruptcy may not be an option if you have assets to lose and you are not willing to surrender those assets. You see, a Chapter 7 bankruptcy case is considered a liquidation bankruptcy where you cannot make any payments on your debts. If you have no assets, then you have nothing to lose and everything to gain from filing bankruptcy. But if you have too much equity in your home that you don’t want to give up, you may need another bankruptcy alternative.
One key to success is to consult with at least two or three bankruptcy attorneys because I have heard from clients that we are not the same. One would think that, but it is not true. Not all bankruptcy attorneys are experienced and you may lose assets if your attorney is not well versed in the laws of exemptions and how to protect your assets or warn you if you are at risk of bankruptcy. of properties. If you find yourself in a Chapter 7 case and are at risk of losing assets, you have the right to convert your case to a Chapter 13 and work out a payment plan, if approved. in your budget. Unfortunately, if you have attended a Section 341(a) hearing called a “Meeting of Creditors,” most trustees will not allow a dismissal, making it difficult to escape taking away the trustee’s powers.
Another reason that bankruptcy may not be right for you is that you make a lot of money and you can pay off 100% of your debts. That’s when bankruptcy is optional and you need to consider the pros and cons of all your options before choosing a payment plan under Chapter 13 of the Bankruptcy Code or a debt settlement plan. In Chapter 13, your debts are paid off without any interest, making it cheaper than a traditional payment plan with most unsecured credit card debt. Another benefit of a Chapter 13 case is that not every creditor files a claim to be paid. This means that the amount you owe now, may drop after filing for bankruptcy. The third benefit of a Chapter 13 bankruptcy is that there are no tax consequences for debts discharged in Chapter 13. None of these benefits exist outside of bankruptcy.
Finally, a fresh start in bankruptcy for the “Honest, but bad Debtor.” This means that you cannot hide or give away all your belongings and expect bankruptcy results. If you are facing a fraud case, or have a judgment against you for fraud, you may not qualify for bankruptcy. The only way to find out is to get a complimentary consultation with a bankruptcy attorney who has experience in your local courts. The longer they have been in practice, the more knowledgeable they are and the better your assets will be protected as you seek to eliminate debt from your budget. Remember, there is no shame in filing for bankruptcy protection in a pandemic.
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