BE WARY – FILING BANKRUPTCY WITHOUT AN ATTORNEY: Trouble with the Automatic Stay

          Whether you are filing bankruptcy on your own behalf, or if you have chosen to hire a paralegal you should be wary.  There are many intricate nuances to the bankruptcy code that an individual debtor or a paralegal will not be able to navigate.  One wrong misguided step could cost you dearly.

          Case in point – the weekend before Christmas our office was receiving frantic calls on our emergency line from a debtor whose lender had foreclosed on his home a couple of days after his Chapter 13 case had been filed.  He said that he was representing himself (although I believe that he was getting help from a paralegal).  The man was desperate to save his home that had already been foreclosed on, and when he spoke to the lender they said that they had a right to foreclose.  After looking into this problem for him it came to light that he had two prior cases that were dismissed in the same year as the most recently filed Chapter 13 case.  This meant that the bank was correct and that the foreclosure was valid. 

          When a bankruptcy case is filed the debtor is protected by a federal shield called the automatic stay.  The automatic stay was created to protect debtors from any and all collection attempts including (but not limited to) pursuing a lawsuit, foreclosing on a home, garnishing wages, and even calling or writing letters to collect on a debt.  This protection comes into existence automatically when a bankruptcy case is filed and is taken very seriously by judges, but it is not without limitations.  The code contains provisions which in some cases weaken the protections for the debtor. 

One such limitation is when a debtor files multiple cases within one year.  If the debtor had one case that was previously dismissed then their second case within the same year will only have an automatic stay for 30 days unless certain steps are taken.  If the debtor had two or more cases that were dismissed then the next case filed in the same year will have no automatic stay at all unless proactive steps are taken and the Judge orders a stay into effect. 

Therefore, when attempting to use the bankruptcy code to save a piece of real property make sure that you consult with an experienced bankruptcy attorney who can properly advise you.  If you have proper help you can ensure an outcome that does not result in the loss of assets.  The attorneys' fees are usually more affordable than people think, especially before any problems arise in a case filed without an attorney. 

SETTLEMENT OF MEDICAL DEBT

          Some people who are knocking on the bankruptcy door, just have one or may have a handful of debts that are primarily medical debts.  Before jumping into the bankruptcy arena, settlement may be pursued.  Evans Law Offices has had great success settling medical debt.  The key to working out an arrangement that benefits everyone is to know how to tactically position the settlement, and to assist in any state court defense.  Medical debt does have some peculiarities in the settlement process, especially if the debt is a large bill from a hospital.  The key is tenacity and reasonableness.  If this is your problem, maybe settlement is the answer.  Plan ahead, in advance of any lawsuit.  This kind of strategy can ensure success, if at all possible.

CHAPTER 7 BANKRUPTCY FAILURE -- Rapper DMX's Bankruptcy Dismissed

            Recently, a judge in New York, threw out the bankruptcy filing of rapper and hip hop star, DMX.   DMX had filed for Chapter 7 relief due to crushing debt, including over $110,000 owed in child support obligations (which is non-dischargeable).  The case failed, and the Federal Bankruptcy Court dismissed the case with an 18 month bar to refiling.  The dismissal was due to failure to satisfy trustee demands for information, and to properly document income of DMX.  This set back does not mean that he cannot seek bankruptcy relief in the future (once the time period of the filing bar has elapsed).  He could re-file once he is able to properly document his earnings, and possibly his assets.  DMX is not unlike any of us, who got into debt, slowly, over time, and now, it is out of control.  We hope that his financial affairs can be straightened out, so the can get control of his financial life.  Read more here. 

Can Debtors in California Discharge Traffic Tickets in Bankruptcy?

Whether or not a debtor in bankruptcy can discharge a traffic ticket is dependent on federal and state law, and the answer may be different depending on the Chapter the individual files.

The answer is clear for Chapter 7 cases and for a hardship discharge in a Chapter 13 case, NO.  Traffic tickets may not be discharged in a Chapter 7 case or in the case of a hardship discharge in a Chapter 13 case because Bankruptcy Code Section 523(a)(7) provides that those cases do not discharge debts to the extent the debt is a fine or penalty payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.

Whether or not a debtor can discharge a traffic ticket in a Chapter 13 case depends on how the particular state classifies the traffic violation.  If the state considers the offense a crime then the debt will not be discharged pursuant to Bankruptcy Code Section 1328(a)(3) which makes criminal fines non-dischargeable.  In California traffic violations are classified as either infractions, misdemeanors, or felonies.  In California all three of these classifications are included in the definition of a crime.  See California Penal Code Section 16.
In California debtors will not be able to discharge traffic tickets, but in a Chapter 13 case the debtor can provide for payment over time for the priority traffic fines.