Text Box: Bankruptcy FAQText Box: Here are some frequently-asked questions regarding Bankruptcy. Please click on the question to be forwarded to the corresponding answer: Unless indicated otherwise, all of the following information is restricted to the two consumer bankruptcies—Chapter 7 and Chapter 13. Text Box: Answer:  ________________________________________________________________________________________________________________________________________ Answer: Almost any individual, partnership, or corporation may file for bankruptcy protection. There are some restrictions for those who have previously filed within certain periods of time. Also, some bankruptcies are limited to a certain type or class of debtor. More than one million people in the United States filed for bankruptcy relief in 2008 and 2009. Although bankruptcy laws, which date back to 1898, were modified in 2005, the modification has not slowed the rate of bankruptcy filings. Contrary to any information you may have heard, bankruptcy is alive, well, and providing relief for literally millions. _________________________________________________________________________________________________________________________________________ Answer: Depending on the Chapter, bankruptcy may make it possible for you to ~ Eliminate the legal obligation to pay most or all of your unsecured debts, including judgments ~ Stop foreclosure on your house and have an opportunity to catch up on missed payments. Please note that presently none of the bankruptcy Chapters can modify your home mortgage obligation. ~ Prevent repossession of a car or other property and, in certain situations, force the creditor to return property even after it has been recently repossessed ~ Stop IRS wage garnishment or bank garnishments ~ Stop harassment by overzealous creditors ~ Stop lawsuits. __________________________________________________________________________________________________________________________________________ Answer: Actually, there are numerous bankruptcy “Chapters” under Title 11 of the U.S. Code. Chapter 7 - for individual consumers and other legal entities seeking to discharge their unsecured debts. Chapter 9 - for municipalities (counties, school districts, water districts, etc.). Chapter 11 - for corporations (businesses attempting to reorganize or orderly liquidate). Chapter 12 - for family farmers and fishermen (debtors whose income is primarily derived from farming, fishing, or related endeavors). Chapter 13 - for the rehabilitation of individual consumers (avoid foreclosure of home, deal with tax obligations, etc.). Chapter 15 - restricted to international bankruptcies (debtors with debt obligations in countries other than, or in addition to, the United States). ___________________________________________________________________________________________________________________________ Answer: All debts are characterized in a bankruptcy proceeding as either secured, priority, unsecured nonpriority, or a combination of these three. A secured debt is one in which collateral has been pledged to ensure payment of the loan. Examples include a house subject to a mortgage debt or an automobile subject to a vehicle loan agreement. All secured debts must also be “perfected” in order for the debt to retain its secured status in bankruptcy. To perfect a lien against real property, a deed of trust or real estate lien note must be filed in the appropriate deed records of the county in which the real estate is situated. To perfect a lien against a vehicle, the lienholder’s name must appear on the certificate of title. The method required to perfect a lien typically differs for the type of collateral and/or creditor involved. Once a creditor repossesses or forecloses collateral, the indebtedness becomes an unsecured debt. A priority debt cannot be discharged in bankruptcy. This type of debt includes child support, spousal support or alimony, criminal restitution, student loans, and taxes that are of a certain type (i.e. excise taxes, form 940 or 941 employment taxes) or taxes that have not reached a certain age or maturity (i.e. form 1040 personal income taxes that became due less than three (3) years or assessed less than 240 days). An unsecured nonpriority debt is basically any debt that is neither secured nor a priority debt. Chapter 7 Bankruptcy: Chapter 7 is typically the fastest, simplest, and cheapest bankruptcy proceeding available. It allows the debtor to discharge their unsecured nonpriority debts (such as credit cards, medical and/or hospital bills, legal fees, personal loans, payday loans, signature loans, debt balances remaining after collateral has been repossessed or foreclosed and virtually all judgments not related to nondischargeable debts) in approximately four and one-half (4 ½) months. Chapter 7 is referred to as a liquidating bankruptcy because nonexempt assets, if any, are sold and the proceeds distributed to your creditors. However, Texas exemption laws re so favorable to debtors that less than five percent (5%) of all cases we file have any nonexempt property. Therefore, most debtors do not lose their interest in any property as a result of filing bankruptcy. See “Texas Bankruptcy Exemptions” and “Federal Bankruptcy Exemptions.” Chapter 13 Bankruptcy: Chapter 13 bankruptcy is typically used to avoid foreclosure on home mortgages and repossession of vehicles. It is often used to deal with IRS tax debts as well. Chapter 13 allows debtors to place all past-due mortgage and car loan payments into a repayment plan payable over a three- to five-year period. Chapter 13 also applies to those cases in which the debtors can repay all or a portion of their unsecured debts. Because Chapter 13 is a comprehensive bankruptcy that deals with all categories of debts, it may be possible save a home from foreclosure, save a vehicle from repossession, discharge unsecured debts (just as you would in a Chapter 7), and provide for the repayment of priority debts, such as child support arrears or nondischargeable tax claims. There are debt limits applicable to Chapter 13 cases. __________________________________________________________________________________________________________________________________________ Answer: Whether a debtor may file a Chapter 7 or 13 is determined by a “Means Test.” The Means Test is a process whereby the debtor’s actual and average monthly income and living expenses are compared to both national and local standards. The calculations utilized are complex and vary from federal bankruptcy to federal district. ___________________________________________________________________________________________________________________________________________ Answer: Our initial non-business bankruptcy consultation is free. You will visit with the attorney to discuss your financial situation, and he will advise you whether you would benefit by filing bankruptcy, which Chapter you may be qualified to file, and whether there are any legal restrictions or limitations to your filing for bankruptcy. While the costs associated with filing any bankruptcy depends on the facts and circumstances presented in a given case and on the bankruptcy Chapter filed, the bankruptcy judges for most federal bankruptcy districts have issued quasi-guidelines for attorney fees in consumer bankruptcy cases. While each bankruptcy case has its own unique set of difficulties and problems, not only are our fees competitive, but we also offer an affordable payment schedule. During your initial consultation, the attorney will discuss exactly how much money you would have to pay down to get your case filed. Please note that our office has always provided reduced fees to senior citizens. ____________________________________________________________________________________________________________________________________________ Answer: Timing is very important. You should seek legal bankruptcy advice early - before your health, marriage, employment, and/or business stability are affected. The following are some typical warning signs preceding a bankruptcy: Reduced income due to the loss of a job or overtime hours Extensive medical or legal bills Attempting to save a failing business Financial complications of divorce Borrowing from credit cards and/or family to meet monthly living expenses Living paycheck to paycheck Borrowing against home equity or 401(k) to pay bills Late car, house, or utility payments Threatened foreclosures or repossessions Threatened or pending lawsuits or judgments However, the timing of filing for bankruptcy may be critical in the event you are attempting to avoid foreclosure on your homestead or repossession of your automobile. Chapter 13 bankruptcy cannot help you recover your home if it has already been foreclosed, or recover your automobile if it has been repossessed more than ten (10) days from your receipt of notice of intended sale. However, in some instances, it may be a better strategy to delay filing bankruptcy if a tax obligation will soon lose its priority status, making the tax obligation subject to discharge. There are many variables to consider. Therefore, pre-bankruptcy planning with the assistance of your attorney is a very important aspect of your initial interview. ____________________________________________________________________________________________________________________________________________ Answer: Bankruptcy can prevent a foreclosure of your home or a repossession of your car. An “automatic stay” arises by law immediately upon the filing of a bankruptcy case. The automatic stay stops all collection actions, such as repossessions, garnishments, or foreclosures. ____________________________________________________________________________________________________________________________________________ Answer: A bankruptcy filing will immediately stop a lawsuit and prevent your creditors from placing a lien against your bank accounts or wages. Also, if you are in the middle of a divorce action, the filing of a bankruptcy will prevent the state court from entering any orders or decrees concerning the parties’ property without the automatic stay first being lifted. ____________________________________________________________________________________________________________________________________________ Answer: Typically, yes, provided the judgment is not for a priority debt (i.e. child support, spousal support, criminal restitution, student loans, and certain taxes). Additionally, some civil judgments based on fraud, theft, or embezzlement; DWI-related accidents; and intentional malicious personal injuries may not be subject to discharge or may only be dischargeable in a Chapter 13 proceeding. _____________________________________________________________________________________________________________________________________________ Answer: Yes, if your license was suspended as a result of your having a judgment entered against you because you failed to maintain minimum auto insurance and you were involved in a motor vehicle accident that was your fault. Ordinarily, the bankruptcy will also discharge the judgment, provided you were not convicted of a DUI or DWI. _____________________________________________________________________________________________________________________________________________ Answer: Yes, it will be necessary for you to complete a “pre-bankruptcy” personal financial management course prior to filing bankruptcy. This course can be taken via telephone or Internet and costs approximately $30. Approximately forty-five (45) days after filing bankruptcy, you will be required to complete a “pre- discharge” personal financial management course, which may also be completed via telephone or Internet and costs approximately $17.50. We will assist you with additional information to complete these courses. ______________________________________________________________________________________________________________________________________________ Answer: Approximately six (6) weeks after filing, you will be required to attend a §341(a) Creditors’ Meeting. As the name implies, creditors have the opportunity to attend the meeting, along with you, your attorney, and the Trustee appointed to your case. In the overwhelming majority of cases, no creditors appear at the Creditors’ Meetings. For Northern District Dallas Division cases, the Chapter 7 Creditors’ Meetings are held at the Federal Courthouse in Dallas; and Chapter 13 Creditors’ Meetings are held at the Standing Chapter 13 Trustee’s office in Las Colinas. For Eastern District Plano Division cases, both Chapter 7 and 13 cases are held in Plano. In Chapter 7 cases, a debtor receives a discharge certificate approximately two (2) months after the Creditors’ Meeting. In Chapter 13 cases, the debtor’s payments commence thirty (30) days after filing the case and continue throughout the Plan payment period (typically 3 to 5 years). A discharge is received after all such Plan payments are made. ________________________________________________________________________________________________________________________________________________ Answer: That, of course, may depend on the creditor you ask. Actually, creditors are entitled to a bad debt tax write-off for accounts that are discharged in bankruptcy. Additionally, consider the fact that credit card companies are not required to remit that unconscionable interest rate you have been paying all those years. Bankruptcy is not new to our country. The current law, with some modifications, has been in effect since 1898. Virtually all civilized nations have some sort of bankruptcy laws. In the United States, we live in a credit-based society. Credit is woven into our entire financial infrastructure. Without a simple (depends on the case) method of resolving credit disputes and obligations, our financial system would quickly become marred and fail. As to the moral issue, that depends on the individual debtor. The moral issue may be resolved by honestly answering the simple question: “If you had the money or ability to pay your creditors, would you?” Some may not have the ability to pay their immediate debts presently but may be able to pay a portion of them over a period of time. Chapter 13 will assist them in their repayment endeavors. Finally, while I am not a theological expert, I have filed bankruptcy for a number of those in the ministries who advise me that based on the teachings of the Bible in the Old Testament (Deuteronomy 15:1-3 ) “....you should forgive your debtors every seven years.” Our present Chapter 7 laws allow you to file a bankruptcy every 8 years, if you otherwise qualify. The purpose of bankruptcy is to provide you the opportunity to extract yourself from an overwhelmingly burdensome financial situation in order for you to go forward to a more favorable and productive life. The concept has nothing to do with cheating anyone. Should you have a strong compulsion to pay debts that have been discharged in bankruptcy, you may do so when you have the financial ability. However, to avoid a legal situation referred to as a “novation,” you should seek the advice of an attorney before doing so. Basically, sometimes bad things happen to good people. Virtually every client we have represented wished they could repay all their debts; regrettably, they simply do not have the financial ability to do so or they need some help to get to a better place so they can get back on track to pay their debts. Can you imagine explaining to your debt collector that you or your spouse suffered a job loss, health problem, sick child, expensive house, or vehicle repairs, etc., and the collector saying, “Hey, I completely understand your situation, so don’t worry about paying anything - I am forgiving your debt”? Not likely. How about, “I can appreciate your setback, so just stretch out what you owe me for five years ...”? Again, not likely. From one perspective, bankruptcy is the only legal way you can compel your creditors to be good neighbors. _______________________________________________________________________________________________________________________________________________ Answer: Generally, you will continue to be obligated to pay your priority debts (i.e. child support, spousal support, student loans, criminal restitution, fines and fees, and certain taxes). Moreover, in certain situations your obligation to pay certain debts based on fraud and intentional injuries will continue after bankruptcy. You may have the opportunity to “reaffirm” certain secured debts, such as your home mortgage, automobile loans, and appliance loans. To reaffirm a debt means to have a continuing personal obligation to repay the debt in spite of your bankruptcy. ________________________________________________________________________________________________________________________________________________ Answer: Federal law prohibits certain employers from discriminating against you as a result of your filing for relief under the bankruptcy code. ________________________________________________________________________________________________________________________________________________ Answer: Not at all. Immediately upon filing a consumer bankruptcy, all property rights or interest a debtor may have technically becomes property of the bankruptcy estate, unless it is claimed as the debtors exempt property. Exempt property is defined by either federal or state exemption laws. While each debtor has the right in Texas to choose either one or the other of these laws, spouses filing bankruptcy jointly must choose the same exemption scheme, either federal or state. __________________________________________________________________________________________________________________________________ Answer: Homestead Prop. 41.001 and Prop. 41.002 - Unlimited amount, but cannot exceed ten (10) acres in a city, town, or village, or 100 acres (200 acres for family) elsewhere. Sale proceeds are exempt for six (6) months after sale. Prop. 41.005 - Homestead declaration must be filed or the court will charge you to file it for you. Personal Property Prop. 41.001 - Burial plots and health aids; books containing sacred writings of a religion (exempt from the $60,000 family/$30,000 single total personal property allowed) Prop. 42.002 - Home furnishings, including family heirlooms; food; clothing; jewelry up to 25% of the "SPECIAL LIMIT" stated below; two (2) firearms; athletic and sporting equipment (includes bicycles); one (1) motor vehicle for each adult with driver's license or who relies on another to operate a vehicle; two (2) horses, mules, or donkeys, with saddle, blanket and bridle for each; twelve (12) head cattle; sixty (6O) head other livestock; one-hundred and twenty (120) fowl; food on hand for these animals; and household pets. SPECIAL LIMIT total of all items under Property 42.002 (including tools of trade and cash value of life insurance) cannot exceed $30,000 single person/$60,000 for family. Prop. 42.0021 - Health savings accounts Wages Prop. 42.001 - Earned but unpaid wages; and unpaid commissions for personal services up to 25% of the "SPECIAL LIMIT" stated above Pensions - Govt. 821.005 - Teachers Govt. 821.004 - Judges Govt. 821.006 - County and district employees Govt. 615.005 - Law enforcement officers, firefighters, and emergency medical personnel's survivors 6243d-1 - Police officers 6243e - Firefighters 6243h and Govt. 811.005 - State employees, elected officials, and municipal employees Prop. 42.0021- ERISA-qualified church or government benefits, including IRAs and Keoghs; retirement benefits to extent tax-deferred. Public Benefits Labor 207.075 - Unemployment compensation Labor 408.201 - Workers' compensation Crim. Proc. 56.49 - Crime victims' compensation Hum-Res. 31.040 - Public assistance Hum-Res. 32.036 - Medical assistance. Tools of the Trade Prop. 42.002 - Tools, books, and equipment, including motor vehicles and boats used in trade or profession; and farming or ranching vehicles and implements. Tools of trade exemptions are included in the "SPECIAL LIMIT" listed under Personal property. Insurance Insur. 1551.011 - Texas employee uniform group insurance Insur. 1575.006 - Texas public school employees group insurance nsur. 1601.008 - Texas state college or university employee benefits Insur. 885.316 - Fraternal benefit society benefits Insur. 1108.051 - Life, health, accident or annuity benefits, policy proceeds, cash values and monies due or already paid to beneficiary or insured 1407a - Church benefit plan benefits. Miscellaneous Prop. 42.001 - Alimony and child support Educ. 54.709 - Higher education savings plan trust account Alco. Bev. Code 11.03 - Liquor permits and licenses Educ. 54.639 - Prepaid tuition plans 6132b-2.04 - Business partnership property ________________________________________________________________________________________________________________________________________________ Answer: The following property may be exempted under subsection (b)(2) of Title 11 USC §522: Real Property (1) The debtor's aggregate interest, not to exceed $20,200 in value, in real property or personal property that the debtor or a dependent of the debtor uses as a residence, in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence, or in a burial plot for the debtor or a dependent of the debtor. Motor Vehicle (2) The debtor's interest, not to exceed $3,225 in value, in one motor vehicle. Personal Property (3) The debtor's interest, not to exceed $525 in value in any particular item or $10,775 in aggregate value, in household furnishings, household goods, wearing apparel, appliances, books, animals, crops, or musical instruments, that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor. (4) The debtor's aggregate interest, not to exceed $1,350 in value, in jewelry held primarily for the personal, family, or household use of the debtor or a dependent of of the debtor. (5) The debtor's aggregate interest in any property, not to exceed in value $1,075 plus up to $10,125 of any unused amount of the exemption provided under paragraph (1) of this subsection. Tools of Trade (6) The debtor's aggregate interest, not to exceed $2,025 in value, in any implements, professional books, or tools, of the trade of the debtor or the trade of a dependent of the debtor. Insurance/Benefits (7) Any unmatured life insurance contract owned by the debtor, other than a credit life insurance contract (8) The debtor's aggregate interest, not to exceed in value $10,775 less any amount of property of the estate transferred in the manner specified in section 542(d)of this title any accrued dividend or interest under, or loan value of, any unmatured life insurance contract owned by the debtor under which the insured is the debtor or an individual of whom the debtor is a dependent (9) Professionally prescribed health aids for the debtor or a dependent of the debtor (10) The debtor's right to receive - (A) a Social Security benefit, unemployment compensation, or a local public assistance benefit; (B) a veterans' benefit; (C) a disability, illness, or unemployment benefit; (D) alimony, support, or separate maintenance, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; (E) a payment under a stock bonus, pension, profit-sharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor, unless - (i) such plan or contract was established by or under the auspices of an insider that employed the debtor at the time the debtor's rights under such plan or contract arose; (ii) such payment is on account of age or length of service; and (iii) such plan or contract does not qualify under section 401(a), 403(a), 403(b), or 408 of the Internal Revenue Code of 1986. Miscellaneous (11) The debtor's right to receive, or property that is traceable to - (A) an award under a crime victim's reparation law; (B) a payment on account of the wrongful death of an individual of whom the debtor was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; (C) a payment under a life insurance contract that insured the life of an individual of whom the debtor was a dependent on the date of such individual's death, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; (D) a payment, not to exceed $20,200 on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debtor is a dependent; or (E) a payment in compensation of loss of future earnings of the debtor or an individual of whom the debtor is or was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor. Retirement (12) Retirement funds to the extent that those funds are in a fund or account that is exempt from taxation under section 401, 403, 408, 408A, 414, 457, or 501(a) of the Internal Revenue Code of 1986. ________________________________________________________________________________________________________________________________________________ Answer: Strangely enough, some experience an improvement in their FICO credit score after filing bankruptcy. Why? Because much of your credit history is deleted after filing bankruptcy, and those who file bankruptcy are placed into a separate category. Your future use of credit becomes more important than your past credit history. (See WD Adkins article “How to Improve on FICO Score After Bankruptcy.”) _________________________________________________________________________________________________________________________________________________ Answer: Congress touted the fact that under the 2005 modifications to the Bankruptcy Code, consumer debtors would be required to attend “credit counseling courses” before and after filing bankruptcy. It was that revelation that spawned the explosion of debt management companies that now constantly advertise how they will settle your debts for “pennies on the dollar.” Virtually all debt management companies operate similarly. You will be required to open a joint account with the company in which you will deposit a fixed sum of money per month. After twenty-four (24) or more months, the company will contact your creditors and propose to settle for “pennies on the dollar.” Sounds like a good, simple plan. One so simple you could do it yourself, and you can. The problem is that after a number of months or a year or so, after the company has withdrawn $5,000 from the joint account for their fees, you will probably be sued by one or more of your creditors. When you inform the debt management company of your pending lawsuit, you will be advised that they are not a law firm and that you should retain, at your expense, an attorney to represent you. What do you think happens to your credit score during all this? __________________________________________________________________________________________________________________________________________________ Answer: Our office takes a holistic approach to the practice of bankruptcy law. Daniel Strann has been practicing consumer bankruptcy law for more than 25 years. He is both board certified in Consumer Bankruptcy Law and Family Law by the Texas Board of Legal Specialization. He has successfully completed more than fifteen hundred bankruptcies. While numerous law firms advertise their services on billboards, television, radio, and even the sides of buses, we are not one of those firms. We are not a legal clinic that herds clients through several legal assistants. Rather than rattle off what your problem is and washing you with empty promises on how we can fix it, Mr. Strann personally meets with each of our clients. He listens to how you came to be in your present circumstance, where you are at now, and what the future appears to be for you. He will consider you, your family situation, your employment, and your strengths and weakness in responding to your concerns, and he will provide the information you need to make the best decision for you and your family. Additionally, Mr. Strann is very experienced in civil and criminal litigation and probate law as well as bankruptcy litigation. It is not uncommon for our clients to have legal issues in addition to, or that may complicate if not create, their financial difficulties. Such experience has proved invaluable in counseling with and representing many of our clients in their various legal matters. We do not encourage you to file bankruptcy. The fact is, bankruptcy is simply not for everyone and for every situation. We have advised clients against filing bankruptcy on numerous occasions. We will provide you with the most applicable and accurate information available to assist you in making the decision on how to best resolve your financial problems. While bankruptcy may be the easiest, fastest, and simplest solution for many financial situations, there may be other, more attractive options available in some cases. We will assist you in deciding what is best for your circumstances and situation. We understand how painful it is to have to alter your life plans in such a significant way. We combine a sympathetic, low-key approach with fierce advocacy for your needs. While many firms that file bankruptcy petitions do so at high volume, we take great pride in knowing the specific concerns of each one of our clients and look to solve those concerns without relying on a “one size fits all” mentality. We are creative problem-solvers and apply our 25+ years of experience to helping our clients identify and reach their goals, even under these difficult circumstances. We understand that you have a choice of any number of law firms to represent you in resolving your financial difficulties, and we strive to put your interest first. Contact the Law Offices of Daniel R. Strann today at 972-226-5838 to schedule your free initial consultation and visit with Mr. Strann himself, so you can discuss your financial problems and see if bankruptcy is right for you.

What is Bankruptcy?

What is Bankruptcy?

Who can file for Bankruptcy?

Who can file for Bankruptcy?

What can Bankruptcy do for me?

What can Bankruptcy do for me?
What types of Bankruptcy are available?

What types of debts are affected by Bankruptcy?

What types of debts are affected by Bankruptcy?

What types of Bankruptcy are available?

Which Bankruptcy should I file?
How much does it cost to file Bankruptcy?
When should I file for Bankruptcy?
Will Bankruptcy stop my home from being foreclosed and/or my car from being repossessed?
Will Bankruptcy stop a lawsuit pending against me?
Will Bankruptcy discharge a judgment entered against me?
Will Bankruptcy allow reinstatement of my driver's license?
Will I have to attend credit counseling courses prior to filing for Bankruptcy?
What happens once I file for Bankruptcy?
If I file for Bankruptcy, will I be "cheating" the people I owe?
Will I be obligated to pay any of my debts after Bankruptcy?
Will I lose my job if I file for Bankruptcy?
Will I lose all of my property if I file for Bankruptcy?
What are the Texas Bankruptcy exemptions?
What are the Federal Bankruptcy exemptions?
What effect will filing Bankruptcy have on my credit score?
What is the difference between "debt management" and Bankruptcy?
Why should I hire the Law Offices of Daniel R. Strann?

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