If you have received a discharge in a previous Chapter 7 bankruptcy, you are not eligible to file another Chapter 7 bankruptcy for eight years. The eligibility is eight years from the date of the filing of the first bankruptcy. If you have received a discharge in a previous Chapter 13 bankruptcy, you are generally not eligible to file a Chapter 7 bankruptcy for six years; however, there are some exceptions. You can refer to Title 11, Section 727 of the Federal Bankruptcy Code for the exceptions.
Damon Duncanhttps://www.duncanlawonline.com/wp-content/uploads/2015/01/duncanlawlogo.pngDamon Duncan2010-06-26 21:57:052015-04-11 23:04:16How Often Can A Chapter 7 Bankruptcy Be Filed?
Let us begin by giving a brief over view of the term cash advance. Many of us have heard the term but don’t know exactly what it means. A cash advance is often referred to as a payday loan. A cash advance can be obtained through a credit card or charge card issuer. It is seemingly a loan taken out against a credit card that you already have. Those with a credit card and cash advance service are able to receive cash from an ATM, bank, or some other financial institution. This really depends on the type of credit card and whether their cash advance services are available. Many people often confuse the advance as free money, but it is certainly not. This has to be paid back to the creditor and one of the biggest challenges is the high interest. The interest on a cash advance tends to be much higher when obtaining it through a credit card. You are not able to take out a cash advance for the full available balance on the credit card. However, this doesn’t mean that you aren’t going to be charged high amounts of interest on the loan. This will cause the monthly payments on the credit card to eventually increase.
Generally speaking, cash advances made within 90 days of filing bankruptcy are not going to be wiped out. Cash advances within 90 days of filing not only pose a problem with court, but also the creditor, who could potentially seek an adversary proceeding.
Cash Advances and Chapter 13 Bankruptcy
Keep in mind, the Chapter 13 bankruptcy is also recognized as a repayment plan. In a Chapter 13 bankruptcy it isn’t likely that a creditor will file an adversary proceeding against you because of a cash advance. However, this doesn’t mean that a creditor can’t file an adversary proceeding if they choose to. The creditor may also have the option of objecting to confirmation of your Chapter 13 Plan, if your Plan does not to propose to repay the amount of the advance back to the creditor with whom you took the cash advance. This is obviously up to the creditor who the cash advance was taken out with. The most important thing to remember is generally speaking, cash advances within 90 days of filing may pose a problem with the bankruptcy court. For example, if you decide to file a Chapter 13 bankruptcy and have taken out a cash advance within 90 days preceding the filing, the court is going to look for any fraudulent behavior. If you took out a cash advance knowing that you were going to file bankruptcy, then you are going to have a tough time arguing that it was not fraudulent behavior. If it’s possible to wait, then the longer you wait after having taken out a cash advance to file, the better. Many people facing tough financial situations are already feeling stressed, there is no need to add something else to the mix.
Cash Advances and Chapter 7 Bankruptcy
Since a Chapter 7 bankruptcy is different than a Chapter 13, and not a repayment plan, we will focus on a couple of different points. If the cash advance was made within 90 days of filing, the debt is most likely not going to be wiped out in a Chapter 7 bankruptcy. First of all, it looks suspicious to the courts when a recent cash advance was made before the filing. This may also pose a problem with the creditor who may decide to pursue an adversary proceeding for a cash advance that was made around the same time as the filing of the bankruptcy. An adversary proceeding is also known as a lawsuit in bankruptcy court. If the cash advance was made well past the 90 days, then there is a possibility of the debt being wiped out. This would depend on a couple of things, timing and amount. A large cash advance taken out shortly before filing bankruptcy is obviously going to look suspicious. The courts are not only going to look at the amount, but also the timing between the actual withdrawal and filing of the bankruptcy. As mentioned above, the longer you are able to wait to file the bankruptcy, the better.
If you have any questions about any cash advances you have taken out in the last year, you should speak with your bankruptcy attorney. If you are contemplating filing bankruptcy, it is best not to take out any cash advances.
Damon Duncanhttps://www.duncanlawonline.com/wp-content/uploads/2015/01/duncanlawlogo.pngDamon Duncan2010-06-26 21:52:522015-04-11 23:04:16Can I Get A Cash Advance Before I File Bankruptcy?
If you purchased your car more than 910 days (2 ½ years) prior to the date you filed Chapter 13 bankruptcy, you may be able to reduce that amount owed on the car to the value of the car based on National Automobile Dealers Association (NADA), plus a portion of the amount owed greater than the value. This is known as a cramdown. Use this time duration calculator to see if you have had your vehicle more than 910 days.
Damon Duncanhttps://www.duncanlawonline.com/wp-content/uploads/2015/01/duncanlawlogo.pngDamon Duncan2010-06-26 21:48:112015-04-11 23:04:16Will Filing Chapter 13 Bankruptcy Reduce My Car Payments?
Fraudulent transfer of an asset in a Chapter 7 bankruptcy or a Chapter 13 bankruptcy usually occurs when a person knowingly transfers an asset – house, car, equipment, business, cash, stock, etc. – to another person or company to avoid losing the asset to a creditor or to the bankruptcy court. A fraudulent transfer can be reversed or voided by the bankruptcy court resulting in the loss of the asset after all. Any transfer of an asset prior to filing bankruptcy should be avoided, since it will most likely be scrutinized by the bankruptcy court. The transfer of an asset to an insider, such as a relative or a business partner, will be scrutinized even more
Damon Duncanhttps://www.duncanlawonline.com/wp-content/uploads/2015/01/duncanlawlogo.pngDamon Duncan2010-06-26 21:43:232015-04-11 23:04:16Danger of Fraudulent Transfers in a Bankrutpcy
Yes, you can file for bankruptcy if you have recently sold a home. You will, however, need to wait at least 90 days. You may even have to wait a bit longer depending on how much money you had received from the sale. Make sure that you discuss this with your attorney. He or she will probably ask to see a copy of the closing papers so that they can determine how long you may need to wait before filing. Usually the court will not have a problem with you selling your home so recently as long as it was not sold to an insider, such as a family member.
Also be prepared that the bankruptcy Trustee may want to know what you did with the excess money that you received from the sale of your home. Be prepared to be able to explain this. It is a good idea to keep excellent record of where this money goes. Keeping copies of bank statements and cancelled checks will help with this. The court will want to be able to see that the money was used for necessary expenses, such as food, and not on something such as a vacation or other luxury items.
If you try to file bankruptcy immediately after selling your home and you have a large amount of money in the bank, used the money to purchase non-necessities or gave it to family then you may not be able to file for bankruptcy. As always, it’s in your best bet to contact a bankruptcy lawyer in your area to see what they recommend.
Damon Duncanhttps://www.duncanlawonline.com/wp-content/uploads/2015/01/duncanlawlogo.pngDamon Duncan2010-06-26 21:40:472015-04-11 23:04:16Can I File Bankruptcy If I Recently Sold My House?
Generally speaking, bankruptcy will not stop an eviction. In 2005, the bankruptcy laws were changed under the Bankruptcy Abuse Prevention Consumer Protection Act. This act prevents bankruptcy from stopping evictions on rental properties, which are properties that are being leased. In other words, if you are facing an eviction from an apartment or rental property bankruptcy cannot stop that eviction process. However, bankruptcy may still be an option for you to consider. Depending upon your landlord, they may come after you for the past due rent. They could sue you and get a judgment against you on the amount past due. Filing for bankruptcy will wipe out the amount owed to your landlord and stop them from getting the judgment or wipe out the judgment if they had already obtained it.
What if you have a house that is facing a foreclosure though? If you have been given a notice of sale or foreclosure on your home, then bankruptcy may be an option to consider. Here is more information on how bankruptcy can stop the foreclosure of a home. Be sure to contact an attorney as soon as possible to explore your different options.
Damon Duncanhttps://www.duncanlawonline.com/wp-content/uploads/2015/01/duncanlawlogo.pngDamon Duncan2010-06-26 21:37:162015-04-11 23:04:16Will Bankruptcy Stop An Eviction from an Apartment or Rental House?
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) is the new bankruptcy laws enacted by Congress and effective October 17, 2005. Although there are many changes within the act, the most talked about is the Means Test. To reduce the number of people filing Chapter 7 bankruptcy, the new bankruptcy laws are established to look at the household income for the person filing bankruptcy compared to the median household income within the state the person resides. For example, if a woman is married with two children, and she needs to file bankruptcy after the loss of her job, the new bankruptcy laws will look at the median household income for a family of four within the state she resides. If the family’s income exceeds the median for the state, a Means Test must be performed to determine if she qualifies to file Chapter 7. The Means Test is a fairly complex calculation of household income from the six months prior to the month of filing bankruptcy less some of the debtors actual expenses along with allowed deduction established along IRS guidelines. Again, the purpose of the new law was to reduce the ease of filing Chapter 7 bankruptcy. In many cases, if you do not qualify for Chapter 7 bankruptcy, you may qualify for Chapter 13 bankruptcy and still pay only a portion of your unsecured debts – credit cards, medical bill, personal loans, etc.
Damon Duncanhttps://www.duncanlawonline.com/wp-content/uploads/2015/01/duncanlawlogo.pngDamon Duncan2010-06-26 21:25:452015-04-11 23:04:17How Did Bankruptcy Change In 2005 With the New Laws?
Duncan Law was founded by Terry Duncan in Charlotte, North Carolina, in 1996. At that time Terry decided to create a law firm that was dedicated to helping those who are facing tough times. In 2009, Damon Duncan and Melissa Duncan joined the firm in the Greensboro, North Carolina office. Together, this family is here to serve you. We know that too often bad things happen to good people. We are here to help.
Duncan Law was founded by attorney Terry Duncan in Charlotte, North Carolina, in 1996. At that time Terry decided to create a law firm that was dedicated to helping those who are facing tough times. In 2009, attorney Damon Duncan and attorney Melissa Duncan joined the law firm in the Greensboro, North Carolina office. Together, this family is here to serve you. We know that too often bad things happen to good people. We are here to help.
Damon Duncanhttps://www.duncanlawonline.com/wp-content/uploads/2015/01/duncanlawlogo.pngDamon Duncan2010-06-26 20:57:252015-04-11 23:04:17Why Should I Choose Duncan Law For Bankruptcy?
The bankruptcy code allows for only once spouse to file for bankruptcy. However, at times, it may be wise for both spouses to file to ensure that your assets are completely protected and to make sure that as much debt is wiped out so you can create your fresh financial start for your family.
Damon Duncanhttps://www.duncanlawonline.com/wp-content/uploads/2015/01/duncanlawlogo.pngDamon Duncan2010-06-26 20:53:302019-01-30 15:32:14Do My Spouse and I Have to File Bankruptcy Together?
