A Chapter 7 Requires a Debtors Statement of Intention

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The Bankruptcy Code for a Chapter 7

Found under the Bankruptcy Code 521 (a)(2) is the Debtors Statement of Intention on what he will do concerning his secured property. The debtor is required to file the statement in a Chapter 7 within the first 30 days of the Creditors 341 Meeting if he has any secured debt. Secured debt is a debt with a secured lien held against the property.

What Does the Debtor Do if He Does Not Have Any Secured Property?

This illustrated question came from a bankruptcy forum website that a debtor, while waiting for a Chapter 7 discharge, learned on Pacer that he was missing the Debtor’s Statement of Intention, even though he had reported on the Schedules D, E, and G that he had no secured assets: “I only have credit card debt; no car or home,” he said. “Will this be a problem?”

Exception to the Rule

Although the code states that a Chapter 7 type of bankruptcy requires a Debtors Statement of Intention, there are exceptions to this particular rule. A Debtors Statement of Intention is a statement made by the filing debtor on what his or her intention is regarding secured debt. Under code 521(a) section 2(A), the filing debtor has the choice to “retain or surrender such property and, if applicable, specify that such property is claimed as exempt, that the debtor intends to redeem such property, or that the debtor intends to reaffirm debts secured by such property.”

In the case of the illustration above, the filing debtor received a 11 USC 521 Notice of Noncompliance. This statement given by the bankruptcy court would have the effect of acknowledging the filing debtor has no secured assets to consider in a Chapter 7 case.

Even though the bankruptcy court has placed in the records the filing debtor has not complied with the code by providing a Debtors Statement of Intention, the Notice of Noncompliance proves the debtor has no secured assets in which to have any intentions. Therefore, the exception to the rule, logically, is that a Debtors Statement of Intention is really not needed because there is nothing to declare.

What Happens if the Trustee Files for Dismissal for Noncompliance?

Should a bankruptcy court panel trustee make an issue of not filing the Debtor’s Statement of Intention in a timely manner and then ask for a dismissal for noncompliance, which is not likely, the filing debtor need only take his Schedules and Notice of Noncompliance statement before the bankruptcy Judge who would recognize the significance of the statement under question. It is extremely unlikely a bankruptcy Judge would dismiss a case under those circumstances.

The Need for Bankruptcy Advice

Bankruptcy laws are sometimes complicated. How you fill out an application in a Chapter 7 bankruptcy is very important. Improperly filling out your paperwork can cause your case to be dismissed under certain circumstances. These are all good reasons why there is a need for experienced bankruptcy advice, and there is no one better to give you this legal advice than an experienced bankruptcy attorney.

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A Credit Card and the Diary of a Debtor

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When you finally realize you are in bankruptcy, the experience affects so many people in different ways. One debtor has shared her bankruptcy story on the internet in the form of diary style. She briefly recorded her story through short confessions as a debtor and how a credit card helped bring her to the brink of bankruptcy.

Some debtors see bankruptcy as a shameful thing, but this debtor, who once felt shame, has overcome bankruptcy and managed to share a sense of hope through her very elegant and poetic style of writing. Here are some excerpts taken from her diary style confessions:

  • In 2010, I was first confronted with the cold, stark reality that a bankruptcy was in my future. I was earning $50,000 plus a year but was saddled with credit card and other kind of debt, plus I was supporting my partner who was unemployed for more than a year.

  • I cried all the time the first few weeks after I came to the realization that bankruptcy was the only real solution for me. I felt like such a failure. I was so ashamed!

  • Immediately, I stopped using and paying on my credit card. I haven’t used one since early July 2010. I thought it was impossible, but I don’t even miss the credit card now.

  • I have waited [to file] because I needed to have a small surgery and I knew I was about to incur considerable medical bills.

  • And then the unthinkable happened. I lost my job in June 2011. In fact, not only did I lose my job, but I went home that night to find a water line had burst…The city shut off the water and told me I couldn’t live there until it was repaired. I somehow managed to lose my job and temporarily my home all within six hours. Talk about a bad day.

  • It was a blessing. Unemployment was a crash course on what I need vs. what I want. I had inklings of it already and had learned to live without credit. But I didn’t really learn what it was to only buy what I must have and go without whatever I wanted until then. One of the things I wanted but did not need was my house.

  • It has [all] been a blessing in disguise. I found a new job in December. It pays 40 percent less than my former one, but I am happier here. I am now solidly in Chapter 7 land.

  • That’s another lesson I learned in this. Your worth is not financial. You can’t find it in your bank statements or your credit score. It’s in what you bring to the world, what you do for people around you. I know it sounds trite, but it’s true.

  • Don’t lose sight of all the good in you through all this. Someday when we’re no longer here anymore (hopefully some day far, far in the future), it’s the things we’ve done for our friends, family and even strangers that will be remembered.

  • And I’m ready now. I’m ready to finally file for bankruptcy. I’m at the point, finally, where thinking about it brings a sense of relief, not more anxiety. I’m taking the stack of updated papers and documents to my attorney tomorrow. It’s been a long road to get here. I’ve learned a lot of hard lessons along the way. I’m ready!

These diary style confessions were shared on the internet on February 15, 2012. If you are currently facing bankruptcy, then I hope these diary confessions have given you hope for the future. You too can start over and learn the hard lessons such an experience has along the way. Are you ready?

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Discharge and a Loan Modification After Bankruptcy

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After going through a Chapter 7 bankruptcy and having a discharge on your mortgage, can you still get a loan modification?

This question is very common from people facing bankruptcy or who have already experienced bankruptcy discharge through filing a Chapter 7. One such filer recently shared their personal bankruptcy story online at a bankruptcy forum. The debtors where 2 ½ years post Chapter 7 bankruptcy, had not reaffirmed their mortgaged house, had voluntarily made mortgage payments on the house up until now, and they wanted to know how to get a modified loan after their discharge. They are beginning to struggle financially again making the high mortgage payments, but the mortgage lender will not consider modifying the loan as long as the debtors keep paying the payments on time.

The former debtors are still experiencing bad credit with the bankruptcy still on their report, do not have enough money for a down payment on a new mortgage, the home needs repairs they cannot afford, and they do not have the money to move out to rent a place the size of the home they now live. If the former debtors try stop payments, they are afraid the mortgage lender will foreclose on the property.

The stress caused by their fears is unfounded. The couple is not going to get the help of government or the mortgage lender for a loan modification after a discharge until they show a financial need. Their current situation is deceiving to the government and mortgage lender because the couple had all their unsecured debt discharged in the Chapter 7 bankruptcy they filed, and since they are making their mortgage payment on time, it appears they are not currently showing any financial need to get a modification.

The truth is, the couple are still financially struggling with the high mortgage, and they are allowing the house to deteriorate in order to make the mortgage payments. The only way to bring that fact to the attention of the government and mortgage lender is to stop mortgage payments right away.

Stopping payments that are not owed and have been discharged in bankruptcy will have two effects on the government and lender. First, it will alert both entities who can potentially make a loan modification that there may be a financial need after all. A house that is not kept up properly quickly loses what value it has. Secondly, by stopping the mortgage payments, the owners can save the mortgage payment money in order to make a down payment on another loan or move. The Sheriff’s sale on a foreclosure is still out near 12 months in most states. That time will give the homeowners a chance to save enough money before they have to leave the house. Too, with showing the financial need for modification help, the homeowners might negotiate with their mortgage lender or qualify for a government modification if they want to keep the house.

Walking away from the house might be the worse thing the couple can do at this point. Like bankruptcy, foreclosure is a legal process that takes time. Understanding the complicated loan modification, foreclosure, and bankruptcy laws can help the couple to make the best decision concerning what to do about the discharged home. Getting legal advice from a lawyer may be wise at this point.

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Bankruptcy and Questions About Certain Judgment Being Discharged

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Concerned Mother Raises Questions

One concerned Mother recently blogged a bankruptcy forum website about her son who had a car accident. He was found at fault in the accident, and his driver’s license was taken away. The party who the son was involved in the accident with filed a lawsuit against him and was awarded a judgment for $7000.

The state court of jurisdiction handling the lawsuit said the son could not get his driver’s license back until he paid the debt in full. The son is married, has four children, barely makes enough income to support his family of six, and needs the car to continue working. The people awarded the $7000 is demanding the payment in full or “forget it.” The Mother wants to know if the son filed a Chapter 7 bankruptcy, would he be able to have the debt of the judgment discharged by the bankruptcy? She also wanted to know if the judgment is discharged, could he get his license back?

Without more information from the woman about the son’s circumstances during the judgment phase of the lawsuit, it is almost impossible to provide good answers to her questions.

Exemptions from Bankruptcy Discharge

There are certain lawsuit judgments that are exempt from bankruptcy discharge. As an example of one, if a person is found guilty of having an automobile accident while under the influence of alcohol, the damages awarded in a lawsuit judgment cannot be discharged by a bankruptcy.

State laws might conflict with federal laws concerning losing your driver’s license for an automobile accident, so when it comes to an automobile accident judgment award during a federal bankruptcy case, some possibilities exist where a debtor filing bankruptcy might have those awards discharged. Since the federal law says the judgment award is forgiven, the debtor would have a good case to get his or her driver’s license back because the state awarded judgment would be satisfied by federal law.

If the son was under the influence of alcohol during the accident, he would not be able to have the judgment award discharged in a bankruptcy, but he could petition either the state or bankruptcy court to make out a reasonable plan to satisfy the award because of his financial hardships. Either a civil lawyer or bankruptcy lawyer could petition one of the courts to force the party who was awarded judgment to abandon their all or nothing stance concerning the $7000 award. In addition, a successful appeal to return the driver’s license due to his hardship might allow the son enough time and the transportation to pay the award off in a timely fashion.

Experience Recommended to Petition Hardship Cases.

Hiring a lawyer to petition the court for such a hardship case could be a cost prohibitive move for the son. He could petition either court Pro Se, but the complexity of his situation might make it hard for an inexperienced petitioner to win a hardship case. What the son mostly likely needs is an experienced lawyer.

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Report of No Assets in a Chapter 7

 

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Most Chapter 7 cases filed are no asset cases, but there is a standard procedure used by a federal bankruptcy court to determine whether or not a case is in deed a no asset case.

Listing Your Assets in a Chapter 7

You as a Chapter 7 filer must list all of your assets on the Schedule of Assets and Liabilities when you first apply for bankruptcy protection. The detailed list will help the bankruptcy court determine whether or not the case will be an asset case or a no asset case. A no asset case means all the assets you have listed are exempt from liquidation under a Chapter 7.

Filing the No Asset Report

According to one U.S. Government bankruptcy website, normally, the bankruptcy court trustee will file a no asset report with the court sometime after the 341 meeting of the creditors indicating there will be no distribution to unsecured creditors. Within a certain time frame thereafter, the trustee will close the case.

The key word here used by the government website is “normally.”

One such debtor who filed a Chapter 7 blogged these questions that were recently posted on a bankruptcy forum website: “I received a discharge in my chapter 7 case in early March 2010. The case is still open. Where in the filed documents is there a trustee determination of an asset or no asset case? I looked on PACER and see no document described either way. Can a trustee sit on this Ad infinitum without making some sort of official determination?

According to the same government website, the information is reiterated that “most Chapter 7 cases involving individual debtors are no asset cases. But if the case appears to be an “asset” case at the outset, unsecured creditors must file their claims with the court within 90 days after the first date set for the meeting of creditors, and governmental units have 180 days from date the case is filed to open a claim.” Unsecured creditors must file a claim in order to receive a distribution by Chapter 7 rules.

Why a No Asset Report May Not Be Timely Recorded

If a bankruptcy trustee suspects there may be non-exempt assets that will come to light after the debtor files his schedules, the trustee may wait a significant time frame before filing any kind of a no asset report to the court. The government bankruptcy court website stated: “If the trustee later recovers assets for distribution to unsecured creditors, the Bankruptcy Court will provide notice to creditors and will allow additional time to file proofs of claim.”

The no asset report is usually a private report made by the trustee to the bankruptcy court, and if there is no suspicion of abuse or future non-exempt assets, the report is usually made within 10 days of the 341 meeting.

You do not always get a public announcement about a no asset case until the bankruptcy is closed. Since bankruptcy records are public information, you can usually access PACER under the History Docket to get the no asset report if it has been made.

 

 

 

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Mythological Chapter 20: Is it Legal?

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Some people question whether of not the mythological Chapter 20  is legal. The Chapter 20 is named for when a debtor files a Chapter 7 and then soon after files a Chapter 13. Adding the two numbers associated with the bankruptcy types give you the mythological name.

2005 Law Changes Common Practices

In 2005, Congress passed the Bankruptcy Abuse Prevention and Consumer Protection Act to help control bankruptcy serial filing and abuse of the system. It used to be common practice for a debtor with few assets other than a homestead to file a Chapter 7 to get all of their unsecured debts discharged, and then to immediately turn around and file a Chapter 13 to strip any second liens on the mortgage of their home. That is when the use of the mythological term of a Chapter 20 for such practices became a popular description of the move.

The new bankruptcy law determined when a debtor can file for bankruptcy protection after once filing. Under the 2005 law, a debtor cannot file a Chapter 13 after the discharge of a Chapter 7 until four years has gone by. Some bankruptcy courts today are challenging the ability to strip a lien after in a Chapter 13 after debts have been completely discharged in a Chapter 7. These moves by the bankruptcy court make it near impossible to enjoy the benefits of a mythological Chapter 20.

Handling Primary and Secondary Liens in the Bankruptcy Process

When filing a Chapter 13 before filing a Chapter 7, the primary lien of a secured loan continues through the bankruptcy in tact, but secondary liens can be stripped to make the secondary loan an unsecured loan if the primary loan is more than the current value of the secured property. The debt of a secured loan can be discharged once the Chapter 13 plan has been finished.

The Legal Effects on a Chapter 20 by the New Law Changes

In effect, then, the mythological Chapter 20 in some bankruptcy courts is illegal and in others, the maneuver seems to be legal. The only problem today of trying to put the Chapter 20 concept in place is waiting the four years to be able to file the Chapter 13 and strip the secondary liens, and then finding a bankruptcy court who is willing to allow the practice. While waiting four years to file a Chapter 13, mortgage lien holders have plenty of time to petition the bankruptcy court to remove the stay and start the foreclosure process.

Determining Which Bankruptcy is Right for You

In determining which bankruptcy is right for you, the complicated law changes have forced most Pro Se wannabe filers into having to consult with experienced bankruptcy lawyers in order to determine how the bankruptcy law changes have affected your situation. In addition, it is now important for you as a wannabe Chapter 20 filer to be familiar with which bankruptcy court will allow the concept to play out.

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Bankruptcy and the Stress Experienced After Filing

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Filing for bankruptcy protection is the Constitutional right of every American if the situation arises, but you are not born with the knowledge of the process. Filing bankruptcy is a learning experience and by the nature of the process, you will experience a variety of stress after filing.

Bankruptcy forums all across the internet provide illustrations galore of the stress related activities associated with filing for bankruptcy. Here are just some of the stress situations that can arise after filing bankruptcy:

  • Stress about finding a good bankruptcy lawyer to represent your case. Many bankruptcy lawyers will give you a free first consultation to see if you and the lawyer are compatible for your particular situation. Here, the lawyer will evaluate your case and discuss his or her fee. Although the ordeal can be stressful, it is good to get several consultations before you choose a lawyer.

  • Filling out your bankruptcy application forms can be stressful. There are a variety of detailed schedules and forms you must accurately fill out that must accompany your petition to file. Many bloggers on bankruptcy forums reveal how stressful this part of the process can be.

  • The Creditor’s 341 Meeting can be stressful if you do not know what to expect. As the bankruptcy filer, you are required to attend the Creditor’s 341 Meeting. This meeting is an opportunity for your creditors to meet with you face to face and ask questions directly to you relating to the debt you owe them. Most of the time, most creditors will not even bother to attend the meeting, and it is rare when they do. Your lawyer should be with you at the meeting, and the bankruptcy court trustee usually asks you some standard questions. It is also a time for the trustee to give you further instructions for completing the bankruptcy. Most of these meetings last less than 15 minutes.

  • Adversarial proceeding can often be stressful events during a bankruptcy. A creditor, bankruptcy trustee, or yourself can challenge what one side or the other is doing during the process. The adversarial proceeding is a legal process that must be formally petitioned to the bankruptcy court judge, to be heard, and to be decided upon by a binding decision. These proceedings can provide tense and stressful moments during a bankruptcy, but they are the exceptions to the rule for simple bankruptcies with little or no assets.

  • Presumption of abuse cases in a Chapter 7 bankruptcy can often be very stressful. Congress passed the Bankruptcy Abuse Prevention and Consumer Protection Act in 2005 to primarily deal with serial filers and abuse of the bankruptcy system. A creditor and trustee can challenge your filing a bankruptcy for potential abuse on a variety of charges. It is up to you to legally defend the presumption if one is filed. These can be very stressful to the first time filer.

One of the best ways to avoid so much stress for a first time filer is to hire an experienced bankruptcy attorney to help you with your particular situation.

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Bankruptcy and a Two Year Wait for a Mortgage After

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A Post Bankruptcy Question

This personal bankruptcy question was raised today from a debtor posting on a bankruptcy forum website: “Do we have a chance of getting a mortgage loan approved before two years are up after we filed a Chapter 7 bankruptcy?

The Personal Bankruptcy Story

The debtor posing this question posted these details in a personal bankruptcy story on a bankruptcy forum website today: “We discharged [Chapter 7] in October 2010. We have never had a mortgage and are looking to buy a house for around $130K max. Our income is around $70K not including bonuses. My wife is a nurse so her job is as stable as it comes. We have one car loan with about $3K left and a student loan that is $15K. We have 2 credit cards that are at a zero balance right now that we have just been using for small things and then paying them off. Within about 90 days we are expecting to have at minimum $10K for a down payment on a home.”

Answer to the Debtor’s Question

Technically, there is no overriding law that says you must wait any particular time to get a loan for a new home after you have filed for any type of bankruptcy protection. Each mortgage lending institution has its own rules about when they will lend mortgage money to someone who has filed a bankruptcy petition, and there are always exceptions to any rule.

The Golden Rule in determining when you might be able to get a mortgage loan falls on the federal government mortgage lending institutions, the FHA and VA. Since bankruptcies are governed primarily by federal law, it stands to reason most people look to these two federal agencies in determining what the guidelines are for getting the earliest mortgage financing after filing a bankruptcy.

The Mortgage Rules for Lending After Filing Bankruptcy

  • If you filed a Chapter 7

The FHA and Va normally require you to wait two years after bankruptcy discharge before they will consider your application. These two government agencies will make exceptions to the rule if the discharge has happened at least one year but less than two when you can prove to them your bankruptcy was due to unusual circumstances. These unusual circumstances include such things as a sudden job loss, acts of nature, medical emergencies and the like.

Conventional lenders usually will consider a person who is post bankruptcy after four years, but each particular institution has its own rules on how they will lend and when they will lend mortgage money.

The USDA Rural Development normally requires a person to wait 3 years after discharge before they will consider them for a mortgage loan, but they will make an exception with reestablished credit and an underwriter’s waiver.

The FHA and VA will allow a debtor to purchase a home after one year from date of discharge if all payments in the bankruptcy were made on time and payment performance is satisfactory.

Conventional lenders normally require 2 years from a discharged date or 4 years from a dismissal date.

The USDA Rural Development usually requires 3 years after a dismissal, but it will make an exception with reestablished credit and an underwriter’s waiver.

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Chapter 7 Bankruptcy for a Family of Four

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A Chapter 7 Case for a Family of Four

A young married woman with a husband and two children, who are living with her mother, recently posted on a bankruptcy site about her financial woes. She lives in New Jersey and wants to know if she should file for a Chapter 7 bankruptcy.

No one can really tell her whether she should file bankruptcy or not, but understanding the bankruptcy process helps those considering filing and whether you should make the decision.

Filing for a Chapter 7 bankruptcy depends on a lot of financial circumstances. Filing any bankruptcy depends on similar circumstances. He are some of the circumstances you might want to consider before filing bankruptcy:

The Means Test Should be Considered

To file a Chapter 7 bankruptcy in any state, you have to be either below the median income for a family your size in the state in which you live or you have to pass the Means Test.

The Means Test is a test devised by Congress in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. It was devised to stop serial filers from filing bankruptcy and abusing the system, and the Means Test itself is a complicated formula to help you see whether or not you have enough disposable income to pay some of your debtors. If you do, you have to file a Chapter 13 in lieu of a Chapter 7.

In the case of the family of four in the illustration, the husband makes $38,000 per year and is not necessarily the only household earner. The mother’s salary must be included in the means test to determine whether the husband and wife qualify. In New Jersey, the median income for a family of four is $101,000, so depending on the mother’s salary, it would determine whether or not the couple would have to pass the Means Test.

Your Personal Assets Play a role in Helping You Decide

How much income you make is only one of the deciding factors in determining whether you can file a Chapter 7 or not. Most Chapter 7 bankruptcies are filed by people with little or no personal non-exempt assets.

State and federal laws determine what personal assets you can keep when you file for any bankruptcy. Exempt personal assets are those defined by either state or federal bankruptcy laws. In a Chapter7, any non-exempt asset will be taken and liquidated in order to pay off unsecured debtors in a prioritized list.

The couple in the illustration did not have any personal non-exempt assets, and from that perspective, they would be candidates to file a Chapter 7.

The Amount of Dept You Owe Can Help You Decide Whether to File

How much debt you owe can play a large role in not only determining whether or not to file bankruptcy, but it can help you determine which bankruptcy to file.

A Chapter 13 has ceiling limits on the amount of debts you owe, but a Chapter 7 does not. Neither have a minimum amount of debt to file, but what is the sense of filing if you have no debt nor assets to protect?

If you cannot pay down any principal on the debts you owe plus the interest owed after paying all your living expenses that include taxes and retirement, you are theoretically bankrupt. If you owe large unmanageable debts that are non-exempt from bankruptcy discharge and cannot possibly begin to pay them down within a five year period, you might be a candidate for filing a Chapter 7.

The couple in our illustration owes over $18,000 in credit cards, a small hospital debt, and they have two very small exempt student loans.

From the information provided and since they live with her mother and make the kind of money they do, there is the possibility they can pay much of their debt off in five years.

Whether the couple decide to file bankruptcy or not, they probably need to sit down with an experienced bankruptcy lawyer to help them decide.

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Community Property and Bankruptcy Laws

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Community Property Defined

Community property can be defined as a marital property system providing for the creation of a marital estate whereby the assets included in the estate are managed and jointly owned by the individuals married.

The marital property regime, or community property, has been established in civil law in some states in the United States and is associated with common law in other states. The idea of community property carries the idea of equal asset ownership.

Non community property states attempt to divide up the assets of the marital estate depending on who made the contributions of the assets to the estate. Ideally, each asset found in a non community marital regime can be determined as to who owns the property in the case of a divorce within the marriage.

Whether of not a marriage is a community property marriage or a non community property marriage has an influence of the bankruptcy process if either or both of the marital participants file for bankruptcy.

Authority in Dealing with Community Property and Bankruptcy

Federal bankruptcy laws are the primary source of authority for filing a bankruptcy, but the federal laws cannot supersede state community property laws after the fact. A decree made by a state judge on community property cannot be overridden by a decree of a federal bankruptcy judge if the state judge made the decision prior to a client filing bankruptcy or was not privy to the bankruptcy.

An Illustrated Event Where Both Laws Collide

An example of that actually happening recently occurred when a wife was awarded the non community property of the car which was in the husband’s name. The husband still owed money on the car.

The husband, who didn’t challenge the divorce, filed for Chapter 7 bankruptcy protection before the divorce decree went forward. The divorce court was not aware of the where the husband was when notification of the decree went out. The bankruptcy judge was not aware of the divorce decree, and when the bankruptcy closed, the debt on the automobile was discharged.

Unfortunately for the filing husband, the divorce court judge found him in contempt of court when he failed to make the discharged payments for the car. It is at this point the husband began learning the process on the order of events. The wife had kept the car, and it was in the state in which she filed divorce. The wife thought the husband would pay for the car since she won it in divorce court, and the husband thought the loan on the car was discharged in bankruptcy. An arrest warrant was sent out for the husband in the state the wife resided.

What About The Third Party?

On top of that to complicate matters further, neither courts gave consideration to the lien on the vehicle. Liens are not discharged in bankruptcy, and the lien holder had the right after the bankruptcy closed to repossess the car, the true owner.

On the other hand, it would be interesting to see how it eventually played out concerning how the divorce court judge handled the lien.

When Laws Get Complicated, Get you a Bankruptcy Lawyer

When you mix community property with bankruptcy, the laws get complicated. That is why it is wise to have a bankruptcy lawyer on your side when you file such a complicated case.

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