Posts Tagged ‘fresh start’

Dayton Bankruptcy Attorney Zachary Bushatz: The Bankruptcy Timeline

December 1st, 2011

Are you considering filing for bankruptcy?  Have you wondered how long it will take?  Do you want to know what timelines apply to your case?  I have created this bankruptcy timeline to help you understand what happens in your bankruptcy case and when it happens.  If you are like most people, you probably believe you have no rights or protection available and are going to end up losing everything important to you including your job.  This is not the case. You do have rights and can do something about your financial difficulties.  The law office of Zachary Bushatz helps people protect their property and financial futures. For many people living in debt, the hassles and harassment they face can be overwhelming. Through either Chapter 7 or Chapter 13 bankruptcy, I can help:

  • Stop collections calls and harassments
  • Stop wage and paycheck garnishment
  • Stop repossession of personal property such as your car
  • Postpone and stop a scheduled foreclosure on your home
  • Eliminate all or most of your debts
  • Give you a fresh financial start

At the law offices of Zachary Bushatz we are devoted to providing affordable, personally attentive bankruptcy services to clients throughout the Miami Valley area.   Call 1-937-318-1529 today to set up your free initial consultation.

BANKRUPTCY TIMELINE

8 Years Prior

  • Bankruptcy Prevents Filing of Chapter 7

You are prohibited from receiving a discharge under Chapter 7 if you received a discharge in a bankruptcy which was filed within the last 8 years. A discharge may still be granted if the prior bankruptcy was under Chapter 12 or 13 and paid 100% of allowed unsecured claims, or paid at least 70% allowed unsecured claims and the plan was proposed in good faith and was your best effort. This restriction does not apply to the filing of a Chapter 13 after any prior bankruptcy.

1 Year Prior

  • Transfer, concealment or destruction of property prevents discharge in Chapter 7

The court may deny you discharge of all debt if you attempted to hinder, delay or defraud a creditor when you transferred, removed, destroyed, mutilated, or concealed property within one year prior to the filing of your Chapter 7 petition. The trustee may recover the property from the person to whom you transferred it.

  • Payment to Relative or Insider is a Preference

A total of $600 or more in money or property which is paid to a creditor that is a relative or insider (certain business associates) within a year prior to filing is a preference. The Trustee may recover preferences and divide the money between all creditors. In Chapter 13, you may be able to prevent the trustee from going after the relative by increasing the amount paid into your plan.

180 Days prior

  • Dismissal of prior bankruptcy prevents filing Chapter 7 or 13

You may not file any bankruptcy if you filed a previous bankruptcy which was dismissed in the preceding 180 days either (1) on the court’s order because of your willful failure to obey orders of the court or to appear in court when required; or (2) at your request after the filing of a request for relief from the automatic stay.

90 days prior

  • Minimum residency requirement.

You must be a resident in the state in which you are filing for the last 90 days. If you have not resided in the state that long, you can only file in the state where you have resided, or which has been your principal place of business or which has been the location of your principal assets for the majority of the last 180 days.

  • Payment to Creditor is a Preference

A total of $600 or more in money or property which is paid to a creditor within 90 days prior to filing is a preference. The Trustee may recover preferences and divide the money between all creditors. In Chapter 13, you may be able to prevent the trustee from going after the creditor by increasing the amount paid into your plan

60 Days Prior

  • Debt presumed to be non-dischargeable

Debt of $1,075 for cash advances or “luxury goods or services” incurred within 60 days before the Bankruptcy is filed is presumed to be non-dischargeable. Applies to Chapter 7 cases, and to hardship discharge in Chapter 13.

BANKRUPTCY FILED

  • Commencement of Case

A voluntary bankruptcy is commenced when you file a petition with the Bankruptcy Court requesting protection from your creditors under Chapter 7 or Chapter 13. A husband and wife may file one petition together and commence a joint case. The filing also puts a stay into effect prohibiting collection actions.

15 Days After

  • Deadline to File Schedules and Financial Statement, and Chapter 13 Plan

Within 15 days after filing the Chapter 7 or Chapter 13 petition that commenced your case, you must file schedules listing your assets and liabilities, your current income and expenditures, executory contracts and unexpired leases, and a statement of your financial affairs. In Chapter 13, the Plan must also be filed within 15 days after the Bankruptcy was filed. The plan provides for submission of future income and the treatment of your creditors, specifying when and how much each kind of creditor will receive.

18 Days After

  • Court Mails Notice of Commencement of Case

Approximately 18 days after your case is commenced, the court mails a Notice of Commencement of Case to you and to the creditors you have included in your mailing list. The notice contains meeting date, deadlines for objections to discharge and for filing Proofs of Claims. You can call the court’s Automated Information Line to get the meeting date even before the notice is mailed.

After Chapter 13 Plan Filed

  • Chapter 13 only: Deadline to Notice Chapter 13 Plan

In the Eastern District of Michigan, your attorney must mail your Chapter 13 Plan to all creditors after the Chapter 13 Plan is filed.

30 Days After

  • Chapter 7 only: Deadline to file Statement of Intention

Within 30 days after filing the Chapter 7 petition that commenced your case (or before the § 341 meeting if that is earlier), you must file a Statement of Intention indicating whether you will be surrendering or keeping property secured by consumer debt. If you are keeping secured property, you will need to indicate whether you intend to: (1) reaffirm the debt and continue to make the payments remaining obligated for the balance of the debt, or (2) redeem the property by immediately paying the value of the property and receive a discharge for the balance of the debt. A copy of the Statement of Intention must be served on the trustee and the creditors named in the statement on or before the filing of the statement.

30 Days after Chapter 13 Plan Filed

  • Chapter 13 only: First Payment Due Under Chapter 13 Plan

You must make your first payment under the Chapter 13 Plan within 30 days after the plan was filed. If your plan was filed with the petition which commences your case, your first payment is due within 30 days of the start of the case. Since the plan must be filed within 15 days after the commencement of your case, the latest date you may start making payments is 45 days after the filing of the case.

6 Weeks After

  • § 341 Meeting

Section 341 (the symbol “§” means section) of the Bankruptcy code requires the Trustee to preside at a meeting of creditors within a “reasonable time.” This meeting is usually held approximately six weeks after Bankruptcy is filed. Immediately after the case is filed, you can call the court’s Automated Information Line to get the meeting date and time. You (as the debtor in a Bankruptcy case) are required to attend this meeting and testify under oath, but most creditors do not come to the meeting. The failure of creditors to attend the meeting does not affect their right to challenge the discharge in a Chapter 7 or to object to the plan in a Chapter 13. If you do not attend, your case will be dismissed.

45 Days after Statement of Intention Filed

Chapter 7: Deadline in Chapter 7 to perform under Statement of Intention

  • In Chapter 7, within 45 days after you filed Statement of Intention, you are to perform as you indicated. In that statement, you were required to state whether you would be surrendering or keeping property secured by consumer debt. If you were keeping secured property, you would have indicated whether you intended to: (1) reaffirm the debt and continue to make the payments remaining obligated for the balance of the debt, or (2) redeem the property by immediately paying the value of the property and receiving a discharge for the balance of the debt.

30 Days After § 341 Meeting

  • Deadline for creditors or Trustee to object to claim of exempt property

Creditors and the Trustee have until 30 days after the conclusion of the creditor’s meeting under § 341 to object to the property you have claimed as exempt in Schedule C. While most § 341 meetings are concluded on the same day they are set, it is not unusual for a meeting to be continued to a subsequent date, which will extend the time that creditors have to object.

60 Days After a § 341 Meeting

  • Chapter 7: Deadline in Chapter 7 for objection to discharge of a particular debt under §523(c)

Creditors have until 60 days after the first date set for creditor’s meeting under § 341 to file a complaint under § 523(c). § 523(c) allows creditors to object to the discharge of debts which were obtained by false pretenses, a false representation, or actual fraud; debt from fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny; debt for willful and malicious injury; and debt incurred in a divorce or separation (other than child support and spousal maintenance which are not discharged even without an objection to discharge). The most common objection to discharge of a debt is based on § 523(a) (2). This section presumes that charges totaling $1,000 or more to one creditor within 60 days before the case is commenced are not discharged, if they are for luxury goods or services, or cash advances. This section also denies a discharge to debt extended because the creditor relied upon a credit application which was materially false.

  • Chapter 7: Deadline for objection to discharge of all debt under §727(a)

Creditors have until 60 days after the first date set for creditor’s meeting under § 341 to file a complaint under § 727(a). § 727(a) allows object to the discharge of all debts because of misconduct including transfer, destruction or concealment of property; concealment, destruction, falsification or failure to keep financial records; making false statements; withholding information; failing to explain losses; failure to respond to material questions; having received a discharge in a prior case filed within the last 6 years.

  • Chapter 7: Deadline for U.S. Trustee or court to move to dismiss case for substantial abuse under §707(b)

Until 60 days after the first date set for creditor’s meeting under § 341, the U.S. Trustee or the court may move to dismiss a case in which debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of Chapter 7. Substantial abuse has been interpreted by a number of courts to mean having sufficient disposable income to pay more than half of your unsecured debt over the next 36 months.

  • Chapter 13: Deadline in Chapter 13 to file all due but unfiled tax returns

For cases filed in the Eastern District of Michigan, you must file all due but unfiled tax returns within 60 days after the first date set for the § 341 Meeting.

More Than 60 Days After a § 341 Meeting

  • Discharge entered in Chapter 7 case

Court rules require that the discharge be entered “forthwith” after the expiration of the time for objecting to discharge or moving to dismiss the case. The time for those objections expires 60 days after the first date set for creditor’s meeting.
The discharge is not absolute or final. The trustee can ask that the discharge be set aside if you do not turn over non-exempt property, and for other violations of the debtor’s duties.

90 Days After a § 341 Meeting

  • Deadline for non-government creditor to file its Proof of Claim

A creditor, other than a governmental unit, must file its Proof of Claim within 90 days after the after the first date set for creditor’s meeting under § 341 in order to share in payments from the estate.

180 Days after a Bankruptcy Filing

  • Deadline for governmental unit to file Proof of Claim

A governmental unit, such as the Internal Revenue Service, must file its Proof of Claimwithin the commencement of the case in order to share in payments from the estate.

3 Years from First Payment Plan

  • Minimum length of payments under Chapter 13 Plan

Unless all allowed claims are paid sooner, plan payments must continue for the three-year period beginning on the date that the first payment is due under the plan. During this period, the plan must provide that all of the debtor’s projected disposable income is committed to the plan. (This requirement comes into effect only if the trustee or the holder of an allowed unsecured claim objects; it has been our experience that the trustee will always object.)

  • Discharge entered in Chapter 13

Upon completion of plan payments the discharge in Chapter 13 is entered.

5 Years from First Payment Plan

  • Maximum length of payments under Chapter 13 Plan

The maximum length of a Chapter 13 plan is five years beginning on the date that the first payment is due under the plan. After the third year of the plan, the plan no longer needs to provide that all of the disposable income be committed to the plan.

  • Discharge entered in Chapter 13

Upon completion of plan payments the discharge in Chapter 13 is entered.
Contact the law office of Zachary Bushatz at 1-937-318-1529 today to set up your free initial consultation.

Dayton Bankruptcy: Frequently Asked Questions

December 1st, 2011

English: Part of Title 11 of the United States...

What is bankruptcy?  

Bankruptcy is a federal law designed to get you a fresh start, free from harassing creditor phone calls, lawsuits, repossessions and garnishments. It is a privilege granted to you under the United States Constitution. It is a very powerful law because it forces your creditors to permanently wipe out your debts (chapter 7) or to accept a repayment plan which you have proposed (chapter 13).

Will I lose my property if I file for bankruptcy? 

No, as long as you tell the court what you own and what you think it is worth, the law will allow you to keep your property as the basis for your “fresh start” subject to certain limitations. The law is very generous in allowing you to exempt your home equity, automobiles, household goods and furnishings, clothing, jewelry, bank accounts, stocks and bonds, pension and 401k plans, etc. The most important thing to do is make an accurate list of what you own and what you think it is worth (at a garage sale or on a secondary market).

Can I keep my house and car?  

Yes, you can file a bankruptcy and keep your house and car provided you continue to make payments to the finance or mortgage company.

I’m married, can I file alone or must my spouse also file?  

If you are married, you can file either together as a couple (jointly) or either spouse (husband or wife) can file on their own.  The law does not require that both the husband and the wife file.

The most important step in the bankruptcy process if finding an attorney who has the skill and experience to make your filing as hassle-free as possible. Zachary Bushatz devotes his practice to bankruptcy clients.  While in law school, Mr. Bushatz also worked extensively in the area of bankruptcy. He was a legal extern for bankruptcy Judge Richard Speer at the Northern District of Ohio in Toledo. He also worked for a chapter 7 trustee and an attorney that focused on representation of debtors.  He has the judgment and experience to represent you and knows the importance of providing personal, caring service.  Call now at (937) 879-9542 to schedule a free consultation.

Click here for Chapter 7 FAQ’s

Click here for Chapter 13 FAQ’s

Ohio Bankruptcy Filing Fees Set to Increase November 1st

October 17th, 2011

At its September 2011 session, the Judicial Conference increased the “Title 11 Administrative Fee” from $39.00 to $46.00.  Because the Administrative Fee is a component of the total fee for filing a bankruptcy petition, the total petition filing fee will increase in each chapter by $7.00 beginning November 1, 2011.  Currently, the filing fee for a Chapter 7 bankruptcy is $299.  This will increase to $306 on November 1st.  Likewise, filing fees for a Chapter 13 bankruptcy will increase from $274 to $281 beginning November 1st.  These are not huge increases in fees, but it is a fee that continues to go up, making it more expensive for anyone to file for bankruptcy.  If you need to file bankruptcy, it is worth your time to visit with a bankruptcy lawyer in the month of October before the new fees take effect.  At the law office of Zach Bushatz consultations are always free.  Give me a call at 937-879-9542, I would be happy to meet with you and go over your financial situation and determine what the best option is for you and your family.  

 

ABOUT DAYTON BANKRUPTCY ATTORNEY ZACHARY BUSHATZ: Zachary Bushatz was raised in Marion, Ohio. He graduated from Ohio Northern University with a triple major in History, Political Science and Criminal Justice, magna cum laude. While in undergrad, Mr. Bushatz received the Walter Pengry Rogers Award for outstanding academic achievement. Mr. Bushatz was also a four year member of the Ohio Northern Mock Trial Team, on which he won numerous awards including Best Attorney and Best Witness. Mr. Bushatz attended Ohio Northern University Pettit College of Law on the Dean’s Merit Scholarship. While in law school, Mr. Bushatz was a member of Moot Court. During his second year of law school he was a team member of the New York Bar Association Traveling Team. Mr. Bushatz was an Associate Justice on the Moot Court Executive Board his third year. While in law school, Mr. Bushatz also worked extensively in the area of bankruptcy. He was a legal extern for bankruptcy Judge Richard Speer at the Northern District of Ohio in Toledo. He also worked for a chapter 7 trustee and an attorney that focused on representation of debtors.

 

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Dayton Bankruptcy Report: Banks Ramp Up Foreclosure Process in Third Quarter

October 13th, 2011
Foreclosure Sign, Mortgage Crisis

After a drop in foreclosures the first part of this year, the number of U.S. homes that received a first-time default notice during the July to September quarter increased 14 percent compared to the second quarter of the year, according to RealtyTrac Inc.  This increase signals that banks are moving more aggressively against borrowers who have fallen behind on their mortgage payments since last fall when foreclosure processing problems emerged.  Foreclosure activity began to slow in the fall of 2010 after problems arose with the way many lenders were handling foreclosure paperwork.  Shoddy mortgage paperwork comprising shortcuts collectively known as “robo-signing” had resulted in a sharp drop in foreclosure activities from last fall through the beginning of this year.

This surge in default notices means homeowners who have not kept up on their mortgage payments could end up in foreclosure sooner.  The initial default notices banks send to delinquent borrowers are the first step in the process that can eventually lead to a home being taken back by a lender. This up-tick in foreclosure activity could stall any turnaround for the U.S. housing market.  Experts say a revival is not likely to occur as long as there remains a glut of potential foreclosures hovering over the market.

The increase in initial default notices during the July to September period is significant because it is the first increase after five consecutive quarters of declines.  This suggests that banks are gradually addressing their backlog of homes in foreclosure and are beginning to move to more recent home loan defaults.  RealtyTrac CEO James Saccacio said that “while foreclosure activity in September and the third quarter continued to register well below levels from a year ago, there is evidence that this temporary downward trend is about to change direction, with foreclosure activity slowly beginning to ramp back up.”

Still the process of foreclosing on property, from the initial default notice to being on foreclosed on is taking almost a year.  According to RealtyTrac, in the third quarter, it took an average of 336 days, or 11.2 months, for a U.S. home to go from receiving an initial notice of default to being foreclosed by a lender.  In all, 195,878 properties received a default notice in the third quarter.  Banks are on track to repossess some 800,000 homes this year, down from more than 1 million last year, Saccacio said.  RealtyTrac had originally anticipated close to 1.2 million homes would be repossessed by lenders this year.

If you have received a notice of default, or are even further along in the foreclosure process, it is not too late to save your home.  Contact the law office of Zachary Bushatz today to see how I can help you stop the foreclosure process and bring your payments current with the bank.  Call 937-879-9542 today.

Dayton Bankruptcy Law: Discharging Student Loans

January 2nd, 2011
Seal of the United States bankruptcy court. Ch...
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Discharging Student Loans Based On Undue Hardship

Generally, student loans are not dischargeable in bankruptcy. They are one of the few debts that categorically remain with a debtor once they have completed their bankruptcy.   In the past, some privately funded student loans could be discharged under Chapter 7 bankruptcy.  However, with the change in the law with the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, any education loan that qualifies for a tax deduction is non-dischargebale.

There are exceptions to this general rule of non-dischargeability.  Recently I was able to discharge student loans for a client that was suffering severe undue economic hardship.  Generally, to discharge student loans due to undue hardship, a debtor must file a separate motion with the court and meet with the judge to explain the hardship.  This is not easy to do, as courts require you to show three things to prove undue hardship:

  • That in your current situation, you cannot maintain a minimum standard of living for you and your dependents and still repay your student loans.
  • The situation that is causing the undue hardship is likely to continue, and
  • You have made honest efforts to pay off the loans.

The debtor must show all of these factors by a preponderance of the evidence for the court to discharge their student loan debts.  The second requirement, that the hardship is likely to continue, is usually the hardest to prove.  In a recent decision, a bankruptcy court said that only a debtor with rare circumstances will satisfy the second prong of the test.  Such circumstances include, for example, illness, disability or lack of suitable job skills.  Even though discharging student loans is difficult, it is not impossible and sometimes a court will reduce the amount owed without discharging the entire amount.

ABOUT DAYTON BANKRUPTCY ATTORNEY ZACHARY BUSHATZ

Zachary Bushatz was raised in Marion, Ohio. He graduated from Ohio Northern University with a triple major in History, Political Science and Criminal Justice, magna cum laude. While in undergrad, Mr. Bushatz received the Walter Pengry Rogers Award for outstanding academic achievement. Mr. Bushatz was also a four year member of the Ohio Northern Mock Trial Team, on which he won numerous awards including Best Attorney and Best Witness.

Mr. Bushatz attended Ohio Northern University Pettit College of Law on the Dean’s Merit Scholarship. While in law school, Mr. Bushatz was a member of Moot Court. During his second year of law school he was a team member of the New York Bar Association Traveling Team. Mr. Bushatz was an Associate Justice on the Moot Court Executive Board his third year.

While in law school, Mr. Bushatz also worked extensively in the area of bankruptcy. He was a legal extern for bankruptcy Judge Richard Speer at the Northern District of Ohio in Toledo. He also worked for a chapter 7 trustee and an attorney that focused on representation of debtors.

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