What are the Cost of Nursing Home Abuse Cases?

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Normally, we work on what is known as a contingency basis. If you win and are awarded money through a settlement or by a jury award, we receive a percentage of the award or settlement. We advance nearly all of the cost of litigation, which could be from $5,000 to over $100,000. So in theory, there is no money out of your pocket unless you win. We are repaid our advance of costs, and the attorney’s fees only if you win. If, in the unlikely case you do not win, you do not owe us any of the money we have advanced on your behalf or any attorney’s fees. You pay only if you are awarded money. Contact us for a free consultation to speak with a Duncan Law attorney about your potential nursing home abuse or neglect lawsuit. You can learn more about our contingency contract at your free consultation.

Can My Chapter 13 Payment Change?

It is possible that your Chapter 13 bankruptcy payment can change over the course of your bankruptcy. You will want to discuss this issue with your attorney in more detail.

A few common reasons are as follows:

If your monthly mortgage payment or Conduit Payment is included in your Chapter 13 plan payment and your mortgage payment increases as a result of as a result of a variable rate mortgage.

If a claim is filed in your bankruptcy by a creditor that is significantly higher than what was originally scheduled.

If additional attorney fees/”non-base” fees are added to your bankruptcy. See your attorney for more information on what non-base fees may apply.

If you fall behind on your Chapter 13 payments and the Trustee files a Motion to Dismiss. The Trustee may have to increase your plan payments to make up for the payments you missed.

Typically, the Chapter 13 bankruptcy payment will not change.  However, in a 36-60 month or 3-5 year time period a lot of things can happen to change that.  Again, you’ll want to touch base with your attorney to find out if your unique situation may cause your Chapter 13 bankruptcy payments to change.

Will I Have to Go to Court for Bankruptcy?

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Typically speaking, no you will not have to go to bankruptcy court.  However, you will have to attend what is called a creditors’ or 341 meeting.  This is not the same thing as bankruptcy court. One of the key differences is that in bankruptcy court you will actually appear in front of a bankruptcy judge.  In a creditors’ meeting you will only appear in front of the Trustee.  The Trustee is the person who represents your creditors, the people you owe money to.

With that said, at times there will be situations where it is necessary to go to court.  I would estimate that 98/100 times you will not have to go to bankruptcy court.  If you do have to attend bankruptcy court, don’t stress out about it.  Your attorney should make sure you are well prepared and it usually only lasts for a few minutes.  If there are other questions that we can answer for you don’t hesitate to contact our bankruptcy law firm.

Why Do I Have to Take a Credit Counseling Course?

Father and Daughter on ComputerIf you are considering filing bankruptcy, you are probably aware of the Bankruptcy Court requirement that you complete a credit counseling course prior to filing your bankruptcy, and that you complete a financial management course prior to receiving your discharge from your bankruptcy.

When the bankruptcy laws changed in 2005, one of the major changes was the new requirement of the credit counseling and financial management courses. One reason for these new requirements was so that debtors will be better informed and educated regarding their financial situation, budgeting, and obtaining credit.

While it is fairly easy to obtain the necessary credit counseling and financial management certificates, you must be aware of certain requirements and limitations.

First, your credit counseling and financial management certificates must be obtained through a Bankruptcy Court approved credit counseling agency. In other words, you cannot just find any credit counseling agency and obtain a certificate. You need to check with your attorney and/or local Bankruptcy Court to find out which credit counseling agencies are approved.

Second, there are time limitations for obtaining the necessary certificates. Your credit counseling course certificate must be obtained within 180 days prior to your bankruptcy filing. In other words, if you take the credit counseling course on January 1 and receive a certificate but do not file your bankruptcy petition with the Court until August 1, you will need to re-take the course and obtain a new certificate prior to the filing of your bankruptcy petition.

Your financial management course certificate must be obtained and filed with the Court prior to the entry of the discharge of your debts. This date is usually four to six months after you file your bankruptcy petition. As a good rule of thumb, you should take your financial management and file the certificate with the Court anytime between 10 days after the filing of your bankruptcy and prior to your first Creditors’ Meeting. By sticking with this time frame, you will avoid any potential discharge issues related to your financial management course.

Although the credit counseling and financial management course requirements may seem as though it is just one more hoop to jump through with your bankruptcy filing, most people find that the courses are actually helpful in planning for the future after your bankruptcy filing, so that you can receive a true fresh financial start.

What Happens to Property That Cannot Be Protected in Bankruptcy?

The good news is, most property can be protected in bankruptcy proceedings. North Carolina, like most states, allows you to protect most real and personal property by using “exemptions.”

Exemptions are determined by state and federal laws that allow you to keep most, if not all of your property. For example, the North Carolina, exemptions allow you to protect a car with up to $3,500 of equity using the motor vehicle exemption. You can protect most of your furniture using the household goods exemption. When the state legislatures enacted these exemption laws, they allowed people to keep the necessities of life instead of “throwing someone in the street” with no property if they filed bankruptcy. Generally, about 95% of our clients get to keep all of their property using the exemption laws when they file bankruptcy.

However, sometimes a client may have “non exempt” property which we cannot protect. In this event, the Chapter 7 Trustee could seize this property and sell the property to pay off a small percentage of the debtor’s debts. Let use an illustration to show how bankruptcy exemptions work:

John Doe has a car that is worth (using NADA) $10,000.  However, John Doe owes $6,000 on that car to his financing company.  Therefore, John Doe has $4,000 of equity in his vehicle ($10,000 value – $6,000 owed = $4,000 in equity).  In order to protect John Doe’s car we need to use the bankruptcy exemptions.  Since the car is in John Doe’s name we can use the maximum amount of his motor vehicle exemption of $3,500.  However, we are still left with $500 in what is called non-exempt equity.  In this case, we can protect that non-exempt equity using what’s called a “wild card” exemption.  In North Carolina you have $5,000 of a wild card exemption.  We would do what is called exemption stacking and put $500 of the “wild card” exemption on top of the motor vehicle exemption to protect the full $4,000 of equity in John Doe’s car.  If John Doe had more than $8,500 in equity in his car ($3,500 motor vehicle exemption + $5,000 “wild card” exemption = $8,500 maximum amount of equity to protect in an automobile) then we would have to either give up the car or we could try to work out some type of payment with the Trustee to allow him to keep his car.  Either way, it’s important that you consult your bankruptcy attorney if you believe that you have excess equity in your personal property.

What If I Walk Away From My Home and Don't File Bankruptcy?

When we have a consultation with a prospective client we do everything we can to explore every option that the client may have. Then, the client decides which direction they would like to head. One of the frequent questions we get is what happens if instead of filing a Chapter 7 bankruptcy or a Chapter 13 bankruptcy they just give up the house and walk away. The answer to that question really depends upon whether or not you have any equity in your house. Equity is the difference between the value of the house and how much you owe.

Substantial Equity: If you have substantial equity in your house then you may be okay just walking away. Typically what happens is the bank will foreclose on the home after you walk away and sell. According to a MSN Money article, John T. Reed, the Editor of Real Estate Investor’s Monthly, a foreclosed home will sale about 5% below the market average but may be up to 30% or 40% below market value.

If the mortgage company is able to recover the full amount that you owe on the property then you are not likely to owe any more money for the foreclosed home. However, you will still have a foreclosure that appears on your credit report.

Little to No Equity: If you have little to no equity in your home and the bank is unable to recover the amount you owe then you will be responsible for the unpaid balance which is called the deficiency balance. In other words, if your foreclosed house sold for $100,000 but you owe $150,000 on the house, then you would still owe the bank $50,000. It is unlikely that you will have $50,000 to pay out of pocket so the bank has the ability to file a lawsuit against you and obtain a judgment.  That judgment could eventually lead to a lien on your different types of property.  Liens are bad news – you don’t want one!

Typically speaking, foreclosed properties will not recover the full amount owed to the bank for the mortgage. Therefore, they will look to you to pay the deficiency balance. A bankruptcy has the ability to potentially wipe out this entire balance.

The bottom line: if you still owe money for the mortgage even after the foreclosure sale of your home then you will be liable for those costs. Bankruptcy can usually wipe out that left over balance. If you do nothing they will file suit against you and have a judgment that may attach to your property. Ideally, you don’t want a foreclose to appear on your credit.  Bankruptcy gives you the ability to keep the foreclosure off your credit and wipe out the deficiency balance.