You might be wondering exactly what “statute of limitations” means. The statute of limitations is the time period a creditor can still sue you for debts. Creditors only have a certain duration of time they can attempt to collect a debt by suing you. If the creditor fails to successfully collect the debt or file a lawsuit before expiration of the statute of limitations, then the debt is no longer applicable for collection by a lawsuit against you.
https://www.duncanlawonline.com/wp-content/uploads/2015/01/duncanlawlogo.png00Damon Duncanhttps://www.duncanlawonline.com/wp-content/uploads/2015/01/duncanlawlogo.pngDamon Duncan2011-08-03 09:00:282023-03-06 23:11:11What is the Statute of Limitations for Debts in North Carolina?
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I’ve filed for bankruptcy and now I want to go back to school. I need a loan to be able to do this. Can I still get a student loan?
Filing for bankruptcy should not affect your ability to get students loans that are federally funded. As long as any other student loans that you may have are not in default and are being paid back, a student typically should not have any trouble getting any new federal student loans because of the bankruptcy.
Privately backed student loans are a different story. Private student loans typically take your credit into consideration so that may make them more difficult to obtain after having filed for bankruptcy. But it is still possible to obtain private student loans after filing. They do look at your previous credit, but having a bankruptcy on your credit is not the only determining factor. The lenders will typically looks at more than just that. If a parent has gone through bankruptcy and the child is applying for a private student loan, then it is only the child’s credit history that is being looked at. One way that there might be a problem with getting this loan is if the parent is required to co-sign for it and they have filed bankruptcy before.
We understand that after filing bankruptcy you, or your children, may want to go to school to further their education. Most student loans are “need based”. This means they are based on your income each month. Filing bankruptcy obviously does not increase your income (although it may increase your disposable income). Therefore, you would still be eligible for students loans despite your bankruptcy filing.
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If you file bankruptcy, gambling income for the current year and the two previous calendar years must be disclosed on your bankruptcy filing. Gambling losses incurred in the past twelve months must also be disclosed on your bankruptcy.
The Internal Revenue Service (IRS) considers earnings from gambling as income and they are taxable. Per the IRS, earnings from gambling includes winnings from lotteries, raffles, horse races, and casinos. It also defines income not only as cash winnings but also the fair market value of prizes such as cars and trips. Similarly, the bankruptcy code requires you to disclose the earnings on your bankruptcy.
Losses from gambling must also be disclosed on your bankruptcy filing. These losses are often scrutinized by the bankruptcy Trustee assigned to your bankruptcy case. If large sums of money have been withdrawn from your bank account and you indicate it was lost gambling, you may be asked to provide the receipts from the casino, track or other venue where you gambled the money. If it is in a location away from your home, you may even be requested to provide the hotel receipt or voucher. With today’s technology, it is easy to determine the exact date and time you were at the venue and how much you won or loss while gambling.
If you took cash advances on a credit card, especially in the months leading up to your bankruptcy filing, and used those funds to gamble, the credit card company may question whether those charges on the credit card can be discharged or eliminated in bankruptcy. In other words, the credit card company may argue the money was not spent on necessities but a frivolous activity. They may also argue that you knew in advance you would be filing bankruptcy, so you decided to take your chances and gamble with “their money”. And if you lost, you planned to eliminate the debt through bankruptcy. As a result, they may object to the discharge of these debts in bankruptcy and you may be required to pay the money back to the credit card company.
As a result, it is important to speak openly and honestly with your bankruptcy attorney about any gambling income and losses you may have incurred in the past year. Otherwise, you may find yourself owing money you otherwise thought could be eliminated in bankruptcy.
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This is a personal decision and will depend on your comfort level and how quickly you plan on filing for bankruptcy.
There is no predicting what a creditor’s action will be when you notify them of your intentions of filing. They may try to work with you to create a different pay schedule or even offer a settlement. However, beware – forgiven debt is considered income and you will receive a 1099 that will need to be claimed on your taxes. Worst case scenario, they send your account to their lawyer to begin legal proceedings. If you plan on filing bankruptcy soon then that will not be a problem.
If you are going to tell a creditor you are filing, please make sure you do plan to file. Also, do not give out attorney information unless you are absolutely positive you are filing and will be using that attorney. Once you provide an attorney’s name to a creditor they will usually stop contacting you; once you actually file the bankruptcy they are required to stop contacting you due to the automatic stay that goes into affect. If you are still interested in a settlement, be sure to check with your attorney and see if they will plan to participate in negotiating a settlement.
Typically, we encourage people to tell creditors they are filing bankruptcy if they are expecting to file the bankruptcy within 60 days. This will help stop the creditor phone calls and harassment.
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As long as your 401(k) is ERISA qualified and was exempted (protected) in your bankruptcy petition, you can most likely take a loan against the account while in an active Chapter 13 bankruptcy. However, you MUST get the court’s permission!
When you are filing for bankruptcy, one of the top concerns is to protect your assets. There are federal and state exemptions available to protect any equity or funds in your possessions. A 401(k) plan is a common account that should be protected from the bankruptcy creditors. Through the case of Patterson vs. Shumate, there is no limit to the amount that may be protected under this exemption as long as the plan or account is ERISA qualified (Employee Retirement Income Security Act of 1974). You will need to provide documentation proving the plan is ERISA qualified, such as a copy of the plan summary that includes the ERISA statement.
To obtain a loan from your 401(k) while in a Chapter 13 bankruptcy you must get the court’s permission. Your bankruptcy lawyer can do so by filing a Motion to Incur Debt. You would have to appear in front of the judge to get the judge’s permission. The judge will usually grant permission to pull from your 401(k) loan if you can provide a good reason for why you need the money. This, typically, needs to be something that is a necessity, not just a “want”. An example of this may be if you need money to purchase a vehicle after another one has broken down or if you need money to pay medical expenses that were incurred after the filing of the bankruptcy. Discuss this with your bankruptcy lawyer before starting the loan withdrawal process.
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Your mailing address is very important while you are in an active bankruptcy. Your attorney as well as the Trustee and/or Bankruptcy Court, send you important documents during your bankruptcy for a number of reasons, such as updating you on the status of your case or sending you your final decree which lets you know your case is closed.
In a Chapter 7 bankruptcy, from your filing date, you will receive your Final Decree within 4 to 6 months. As long as you have a mailing address that will remain the same during that time period, there should not be an issue. However, in a Chapter 13 bankruptcy, it will be 3 to 5 years before you receive your final decree. Therefore, it may be more likely for you to switch residences. You should notify your attorney of your updated address, so they may file a notice of address change with the bankruptcy court. This is important because it will ensure that you receive important and time sensitive information from the bankruptcy court.
Also, please be aware that if you are selling your home, you must request permission from the Bankruptcy Court to transfer that property while in an active bankruptcy, regardless of which chapter you file.
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The short answer is yes. However, there is a bit of a process behind purchasing a vehicle in a Chapter 13. First, your budget needs to be reviewed. This requires your bankruptcy attorney to review your income and your expenses to make sure you can afford to have an extra payment in your budget. Once it has been established that you are able to make a new car payment, a request to purchase a car must be made to the Bankruptcy Court. This is done through a process called a Motion to Incur Debt.
After your bankruptcy lawyer files the Motion to Incur Debt the bankruptcy judge will evaluate your situation to make sure that you can make the monthly payments without any problems. If there are problems, they will deny your ability to get financing for the vehicle. It is the judge’s job to make sure that you do not incur new debt and end up in the same situation that caused you to file bankruptcy in the first place.
What if you plan to buy a car without financing? You will still need to obtain permission; additionally, you will need to explain where the lump sum of money came from. It is always best to discuss this possibility with your attorney first to remove any possible issues that may arise from the access of extra money.
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