Friday, August 1, 2014

Are veterans benefits income under the Chapter 7 means test?

If you are a veteran, do your veterans' benefits count as "income" for purposes of qualifying for Chapter 7 bankruptcy relief? Your income affects your eligibility for Chapter 7 bankruptcy -- the higher your income, the more difficult it may be for you to pass the Chapter 7 "means test." Unfortunately, you must count your veterans' benefits as income when filing for Chapter 7 bankruptcy. However, if you are a disabled veteran, you may be exempt from the means test altogether.

Chapter 7 Income Requirements: The Means Test

In order to be eligible for Chapter 7 bankruptcy relief, you must meet certain income and expense requirements. If your monthly income is less than or equal to the median income in your state, you can file for Chapter 7 bankruptcy (assuming you meet other Chapter 7 eligibility requirements.) If your income is higher than the state median, you must pass the Chapter 7 means test, which looks at your disposable income after deducting certain expenses from your income.
The lower your income, the easier it is to qualify for Chapter 7 bankruptcy.

Veterans' Benefits Count As Income

Unfortunately, you must include any veterans’ benefits you receive when calculating your income for Chapter 7 bankruptcy. Veterans' benefits may include payments for healthcare, living expenses, and disability. In fact, for purposes of the means test you must include most types of income, other than Social Security Benefits, and in some states, unemployment compensation.

Exception to Means Test for Disabled Veterans

If you are a disabled veteran, you may not have to take the means test at all in order to qualify for Chapter 7 bankruptcy.

If you are a veteran, you are exempt from the means test if:
  • you are considered “disabled,” as defined by bankruptcy law (see below), and
  • you incurred the debt while on active duty or performing a homeland defense activity.

What Is the Definition of "Disabled"?

To qualify as disabled, a veteran must be either:
  • rated by the Veterans Administration as at least 30% disabled, or
  • discharged as a result of a disability incurred in the line of duty.
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Wednesday, May 7, 2014

Harassment from debt collectors, know your rights!

The Fair Debt Collection Practices Act was passed in 1977 to protect consumers from abusive debt collectors. Here's a closer look at the rules a third-party debt collector must follow when collecting a debt.

Contacting a debtor.
A collector may contact you in person, by mail, telephone, telegram or fax. However, a debt collector may not contact you at inconvenient times or places, such as before 8 a.m. or after 9 p.m., unless you agree. A debt collector also may not contact you at work if the collector knows that your employer disapproves of such contacts.

Contacting a third party about your debt.
If you have an attorney, the debt collector must contact the attorney, rather than you. If you do not have an attorney, a collector may contact other people but only to find out where you live, what your phone number is and where you work. Collectors usually are prohibited from contacting such third parties more than once. In most cases, the collector may not tell anyone other than you and your attorney that you owe money.

Giving written notice.
Within five days after you are first contacted, the collector must send you a written notice telling you the amount of money you owe, the name of the creditor to whom you owe the money and what action to take if you believe you do not owe the money.
When a consumer doesn't owe the money.

A collector may not contact you if within 30 days after you receive the written notice you send the collection agency a letter stating you do not owe money. However, a collector can renew collection activities if you are sent proof of the debt, such as a copy of a bill for the amount owed.

No harassment
Debt collectors may not harass, oppress or abuse you or any third party they contact.
Debt collectors may not:
Debt collectors may not state that:
No unfair practices
A debt collector may not engage in unfair practices when they try to collect a debt from you.
Debt collectors may not:
  • Take or threaten to take your property unless this can be done legally.
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Monday, April 21, 2014

How to Buy a Home After Bankruptcy

bankruptcyDeclaring Chapter 7 or Chapter 13 bankruptcy is often devastating and can turn your home buying plans upside down.

Going into bankruptcy shuts down your ability to borrow money or use a credit card, severely lowering your credit score. It will take some time to build back enough credit to apply for a new credit card or to take out a mortgage on a home. However, with proper preparation, patience and financial planning, you might be able to purchase a home sooner than expected.

Discharge and Organize
First things first: The bankruptcy must be discharged. If you are still in the process, or if you are still in credit counseling or any other program that takes over your finances, no mortgage lender will speak to you.

Once your bankruptcy is discharged, organize and scrutinize your credit report. If there are debts that have been paid back but still appear on your report, contact the credit agency and have them corrected. While you’re at it, check for other mistakes on your credit report. You are entitled to one free credit report from each of the big three credit rating agencies each year—Equifax, Experian and TransUnion. If there is an error, dispute it online via the particular credit agency’s website.

Use Secured Credit Cards and Installment Loans
The fastest way to start rebuilding your credit score after a bankruptcy is to prove to creditors and other lenders that you can be trusted to pay back the money you owe them. You can do this two ways: secured credit cards and installment loans.

A secured credit card gives you credit limited to the amount you have on deposit with the issuing bank. So, if you have $20 to $500 to place in an account with the issuing bank, then the bank will limit your credit each month to the amount of that deposit.

An installment loan is simply one where you make installment payments each month. It can be a personal loan, car loan or student loan. If you get an installment loan, then you only need to do one thing: make your monthly payments on time.

More Tips to Remember While Building Credit
  • Use only a small portion of your credit. Don’t max out your credit cards and don’t apply for too much credit at one time.
  • Move slowly and build up your credit with on-time or even early payments. When possible, pay back more than the monthly minimum.
  • Pay all your bills on time and save money.
  • Stay at the same job for a good length of time.
  • Remove any outstanding tax liens.
Wait at Least Two Years
Here’s where you will need patience: You should wait at least 24 months after your bankruptcy is discharged to apply for a mortgage. You may be able to get a mortgage sooner but the terms, like interest rates, won’t be as attractive as they would be if you waited two years. Since you might be paying that mortgage interest for up to 30 years, you will save money if you wait long enough after the discharge to get a good interest rate.

Finally Applying For a Mortgage
After the two-year period, make sure you are fully prepared to apply for a loan. Your lender will want you to meet certain criteria before agreeing to lend you money: A good debt-to-income ratio, stability and time on the job. Money in the bank and no bounced checks help tremendously, of course. Any retirement plans or 401(k) assets makes your credit look good as well.
And remember, a big down payment carries a lot of weight. Keep that in mind during the two-year waiting period and save as much as you can.

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Monday, February 24, 2014

Decide If Bankruptcy Is Right for You

1. Learn about the types of bankruptcy.For individuals, there are two main kinds of bankruptcy:
  • Chapter 7 -- a bankruptcy where many, if not all, of your debts are cancelled outright in a short three- to six-month process.
  • Chapter 13 -- a bankruptcy where you use your income to make payments on your debts over the next three to five years.
2. Consider alternatives to bankruptcy.
Things may not be as bad as you think. You may be "judgment proof" or you may have options you aren't aware of.

3. Make sure you are you eligible for bankruptcy.You may be prevented from filing for Chapter 7 bankruptcy if you have enough income to repay your debts in a Chapter 13 plan. Or you may not qualify for Chapter 13 bankruptcy if your debts are too high or your income too low.

4. Learn which debts won't be cancelled.Some debts, like child support obligations, cannot be wiped out in bankruptcy.

5. Consider what will happen to your home.Bankruptcy won't relieve you of your obligation to pay your mortgage, but it might make your mortgage easier to pay by getting rid of other debts. If you have substantial equity in your home, you might lose it if you file for Chapter 7, depending on how generous the exemptions laws are that are available to you. If you file for Chapter 13, you can keep your home and pay off any mortgage arrears through your repayment plan. (To learn more, see Your Home and Mortgage in Chapter 13 Bankruptcy and Your Home in Chapter 7 Bankruptcy.

6. Will you lose your car or other property?How much property you get to keep depends whether you've pledged the property as collateral for a debt, and on the "exemption" laws that are available in your state. If you file for Chapter 7, you might lose your car if you have substantial equity that isn't protected by your state's exemption laws.

7. Will your credit cards be paid off?Bankruptcy is good at wiping out most credit card debt and unsecured loans, unless you spent extravagantly or lied on your credit application.

8. Is your pension, IRA, or 401(k) safe?In most states, you will not lose pensions,retirement accounts, or life insurance in bankruptcy. If you have a pension, a 401(k), an IRA, or life insurance, find out what's protected in your state.

9. Will cosigners be stuck with your debt?If a friend or relative helped you get financing by cosigning a loan agreement, Chapter 13 bankruptcy will protect your cosigner, but Chapter 7 will stick them with any debt you don't pay.

10. Consider how bankruptcy may affect your personal life.Bankruptcy canbe intrusive -- you have to disclose every last detail of your finances to the court, and other people may find out about your bankruptcy. In a Chapter 7 bankruptcy, you can have property taken away, or, under a Chapter 13 plan, you might spend three to five years having to ask permission to spend your own money.

Bankruptcy will also have a detrimental effect on your credit score.

by: Albin Renauer

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Wednesday, February 19, 2014

Medical Bankruptcy: A Growing Phenomenon

The problem of medical expenses in the U.S. economy has been gradually (and sometimes not so gradually) increasing over the past 50 years.
In recent years, that growth has accelerated to the point that in 2003, medical costs made up more than 15% of the U.S. Gross Domestic Product (GDP). If we continue as expected, that percentage could grow to approximately 33% by 2040.

Medical Bills Are Often a Key Cause of Bankruptcy

People who've experienced an illness or injury and found themselves buried in bills (even if they have health insurance) may consider >filing bankruptcy as a way to get out of debt.
Although people tend to have a lot of questions about filing bankruptcy, bankruptcy was created to help people resolve overwhelming bills so they can move forward.

There are two main types of personal bankruptcy: Chapter 7 bankruptcy (debt discharge) and Chapter 13 bankruptcy (debt repayment plan).

Chapter 7 bankruptcy involves the debt discharge, which eliminates unsecured debts, which are debts not tied to property, such as medical bills, credit cards, utility bills and some personal loans.
A Chapter 13 bankruptcy filing is a little different, because it involves setting up the filer on an interest-free debt repayment plan. This is generally best for people who have unsecured debt and secured debt, which is debt tied to property, such as a mortgage, that they want to keep. Chapter 13 bankruptcy has helped millions stop foreclosure, repay their debts and stay in their homes.
When you or a loved one is injured or ill, what's important is focusing on getting better--not worrying about excessive medical bills.

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Tuesday, February 4, 2014

Can I File Bankruptcy Just on Medical Bills?

Bankruptcy is all about treating all your creditors in various classes fairly. For example, the Court doesn’t want to see you pay Aunt Marge the $1,000 she lent you last year and not pay MBNA for the $1,000 you owe them. While you think Aunt Marge deserves the money more than MBNA (actually, I do too), it isn’t fair to let you pick and choose who receives payment, or give them what the Code calls a “preference.”

Since medical bills, credit cards, most personal loans, and some taxes are all considered “general unsecured debts,” they all have to be treated the same way. This means that all of your debt, not just medical bills, has to be included. It also means that you can’t just file on one or two credit cards, or on one judgment.

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Wednesday, January 29, 2014

What Does It Mean to Have Judgment Filed Against You?

Are judgments considered secured debt? Or, are they only considered secured to the point of being a lien above and beyond any exemptions? Isn’t a judgment simply a finding by the court that you owe a debt? I am particularly interested in how judgments are dealt with in a chapter 13. I’m trying to avoid filing a 13 while I wait to see what happens with my income (up or down), and I could feasibly live through a few months of wage garnishments if necessary. However, if judgments themselves create a problem, maybe I should just file?
A judgment refers to a decision by a court that has been entered into the public record. Before a judgment can be issued, a lawsuit must be filed against you. If you do not file an answer to the lawsuit within the time period required by law (usually 20 to 30 days after service of the lawsuit on you), the plaintiff can ask the judge to issue a “default judgment.”

You can also negotiate a “consent judgment” with the plaintiff – in a collection case, a consent judgment usually includes payment terms. You can also file an Answer to the lawsuit and go to trial. The decision by the judge or jury – whether favorable or unfavorable – will be set out in a judgment.
If a judgment has been issued against you in a collection case, your creditor becomes a secured creditor instead of an unsecured creditor. Secured creditors have more rights than unsecured creditors. In most States, a judgment creditor can satisfy its judgment by garnishment against your bank account or your wages, although in some States (such as California), the judgment creditor must take additional steps to have the right to take your property away from you.  A judgment creditor can also place a lien against any real estate that you own in the public record. This lien will encumber your property and will need to be paid before you can sell your real property.

Every State has its own rules about how much a judgment creditor can seize from you at any one time and about the judgment creditor’s rights against real and personal property. In Georgia, where I practice, the process by which a judgment creditor can move against a judgment debtor is relatively fast and not particularly burdensome. In other States, the judgment creditor must expend time and money to secure its judgment. California bankruptcy lawyer Cathy Moran writes that judgment creditors must file additional court paperwork before it can excercise their rights against California judgment debtors.

In a Chapter 13 bankruptcy, a judgment creditor has the right to file a secured claim. Typically, secured claims are paid in full in a Chapter 13 and they are paid before unsecured creditors.
In some jurisdictions, debtors routinely file a motion in bankruptcy court to avoid the lien. This procedure varies depending on where you live.

A judgment will also appear on your credit report and can negatively affect your credit score.
I think it is dangerous to have one or more outstanding judgments pending against you. While bankruptcy is not always the best option, I think it would be wise to at least discuss your bankruptcy options and the potential dangers inherent in judgment collection with a qualified bankruptcy lawyer.
by Jonathan Ginsberg

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Wednesday, January 22, 2014

When Can I File Bankruptcy Again?

There is no limit on the number of bankruptcy cases that one may file. In fact, there is no limit in between time frames to file bankruptcy. Nevertheless, if sufficient time between filings does not take place, you may be not be eligible for “discharge.”

So if a bankruptcy case is filed too soon, even though it will not be dismissed, a discharge may not take place. Why would anyone do this? Well there are several reasons to name a few.
If enough time has not taken place, but a debtor wants to eliminate their debt in a subsequent chapter 7 and has sufficient assets to do so, filing another case may be a good idea. Suppose a debtor has a messy asset(lawsuit, insurance claim, etc) but wants to use that to pay creditors. By filing another chapter 7, the trustee can liquidate that asset to pay the debts. Although the debtor may not be getting top value for the asset since the trustee only cares about getting enough money to pay the creditors, it may be worth the peace of mind for the debtor in not dealing with the asset and having the trustee in charge of converting it to dollars.

Or, maybe a debtor recently filed a chapter 7 and has remaining non-dischargeable student loans or taxes. The debtor could then file a subsequent chapter 13 and be protected for the next 5 years without any worries of lawsuits, levies, or wage garnishments, even though at the end of 5 years no discharge is entered. Then, maybe at that date, the debtor might also be eligible to eliminate the debt in another chapter 7 or 13.

In a nutshell, the time frames between discharge eligibility are as follows:

8 years between 7s. -727(a)(8)
2 years between 13s. -1328(f)(2)
4 years between a 7 and 13 -1328(f)(1)
6 years between a 13 and 7(if under 70% plan). -727(a)(9)

The time is counted from filing to filing — not from first discharge to second filing.
So don’t immediately give up on bankruptcy relief just because not enough time has passed. With a little pre-bankruptcy planing and creative filing techniques, you and your attorney can probably get you the relief you need!

Written by Michael G. Doan

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Monday, January 20, 2014

Bankruptcy and Divorce

All too often money problems lead to divorce.  So it’s normal that a bankruptcy (or two) will be part of the picture.

Should you file bankruptcy first, or wait until the divorce is filed or concluded?  A good question.  The answer depends entirely on where you live and what issues need to be resolved.

A married couple, even if they aren’t living together, can file  together.  After the divorce, they can no longer do that, so two cases might need to be filed. Thus, you can save a filing fee if you file before the divorce. But, and this is a big but, you can’t expect to maintain a Chapter 13 bankruptcy if you are divorced.  So, it’s best to talk to a competent bankruptcy attorney and be completely honest about the domestic situation before filing.  And, you might find that the attorney, upon learning that a split up is imminent, won’t represent both of you, because of the potential conflict of interest.

Additionally, if you are still living together, the income of both spouses, at least to some extent, will need to be included in the calculation of the means test to determine if a Chapter 7  is a viable alternative. So, if the combined income is too much, it might be better to wait until you have separated before filing.

Generally, there are three things that get sorted out in a divorce: property division; child custody; and spousal and child support.   The automatic stay in bankruptcy will stop any property division but won’t stop the determination of child custody or the payment of  support.  Thus, if you file for bankruptcy before the property is fully divided up, that process will go on hold for a while.  Since the determination of property rights includes the payment of debts, the bankruptcy will often help resolve some of those issues.

If your marriage is breaking up, it might be nice to clean up your debts too and get a true fresh start.

Bankruptcy Law Network

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Thursday, January 2, 2014

How to get student loans forgiven

Conventional wisdom has it that student loans, whether federal or private, are impossible to walk away from. However, recent research shows that's not the case. Jason Iuliano, a Princeton political science Ph.D. student who also has a degree from Harvard Law School, did a comprehensive search of bankruptcy cases in which borrowers sought to discharge student loans; he found that in four out of 10 cases, judges erased all or part of the debt. Here's the rub: Only 0.1 percent of student loan borrowers who declared bankruptcy actually tried to get their loans forgiven!

If you or a family member are struggling under financial pressures and have student loan debts that you can't pay, you should first pursue a break from payments, known as deferment or forbearance, or an income-linked repayment plan such as Pay as You Earn, which I discussed in a previous column. However, here's what you need to know about taking the last resort to get rid of your debts.

Student loans aren't dischargeable under normal bankruptcy proceedings. You have to file a separate suit, called an adversary proceeding, that is like a mini-trial within a bankruptcy case.

Most courts use something called the Brunner test to decide if your student debts cause you "undue hardship," which is necessary for getting all or part of the loans written off. The Brunner test requires proving three things in your adversary petition: first, that you cannot maintain a minimal standard of living for yourself and your dependents while making your loan payments; second, that this situation is likely to persist (sometimes called the "certainty of hopelessness"); and third, that you have made a good-faith effort to repay your loans. Typically, the lender, like Sallie Mae, offered the borrower a settlement out of court. He believes that if more people were aware of the adversary proceeding option, there would be far more cases of getting federal loans forgiven.

If you have private (sometimes called "alternative") student loans, Richardson has a final piece of advice. Private lenders are usually pretty unwilling to negotiate. "You have two choices: pay or not pay," he says. And the loans, like federal loans, are not discharged in bankruptcy. However, if you really can't pay, the lender will have to take you to court and get a judgment in order to collect. After a few years, if the bank doesn't take the time to pursue you, the statute of limitations on the unpaid debt will run out. And seven years after you first go into default, the incident should be expunged from your credit report. In no way is this a recommended course of action, but if you truly have no other choice, it's good to know that your life doesn't have to be over because of an ill-considered student loan.

By Anya Kamenetz, Tribune Media Services | The Savings Game

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