What is Bankruptcy?

What is Bankruptcy?

Bankruptcy allows individuals, couples, and businesses that cannot meet their financial obligations to be excused from repaying some or all of their debt. Bankruptcy has been in existence since ancient times. In the United States, the rules and procedures for filing bankruptcy are governed by federal law. States are prohibited from legislating in this area of the law.

Generally speaking, there are two types of bankruptcy. In a liquidation bankruptcy, debtors must surrender their property, which is sold, and the proceeds distributed to creditors. In return, all debts are permanently discharged. In a reorganization bankruptcy, debtors are allowed to keep their property. But the debtors must agree to an installment plan to repay creditors a portion of the amount they owe.

Filing for bankruptcy involves submitting a petition and fee to the bankruptcy court. The fee is close to $300 for most personal bankruptcies. The petition will contain sworn statements by the debtors concerning the amount of money they owe, their income and expenses, as well as a complete list of all of their assets. After filing, a court hearing is held to review the information in the petition.

Chapter 7 bankruptcies are by far the most common. These are liquidation bankruptcies in which the debtors must turn over all “non-exempt” property to a supervising officer known as the bankruptcy trustee. Property is exempt if it falls within specific categories of assets that debtors are allowed to keep, such as a certain amount of clothing, household items, tools for work, and in some instances, vehicles and the family home.

The Chapter 7 trustee will take the debtor’s non-exempt property (if there is any), and sell it. The money will be paid to the debtor’s creditors. This may result in creditors receiving a small fraction of their claims. The balance of the debtor’s loans and obligations are forgiven and can never be collected. Creditors who attempt to collect debts that have been discharged face severe penalties under federal law.

Keep Your Property

The fact that a liquidation bankruptcy wipes out debt completely is obviously attractive to anyone who cannot afford to pay their bills. But what about people who have non-exempt property that they do not want to give up? Chapter 13 is a reorganization bankruptcy. It allows debtors to keep their property by agreeing to make monthly payments toward their debt over the course of three to five years.

Chapter 13 bankruptcies offer a number of benefits besides allowing debtors to keep their property. For example, certain types of secured debt, like a car loan, can be restructured by reducing principal to the market value of the collateral, and lowering payments by extending the repayment period to 60 months. Other obligations, like mortgages, student loans, and tax liabilities can be modified as well. Creditors are given no choice in the matter.

Bankruptcy is not available to everyone. Those who have had their debts discharged in a Chapter 7 within the past eight years cannot re-file. For Chapter 13, the waiting period is six years. Too much disposable income is also a problem. Congress has established a “means test” for this purpose. Debtors who make enough money to repay their creditors will be barred from filing a liquidation bankruptcy, though reorganization may be an option.

Businesses that have become insolvent but want to stay in business may be able to file a Chapter 11 bankruptcy. Like a personal reorganization, Chapter 11 allows businesses to obtain protection from their creditors while they put together a repayment plan. Liabilities can be reduced and restructured to give the business another chance at achieving profitability.

Whether a debtor is considering filing under Chapter 7, 11, or 13, they must comply with a vast number of federal laws and regulations. An error at any step of the process can result in the court refusing to discharge the debtor’s liabilities. When the bankruptcy process ends this way, the consequences are disastrous. With so much at stake, hiring an experienced  bankruptcy attorney is a wise investment.

At Fridlin & Associates P.C we have 17 years of experience in Bankruptcy Law.  Please contact our office at 718-372-4400 and find out your rights.

What is Wage Garnishment?

Wage garnishment is a legal order that allows a plaintiff to collect monetary judgment from a defendant. Meaning- if you owe someone money (for child support, student loans, taxes, or unpaid court fees)- the court can legally withdraw a certain amount directly from your paychecks. There are only 4 states in the U.S. that do not allow wage garnishment unless it is tax-related debt.

The most dangerous incident occurs when an individual does not pay taxes on time. The IRS only has a few requirements it must meet prior to having the right to garnish wages. These requirements are:

1. The IRS must have assessed an individual’s taxes and sent a written Notice and Demand for Payment.

2. The tax paying individual must have refused or neglected to pay the ordered tax within the allotted time as described in the written notice

3. The IRS must have sent a written Final Notice of Intent to Levy along with a Notice of Your Right to A Hearing 30 days prior to the hearing.

On top of this- the Final Notice does not have to be received by the offender. So, plenty of individuals are not even aware of the fact that they have been served until they begin experiencing wage garnishment.

What should you, the taxpaying individual, do in such a scenario? Immediately contact an experienced debt attorney who has dealt with wage garnishment. Explain your situation and disclose all information he/ she requests of you. If you or a loved one is facing or experiencing wage garnishment- give us a call today!

Fridlin & Associates, P.C. 

(718) 372- 4400

1517 Voorhies Ave. 4th Floor

Brooklyn, NY 11235

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Top 11 Myths About Bankruptcy

1. Congress ended bankruptcy in 2005

In 2005 the government passed the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA). This new act did not remove the old bankruptcy law, but rather added to and altered the procedures of filing for bankruptcy. The process is now more complex and requires more paperwork, but this is the job of your lawyer- to ensure simplicity and effectiveness.

2. Everyone will know you filed for bankruptcy

This is absolutely not true! Since bankruptcy is public information, if someone specifically searches detailed information on you, they will be able to see your file. Other than that, the only individuals who will know whether you file for bankruptcy is you, your attorney, your creditors, and anyone you choose to disclose such information to.

3. If you file for bankruptcy, you will lose Everything you have

This is the furthest from the truth. Most of the time individuals who file for bankruptcy only lose their debts. There are Federal and state laws in place that exempt and protect certain assets, such as property and 401(K) accounts. We can help you figure out exactly what is exempt for your individual case.

4. You will never own anything again

Following your discharge from bankruptcy, you will be able to own anything you wish. Although bankruptcy stays on your record for 7-10 years, the more time passes, the less important bankruptcy is to lenders. The fact is that lenders have to lend in order to profit. You will be considered a high risk borrower at first, but as time goes on, your past will matter less and less. If you lost your home, you should be able to qualify for a normal rate FHA home loan after 2 years of discharge.

5. You will never get a credit card again

Being as an individual may only file for Chapter 7 bankruptcy once every eight years, once you are discharged from bankruptcy, you are an excellent potential borrower. You no longer have any debt and need credit in order to move forward. This makes you a very attractive loan candidate. On top of this, lenders know you will not be able to file again for almost a decade, so their money is in good hands.

6. Filing for bankruptcy kills your credit

Although bankruptcy remains on your credit for 7-10 years, it does not destroy your credit for this long. Typically, by the time most individuals file for bankruptcy, their credit is already very bad. So, the quicker they file, the quicker they will recover. The only way to kill your credit when it comes to filing bankruptcy is if you miss post-bankruptcy payments. Bankruptcy wipes your slate clean. Your credit is typically restored 2-4 years following a discharge.

7. Both spouses have to file

Although it might make sense for a husband and wife to file for bankruptcy jointly if they have a ton of debt, it is not a requirement. Sometimes it is smarter for just one spouse to file in order to keep the other spouse’s credit in good standing. Even if there is joint debt, so long as the non-filing spouse remains current on payments, the non-filing spouse’s credit will not be affected.

8. Only losers file for bankruptcy

This is an absolute lie! Most individuals who file for bankruptcy are hard working and honest people, who ran out of options. Bankruptcy is a last resort for them. 90% of bankruptcies are the result of uncontrollable events, such as illnesses, divorce, job loss, etc. Only 10% of bankruptcies are the result of financial irresponsibility and lack of intelligence.

9. Chapter 11 is for “Businesses Only”

This is simply not true. The Bankruptcy Code 109 sub-paragraph states that individuals as well as corporations may file for Chapter 11 bankruptcy. In the case you decide to file under Chapter 11, make sure your lawyer is experienced with this type of bankruptcy, as it is the most complex section of the Bankruptcy Code.

10. You must owe a Minimum amount of debt to file

If you are struggling to pay your debt, you may qualify for bankruptcy. Every situation is unique and there is no set minimum to file for bankruptcy. We are here to help you decide whether you qualify and which Chapter best suits your needs.

11. It is super hard and expensive to file for bankruptcy

Different offices charge different fees for filing bankruptcy. Because we understand that filing for bankruptcy is the last resort for you, we offer free consultations for all bankruptcy clients. As far as the difficulty of filing for bankruptcy- do not worry! This is your lawyer’s concern. Our goal is to make this transition in your life as painless and simple as possible.

Contact us today for a free consultation.

Fridlin & Associates, P.C.

1517 Voorhies Ave, Suite 4

Brooklyn, NY 11235

(718) 372-4400

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Chapter 13 Bankruptcy and its Benefits

If you are in over your head with debt, and can’t pay your bills, filing for Chapter 13 Bankruptcy may be the solution to your problems. Although filing for bankruptcy is a scary thought at first, this tool is created to work with you and your debt instead of creating more.

Chapter 13 Bankruptcy makes way so that you and your family’s debts are adjusted according to your income. You can keep your property and have a three to five year window of time to pay back a portion of your debt without any interest or fees.

“What good is it if I’m still paying back my debt after five years?!” Chapter 13 bankruptcy allows you to pay what you can afford. You have the chance to meet with an experienced attorney who will sit down and map out what is possible to pay back with your income. It won’t be such that you’re expected to pay $2,000 dollars a month for example, and only get paid $1,500 monthly.

Secondly, your property is protected. Since you are making a working effort to pay back your debts, in most cases you won’t have to give up your car and your home won’t go into foreclosure.

Last but not least, after your three to five year time frame is up, debts you do not pay in full are discharged and forgiven. If you are considering filing for bankruptcy, hiring an experienced bankruptcy attorney is your best option. Pick someone who is knowledgeable, will let you know of your risks and who will walk you through the process with as much ease as possible. Contact Elaine Fridlin at Fridlin & Associates, P.C. to set up a free consultation today.

Fridlin & Associates, P.C.

1517 Voorhies Ave, Suite 4

Brooklyn, NY 11235

(718) 372-4400