Can you represent yourself in Bankruptcy?

Can you represent yourself in bankruptcy?

I got a nervous call the other day from a crying lady to talk to me urgently. She told me that her home is taxes are not accepted by the county as she had filed bankruptcy and her property is sent to foreclosure because of non payment of taxes. She filed bankruptcy through a bank mill of local attorneys who files her bankruptcy without informing her of her exemptions and the impact of bankruptcy upon her. Of course she should not have filed chapter 13 as she did not qualify for chapter 13 having not enough income. One can file bankruptcy either yourself or though a production attorney shot. Basically it would be much difference as both work would be identical. Here, the attorney mill had deprived her of her basic right of exemption. Of course you can file your own bankruptcy, and it is perfectly legal to file your own bankruptcy without a lawyer. You can represent yourself in any court. At least that is the law. Again, even in the premises of Clark County District Court, there is a help desk helping pro se plaintiffs and defendants.

The bankruptcy papers are complicated and even experienced attorneys has problems filling out properly. If you have a complicated debt situation, it becomes all the more imperative to be more knowledgeable in these matters. However, knowledge cannot be obtained by reading few posts and getting the help of a paralegal who can provide a glorified typing service. There are plethora of forms and one needs to file electronically these days. You need to file and obtain counseling certificates. If you miss a creditor, he/she can come after you and sue you again.

Do you know the basic jargon of bankruptcy. It is not something which you can learn overnight and just fill in the blank spaces. Remember attorney went to few years schools and passed the most difficult bar examination tests. You need to list all the schedules, your assets and income and also to pass the means test. There are wide variety of papers to be included in your bankruptcy petition, and even the lack of filing of one paper can cause major problems and non dischargeability of your debts. In a chapter 13 case, you need to submit a plan which is very technical and your trustee would frown upon you if you make any mistake. Also, you need to handle and answer objections from chapter 13 trustee.

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Can student loans be discharged via bankruptcy?

Student Loan and Bankruptcy
Student loans are not dischargeable and we are separately handling them here in this post. Students loans are the most difficult areas of debts which cannot be discharged: they survive bankruptcy and are exempted from bankruptcy. The department of education has been pursuing student loans aggressively for many years. In fact, federal government considered them as guaranteed loans meaning if the student does not pay, the fed would come and pay for it, and then pursue it independently against the students. It is good to get forbearance if you are falling too far behind on your student loans.
Can Student Loans Be Discharged?
Yes, they can be discharged only in very “undue hardship” cases. Bankruptcy Code has not defined undue hardship. However, various courts have developed tests for determining what is a hardship case.

For example, the United States Court of Appeals for the Seventh Circuit has developed a three-part test. Under this test, a debtor must show:
(1) that he or she cannot maintain, based on his or her current financial situations, a minimal standard of living for himself or herself and his or her dependents if forced to repay the loans,
(2) that other circumstances exists indicating that the debtor will remain in the same financial situation for a significant period fo time; and
(3) that the debtor has made good-faith efforts to repay the loans.
The debtor has the burden of proof to establish these factors demonstrating undue hardship. In Goulet v. Education Credit Management Corp, the Seventh Circuit rejected the claims of a fifty-five-year debtor that he had an undue hardship defense to paying the student loans. The debtor argued that his substantial debt, a prior felony conviction, and a substance-abuse problem constituted extraordinary circumstances sufficient for a fining of undue hardship. The Seventh Circuit disagreed, focusing on the fact that the debtor had obtained a quality education with the money borrowed through his student loans.
“the natural conclusion, when considering his exemplary education record and nearly completed graduate work, is that Goulet can apply himself when he desires to do so,: the court wrote. “The record does not demonstrate that he lacks the capacity tow ork, only that he does not seem anxious to do so.” (284 F.3d 773 (7th Cir. 20020).
Again, a federal district court in Florida reached a similar result in In Re Mallinckrodt, which involved a 42 years old debtor who had more than &70,000 in student loan debt. The debtor had a master’s degree in psychology and had worked as a tennis instructor, but had a very small income. The court determined that the debtor failed the “other circumstances” prong of the undue-hardship test, on account of the fact that the debtor “has nothing but opportunities to earn more income.” (274 b.R. 560 (S.D. Fla. 2002)

Debts Which Cannot Be Discharged Via Bankruptcy

Law office of Malik Ahmad offers free consultation in bankruptcy]
Debts You Still Have to Pay After Bankruptcy– You still have to pay fine and penalties for violating the law and that includes your traffic tickets and criminal fines and criminal restitution.
– You still have to pay debts you have not included in your bankruptcy papers.
– Students loans are not dischargeable in bankruptcy court and filings unless it is a very hardship case and judge decides it separately.
– Again, child support and alimony cannot be discharged via bankruptcy.
– Your settlement from a divorce or separation cannot be subject to discharge in a bankruptcy proceeding.
– Fraudulent debts cannot be discharged.
– Debts for personal injuries or death caused by your intoxicated driving and
– Recent IRS collections and other tax dues.

Tenants Eviction and Bankruptcy

New Laws in Landlord Tenancy and Bankruptcy?Let us say if you are behind on rent payments, can your landlord evict you while you file for bankruptcy?

This question has been asked many times from our clients. We had tried to answer it in simple ways here. The answer depends upon whether your residential landlord has only threatened to evict you or in fact got an eviction judgment against you. The new bankruptcy law has changed this equation for ever. Under this law, if your landlord has already begun eviction proceedings in state court and has obtained a judgment for possession of the residential premises before you file for bankruptcy, the landlord can evict you unless, the debtor do two things.

1. File a certification with the bankruptcy court, along with your bankruptcy petition, that there are circumstances under applicable non bankruptcy rules that would allow you reinstate the residential lease and cure the monetary default; and

(2) pay 30 days rent to the bankruptcy court clerk to be transmitted to the landlord. The landlord can still object, in which case the bankruptcy court must decided within ten days of the filing of the objection whether the landlord can proceed with the eviction in order to gain possession of the rental property. Then you must also file a second certification with the bankruptcy court, within thirty days of filing your bankruptcy petition, stating the pre-petition default that gave rise to the landlord’s judgment for possession in state court has been cured –in other words, that you have paid all back rent. Even after you file this second certification, however, the landlord may still object, in which case the court must determine within ten days of the objection whether the landlord can proceed with the eviction action.

The law also provides that, if the residential landlord has begun eviction proceedings before you file for bankruptcy on the grounds that you have endangered the rental property or have used or allowed others to use illegal substances on the property, all the landlord has to do is file a certification to this effect with the bankruptcy court clerk. The landlord can then proceed with the eviction process fifteen days later if the debtor does not object. Note that the law does allow you to object within fifteen days and, at a hearing, show the bankruptcy court that the situation has been remedies or never existed in the first place. At that point, it will be up to the bankruptcy court to decide whether your landlord can proceed or not. The deadlines in these kinds of situations are very short. It is good to contact an experienced and knowledgeable attorney in these matters.

What are the advantages of filing bankruptcy?

Advantages of Filing Bankruptcy?
Filing for bankruptcy allows most of the depressed folks a fresh financial start. Your debts are discharged and all the collection efforts are stopped immediately. Sooner you file for bankruptcy, an automatic stay is placed on the collection calls. If a creditors continues to collect, the creditor may be held in contempt of court and there are hefty penalties. There are also laws which stops and punishes all kinds of discrimination against people who declares bankruptcy.

What Are Problem Debts and How to Handle Them in Bankruptcy?

What are Problem Debts?
Your debts far exceed your income. You are behind on your payments including your mortgage payments and other bills, and your creditors are constantly harassing you. You become sick few months ago, and could not pay the medical bills on time, and now your phone is ringing off the hook. Many Americans find themselves in this situation. The creditor’s keeps calling and the debt just keeps growing.
Bankruptcy is one of the alternatives available for relieving financial distress. It is a serious legal procedure and needs lots of both technical and legal help. Let us first explore about the alternatives to bankruptcy. Some people in this financial distress can improve their situations simply by contacting and directly negotiating with the creditors. Others may seek help with reputable consumer credit counseling services which have experienced negotiators with the creditors and formulating and establishing repayments plans. Bankruptcy should be taken as a last resort and not the first thing in this distressed decision making time.
Alternatives to Bankruptcy
A creditor might be willing to give you a break in giving more time for your payments. Also, a creditor might be willing to settle for cash a large onetime payment for the total debts. Again, it might be willing to settle its claims in exchange for partial cash payments, or it may be willing to extend the terms of the payments. These extensions and smaller payments over a considerably larger period of time may give you some relief.
Are you judgment Proof?
A judgment proof person is one who has not many tangible assets and most of his income is exempted already from garnishment. Again a judgment proof person has little or no money, no assets and no property that he would be unable to pay even if a judgment by a court of law is rendered against him. There are wide varieties of both state and federal laws which can make him/her exempt. When creditors would do their final analysis, they would consider it more convenient not to go after this judgment proof person because there is nothing they can take by way of judgment enforcement and execution. It is a futile exercise and waste of money seeking judgment against judgment proof folks. Your creditors would spent considerable amount of money in obtaining both judgment and then executing, and would be shocked and embarrassed when they don’t find any way to execute this against you. But your creditors may come back and keeps looking for avenue to satisfy your judgment sooner you get more property than what it originally made you a judgment proof individual.
Contacting your creditors
Again, it is a good idea to contact your creditors directly if you have more assets than a judgment proof may have. No need to hide them. It is good to pick up the phone and talk directly to your creditors. You can request a reduction in your monthly payments, as well as reduction in your interest rate. You also can obtain the help of some of the reputable credit counseling agencies. You can find the nearest CCCS by calling 800-388-22277 or by visiting http://www.nfcc.orga. Some do charge some money, but it is worth to pay this amount in exchange for very valuable help. Make sure you read all the finger prints and ask lots of questions. THE CCCS make repayment plans which are distributed among your creditors until your debts are fully paid. It can be lengthy time which can also repair some of your damaged credit and increase your FICO scores. Please be careful, however, with the for-profit agencies. Sometime there are sharks sitting in these turbulent waters. Keep in mind and look for predatory debt counselors. Be sure to check their references in the Better Business Bureau and ensures that it is approved by the US trustee for credit counseling in the bankruptcy operations.
What things to be considered in debt consolidation?
A debt consolidation can ideally be too true, but it still is ideal for folks who do not like to declare bankruptcy and especially if their debts can be managed and they have the paying capacities. One should be careful in having a permanent interest rate when consolidating their debts. Again, watch out for a prepayment penalty? Are you surrendering something like a plastic card for permanent use? It is not a bad idea to do that. It is not worth any consolidation, if you keep on using your credit cards during this time. It is good to put them in a shredder once for all.
Can you Do Your Debt Consolidation at Your Own?
Of course, you can do it. You can at least do one habit right away. Start watching the financial news and read some good financial magazines. Pick up the phone and talk to your creditors and tell them your desire to consolidate debt. They would let you talk to some important and knowledgeable person. If you are eager to find a resolution, your creditors would also be eager to lend you a helping hand. You can always ask your creditors to forego the late fees, the penalties. Get everything in writing before making payments. Never give them the access to your checking account numbers

What Is a Discharge?

Discharge in Bankruptcy

Public Information Series of the Bankruptcy Judges Division
Administrative Office of the United States Courts
October 17, 2005.

From an individual debtor’ standpoint, one of the primary goals of filing a bankruptcy case is to obtain relief from burdensome debt.(1) Relief is attained through the bankruptcy discharge, the purpose of which is to provide a “fresh start” to the honest debtor.

The bankruptcy discharge varies depending on the type of case a debtor files: chapter 7, 11, 12, or 13. This Public Information Series pamphlet attempts to answer some basic questions about the discharge available to individual debtors under all four chapters including:

What is a discharge in bankruptcy? Under the federal bankruptcy statute, a discharge is a release of the debtor from personal liability for certain specified types of debts. In other words, the debtor is no longer required by law to pay any debts that are discharged. The discharge operates as a permanent order directed to the creditors of the debtor that they refrain from taking any form of collection action on discharged debts, including legal action and communications with the debtor, such as telephone calls, letters, and personal contacts.

Although a debtor is relieved of personal liability for all debts that are discharged, a valid lien (i.e., a charge upon specific property to secure payment of a debt) that has not been avoided (i.e., made unenforceable) in the bankruptcy case will remain after the bankruptcy case. Therefore, a secured creditor may enforce the lien to recover the property secured by the lien. 

When does the discharge occur?

The timing of the discharge varies, depending on the chapter under which the case is filed. In a chapter 7 (liquidation) case, for example, the court usually grants the discharge promptly on expiration of the time fixed for filing a complaint objecting to discharge and the time fixed for filing a motion to dismiss the case for substantial abuse (60 days following the first date set for the meeting of creditors). Typically, this occurs about four months after the date the debtor files the petition with the clerk of the bankruptcy court. In chapter 11 (reorganization) cases, the discharge occurs upon confirmation of a chapter 11 plan. In cases under chapter 12 (adjustment of debts of a family farmer) and 13 (adjustment of debts of an individual with regular income), the court grants the discharge as soon as practicable after the debtor completes all payments under the plan. Since a chapter 12 or chapter 13 plan may provide for payments to be made over three to five years, the discharge typically occurs about four years after the date of filing. 

How does the debtor get a discharge?

Unless there is litigation involving objections to the discharge, the debtor will automatically receive a discharge. The Federal Rules of Bankruptcy Procedure provide for the clerk of the bankruptcy court to mail a copy of the order of discharge to all creditors, the United States trustee, the trustee in the case, and the trustee’s attorney, if any. The debtor and the debtor’s attorney also receive copies of the order of discharge. The order of discharge is not specific as to those debts determined by the court to be non dischargeable, i.e., not covered by the discharge. The order of discharge informs creditors generally that the debts owed to them have been discharged and that they should not attempt any further collection. They are cautioned in the order that continuing collection efforts could subject them to punishment for contempt. Any inadvertent failure on the part of the clerk to send the debtor or any creditor a copy of the discharge order promptly within the time required by the rules does not affect the validity of the order granting the discharge. 

Are all of the debtor’s debts discharged or only some?

Not all debts are discharged. The debts discharged vary under each chapter of the Bankruptcy Code. Section 523(a) of the Code specifically excepts various categories of debts from the discharge granted to individual debtors. Therefore, the debtor must still repay those debts after bankruptcy. Congress has determined that these types of debts are not dischargeable for public policy reasons (based either on the nature of the debt or the fact that the debts were incurred due to improper behavior of the debtor, such as the debtor’s drunken driving).

There are 18 categories of debt excepted from discharge under chapters 7, 11, and 12. A more limited list of exceptions applies to cases under chapter 13. Generally speaking, the exceptions to discharge apply automatically if the language prescribed by section 523(a) applies. The most common types of non- dischargeable debts are certain types of tax claims, debts not included by the debtor on the lists and schedules the debtor must file with the court, debts for spousal or child support or alimony, debts for willful and malicious injuries to person or property, debts to governmental units for fines and penalties, debts for most government funded or guaranteed educational loans or benefit overpayments, debts for personal injury caused by the debtor’s operation of a motor vehicle while intoxicated, and debts for certain condominium or cooperative housing fees.

The types of debts described in sections 523(a)(2), (4), (6), and (15) (obligations affected by fraud or maliciousness or certain debts incurred in connection with property settlements arising out of a separation agreement or divorce decree) are not automatically excepted from discharge. Creditors must ask the court to determine that these debts are excepted from discharge. In the absence of an affirmative request by the creditor and subsequent granting of the request by the court, the types of debts set out in sections 523(a)(2), (4), (6), and (15) will be discharged.

A broader discharge of debts is available to a debtor in a chapter 13 case than in a chapter 7 case. As a general rule, the chapter 13 debtor is discharged from all debts provided for by the plan except certain long-term obligations (such as a home mortgage), debts for alimony or child support, debts for most government funded or guaranteed educational loans or benefit overpayments, debts arising from death or personal injury caused by driving while intoxicated or under the influence of drugs, and debts for restitution or a criminal fine included in a sentence on the debtor’s conviction of a crime. Although a chapter 13 debtor generally receives a discharge only after completing all payments required by the court-approved (i.e., “confirmed”) repayment plan, there are some limited circumstances under which the debtor may request the court to grant a “hardship discharge” even though the debtor has failed to complete plan payments. Such a discharge is available only to a debtor whose failure to complete plan payments is due to circumstances beyond the debtor’s control.

The scope of a chapter 13 “hardship discharge” is similar to that in a chapter 7 case with regard to the types of debts that are excepted from the discharge. A hardship discharge also is available in chapter 12 if the failure to complete plan payments is due to “circumstances for which the debtor should not justly be held accountable.” 

Does the debtor have the right to a discharge or can creditors object to the discharge?

In chapter 7 cases, the debtor does not have an absolute right to a discharge. An objection to the debtor’s discharge may be filed by a creditor, by the trustee in the case, or by the United States trustee. Creditors receive a notice shortly after the case is filed that sets forth important information, including the deadline for objecting to the discharge. A creditor who desires to object to the debtor’s discharge must do so by filing a complaint in the bankruptcy court before the deadline set out in the notice. Filing of a complaint starts a lawsuit referred to in bankruptcy as an “adversary proceeding.” A chapter 7 discharge may be denied for any of the reasons described in section 727(a) of the Bankruptcy Code, including the transfer or concealment of property with intent to hinder, delay, or defraud creditors; destruction or concealment of books or records; perjury and other fraudulent acts; failure to account for the loss of assets; violation of a court order; or an earlier discharge in a chapter 7 or 11 case commenced within six years before the date the petition was filed. If the issue of the debtor’s right to a discharge goes to trial, the objecting party has the burden of proving all the facts essential to the objection.

In chapter 12 and chapter 13 cases, the debtor is entitled to a discharge upon completion of all payments under the plan. The Bankruptcy Code does not provide grounds for objecting to the discharge of a chapter 12 or chapter 13 debtor. Creditors can object to confirmation of the repayment plan, but cannot object to the discharge if the debtor has completed making plan payments. 

Can a debtor receive a second discharge in a later chapter 7 case?

A discharge will be denied in a later chapter 7 case if the debtor has been granted a discharge under chapter 7 or chapter 11 in a case filed within six years before the second petition is filed. The debtor will also be denied a chapter 7 discharge if he or she previously was granted a discharge in a chapter 12 or chapter 13 case filed within six years before the date of the filing of the second case unless (1) all the “allowed unsecured” claims in the earlier case were paid in full, or (2) payments under the plan in the earlier case totaled at least 70 percent of the allowed unsecured claims and the debtor’s plan was proposed in good faith and the payments represented the debtor’s best effort. 

Can the discharge be revoked?

A discharge can be revoked under certain circumstances. For instance, a trustee, creditor, or the United States trustee may request that the court revoke the debtor’s discharge in a chapter 7 case based on allegations that the debtor obtained the discharge fraudulently; the debtor failed to disclose the fact that he or she acquired or became entitled to acquire property that would constitute property of the bankruptcy estate; or the debtor committed one of several acts of impropriety described in section 727(a)(6) of the Bankruptcy Code. Typically, a request to revoke the debtor’s discharge must be filed within one year after the granting of the discharge or, in some cases, before the date that the case is closed. It is up to the court to determine whether such allegations are true and, if so, to revoke the discharge.

In a chapter 13 case, if confirmation of a plan or the discharge is obtained through fraud, the court can revoke the order of confirmation or discharge. 

May the debtor pay a discharged debt after the bankruptcy case has been concluded?

A debtor who has received a discharge may voluntarily repay any discharged debt. A debtor may repay a discharged debt even though it can no longer be legally enforced. Sometimes a debtor agrees to repay a debt because it is owed to a family member or because it represents an obligation to an individual for whom the debtor’s reputation is important, such as a family doctor.  

What can the debtor do if a creditor attempts to collect a discharged debt after the case is concluded?

If a creditor attempts collection efforts on a discharged debt, the debtor can file a motion with the court reporting the action and asking that the case be reopened to address the matter. The bankruptcy court will often do so to ensure that the discharge is not violated. The discharge constitutes a permanent statutory injunction prohibiting creditors from taking any action, including the filing of a lawsuit, designed to collect a discharged debt. A creditor can be sanctioned by the court for violating the discharge injunction. The normal sanction for violating the discharge injunction is civil contempt, which is often punishable by a fine.  

Can an employer terminate a debtor’s employment solely because the person was a debtor or failed to repay a discharge debt?

The law provides express prohibitions against discriminatory treatment of debtors by both governmental units and private employers. A governmental unit or private employer may not discriminate against a person solely because the person was a debtor, was insolvent before or during the case, or has not paid a debt that was discharged in the case. The law prohibits the following forms of governmental discrimination: terminating an employee; discriminating with respect to hiring; or denying, revoking, suspending, or declining to renew a license, franchise, or similar privilege. A private employer may not discriminate with respect to employment if the discrimination is based solely upon the bankruptcy filing.