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Archive for the ‘timing of bankruptcy filing’ tag

Disadvantages of a Badly-Timed 5-Year Chapter 13 Case

December 31st, 2018 at 8:00 am

Following up on last week’s scenario, here are the financial, credit record, and other disadvantages of a forced 5-year Chapter 13 plan.   

 

Our last two blog posts were about how the last 6 calendar months of income of a person filing a Chapter 13 case can determine whether his or her Chapter 13 payment plan lasts only 3 years or instead a full 5 years. We showed how even relatively small shifts in income can cause this huge difference.

The last blog post gave a scenario illustrating how this would work in a real-life situation. It showed how under certain circumstances one person would have a 3-year payment plan if he or she filed a Chapter 13 case in January but a 5-year plan if filed in February.  Today we look at the financial and other consequences of this difference, and some other practical considerations.

Filing a Chapter 13 Case in January vs. February 2019

Our scenario involved a person receiving an extra $2,500 in income in January 2019 from a temporary holiday job. (That’s in addition to the $3,000 every month from the person’s regular job.) Because of the way income is calculated, that $2,500 would push this person over the median family income threshold, but only IF that income is counted. Filing the Chapter 13 case in January would result in that extra $2,500 NOT being counted. That’s because you count only the last 6 FULL CALENDAR MONTHS’ income (and double that for the annual amount). Those 6 months with a January filing are July through December 2018. You DON’T count the income of the month you’re filing the case—in this situation, January.

When filing the Chapter 13 case in February you DO COUNT the extra $2,500 in determining the plan’s length. That’s because the last 6 full calendar months are then August 2018 through January 2019, including the $2,500.

Financial Consequences

Our scenario assumed that your budget requires you to pay $300 per month into your Chapter 13 plan. If you have to pay that for 5 years instead of 3, that’s 2 more years of payments. 24 months of $300 payments totals $7,200. That’s a lot of extra money to pay just because you happened to file your Chapter 13 case in February instead of January.

That could potentially include filing the case just one day later—February 1 instead of January 31. Again, that’s because when filing on February 1 you must include January’s income—including the extra $2,500. When filing on January 31 you don’t include January’s income, avoiding that very troublesome $2,500.

Of course if your monthly Chapter 13 plan payment would be larger than $300, the extra money you pay will be that much more. For example, a $500 monthly plan payment would mean an extra $6,000 paid during the extra two years.

In addition, the longer your case lasts the more likely that your income would increase during your case. That may well require you to increase your monthly plan payment. That would result in you paying that much more during the final two years.

For example, assume you’re paying $500 per month into your payment plan from the beginning of your case. After 3 years you get a new job or a promotion increasing your income by $300 per month. If you had a 3-year plan (based on your initial income calculation) you’d be finishing your Chapter 13 case then. You’d pay nothing more into the payment plan; you’d get to keep all your income, including the pay increase.

Instead, if you’re in a 5-year plan you’d have two more years to go. You may well have to increase your $500 plan payments by $300 to $800 monthly. $800 per month for the final two years would mean an additional $19,200 paid to your creditors. And this could happen merely by filing your case with unwise timing!

Credit Record Consequences

These financial consequences of a longer case are bad enough. But the intangible consequences could be pretty bad as well.

Having your case last 2 years longer means 2 more years before you can really rebuild your credit. To some extent you may be able to build some positive credit history DURING a Chapter 13 case. That can happen if as part of the case you’re making regular contractual payments on your home or vehicle. But you’re still in the midst of a bankruptcy case, which harms your credit record. The sooner you complete your Chapter 13 case the better for credit purposes.

Two extra years in your case means that much longer before you’re free of the Chapter 13 trustee’s supervision. That likely means two more years that the trustee can take your income tax refunds to benefit your creditors. And, as described above, that’s two more years that increases in income could go, partly or fully, to your creditors.

Also, it’s 2 more years of the risk that you won’t finish your case successfully. To get some of the most important benefits of a Chapter 13 case you must complete it.  The longer a case lasts the more opportunities for things to happen that jeopardize a successful completion.

Lastly, being in a Chapter 13 case can be emotionally challenging. You wouldn’t be in it unless it was providing you significant financial benefits. (For example, saving your home and/or your vehicle(s), paying your income taxes or child support while protected from these creditors.) But you are in a sort of financial limbo. It feels very good to finish it and get it over with. You definitely want to do so in 3 years instead of 5 if you can.

 “Three-Year Plans” that Last Longer

One last thing: a Chapter 13 plan that is allowed to be finished in 3 years may last longer. Your income may allow you to have a 3-year plan but you can chose to have it last longer. The law provides that the bankruptcy “court, for cause,” may approve a length up to 5 years.

Many things that could push your allowed-to-be-3-year plan to be longer. You may want to pay for something—a home mortgage arrearage or priority income taxes, for example—and need more time to do so within a reasonable budget. So your plan may last up to 5 years in order for it to accomplish what you need it to.

IF this applies to you, being required to pay for 5 years because of your income may not be a practical disadvantage. On the other hand, you certainly don’t want to stumble into a 5-year Chapter 13 case simply because you didn’t time it well.

Talk with an experienced and conscientious bankruptcy lawyer to learn where your own unique circumstances puts you in all this.

 

Timing: Including Debts in Bankruptcy

September 18th, 2017 at 7:00 am

A bankruptcy covers the debts that exist as of the time your case is filed, not future debts. So how do you know when to file your case? 

 

If you’re feeling overwhelmed by your present debts so much that you’re considering bankruptcy, you’re not likely worrying much about future debts.

Or maybe you are.

Maybe you’re dealing with a medical issue and are very concerned about how you’re going to pay for future medical expenses. You’re already feeling overwhelmed by your present debts. But you’re wondering if you should wait to file bankruptcy until after you’ve finished incurring new medical debts.

Or maybe you’ve been relying on credit cards, cash advances, or other credit to get by day to day. You owe a lot of money and don’t see how you could ever pay it all. So you know you need some relief from these debts. But right now you’re afraid of being cut off from these sources of credit. So you wonder whether and when you should file bankruptcy.

Bankruptcy Only Includes Present Debts

In these and many other situations a good starting point is to recognize that the timing of your bankruptcy case is crucial. Debts that legally exist at the time you and your lawyer file your bankruptcy case are included in that case. Future debts are not. So in a Chapter 7 “straight bankruptcy” case, only the existing debts can be discharged (legally written off). In a Chapter 13 “adjustment of debts” case usually only those existing debts can be included in your payment plan.

The Best Advice? Get Some Good Advice

The two situations mentioned above—the medical and relying-on-credit ones—are not easy to resolve.

Sometimes knowing when to file bankruptcy IS pretty straightforward. Somebody needs relief from a lawsuit or wage garnishment or vehicle repo or home foreclosure, and needs it now.  

But it’s not so simple in these two situations. If you can’t pay your present medical and other debts, but want to wait to file bankruptcy to include those upcoming medical debts, what do you do about the debt collectors in the meantime? If you can’t pay your living expenses without using new credit, how do you get out of that vicious cycle?

The honest truth is that it depends on your unique situation. Because you are unique, the solution will be unique to you.

There is no cookie-cutter answer because you’re not a cookie, a gingerbread man. You’re an individual with individual circumstances needing individual advice.

For that advice to be worthwhile it needs to come from someone who understands you and your situation, who is competent about your legal options, and who can sensibly match your unique situation to the best option.

That “someone” is your bankruptcy lawyer. He or she is legally and ethically required to strictly serve only you and your interests. Your lawyer has likely helped hundreds if not thousands of people, with everything from relatively simple to extremely complicated situations. He or she has not seen a situation exactly like yours but has seen many very similar ones. Your lawyer has spent a career wrestling through tough situations like yours.

Thorough Knowledge and Good Judgment

A competent lawyer gives you not just knowledge about legal options; you should also get the benefit of good judgment. You need somebody who will help you find the best way out what may feel like an impossible situation. In fact you may have a serious Catch-22. Maybe (as in the medical example above) you simultaneously need bankruptcy protection now AND need to wait to file later. It takes someone who knows the law intimately and understands your situation fully to craft that unique best path forward for you.

In our next blog post we’ll demonstrate some good judgment by a bankruptcy lawyer. We’ll show how two similar medical-debt timing situations result in very different legal advice.

 

The Pursuit of Happiness this 4th of July

July 3rd, 2017 at 7:00 am

This 4th of July follow the Declaration of Independence and claim your right to “Life, Liberty and the pursuit of Happiness.”


Your Life in Mid-2017

If you’re reading this on the Fourth of July weekend there’s a good chance you have some serious financial problems. Your debts may be overwhelming you. You’re worrying about them all the time.

Odds are you’ve probably been trying to improve your situation for a long time, maybe even for years. It’s really adversely affecting your life. It’s dragging down your personal relationships. You’re worried that the anxiety is harming your health, and then you worry about that, too! It’s hard to feel good about yourself with this all never far from your mind. You aren’t often relaxed or happy.

The Declaration of Independence is now 241 years old. It states at the beginning of the Preamble:  

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Isn’t it time to follow this self-evident truth: you’re in a vicious cycle and need to find a way to a better life, financial liberty, and the freedom to pursue your life dreams?  

Happiness to Pursue

You’d like to be able to afford what you need, what are important to you. You’d like to not be anxious about money all the time. You’d like feel hopeful, to have a future worth looking forward to.

You’d like financial freedom.

The First Step

It’s often true that the first step is the hardest. We often figure that solving a problem will be harder than it actually ends up being. Sometimes we’re pleasantly surprised after we take the first step that it’s not as hard as we’d thought. Then afterwards we wish we’d had the nerve to take that first step much earlier. We kick ourselves about how much grief we could have avoided.

So what’s the simple but crucial step here? What do you need to do avoid future unnecessary grief?

Simply find out what your legal options are about your debts.

Move from Fear to Realistic Options

You discover your options by seeing a lawyer who helps people like you solve their consumer and/or business debt problems.

This may be easier than you think. That’s because asking for this kind of help is usually free, at least to get started. Most lawyers who help people with their debts don’t charge for their initial consultation with you.

But Don’t You Just Get What You Pay For—Nothing!?

When you go to the right lawyer you will get valuable information and advice at the free initial consultation. At this meeting you will have the opportunity to tell the lawyer about your situation, your concerns, and your goals. The lawyer will usually outline your most likely legal options, along with their major advantages and disadvantages. This initial meeting is usually extremely valuable.

So why do most lawyers who help consumers and small businesses with debt problems not charge for their initial meeting?

First, let’s admit right from the start that it’s partly a marketing tactic. A lawyer naturally does hope that once you invest the time to meet with him or her you will more likely hire that lawyer if you decide to use a lawyer.

Second, when you’re in financial trouble you likely can’t spare the money to pay for shopping for a lawyer. So most bankruptcy lawyers recognize that they can’t charge for initial consultations. They need to give you a chance to check them out and get advice from them.

Third, most bankruptcy lawyers who serve debtors are genuinely compassionate folk. Most chose to specialize in this area of law for that reason. So they actually do care about you and want to help you have a happier life.

So it’s only sensible to take advantage of their free offer.

Be Selective

At your initial meeting with a lawyer, you’re “just shopping” but doing so seriously. It’s a big investment of your time, so learn as much as you can.

Of course you have absolutely no obligation to continue working with that lawyer. You are asking for information and advice, and maybe looking for a lawyer to help you.

So during and after the initial meeting ask yourself the following questions:

  • Did the lawyer listen carefully to you and get all the necessary information about you and your finances?
  • Did he or she present your options clearly? Did you have a chance to ask questions about them that were answered in an understandable way?
  • Do any of the options sound practical and worth doing?
  • Was the lawyer considerate towards you, respectful, help you feel comfortable?
  • Was the lawyer knowledgeable but able to communicate in a way that made sense to you?
  • Were you comfortable with him or her? Do you feel like you could trust him or her? Were you and the lawyer a good fit?

Don’t Bankruptcy Lawyers Always Recommend Filing Bankruptcy?

No. That would go against their ethical and legal obligations to you.

Lawyers are strictly required to serve you. It is illegal for them to pressure you into any option at all. Their role is to advise you of your options, and your advantages and disadvantages as to each one. They must provide this advice without considering their financial self-interest.

If they do anything different they can be sued for malpractice for giving bad advice (as lawyers quite regularly are). Or they could lose their law license, and thus their livelihood.

This all true even as to a free initial consultation. When you have a lawyer-client relationship, it doesn’t matter what your financial arrangement is with the lawyer.

Crucially, a lawyer’s job is to lay out the options so that YOU can make an informed decision. The lawyer doesn’t tell you what to do or make you do anything. That’s your choice. Sure, the lawyer’s job is to advise you, and usually to make recommendations based on your circumstances. But it’s not to make decisions for you or to make you do anything.

If the lawyer you meet seems to be putting any uncomfortable pressure on you, find another one who respects your appropriate role as the decision-maker.

Take that First Step

On the 5th of July call a lawyer to set up a consultation meeting. And go to that meeting. You will almost certainly come away from it much, much better informed about your options.

You will very likely be able to get out of your vicious cycle and find a way to a better life. You’ll finally get the freedom to pursue happiness.

 

Call today for a FREE Consultation

210-342-3400

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