Here are some of the basic questions you might have about bankruptcy proceedings. Please contact us with further questions or if you think bankruptcy might be a consideration for you. Please review the other articles on this website to get more in depth answers to issues that Gary Stickell is particularly qualified to discuss with you.
wHAT IS A CHAPTER 7 BANKRUPTCY?
Most individuals file a Chapter 7 Bankruptcy which to use its technical name is a “liquidation” proceeding. Most of the answers on this page deal with Chapter 7 filings. There are two parts of a Chapter 7 liquidation: (1) what debts can be discharged in a Chapter 7 and (2) what property does the filer of the Bankruptcy get to keep. The following FAQs provide information to answer those two parts.
What does bankruptcy do for me?
The goal of filing bankruptcy is to get relief from your debts. This relief is called a “discharge.” In addition, your bankruptcy filing will immediately stop the collection of all debts (except family support orders); this includes stopping collection phone calls, lawsuits, foreclosures, repossessions and garnishments including actions by tax collection agencies.
The discharge is a court order, issued at the end of the legal process, confirming that the bankruptcy wiped out most unsecured debts, such as:
credit cards,
medical bills,
signature loans,
debts from a repossessed vehicle
income tax debts that are over three years old
most civil judgments.
What types of debts does bankruptcy not wipe out or discharge?
Several types of debts will not be wiped out by your bankruptcy discharge. Debts that cannot be discharged generally fall under three categories:
money owed to the government
court-ordered support of others
some debts incurred by bad conduct.
Examples of non-dischargeable debts include:
civil fines and parking tickets
criminal fines or restitution
incomes tax that are unfiled or less than three years old
child support
spousal maintenance
Family Court orders, other than support
student loans (exceptions are rare)
debts incurred by fraud
There are many other considerations. For example, if you owe money on your house or car, you will need to keep making the payments if you want to keep that property.
WHAT ABOUT DISCHARGING TAX DEBT?
Personal income tax debts owed to the Internal Revenue Service or State Revenue Departments can be discharged if: (1) the tax returns were filed on time and the obligation to pay is over three years old (the measuring date for the three years is when the tax return was due to be filed either April 15th or the extension date of October 15th in most years); (2) if the taxes were not filed on time that the obligation to pay is over three years old and the tax returns have been filed; and (3) any assessment of the amount owed is over 240 days prior to filing bankruptcy.
There are many nuances to discharging taxes not covered by this answer, which Gary Stickell can review with you as part of your free consultation on bankruptcy.
Can I discharge homeowner association fees?
While the obligation to pay homeowners association fees owed prior to the filing of bankruptcy will be discharged, most Homeowner Association fees are secured against your home. That lien against your home will survive the bankruptcy. Plus, anything due after your filing is your responsibility, and you risk a lawsuit being filed against you in Justice Court.
What property do I get to keep?
State and federal laws provide protection for some of your property, which is known as “exempt” property. The purpose of exempt property is to protect certain basic necessities from creditors, and this applies also when filing bankruptcy.
Examples of exempt property for individuals include:
the homestead exemption of $250,000 in equity in a residence,
qualified pensions, 401(k) accounts and IRAs,
$6,000 in equity in a motor vehicle
$6,000 in basic household furnishings.
Both spouses are entitled to exemptions for motor vehicles, household furnishings and other personal property. Spouses can only claim one homestead exemption of $250,000
Can I keep my car after filing the bankruptcy? It depends. If you owe money on your vehicle, the debt will need to be paid. In some instances, the amount owed can be reduced. If there is no money owed on the car (or less than its value is owed), up to $6,000 is exempt.
My car is free and clear; should I transfer it to a relative or friend to keep it safe? NO! Transferring property before bankruptcy is a major lose-lose situation. You can lose your exemption; worse, you may be committing fraud (a felony).
Should I cash out my 401(k), IRAs and life insurance before filing bankruptcy? As was stated above, most 401(k) accounts and IRAs are exempt from your creditors, in and outside of bankruptcy. The exemption law regarding the cash value in life insurance is currently in flux, but cashing it without consulting a bankruptcy attorney is a mistake.
Gary Stickell is well-versed in exemption issues and protecting your interests in property. He can review these matters with you as part of your free consultation on bankruptcy.
Do I get to keep my tax refunds?
Unless the refunds is a small amount, you will probably not be allowed to keep a tax refund owed to you at the time you file your Chapter 7 bankruptcy.
The Trustee will demand turnover of any refunds owed to you prior to the filing of your case. For example, if you filed on September 1, 2021, the Trustee would be entitled to any tax refund, for tax years 2020 or before, that you had not received prior to September 1, 2021. You will also owe a pro rata share of your 2021 tax refunds. For a September 1 filing, the amount owed is 8/12ths of the year or 2/3 of the refunds.
It is your obligation as a Chapter 7 debtor to turn over to the Trustee any tax refund.
Who or what is the Trustee?
Every Chapter 7 bankruptcy case is assigned a Bankruptcy Trustee to administer your non-exempt assets for the benefit of your creditors.
For Chapter 7 filings, there is a panel of Trustees to whom cases are assigned on a rotating basis. Trustees get paid based upon the value of the money and other assets they administer on behalf of your creditors.
Bankruptcy Trustees are distinct from two other “trustees” that may be part of your debt issues:
For houses in foreclosure, the foreclosure is done by “trustee sales.” These trustees have nothing to do with your bankruptcy.
There is also the Office of the U.S. Trustee, which is an agency of the U.S. Justice Department and is the “watchdog” of the bankruptcy process. The U.S. Trustee gets involved in a Chapter 7 bankruptcy to “police” who is allowed to file a Chapter 7 under the “means test.” In extreme cases, the U.S. Trustee is the prosecutor of actions to dismiss bankruptcy cases for fraud and other misbehavior.
In preparing the bankruptcy petition, do I have to include all of my creditors?
Yes – every person, company, lender and taxing authority to which you owe money must be listed; you cannot pick and choose which creditors to “file” on. This includes your car lender and your mortgage lender, whether or not you plan to continue to make payments.
Will my credit cards be canceled?
Generally, yes. Even credit cards that have a zero balance will probably be cancelled.
Does my personal bankruptcy filing stop my creditors from pursuing my business?
No. Whether your business is a sole proprietorship, partnership, corporation or LLC, we will list all of the business’s creditors to prevent them from pursuing collection against you personally. However, this does not stop business creditors from pursuing your business and contacting you as the business’s contact.
What happens at the Meeting of Creditors?
Anyone filing a Chapter 7 bankruptcy must attend a meeting of creditors. In most instances, no creditors will appear. The meeting will be conducted by your Trustee, who will ask you a series of uniform questions followed by several questions specific to your case. Before the meeting of creditors, you will be required to provide the Trustee with an answers under oath in a questionnaire and provide certain documents. Gary Stickell is well versed in the questionnaire and document request, in fact, he was part of the committee that created those documents.
Each Trustee has their own list of questions. However, the following questions are always asked after the Trustee administers an oath that you will tell the truth under penalty of perjury.
Your name
Did you accept the oath to tell the truth under the penalty of perjury?
Some variation of “How long have you lived in Arizona,” “Have you lived in Arizona for more than two years,” or “Have you lived in Arizona for the greater part of the last 180 days?”
Did you review the Schedules and Statements prepared by Mr. Stickell’s office and is the information in those schedules and statements true to the best of your knowledge?
Did you list all of your assets?
Did you list all of your debts?
Have you filed bankruptcy within the last eight years? (Sometimes, have you filed bankruptcy before?)
Have you reviewed the Trustee’s Information Sheet? (The Trustee and Gary Stickell’s office will have sent you a copy of that information sheet several weeks before the hearing.)
Do you owe child support or spousal support to anyone?
Have you made any transfers within the last year that are not reported on your schedules?
Do you have the right to sue anyone for money or property?
Are you receiving money under a will or trust? Have you rejected your right to receive money under a will or trust?
The Trustee will want two forms of identification from you: a government-issued photo ID and proof of Social Security number from some third party. The best forms of identification are your driver’s license and Social Security card. (If you do not have acceptable forms of identification, your Meeting of Creditors may be rescheduled, and you may incur an additional charge for Gary Stickell’s time.)
The proceeding is tape-recorded.
For your peace of mind, consider the following:
Generally speaking, the most difficult parts of the Meeting of Creditors are (a) finding a place to park and (b) the fears created by your imagination. As of January 11, 2022, the Trustee are holding the Meeting of Creditors by phone or Zoom because of COVID-19 restrictions. So finding a place to park is not a problem.
Gary Stickell attends all Meeting of Creditors with his clients. He does not send associates or “fill-in” attorneys.
When will my Chapter 7 case be over?
Your Chapter 7 case is not over when you get your discharge.
In most Chapter 7 cases, the discharge of debts will occur 60 to 90 days after the Meeting of Creditors. However, your case is not over until the Trustee has fully administered your assets. This can include any tax refunds still owed to you on the date that you filed your bankruptcy case and the tax refund for the year that you filed. If the Trustee determines to administer any of your assets, it can take six months to a year for your case to close.
Our office will notify you when your case is closed.
Once you turn over your tax refunds or other property, the Trustee will begin to administer your estate. This process starts with a notice to your creditors to file claims. Once the deadline for claims to be filed passes, you will receive mail from the Trustee (and Trustee’s attorney regarding his or her fees, if applicable), and then a proposal for distribution of the remaining money. The Trustee’s fee and the Trustee’s attorney’s fees are paid from the money collected.
Once the deadline for those matters passes, your case will be closed. Until you get that notice, you cannot sell any of your property without permission of the Court. If you have some pressing need, consult our office regarding a Motion to Compel the Trustee to Abandon that property and receive the Court Order.
Can bankruptcy reduce the mortgage on my home?
Neither a Chapter 7 nor a reorganization under Chapter 13 or Chapter 11 can reduce the first mortgage on a personal residence. However, under Chapter 13, there is a special proceeding to pursue a Mortgage Modification which may reduce Mortgage payment and cure past-due mortgage payments. It is my practice to have Ellen Lawson, a mortgage modification genius, hired as special counsel to the Loan Modifications. Here is a link to her website. https://ellenlawsonlaw.com/loan-modification/
In a reorganization under Chapter 13, the Court can order the removal of a second mortgage if the value of the house is less than the amount of the first mortgage. Such a “strip” is final when the plan of reorganization is completed.