Clients often ask if they qualify for a Chapter 7 bankruptcy. People may not know much about bankruptcy before calling my office, but there is a general anxiety as to whether they will be "forced" into repaying some of their debt.
It may seem odd at first thought why someone would want to be in a chapter 13 case if he or she qualified for a chapter 7. In recent weeks however, I have noticed that chapter 7 trustees are getting more aggressive about pursuing possible equity in a home
[David Stevens, Esq. answers your questions about owning a business and filing for bankruptcy ]
That's a question I'm asked very often, and the answer is of course you can. The issue is not whether you own a business. The question is does the business have such value that it's a concern for us, and even if it did, how do we treat that value in a bankruptcy context?
[David Stevens, Esq. walks you through the bankruptcy filing process to help put you at ease]
Hi. So we've probably already spoken once. Perhaps you called my office and set up an appointment, or you emailed me, or you went online and set an appointment, that's all great.
What should I expect when I file bankruptcy?
Provide your Financial Information
When you come in, I'm going to give you an intake form to help me fill out some information, or perhaps you're going online and doing it now. Don't worry about not being able to provide all the information to me, that's fine. I used to do this face- to-face, and it would take at least an hour just to fill out this worksheet. So, the more you give me now, the better off we'll be, and we'll have more time to spend talking about things that really concern you.
An involuntary bankruptcy is one that is filed by creditors and not by the person or entity that owes the money. The filing of a petition for an involuntary bankruptcy is an extreme remedy with serious consequences for both the debtor and the petitioning creditors. For the creditors, if the petition is found to have been brought in bad faith, the creditors may be shouldered with paying the litigation costs of the debtor which were incurred in dismissing the case. And of course for the debtor, it must now find a way to meet its financial obligations under the heavy hand of the Bankruptcy Court.
The Supreme Court’s landmark decision of Till v. SCS Credit Corp., 541 U.S. 465 (2004), took up the issue of the proper method of selecting an interest rate sufficient to pay present value under section 1325(a)(5)(B)(ii). The Court considered and rejected the coerced loan, presumptive contract rate, and cost of funds approaches, and instead settled on a formula approach. Under this formula approach, the interest rate is determined by starting with a national prime rate and adjusting upward to account for greater risk of default.
The filing of a petition with the Bankruptcy Court instantaneously shields the debtor from most further acts by creditors to collect on debt owed as of that date. Filing automatically invokes the automatic stay under § 362(a) of the Bankruptcy Code. As a result, the debtor‘s estate is preserved for all creditors. The stay protects both the debtor, who gets relief, and the creditors as a group, whose claims are protected against other creditors who could otherwise pursue their own remedies.
The filing of a bankruptcy petition is designed to result in a discharge of most of the debts the person filing bankruptcy (the “debtor”) had as of the date the case is filed. Approximately 30 days after the bankruptcy petition and schedules are filed, a meeting (called “The First Meeting of Creditors” or a “341 meeting”) is held where any creditor can attend and ask questions concerning the Plan. The Chapter 7 341 meetings for cases filing in the District of New Jersey are held in Newark, Trenton, and Camden.
Even before a foreclosure judgment is entered, a mortgage holder may be entitled to injunctive relief restraining a homeowner from collecting or receiving rents if it can show that it will undoubtedly suffer immediate, irreparable harm in the event the restraints are not granted. It may also be able to obtain a court order compelling the tenants of the mortgaged premises to pay rents to a receiver.
The opportunity for summary judgment (either partial or complete) is one of the great benefits of the federal rules, and one of the strongest reasons for parties in state court actions to remove actions to federal court, if at all possible. Many state courts, including the State of New Jersey, permit summary judgment, and have modeled the rules on the Federal Rule of Civil Procedure 56. However, summary judgment is not always adhered to as rigorously in the state courts as it is in the federal system and the results tend to be very judge-specific.