Bankruptcy

The bankruptcy process in Minnesota

Thursday, February 14th, 2013

In this post we describe the bankruptcy process in Chapter 7 and Chapter 13 so you know what to expect when you come see us.

1. You get in touch. Give us a call at 612-564-4025. We can often get you in the same or next day. Your first meeting will be about an hour long. As soon as you decide to hire us, we spring into action, organizing your paperwork and preparing your case. At this point, you can send your debt collectors directly to us—no more endless phone calls.

2. We prepare your case. It generally takes us three weeks to file your bankruptcy petition—a collection of relevant documents and an asset inventory. Once we file your case, collection activity—such as letters, calls, lawsuits and foreclosures—stops immediately. As we prepare your case, we help you choose the best type of bankruptcy for your unique situation—Chapter 7 or Chapter 13.

3. We help you choose what type of bankruptcy is best for you. 

  • You might choose Chapter 7 if: 1) Your expenses are way higher than your income, leaving nothing extra to pay your debt; 2) You don’t own a home, or if you do, you’re up to date on your mortgage payments; 3) You don’t own many valuables.
  • You might choose Chapter 13 if: 1) You can afford to repay some of your debt, but not all of it; 2) You’re behind on your mortgage or you’re underwater with a second mortgage; 3) You have valuable assets, such as home equity, that you want to hold onto.

4. Will I have to go to court? In bankruptcy, you generally don’t have to go to court. Instead, you meet with a bankruptcy trustee a month after your filing date. The trustee evaluates your financial situation. We make sure you’re well prepared, and we’ll be by your side to make sure it all goes smoothly.

5. Finishing your case in Chapter 7. Chapter 7 usually lasts three to four months. Your bankruptcy is typically completed 60 days after meeting with the bankruptcy trustee. Once your case is finalized, your debts are wiped out forever.

6. Your Chapter 13 payment plan.  In Chapter 13, you’ll make monthly payments for three to five years to pay off your debt. We’ll be your lawyers the whole time, in case you need help or your financial situation changes. Once you make your last Chapter 13 payment, your remaining debts are wiped out.

7. Rebuild credit. People who put in some effort to rebuild their credit after bankruptcy can usually make their score rise a lot faster than people who just wait for their credit to fix itself. We meet with all our clients free of charge after the bankruptcy is over to see how we can help clean up your credit report and give you tips for building new credit.

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What does Chapter 13 bankruptcy cost?

Monday, January 14th, 2013
Chapter 13

Photo by Daniel Moyle

In an earlier post, we wrote about how we price our Chapter 7 cases. One of the first things a potential client wants to know during a consultation is how much bankruptcy costs. Obviously, every case is different, but here’s a rough version of how we price cases in Chapter 13.

1. You pay a flat fee out-of-pocket. When you’re in financial trouble, you want predictability. You don’t want your lawyer to run up the bill on you. That’ why we quote you a flat fee at the beginning of the process, and that’s what you pay. No fine print, no hidden fees. We agree on it at the start so you can plan for the expense.

2. You don’t need to pay your whole fee upfront in Chapter 13. Unlike Chapter 7, in a Chapter 13 case we don’t need the whole bankruptcy fee up front. In fact, in many cases Chapter 13 costs less upfront than Chapter 7–some people even opt for Chapter 13 because of our flexible pricing. We generally require a minimum of $1,000 before filing in a Chapter 13, but this  can depend on your case.

3. We can get the rest of our fee out of your creditors’ pockets. In Chapter 13, we can apply to the court for our remaining fee. Because this comes out of the Chapter 13 payments you’re already paying, in most cases it doesn’t cost you an extra dime. In fact, if you’re looking for an extra way to stick it to your creditors, here it is. The money we receive from the Chapter 13 payments would have lined their pockets if we hadn’t applied for it. Our total fee comes out to $2,500 for below-median income cases, $3,000 in above-median cases, or greater if we can prove to the court that it was necessary to charge more.

4. The filing fee. In a Chapter 13 case, there is a court filing fee of $281 and mandatory credit counseling fees (for our clients, credit counseling runs around $68 for a single filer or $87 for joint filers). You pay those fees to us and we forward them as needed.

And remember–you may not want to bargain-hunt on bankruptcy. The best lawyers will quote you a fair price, but the worst ones will probably discount their fees to try to take business from the good ones. You want a lawyer who’s experienced enough to understand a lot of the tricks and traps of bankruptcy. You also want someone who’ll be available to answer your questions, and won’t blow you off because they’re too busy with all their other cases. And you want someone who’s willing to use the bankruptcy law creatively to help you improve your situation. As it happens, we know a couple of guys who fit the bill pretty well.

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Foreclosure tax relief extended through 2013

Monday, January 7th, 2013

We’ve written before about the tax consequences of foreclosure. In some cases, foreclosure can result in the homeowner being charged with tax liability for the amount of debt forgiven by the mortgage company. If the debt is $275,000, and the house sells at a sheriff sale for $250,000, the remaining $25,000 forgiven may be charged as income to the homeowner. The Mortgage Forgiveness Debt Relief Act allows taxpayers to exclude this tax liability if it’s for a mortgage on their principal residence.

The original law was scheduled to expire at the end of 2012, making it much harder for homeowners facing foreclosure. If the foreclosure happened in 2013, the homeowner could get slammed with tax liability for the foreclosure, adding insult to injury.

As part of last week’s fiscal cliff deal, the Act was extended through 2013. So this time you can credit Congress for doing something right, and the extension was even passed (almost) on time.

So if you’re going to get foreclosed on, it might be smart to do this before the end of the year.

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What to expect at the bankruptcy meeting of creditors

Monday, December 10th, 2012

This post describes what you can expect at your bankruptcy meeting of creditors in Minnesota.

1. What’s a bankruptcy meeting of creditors? A meeting of creditors, sometimes called the “341 meeting,” is a requirement of bankruptcy. In most bankruptcy cases, you do not have to appear in court. You go to a meeting of creditors instead. In most cases, the meeting is just a formality, but it’s important to prepare either way.

2. When is the meeting? Usually three to five weeks after you file your bankruptcy case.

3. Who shows up at the meeting? The bankruptcy meeting of creditors happens in public, so other bankruptcy filers and attorneys will be there. There is also the bankruptcy trustee, who conducts the meeting. The judge is never at the meeting of creditors.

4. But it’s called the meeting of creditors. Won’t my creditors be there? Creditors show up VERY rarely to these meetings. In the last 100 cases we’ve been involved in, a creditor has shown up only once, and we totally expected it and prepared for it. Credit card companies, car lenders and mortgage companies almost never show up.

5. What do I need to bring? This is important. The meeting will be canceled and rescheduled if you don’t bring proof of ID and social security number. You’ll also need your most recent paystub and all bank statements covering the date of filing. We’ll ask you for all this stuff way before your meeting so we have backup copies in case you forget.

6. How long does the meeting take? The trustee usually schedules five cases every half hour. So your meeting should take more than a few minutes, unless we’ve told you that your case is complicated. But if that’s the case we’ll make sure you’re well prepared.

7. What should I wear? Just dress like you would to a meeting at our office. There’s no need to dress up, just dress neat (and don’t overdo it on the bling–if you come in looking like a zillionaire, people will wonder why you’re filing bankruptcy.)

8. What will the trustee ask me? Here are a few questions the trustee is likely to ask:

  • Is this your signature on the petition and schedules? Did you read the petition and schedules before you signed them? Is the information true and complete?
  • Have you listed all of your assets on the schedules? Are you a co-owner of any property with anyone else? (e.g. family cabins)
  • Do you expect to come into any money, such as an inheritance?
  • Does anyone owe you money?
  • Have you paid any creditors in the last 90 days, other than minimum payments?
  • Are you a party to any lawsuits you haven’t identified in your schedules?
  • Are you owed any domestic support? Do you owe domestic support?
  • Have you transferred any property to anyone in the last year? Is anyone holding property for you?
  • Have you previously filed bankruptcy?

9. How should I answer? Just tell the truth. Don’t feel like you need to tell a whole story–keep your answers short and sweet–but answer truthfully and completely. If you don’t know the answer to a question, ask for clarification–it’s better not to answer right away than to answer incorrectly.

10. Where is the meeting? 

  • Minneapolis Chapter 7 cases: Federal Courthouse, 300 South Fourth Street, 10th Floor
  • St. Paul Chapter 7 cases: Federal Courthouse, 316 North Robert Street, 4th Floor
  • Minneapolis/St. Paul Chapter 13 cases: 12 South Sixth Street, Suite 310

 

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Do I need to file business bankruptcy?

Tuesday, October 16th, 2012
business bankruptcy

Photo by Ed Yourdon

This post explains business bankruptcy and helps you figure out if it’s a good idea for your business.

1. I have business debt. Do I need to file bankruptcy?

I am a sole-proprietorship. If you are a sole proprietor, you are the business. This means that the business assets are your assets, and the business debts are your debts. If you file personal bankruptcy (under Chapters 7, 13 or an individual Chapter 11 case) your business debt will be wiped out and your business creditors can’t collect from you.

I am an LLC or corporation. If you own a separate legal entity, then filing personal bankruptcy won’t wipe out your business debts. To take care of business debts, you can do a few things:

  • - Negotiate with the lender to settle the debt;
  • - Close your business and turn over any leftover assets to your creditors; or
  • - File a business bankruptcy to reorganize your debt.

2. How do I close my business without filing a business bankruptcy?

You can close a business by filing a “dissolution” with the Minnesota Secretary of State’s office. Dissolution gives notice to your creditors that you are closing up shop, and gives creditors a chance to try to collect assets before the business is wrapped up. You may be able to dissolve a business on your own, but you’ll probably want to consult an attorney first, to see if there will be any issues to watch out for.

3.   Do I need to file business bankruptcy?

Generally not. If your business has lots of real estate, secured debts, or large assets, you may want to look into business bankruptcy to reorganize your debt. But most people don’t need business bankruptcy. If you have a business that’s insolvent, the dissolution process described above should be enough.

4.   Are my business debts wiped out in my personal bankruptcy?

If you close a business and you have personally guaranteed the debts, the business creditors may try to collect from you after the business is closed.

Your personal liability on your business debts is erased. This means that if you default on your business debt, your creditor cannot come after you personally for that debt. On the other hand, this doesn’t prevent the creditor from collecting the business’s assets.

One other important point—if you have business debts, and a business bank account with the same creditor, your creditor probably has the right to take money directly out of your business account if you don’t pay the business debt, even after a personal bankruptcy. If you are keeping your money with a bank that is a creditor, the smart play is to move it as soon as you can.

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My Chapter 13 was confirmed. What now?

Wednesday, May 9th, 2012

Chapter 13 confirmedThis post describes what happens after a Chapter 13 bankruptcy is confirmed. Confirmation is the biggest hurdle in Chapter 13, but it’s not the end.

Congratulations, your Chapter 13 plan has been confirmed! (If our congratulations are early, don’t worry–your turn will come too). Since you’ll be in Chapter 13 for three to five years, you probably have a bunch of questions about what to expect. We’ll tackle a few of these below. If you have other questions, please leave them in the comments below.

1. When do I make my first payment to the trustee? Your first Chapter 13 plan payment is due within 30 days of filing your case. The payment must be by money order to the P.O. Box specified on your welcome letter form the trustee’s office. Future payments can be made by automatic debit from your bank account, if we arrange that ahead of time with the trustee’s office.

2. Which of my bills should I pay while I’m in Chapter 13? You’ll need to pay your new, ongoing bills on time. This always includes utilities, generally includes your mortgage, and sometimes includes your car loan and student loans. Every once in a while, it’ll include a credit card if you have a cosigner. But your bankruptcy lawyer should have the final word on what bills to pay. If you’re not sure, ask.

3. I’m still getting calls from creditors. What do I do? Your creditors are breaking the law if they contact you after you file Chapter 13. On the first call, you can tell the creditor you filed bankruptcy and give them your case number. If you keep getting calls, you should let your bankruptcy lawyer know right away.

4. I need to buy a new car. Can I take out a loan while I’m in Chapter 13? You’ll need permission from the court to take out any new loan while you’re in Chapter 13. If you absolutely need financing, call us first so we can take you through the steps of the process.

5. What do I do if I’m going to miss a payment? If you’re in danger of missing a Chapter 13 payment, or if you already missed one, call your bankruptcy lawyer. In some cases, we can work with the Chapter 13 trustee’s office to help you get caught up on your payments. Otherwise, we might be able to modify your plan. If you don’t get in touch before missing a payment, the trustee can move to dismiss your case. The most important thing is that you let us know in advance so we can prevent this from happening.

You’re probably starting to pick up on a trend here. If you have a question, call your bankruptcy lawyer. Most of the problems that come up with confirmed Chapter 13 plans can be avoided as long as we know about them in advance. But let us know in the comments below if you have other questions.

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How to prepare for your free consultation

Tuesday, May 8th, 2012

1. What to expect. The first time you meet with us, we’ll give you at least an hour of our time for a free consultation. See the pictures on the front page of our site? The guy on the right is Blake, and the guy on the left is Dave. If you don’t see either of us, you’re probably in the wrong place. You might also see Bess. She’s our bankruptcy case manager and she sits in on a lot of our meetings.

And just so you know, your free consultation isn’t like a visit to the doctor, where you spend most of your time with a nurse or intern until the doc breezes through at the very end. When you come in to see us, you will always meet with an attorney (or sometimes two of us, depending on how busy we are that day).

2. Bring documents. We ask you to bring documents to your free consultation that help us understand the issues you’re facing. We send prospective clients a copy of our new client form, bankruptcy document checklist and income and expenses worksheet by email before your free consultation (don’t worry–it shouldn’t take too long to fill out all three). The most important things we need from you are your last six months of paystubs (or other proof of income if you don’t receive paychecks) and a list of your household income and expenses. We need these things to figure out whether Chapter 7 or Chapter 13 will be a better fit for you.

Do your best to bring these documents. If you can’t find everything, don’t worry about it, but if you bring everything we ask for, we can get more accomplished during the free consultation.

3. Brush up on bankruptcy. We’re happy to explain the ins and outs of bankruptcy to you. We do this stuff all day, and we like to share what we know with you. But if you study up a little bit and understand the basics, we might be able to delve into deeper issues on the first meeting, meaning we can get more accomplished in the free consultation. If you’re the type who likes to do your own research, our blog is a good first resource. We also recommend the Bankruptcy Law Network’s posts, but remember that they’re focused nationally, and because the law is different from state to state, not all the information will apply to you.

4. After the free consultation. Sometimes we can sort out all the major issues in your free consultation and decide on a course of action.If there are more complex issues, it may take a week or two of collecting information after the first meeting to figure out how best to help you. Bess will usually help you gather all the information we need. Once we decide what we can do in your case, we can talk about price, timing of your filing, etc. Throughout this process, feel free to ask any questions that come to mind.

Still have other questions before you’re ready to make that first appointment? Let us know.

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Why did a debt collector send me a 1099-C?

Wednesday, February 22nd, 2012

1099-CRe-posted for the upcoming tax season! This post describes how tax reporting of forgiven debt works. It also gives some solutions if you’ve been hit with a 1099-C for debt forgiveness.

It’s time to face the tax man again, and some consumers are surprised to receive a 1099 from a lender or debt collector they dealt with in the last year, counting income to the consumer for debt forgiveness. The amount on Form 1099-C states the income “derived” from the forgiveness or settlement (for less than the full value) of a debt. Because the lender wrote off a debt (or a portion of a debt) it believed it was owed, it has the right (but not necessarily the obligation) to charge the income to you. Here are some exceptions.

1. A lender can’t send a 1099-C for debt discharged in bankruptcy. If a debt was discharged in bankruptcy, the lender can’t issue a 1099-C for debt forgiveness. However, let’s say a debt was settled in January of 2010, and then you filed bankruptcy in February–then the debt forgiveness would be income.

2. Discharge of debt on principal residence. The federal Mortgage Forgiveness Debt Relief Act allows taxpayers to exclude debt forgiveness income from the discharge of debt on their principal residence up to $1 million. So debt reduced in a mortgage modification, as well as debt forgiven as part of the foreclosure process, will not generally count as income.

3. You were “insolvent” when the debt was forgiven. The insolvency exception is a powerful tool for many people. If, on the day before the debt was settled or forgiven, all your assets (including your retirement accounts) were less than your total debts (including your mortgage)–then you don’t have to count a 1099-C as income. File IRS Form 982, Reduction of Tax Attributes Due to Discharge of Indebtedness

4. The debt is disputed and the lender can’t prove you owed it. If you don’t owe the debt and the lender can’t prove it’s legit. you may be able to contest a 1099-C. Contact a tax attorney for help.

We aren’t tax attorneys. If you need help with a tax issue, please consult a specialist. But if you’ve received a 1099-C and you think you fall under one of these exceptions, get in touch.

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Can I wipe out tax debt in bankruptcy?

Wednesday, February 8th, 2012

tax debtThis post describes how to deal with tax debt in bankruptcy. 

Tax debt is one of the hardest kinds of debt to shake. First of all, the IRS knows where you are. Also, they have special enforcement powers to collect their debt. They can put a lien on your house or your property without suing you. They can take money in your bank account without a judgment. They can seize tax refunds. They can take you social security. And they can also garnish your wages, often for a lot of money. But contrary to popular belief, tax debt can be wiped out in bankruptcy , especially if it’s old. Here’s how it works.

1. The rules: For income tax debt to be wiped out in bankruptcy, the following three rules must apply:

Rule 1: The income tax return must have been due more than three years ago. The first question we ask to figure out income tax dischargeability is whether the tax return was due more than three years before the date of bankruptcy filing. 2008 income taxes were due on April 15, 2009. Today is February 8, 2012. These taxes are not dischargeable today, but they pass this test if we wait until April 16 to file. But there’s one wrinkle. If you filed for a six-month extension that year, your tax return wasn’t due until October 15, 2009. So if you’re looking to discharge income taxes, we can’t file your bankruptcy case until October 16, 2012.

Rule 2: The income tax return must have been filed more than two years ago. This one seems easy. If the return was filed more than two years before today, this test is satisfied. In some cases, the taxpayer never actually files a return, and so the tax agency files one for them (sometimes called a “substitute return.”). When that happens, the two-year clock never starts running, and until the taxpayer actually files his/her own return, this test can never be met.

Rule 3: The tax must have been assessed more than 240 days ago. This means that the tax agency’s determination that you owe a debt must have been made more than 240 days ago. The “determination” can be a few different things–wither you filed your return and acknowledged you owe a balance. That’s an assessment. Or the IRS changed your return to say that you owed a balance. That’s an assessment too. Finally, if you were audited, and the IRS added a balance based on the results of the audit, that’s an assessment too. This part of the test is the most confusing, and you might want to see a tax professional (tax accountant or attorney) to figure out the assessment date.

2. Other factors add time to the clock. If you’ve filed bankruptcy before, the amount of time your case was open, plus six months, are added to all the time limits above. Also, filing an Offer in Compromise with the tax agency can stop the clock.

3. Some kinds of taxes are never dischargeable. Income taxes can be discharged if they meet all the above tests. There are other kinds of debts, such as sales taxes or payroll taxes collected on behalf of an employee, that will never be dischargeable. See a tax attorney if you’re facing these types of debts.

4. If a tax debt can’t be discharged, you still may be able to stop collection by filing Chapter 13. Chapter 13 bankruptcy stops all collection efforts by a tax agency, and allows you to spread the tax debt over a three to five-year period. This can be a big relief when the tax agency is looking to put liens on your property or garnish your wages, sometimes up to 90 percent of your income.

If you’re struggling with tax debt, give us a call for a free consultation. Often, there’s lots we can do to help.

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The foreclosure process in Minnesota

Friday, January 13th, 2012

The foreclosure process is a mystery to a lot of homeowners. So here’s a timeline that explains how foreclosure by advertisement works (as opposed to foreclosure by lawsuit, which is rare, and has a completely different timeline). Keep in mind that your timeline may vary, sometimes by a lot.

Month 0: You miss a payment. The whole process kicks into motion when you can’t make payments on your mortgage anymore, or decide not to make payments. At first the mortgage lender might start calling you or writing you letters. The lender might also reach out to see if you need assistance or if you’re eligible for a loan modification. At some point you’ll receive a default, or “intent to foreclose” letter. But remember that from this point, you still have a lot of time before the foreclosure actually happens.

Month 3: Your case is sent to an attorney. It’s usually about three months of missed payments before your file is sent to a foreclosing attorney. It could be less, it could be more. The attorney might take a couple of tries to get you to start making payments again, usually by calling you or writing threatening letters.

Month 4: Service and publication. In foreclosure by advertisement, the lender must serve you with foreclosure papers. The papers will tell you the date of the sheriff sale, which must be at least six weeks in the future. Then the lender has to publish a foreclosure notice in the newspaper for six consecutive weeks. If the lender skips any of these steps, or doesn’t complete them correctly, the foreclosure may later be attacked in court.

Month 6: The sheriff’s sale. The sheriff’s sale is a really important date, for two reasons. First, it is the last date you can bring your mortgage current in order to stop the foreclosure. After the sale, it might not be enough just to pay the lender the amount you’re behind.

Second, after the sheriff sale is completed, we can no longer use bankruptcy to help you catch up on your mortgage. If your sheriff’s sale is scheduled for 10 a.m. on Monday, and we file your bankruptcy at 9:59, the sale is void. If it’s filed at 10:01, we’ve missed our chance.

Under Minnesota law, a homeowner can also delay a sheriff sale one time for five months, in exchange for a shortened redemption period to five weeks (see below). This must be done between the date the sale is first published and 15 days prior to the sale. The process isn’t all that easy, so don’t wait until the last minute if you want to postpone your sale.

Month 12: The end of the redemption period. The redemption period is a six month period starting from the date of the sheriff’s sale. During the redemption period, you can continue living in your home. By this time, it’s too late to get the mortgage current by paying past-due payments, but you can “redeem” the property by paying the entire sheriff’s sale amount plus interest and fees anytime before the redemption period expires.

Month 13: Eviction. Eviction is the final step in a foreclosure. After the redemption period has ended, if the lender wants get you out of the house, it must file for an eviction in court. This usually takes about a month to complete. People don’t usually like to be evicted, so most people move out of the house on their own sometime after the redemption period ends.

No matter where you are in this process, you may still have options. If you want to talk more about how to prevent foreclosure, give us a call.

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