Do you need to stop the garnishments and foreclosure proceedings?
The decision to file for Bankruptcy is a difficult one, often considered the worst case scenario. However, in many instances it may be your best option. For example, filing for Bankruptcy can stop a foreclosure, repossession, or garnishment, allowing you some precious time to deal with your financial troubles. You may also be able to eliminate many types of your debt (in a Chapter 7) or develop a payment schedule (in a Chapter 13) to ease your financial burden
in addition, we may be able to negotiate loan modifications with mortgage lenders in conjunction with both Chapter 7 and 13 Bankruptcies. This is a recent development with many lenders. Further, we may be able to completely remove a second mortgage as part of a Chapter 13 Bankruptcy.
Each client’s unique situation will dictate whether a client should file for Bankruptcy, and then if a Chapter 7 or Chapter 13 filing is appropriate. Contact our Michigan Bankruptcy Lawyer at The Cromer Law Group PLLC to arrange a free consultation to see if Bankruptcy makes sense for you.
Bankruptcy is a legal proceeding in which a person who can not pay their bills gets a fresh financial start. The right to file for Bankruptcy is provided by federal law, and all Bankruptcy cases are handled in federal court. Filing Bankruptcy immediately stops your creditors from seeking to collect debts from you, at least until they are sorted out according to the law.
Chapter 7 Bankruptcy
Chapter 7 filings are commonly known as the “straight” Bankruptcy. These filings are for the traditional liquidation of personal, business or partnership assets. By extinguishing these debts you will, in effect, get a fresh start. In addition, you are able to stop a foreclosure or repossession.
Chapter 13 Bankruptcy
Unlike Chapter 7 filings, Chapter 13 filings do not just eliminate your debts. You will have to make payments over a 3 to 5 year period to the Bankruptcy Trustee, who will then pay your creditors. Typically, these payments to your creditors are less than your regular monthly payments. A payment plan will have to be developed which will allow you to pay all of your living expenses and secured obligations, as well as a portion of your unsecured obligations.
Removing a Second Mortgage
Chapter 13 Bankruptcy also offers an important, and often unknown, option to consumers who have a residential real estate mortgage, namely, removing a junior lien holder or “2nd” mortgage from your home.
Options to Stop Foreclosure
One of the possible benefits to filing Bankruptcy is the “automatic stay”, which stops most types of legal actions against a debtor, including foreclosure. However, in many instances homeowners are facing foreclosure do not want to, or can not, file for Bankruptcy. In these instances, our firm can assist with other other means that may help a debtor avoid foreclosure and/or Bankruptcy, such as negotiating loan modifications with lenders or assisting homeowners with short sale negotiations.
Mortgage Modification and Bankruptcy
Under existing Bankruptcy laws, debtors are not able to force a first mortgage to modify the terms of the mortgage on loans for their primary residence. While we can not currently force a lender to modify the first mortgage, many lenders who realize the alarming state of the economy are willing to negotiate a modification of a mortgage, allowing a debtor to lower their monthly payments.
Frequently Asked Bankruptcy Questions
We typically hear common questions from our clients. The most common pertain to the following:
Generally speaking, in either a chapter 7 or chapter 13 Bankruptcy you are able to keep your car if you stay current on your payments. You may also choose to surrender your vehicle if you prefer not to keep it. If you own your vehicle, you are permitted to keep it provided that you have less than $15,000 of equity in the vehicle. Also, married couples are allowed this exemption for two vehicles, one for each spouse.
In the current economic times, it is quite common to use a Chapter 7 Bankruptcy to surrender all real property and simply walk away from a house. This is a good alternative if you do not have the ability to pay your mortgage and the fair market value of your property is less than what you owe. If you choose to surrender your real property in bankruptcy, the loans associated with the property are extinguished. This holds true even if you have more than one property. In a Chapter 7 Bankruptcy, you may keep your primary residence if you can stay current on your payments and the amount of equity in the home is below the appropriate level.
Bank and Investment Accounts
Generally, in your Bankruptcy Petition you must list every bank account and investment account you have in your name which includes, but is not limited to: checking accounts, savings accounts, CD’s, stock accounts, money market accounts, retirement accounts, 401k accounts, IRA, and SEP accounts. There is no particular exemption (or means to preserve in bankruptcy) for most types of bank and investment accounts, unless it is a “qualified” retirement account such as 401k’s, IRA’s, SEP’s and pension accounts.
“Qualified” retirement accounts are fully exempted in bankruptcy up to $500,000 per person. This means that if you file for Bankruptcy, you can keep all amounts in these accounts up to $500,000 per person.
Tax Returns & Refunds
There is no specific protection for tax refunds in bankruptcy. As such, the “wild card” exemption is used to try to protect these funds as much as possible. Further, any portion of your tax refund that pertains to the “earned income credit” is also fully protect and yours to keep.
When do I need to move?
There is no definitive answer to when you should leave your house if you plan on relinquishing it to your lender. There are, however, some general timelines that you can use to guide you with this issue. Generally, you can miss six months or more before your house will be foreclosed upon by the bank.
Qualifying for a Chapter 7 Bankruptcy
The gross annual income is a primary factor in determining whether you may qualify for a Chapter 7 Bankruptcy. For these purposes, the gross annual income is not the actual income earned over the past year, but rather the average monthly gross income earned for the six months prior to filing bankruptcy multiplied by 12.