The decision to hire a lawyer is an important decision. Not only do you want a lawyer with the appropriate expertise, you want a lawyer who truly cares about your case. You want and deserve a lawyer that will efficiently resolve your legal matter.
What is
bankruptcy?
Individuals and businesses use
bankruptcy as a way to obtain
relief from debts owed to creditors.
The United States
Constitution authorizes Congress
to pass uniform laws on bankruptcy.
The Bankruptcy Code (Title 11
of the United States Code) has
been amended several times since
it was enacted in 1978, most recently
with the Bankruptcy Abuse Prevention
and Consumer Protection Act of
2005. While there is no constitutional
right to relief from debts, relief
granted by the bankruptcy courts
is available to the extent Congress
provides.
The Bankruptcy Code
provides for relief from debts
either through a liquidation (Chapter
7) or reorganization (Chapters
11, 12, or 13). This pamphlet
discusses some of the issues to
consider before filing for bankruptcy
and the differences between a
liquidation case and a reorganization
case. Before making any decision
about whether to seek bankruptcy
protection, one should consult
a qualified bankruptcy lawyer.
What types
of bankruptcy relief are available?
Individuals are eligible to file
for bankruptcy under Chapter 7,
Chapter 11, Chapter 12 or Chapter
13 of the Bankruptcy Code.
Chapter 7 bankruptcy
is known as straight liquidation.
In a Chapter 7 case, a trustee
(assigned by the U.S. Trustee's
Office or chosen by the debtor's
creditors) may liquidate, or sell,
the debtor's non-exempt assets
to pay all or a portion of the
debts owed to creditors. Depending
upon where the individual debtor
lived before filing bankruptcy,
he or she may be entitled to keep--or
exempt--some or all of the equity
in certain kinds of property.
The kind of property that may
qualify for an exemption might
be a house, car, boat or a household
item. Typically, when estimating
the amount of money that can be
realized from the sale of a particular
item, the bankruptcy trustee will
subtract what the individual is
allowed to keep--the exempt portion--and
also will subtract the outstanding
amount of any liens or mortgages.
Unless the money
raised from the sale of the property
is expected to be greater than
these exemptions and any liens
or mortgages, the trustee may
decide to abandon the item of
property to the debtor, meaning
that the debtor gets to keep it.
Through this liquidation process,
any debts not paid by the trustee
(with certain exceptions) will
be discharged (eliminated), and
creditors cannot force the individual
debtor to pay any remaining amount
owed.
Chapter 13 bankruptcy,
or individual reorganization,
is an alternative to Chapter 7
that generally allows an individual
to keep his or her property. The
individual filing bankruptcy under
Chapter 13 must have regular income
and meet certain debt and asset
limits. Effective October 17,
2005 under the Bankruptcy Abuse
Prevention and Consumer Protection
Act of 2005, individuals who earn
more than the median income in
the state where they lived before
filing bankruptcy, and who can
repay at least $6,000 of their
debt over five years, are no longer
eligible to have their debts wiped
out for a fresh start.
Instead, these individuals
must repay their creditors over
time and enroll in a financial
counseling program. Under Chapter
13, an individual debtor would
submit a plan detailing how all
of his or her debts will be paid
from disposable monthly income
(income after providing for ordinary
living expenses) over a period
of time of up to five years. The
plan of reorganization is monitored
by a Chapter 13 trustee and supervised
by the bankruptcy court. A Chapter
13 debtor must pay his or her
creditors at least as much as
they would be paid if the debtor's
assets were liquidated in a Chapter
7 case.
Chapter 11 "reorganization"
is typically used by corporations
or businesses as an alternative
to Chapter 7 liquidation. Since
a reorganization under Chapter
11 can be a very expensive process,
it is not frequently used by individuals.
In a Chapter 11 reorganization,
as in a Chapter 13 reorganization,
the business debtor may keep certain
property and be required to pay
creditors with future earnings
according to a reorganization
plan.
Chapter 12 is a
special reorganization for family
farmers. To qualify, a family
farmer must earn most of his or
her income from family farming
operations.
When is
it appropriate to file for bankruptcy?
The decision whether to file for
bankruptcy is based upon each
debtor's unique situation. A person
considering bankruptcy, whether
individually or for a business,
should consult with an experienced
bankruptcy lawyer who can determine
whether such an option should
be explored and when it would
be most beneficial to file. Generally
speaking, it may be appropriate
to file for bankruptcy when an
individual is unable to pay his
or her debts and regular living
expenses or when an individual
has property (typically a house
or car) that he or she wishes
to keep from the reach of creditors.
How would
I go about filing for bankruptcy
relief?
To initiate a bankruptcy, you
would file a petition with the
appropriate bankruptcy court.
You would be required to pay a
filing fee, unless the requirement
is waived by the bankruptcy court.
Depending upon the circumstances,
you may be able to pay the filing
fee in installments. In addition
to filing a petition, you will
need to provide detailed information
about all your assets and liabilities
on documents called schedules.
These documents must include an
accurate list of everything you
own, the outstanding amount of
the debts you owe to all your
creditors, as well as personal
information about your employment
and whether you have made any
transfers of money or property
just before you filed for bankruptcy.
After these documents
are filed, you would meet with
a trustee. Your creditors would
be invited to attend this meeting.
The trustee assigned to your case
would check the petition and schedules
for accuracy. Also, the trustee
and the creditors might ask you
questions about your financial
situation.
Can a husband
and wife file together for bankruptcy?
Yes; it is possible, but not required.
Spouses can file a joint petition
if they both need relief from
their creditors. However, depending
on the circumstances, one spouse
may file for relief under Chapter
7 or 13 and the other spouse may
choose not to file at all or may
file his or her own separate bankruptcy
case. When spouses file separately,
the assets and liabilities for
each spouse will be considered
separately by the bankruptcy court.
Can the
bankruptcy court refuse to discharge
my debts in bankruptcy?
Yes. Filing a bankruptcy petition
does not guarantee that your debts
will be discharged.
The bankruptcy court
may deny a general discharge of
debts if you commit certain acts
of misconduct before or after
the bankruptcy petition, such
as destroying, concealing, or
removing assets that might otherwise
be used to pay creditors. Also,
a discharge of debts may be denied
if you have destroyed or concealed
records that show what assets
are available to pay creditors.
Finally, the bankruptcy court
may deny a general discharge if
you have lied under oath during
the bankruptcy case, or have refused
to answer questions without a
good reason.
Aside from acts
of misconduct, you will not be
granted a general Chapter 7 discharge
if you have obtained a discharge
in a Chapter 7 case within six
years before the date that a second
bankruptcy is filed.
Even if a discharge
of debts is denied, your assets
still may be liquidated in a Chapter
7 case, or you may complete your
plan in a Chapter 13 case. The
denial of a discharge does not
relieve you from your other obligations
under the Bankruptcy Code.
If a general
discharge is granted, will I still
have to pay any debts?
Yes. Even if a general discharge
is granted, some debts are not
discharged in bankruptcy. Further,
the type of bankruptcy affects
what debts may be discharged.
Generally, more debts are discharged
in Chapter 13 than in Chapter
7. Congress provided for greater
relief under Chapter 13 as an
incentive to encourage debtors
to repay their debts through a
reorganization plan.
Debts that might
not be discharged in bankruptcy
include taxes assessed within
240 days of the bankruptcy filing.
Certain student loan debts, child
or spousal support debts arising
from a divorce, criminal fines
and debts arising from a DUI,
and any debt incurred because
a debtor has committed fraud,
breached a fiduciary duty as a
trustee, or committed a "willful"
act causing injury to a creditor,
also might not be discharged.
The bankruptcy court ultimately
will decide whether these types
of debts will be discharged.
How does
filing bankruptcy affect my credit?
Filing bankruptcy will be noted
on your credit record for up to
ten years, but the effect of this
notation to a particular creditor
may depend on whether a discharge
was granted or the case was dismissed,
and what type of bankruptcy case
it was: a Chapter 13 reorganization
or a Chapter 7 liquidation. Creditors
have differing policies regarding
the impact on those who have filed
bankruptcy. It is common for individuals
who file bankruptcy to have trouble
getting a new loan, or they may
have to pay a higher rate of interest
to secure one.
Why hire
a lawyer for a criminal case (even
if I know I'm guilty)?
In most cases being charged with
a crime is simply an allegation
that you may have committed an
offense prohibited by law, but
within the definition of "crime"
one must take into consideration
all of facts and circumstances
surrounding the offense. Crimes
have two basic elements:
- The guilty mind
- The guilty act
Also there are constitutional
procedural protections granting
your rights before you can be
convicted of a crime.
Why defend
someone if you know they are guilty?
In most cases being charged with
a crime is simply an allegation
that you may have committed an
offense prohibited by law, but
within the definition of "crime"
one must take into consideration
all of facts and circumstances
surrounding the offense. Crimes
have two basic elements:
1. The guilty mind
2. The guilty act
Also there are constitutional
procedural protections granting
your rights before you can be
convicted of a crime.
OK, I need
a lawyer. What's the cost?
Fees vary widely and will be quoted
to you at your initial consultation.
We charge fees in criminal cases
based on charges filled against
you, the amount of work expected,
and the particular needs of the
client.
What constitutes
a bodily injury claim?
My answer to that is, negligence.
Negligence means carelessness
or the failure to use due care.
If you are careless, and your
carelessness causes injury to
another person to whom you have
"duty of care", you
may liable to pay any damages
which may result from the injury
caused by your carelessness. A
person may be considered "careless"
or "negligent" if they
do not use the kind of "due
care" that is appropriate
to the particular situation in
question. Usually the law requires
that individuals exercise the
same kind of due care that a reasonable
person would exercise under saying
circumstances. This is called
reasonable man or reasonable person
standard.
What area
of personal injury law does The
Blackwell Law Firm take interest
and practice in?
We pride ourselves on delivering
quality legal services in the
area of personal injury law. Through
investigation and research, the
Blackwell Law Firm has been actively
involved in the investigation,
presentation, and study of the
following cases:
- auto accidents
- asbestos related exposure
cases
- assault and battery cases
- crime victim cases
- medical injury and liability
cases
- faulty or dangerous product
cases
- contaminated food cases
- birth trauma
- obstetrical negligence
cases
- pharmaceutical errors
cases
- slip and fall
- dangerous and defective
railway cases
- injury to railway workers
-workers compensation issues
- social security/disability
cases
- head injury or brain trauma
- missed diagnosis or failure
to diagnose cases
- psychiatric or mal-practice
cases
- construction site injuries
- fire loss and property
damage
- nursing home negligence
and abuse
- heavy truck accidents
