Tag Archives: Bankruptcy

Bankruptcy: My mother has is mentally incapacitated, can she still file for bankruptcy? Yes.

It is possible for there to be a situation where a parent needs to file for bankruptcy, but has severe dementia, and therefore mentally incapacitated.

Dementia can come on gradually, limiting their ability to make wise financial decisions.  By the time you realize their mental health is affecting their finances, it could be too late. So how do they voluntarily file for bankruptcy?

The first step would be to have someone appointed to represent them. The most common approach is going through Probate Court and having a family member appointed Guardian and Conservator.  Although there is much debate whether having a valid Power of Attorney would be sufficient, having one appointed by the courts is as close to iron-clad as one can get. Then, the individual appointed would work closely with their bankruptcy attorney to draft the requisite paperwork, and would then sign on behalf of the incapacitated individual. Additionally, you will want to attach the Guardianship and Conservatorship paperwork attached to the petition.

Additionally, you can motion to the Court for a waiver for the Credit Counseling Course. You will want to file this concurrently with your Petition to avoid having a MTD filed by the U.S. Trustee’s Office.

If you or a family member are considering filing for a Chapter 7 or Chapter 13 Bankruptcy, you will want an experienced attorney that has already faced virtually any situation that you can throw at them. Give me a call today at (616) 920-0555.

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How Often Can I File For Bankruptcy?

The answer really depends on which Chapter of Bankruptcy you previously filed (Chapter 7 and Chapter 13), and which Chapter you wish to file. Additionally, these restrictions only apply if you received a discharge in your previous filing.

Ch 13 -> Ch 13: You must wait at least 2 years after the filing of your initial case before you may refile and receive another discharge. Fortunately, more than likely you were in the first case for at least the 3 year minimum, so theoretically you could refile the day after you receive your discharge.

Ch 7 -> Ch 13: You must wait at least 4 years after the filing of your initial case before you may refile and receive another discharge.

Ch 13 -> Ch 7: You must wait at least 6 years after the filing of your initial case before you may refile and receive another discharge. There is an exception to this 6 year waiting period in instances where your initial Ch 13 was a 100% plan or where it was at least a 70% plan and proposed in good faith and your best efforts.

Ch 7 -> Ch 7: You must wait at least 8 years after the filing of your initial case before you may refile and receive another discharge.

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Can a Chapter 7 Bankruptcy status stop my foreclosure?

Chapter 7 bankruptcy cannot permanently stop your foreclosure, but it is helpful in other ways that can help you manage a foreclosure you are facing.

Chapter 7 bankruptcy can delay your foreclosure – When you file for bankruptcy you gain an automatic stay. Fortunately, automatic stays apply to foreclosures. So then, throughout the period of your bankruptcy, a creditor cannot pursue a foreclosure. However, after your bankruptcy is completed, he/she can proceed with a foreclosure. In most cases, the creditor can request for an automatic stay to be lifted before your bankruptcy is over. The creditor would most likely have this granted by the court if he/she is able to prove they are the legal holder of a the mortgage or deed of trust to your house.

If your home is facing issues that cannot be resolved in the 3-4 months that your Chapter 7 is pending, you may want to consider filing Chapter 13 Bankruptcy to Stop the Foreclosure.

Give us a call at (616) 920-0555, for information on our $999.00 Flat-Fee Bankruptcy Service where you can get started with only $500.00 down.

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Retaining Nonexempt Property in Chapter 7 Cases

In consumer chapter 7 bankruptcies, although the trustee pretty clearly has a right to take possession of totally nonexempt property prior to the 341 meeting of creditors, this rarely occurs. These non-exempt issues can be resolved in one of three fashions.: (1) Turn the property over to the trustee; (2) Buy the non-exempt property back from the trustee; (3) file a Chapter 13, perform a liquidation analysis and account for that L.A. in your plan.

In the second option, the client would only need to buy back the non-exempt portion. For example, the debtor’s automobile may be worth $1,000 more than the amount which can be exempted. In these circumstances, terms can be arranged for a payment to the trustee in lieu of turning over the car. As long as the case will not be delayed, the trustee should be willing to accept payment in installments.

Give us a call at (616) 920-0555 for information on our $999.00 Flat-Fee Bankruptcy Service where you can get started with only $500.00 down.

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