The Law Office of Neil Burns

Questions we hear often from our Chapter 7 Clients

PRE BANKRUPTCY QUESTIONS

A collection agency for a credit card company called me, and said that I could not discharge the debt; Is this true?

I filed a bankruptcy case, and I am still getting calls from my creditors. Why?

I just used my credit card last week. Can I still file?

Can I not "file on" some creditors that I want to pay?

What about my IRA, 401(k) 403(b) or other retirement accounts in bankruptcy?

If I am married, must my spouse file with me?

I am self-employed. Will I lose my business if I file bankruptcy?

A creditor already has a judgment against me. Can I still file bankruptcy?

My mother co-signed for my car. How will this affect her if I file for bankruptcy?

I have a vehicle that I own free and clear. Can I give it to a friend and then file bankruptcy so that the bankruptcy trustee does not take it?

Can I repay debts owed to relatives before filing bankruptcy so that I do not have to list them on my bankruptcy petition?

I got caught in the trap of payday advance loans. Can I discharge those in bankruptcy?

DURING BANKRUPTCY QUESTIONS

Who will know about my bankruptcy filing?

What if I accidentally forget to list a creditor on my bankruptcy petition?

What if I owe tax debt, and I have not filed the returns?

Can the bankruptcy trustee take my tax refund?

I had my creditors hearing and recently received an Adversary Complaint from one of my creditors. What does this mean, and what should I do?

Can creditors attempt to collect their debts after I file for bankruptcy?

A collection agency for a credit card company called me, and said that I could not discharge the debt; Is this true?

Generally not. Dischargeability of debt in bankruptcy is determined by federal law, not by what the creditor says. Unless one of the exceptions to discharge applies, a debt will be discharged. However, if you take on debt without the intent to repay, or knowing that you would be filing for bankruptcy, the debt will likely be declared non-dischargeable.

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I filed a bankruptcy case, and I am still getting calls from my creditors. Why?

Sometimes it can take a month or longer for a creditor to update its records to reflect that you have filed a bankruptcy petition. Inform the creditor that you have filed, give them the case number if you have it, and refer the creditor to us if they have any further questions.

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I just used my credit card last week. Can I still file?

Yes. However, credit incurred in the time period immediately prior to the filing will be scrutinized and you may have to pay back that portion of the bill.

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Can I not "file on" some creditors that I want to pay?

No. When filing a bankruptcy petition, the debtor must certify under penalty of perjury that all creditors are listed. This does not prevent the debtor from voluntarily paying some debts (particularly car loans and home loans), but all debts must be listed. It is also possible to ask the Court to allow you to reaffirm a debt for a particular purpose.

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What about my IRA, 401(k) 403(b) or other retirement accounts in bankruptcy?

These assets are considered exempt in bankruptcy. We need all information about them, however.

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If I am married, must my spouse file with me?

No. If one spouse "came into the marriage" with debts, those debts do not become debts of the new spouse. However, to the extent that a married couple has joint debts, if one spouse files for bankruptcy, creditors may pursue the other spouse for collection.
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I am self-employed. Will I lose my business if I file bankruptcy?

Not necessarily. The “business” assets are reviewed to see if they can be exempt. We will review them with you.

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A creditor already has a judgment against me. Can I still file bankruptcy?

Yes. However, if you own real property, the judgment may be a lien against the real property, and may or may not be able to be avoided in bankruptcy, depending on the amount of equity in the property.

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My mother co-signed for my car. How will this affect her if I file for bankruptcy?

If you are current on the payments, and remain current on the payments, it should not affect her. However, if you surrender the vehicle as part of the bankruptcy, or if you fail to continue with payments after the bankruptcy resulting in a repossession, the lender may pursue your mother for the deficiency (the amount of the debt less the amount the creditor obtains for the vehicle upon sale, usually at the auction yard).

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I have a vehicle that I own free and clear. Can I give it to a friend and then file bankruptcy so that the bankruptcy trustee does not take it?

No. This would be a fraudulent transfer, and the bankruptcy trustee would likely be able to obtain possession of the vehicle from your sister. You should meet with an attorney to determine if the vehicle is exempt. Usually it would be.

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Can I repay debts owed to relatives before filing bankruptcy so that I do not have to list them on my bankruptcy petition?

Probably not, unless the amount is very small. Payments such as these within one year before filing bankruptcy are considered "preferences." The trustee may have the right to pursue the relative to recover the preference, and divide the money equally among all creditors.

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I got caught in the trap of payday advance loans. Can I discharge those in bankruptcy?

Yes. Payday loans are not excepted from discharge in bankruptcy.

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