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Debt can be a very destabilizing situation. Owing money without the proper resources or methods to pay it back can have a significant effect on a person's future financial abilities. The bankruptcy laws in the US were designed to offer the debtor a way out of crippling debt. However, the bankruptcy process can be confusing. In order to utilize the system properly, the process has to be followed meticulously with care.
Most debtors will need help filing a bankruptcy petition, and that's where a bankruptcy attorney comes in. A bankruptcy attorney will assist in filing the case and ensure that all legal matters related to the case are handled appropriately. The first major thing that a bankruptcy attorney will do is advise a debtor as to whether they should file bankruptcy in the first place. Once it is determined that the debtor does indeed need to file for bankruptcy, the attorney will file a petition on behalf of the debtor. From there the attorney will gather information about the debtor's financial history including assets, debts, income, tax information and other financial information. Once this process is begun, the court will appoint a person to oversee the administration of the case (the “Trustee”). Once the petition is properly filed, an automatic stay on most creditor’s collection efforts is put into effect.
There are several types of bankruptcy filings that are most commonly used and discussed amongst people within the legal industry. Some of those types of bankruptcy are for businesses that have heavy debts that they cannot pay. The others are bankruptcy filings for the individual who unfortunately has a lack of ability to pay back their debts.
Amongst the most common types of bankruptcy for individuals are Chapter 7 and Chapter 13 bankruptcy filings. Chapter 7 filings can usually be distinguished by situations that are mostly concerned with whether the debtor has significant assets that can be liquidated or sold off to satisfy the debt owed. Chapter 7 bankruptcy involves the selling off of assets by a bankruptcy trustee in order to pay outstanding debts. This process doesn’t necessarily mean a debtor will lose everything they own, there are exemptions and other mechanisms to keep certain assets. The process ends with all the debtor’s debts (except for things such as student loans and child support) being discharged.
Chapter 13 bankruptcy filings involve a situation where a debtor can keep some of their valuable assets instead of liquidation, and form a repayment plan to pay back a reduced form of their debt. It can be a good option for those who have the means to pay of a portion of their debt. It can also be the only bankruptcy that a debtor can file if the debtor can’t pass the means test. The means test is a calculation that considers a debtor’s disposable income after subtracting legally provided for expenses. Put shortly, if you have the “means” to pay a certain amount of debt after the acceptable expenses are subtracted, you cannot file for chapter 7.
Chapter 11 can be a vital tool for businesses as it would allow a business to reorganize itself in order to stay in business. Chapter 11 allows the debtor organization to restructure its debt and modify its payment obligations with the approval of the bankruptcy court.
The above discussion is just the tip of a very large iceberg that does nothing but get more complicated. While at first glance it may not seem that complicated, filing for bankruptcy can be very difficult and will most likely require the assistance of an attorney to complete properly.
Individual debtors are allowed to file bankruptcy without an attorney, but it may not be the ideal route to take. Filings need to include all the correct information and need to be filed in specific ways. The bankruptcy court is a separate distinct court system and has many filing rules. Filing the wrong case or the wrong paperwork will lead to a dismissal. If a debtor were to file the paperwork incorrectly, the debtor may then have to face creditors who, depending on the type of bankruptcy filed, may attempt to prevent you from filing.
There are also some pitfalls to filing bankruptcy. Filing a bankruptcy will have an adverse effect of your credit score. A bankruptcy can stay on your credit for up to 10 years and can affect your ability to get good interest rates on loans and credit cards after the bankruptcy. A debtor in a bankruptcy may have to wait years (depending on the mortgage lender) after bankruptcy to qualify for a mortgage. All of these issues need to be discussed with an attorney before a debtor files for bankruptcy.
Choosing the right bankruptcy attorney can be difficult. There is no shortage of commercials or advertisements that will tell you that you can “easily” find a bankruptcy attorney. It is true that many lawyers focus their practice on debt relief and bankruptcy. However, not all bankruptcy attorneys are equal. You are going to need a skilled attorney that knows the law and knows what is required of a person who files for bankruptcy. You will also need to speak with an attorney that is able to clearly explain whether you need to file bankruptcy at all. Some of the best bankruptcy advice lies in knowing when not to file and utilize some other form of debt relief to rectify the situation.
This step is mostly about first understanding your situation and then understanding how you want it to change. If you are in a position where you are being overwhelmed by debt you will need to get a grasp on what you want going further. If you don’t own much and just need help by gaining a somewhat clean slate, then your situation will vary differently from a person who has many assets and owes many types of creditors.
Most firms that hand bankruptcy in any way are likely to be able to help with any of the various types of bankruptcy, although if you are filing bankruptcy in relation to a business you may want to seek out a firm that specializes in Chapter 11 bankruptcy.
Also consider that if you file bankruptcy, other pending legal matters that you have, and your future financial situation such as your credit score, will be affected. Keeping this in mind, you may want to consider seeking firms that also have vast experience in handling other debt related issues.
The more research you do, the better. Start with a general search of bankruptcy attorneys in your geographical area. Look at their specialties or other types of law that they practice. Pay attention to what services they provide. Many of them provide services related to bankruptcy, like alternative debt relief measures, help with garnishments, and repossession. These additional services may be of help early on because unfortunately, your bankruptcy may lead to more financial issues before all is said and done. Try not to panic or feel worse about the process, just be aware that future financial problems are a possibility.
Once you get some names of attorneys in the area, you can then conduct more of a specific search to see all the information that is available on the attorney. Most attorney websites will feature some sort of background information like when the attorney passed the bar, how long the attorney has practiced bankruptcy law, and where the attorney went to law school.
Once you have narrowed down your search to attorney’s names, take the time to search out client reviews for that attorney. There are a few sites like AVVO that will allow a former or current client to place a review about an attorney's services. Martindale-Hubblle provides profiles that allow other attorneys in the area to rate the work of a specific attorney. So not only can you hear from clients but you can also see what an attorney’s peers think.
Next, you will want to do a sort of background check on the attorney. Its actually very easy to do. You only need the name of the attorney. Go to your state’s bar association website. The bar association is responsible for licensing of all attorneys within the state in addition to disciplining attorneys ethical misconduct. From there, you will be able to search for the profile of the attorneys you have narrowed your search down to. If there have been any ethical issues such as fraud or malpractice, it will be in this section.
While most attorney’s files will offer no issues, it still does not hurt to check. If an attorney had many major ethical complaints against them, it would be unlikely that they were currently eligible to practice law. You will want to know that you have an ethical and honest attorney on your side, searching their bar history will only ease any concerns you may have.
The last step in the process is actually making a decision on an attorney and scheduling an appointment. Don’t feel rushed or that there is something wrong with talking to multiple attorneys. In a way, its kind of like getting a second opinion from a doctor or a mechanic, it may be good to good to hear different opinions on your situation. It also may be comforting to hear the same thing from multiple attorneys; it lets you know that you have probably picked wisely.