1When choosing a Bankruptcy Attorney, What Steps Should I Take?
Step 1: Do some research about the attorneys you are considering, just as you would do if you were choosing an orthopedic surgeon or another professional with a specialty. Look for peer-reviews and recognition from sites such as super lawyers, Avvo, and Martindale Hubble.
Step 2: Bankruptcy is a specific and unique area of the law and requires an attorney with experience with both Chapter 7 and Chapter 13 bankruptcies, the two most common types of consumer bankruptcies. Make sure the attorney you choose has sufficient experience in this practice area.
Step 3: Consider alternatives to bankruptcy. Bankruptcy may not be the only solution to your debt problems and an ethical bankruptcy attorney will explore alternative solutions for your unique circumstances.
Step 4: Look for an attorney who offers a free consultation and set up an appointment to meet in person. It’s important for you to be able to gauge their professionalism, communication style, enthusiasm for their profession and their desire to help you.
Step 5: Find out what the how much the retainer will be. A retainer is the payment a client makes to his or her attorney before work can begin on his or her case. The fee is placed in a trust account and as your case progresses the attorney draws from the account.
2What documents should I bring to my first appointment?
Please bring the following: A list of your creditors and the balance due on each account, a list of your monthly expenses, and a copy of any documents that pertain to your situation (i.e. Summons, Complaint, Notice of Judgment, etc.)
3Will my creditors stop harassing me?
Yes. When you file for bankruptcy relief there is an “automatic stay” that is immediately initiated. This automatic stay arises out of 11 USC §362 of the Bankruptcy Code and immediately “freezes” all collection efforts against you. Therefore, upon filing for bankruptcy, creditors cannot continue in their pending lawsuits against you without Bankruptcy Court approval, creditors can no longer contact you regarding your debt (by mail, over the phone, or in person), and all other collection efforts also cease.
4Which Debts Will I Still Owe After Bankruptcy?
When your bankruptcy is completed, many of your debts are “discharged.” This means they are canceled and you are no longer legally obligated to pay them. The discharge only applies to debts that arose before the date you filed.
5Are there any debts that cannot be discharged?
. Certain types of debts are NOT discharged in bankruptcy. The following debts that generally may not be cancelled by bankruptcy:
- Most taxes
- Child support
- Most student loans
- Money borrowed by fraud or false pretenses
6What is the automatic stay?
This is an injunction that goes into effect automatically upon the filing of a bankruptcy. It strictly prohibits the commencement or continuation of any acts to collect on a debt that arose prior to filing the bankruptcy. This includes enforcement of judgments, creating or perfecting liens, and many other actions. (It does not apply to collecting alimony maintenance and support).
7Can I still try to collect on a judgment after the debtor files bankruptcy?
No. However, you may have rights to pursue in the bankruptcy depending on what chapter was filed and whether you are secured by any of the debtor’s property.
8I’m an unsecured creditor. How do I make sure the debtor is paying everything he should or that he has included all his assets?
This depends on what chapter is filed and how much you want to spend investigating everything. The bankruptcy papers that are filed may be obtained from the clerk of the court. You can review these papers to see if anything seems inaccurate to you. You may also obtain court approval to take the debtor’s deposition if you wish to inquire in more detail as to the debtor’s assets and debts.
9I am in the middle of a lawsuit when the defendant files bankruptcy. What happens now?
The lawsuit must not proceed unless and until you obtain permission from the bankruptcy court. There may or may not be reasons for doing this (such as to determine, i.e. liquidate, the amount that is owed to you).
10If I was not listed in the bankruptcy and didn’t receive notice, can my debt still be discharged?
Generally, a debt that is not listed or scheduled on a bankruptcy petition will not be discharged unless the creditor has notice or actual knowledge of the case in order to timely file a proof of claim. HOWEVER, if it is a no asset bankruptcy (meaning, no distribution would be made), most courts hold that the debt will be discharged even if it was not listed since there would be no distribution in any event. If you have grounds for objecting to the debtor’s discharge, that time period may be extended if you received no notice of the bankruptcy.
11If the debt is guaranteed by a third party, can I still pursue that party in collections during the debtor’s bankruptcy?
Generally, yes. But, in a chapter 13 the automatic stay also protects co-obligors on consumer debts. Under such circumstances, you would need to seek court approval to proceed against the third party.