Archives December 2020

How Can I Qualify for Chapter 7 Bankruptcy?

If you are interested in filing bankruptcy or getting more information about it then the first thing to know is that regardless of what type of case you would like to do your attorney should cover all of your options with you.  This will normally include Chapter 7 and Chapter 13 cases.  If you have yourself set on a Chapter 7 you should know that you do not automatically get to file a Chapter 7 case.  You have to qualify.

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How Long Must a Chapter 13 Plan Run: An Examination of In re Engel

One of the most common questions by someone considering Chapter 13 bankruptcy is how much is my monthly payment and how long is the repayment plan?    

The base length of repayment in a Chapter 13 bankruptcy plan first depends on the income of the debtor or debtors. This is a starting point and defines the minimum amount of time normally required for each case.  Lawyers refer to this as the Applicable Commitment Period or the ACP.  Each state has a median income amount determined by family size. For example, in Kansas, the median income for 1 earner is $4,330 per month while $7,741 is the median monthly income for a family of 4. If household income is below the median the ACP is 3 years.  This means the plan must run for at least 3 years or until all creditors can be paid in full during a shorter period, whichever happens first. If household income is above the median then the ACP is 5 years.  This means the plan must run 5 years unless all creditors can be paid in full during a shorter period.  

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Do debtors have to pay creditors attorney fees: A look at In re Anderson and the requirement of Reasonableness

When you file a chapter 13 bankruptcy there is always a concern that you will end up paying not only your attorney fees but those of your creditors.  In some cases where there is a secured claim it is possible that the person filing the bankruptcy could be responsible for the fees generated by the attorney for the creditor.  The example that most often comes to mind are fees for the production and filing of a proof of claim on a home mortgage.  The attorney for the mortgage company is usually allowed a claim for their attorney fees that is added to the claim and paid through the bankruptcy case.  Most of this is anticipated ahead of time and it is basic required work for the bankruptcy case to run smoothly.  

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What is the Automatic Stay?

The Automatic Stay is an injunction that goes into effect when a bankruptcy case is filed.  An injunction is a court order that tells people to do something or not do something.  The Automatic Stay is issued when a case is filed.  The bankruptcy clerk prepares the order and sees that it is mailed out to all the creditors listed in the case.  The order imposing the stay is also known as the order for relief.  

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Who are the Bankruptcy Trustees?

A Bankruptcy Trustee is most often thought of as the person that manages the bankruptcy estate.  When someone files for a bankruptcy a trustee is appointed to manage the bankruptcy estate.  You should think of the bankruptcy estate as a separate entity.  If Chris Coons files a bankruptcy then there is a bankruptcy estate for Chris Coons and the case title is usually In re Chris Coons.  

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Can I plan out my bankruptcy?

If you are going to file a bankruptcy in Kansas then the most important thing you can do is plan out your case. Your bankruptcy attorney should sit down with you and discuss all of your options between chapter 7 and chapter 13 cases but they should also explain to you if you are in need of some planning to make the case run smoothly or to protect your assets. I once heard a judge say they had never seen too much planning before a bankruptcy and I think your attorney has a duty to advise you to plan out the case.

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Do I have to list all of my debts in a bankruptcy?

Many people find themselves considering bankruptcy to get rid of debts they cannot pay off, but have some debts they may want to keep. Maybe they have a mortgage, or a car loan, or perhaps they have debts they are current on and are hoping to retain some positive marks on their credit. They often wonder if they are required to list those debts on their bankruptcy.  So, do all your debts have to be listed in a bankruptcy?

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Synopsis of Mote et al v. Giles

At times I will go through bankruptcy opinions by our local bankruptcy Judges so you can see what is going on at the trial court level in our bankruptcy courts.  Bankruptcy cases like this one are very instructive because they outline the elements of a claim and the burden on the parties to provide evidence and what cases the court is looking at in framing the case.

Judge Somers recent opinion here offers real lessons about evaluating whether or not the actions of a debtor rise to the level of fraud.  In this case the debtor, Mrs. Giles, and her husband had a business together and at some point borrowed money from their friends, the Motes, to operate the business.  The loan was secured by a mortgage that was never recorded.  There was a second loan made more than a year later from the Motes as well.

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