“U” IS FOR UNLISTED CREDITORS

By Christopher C. Carr, Esq. Chester County bankruptcy attorney. Tel: 610-380-7969 Email: cccarresq@aol.com Web: westchesterbankruptcyattorney.org

U by StriaricNLISTED CREDITORS IN A “NO ASSET” CHAPTER 7 BANKRUPTCY CASE

You filed your “no asset” chapter 7 bankruptcy and thought you obtained a discharge from all your past debts.  But you unintentionally omitted a trade creditor from your petition and that creditor has been calling daily demanding payment in full and threatening suit, claiming it was never notified of the bankruptcy.  You are wondering now whether you must pay the claim and if not what you can do to stop the calls and demands.

  • DO NOT PAY OR AGREE TO PAY THIS DEBT WITHOUT FIRST CONSULTING WITH LEGAL COUNSEL

Most jurisdictions have adopted a “no harm , no foul” rule , whereby  a debt will be discharged in the bankruptcy case, even if the debt is not listed in the bankruptcy and the creditor is not notified of the bankruptcy, if the following apply:

  1. The Court never set a deadline for creditors to file a proof of claim. This is the case in virtually all no asset cases.   In a no asset case the unlisted creditor is not harmed, because there was no distribution for the creditor to receive.  However, if the court did set a deadline for filing proofs of claim, then the obligation to the creditor is not discharged if the creditor was not listed in the bankruptcy and did not otherwise receive notice of the bankruptcy in time to file a proof of claim.  It is the setting of a deadline for the filing of a proof of claim that is the key.  Ironically, it does not matter whether the creditor would not have received any distribution from the trustee on the claim. Nor does it matter that no distribution was made by the trustee to any creditors. It is also irrelevant that a distribution was made by the trustee, but the omitted creditor would not have been paid anything even if a proof of claim had been timely filed, for example  if the distribution all went towards administrative costs and priority claims. In any of these instances, the debt survives the discharge.
  2. The creditor does not have the type of claim for which the creditor could have filed a lawsuit in the bankruptcy court to have the debt declared not discharged, such as for fraud or intentional injury.
  3. The creditor does not have the type of claim which is never discharged in bankruptcy, such as child support, spousal maintenance, most taxes, etc.
  • DEALING WITH THE OMITTED CREDITOR:

The biggest difficulty is often convincing an omitted creditor that its claim was discharged and that the post-discharge injunction of 11 USC §524 prohibits collection efforts. Typically, this will require the assistance of competent counsel.  At a minimum the creditor should be sent a legal letter advising of the law and the applicable court rulings in your jurisdiction.

The bankruptcy courts will not normally allow a closed case to be reopened for the purpose of listing an omitted creditor, since the matter  is considered moot,  butthe debtor may re-open the bankruptcy and request sanctions against a creditor that refused to stop collection efforts, in violation of 11 USC §524.   In addition, since the creditor is attempting to collect on an invalid debt, the harassment may also constitute one or more violations of the Fair Debt Collection Practices Act and/or applicable state consumer protection, especially if it continues after receipt of the lawyer’s letter.Again however, this is a matter you should bring up with your local counsel.

Law Offices of Christopher C. Carr, MBA,  P.C., is a quality bankruptcy and debt relief practice, located in  Valley Township, west of Coatesville, Pennsylvania, where Attorney Christopher Carr, a Chester County bankruptcy attorney, who has over 30 years if diversified ;egal experience, concentrates on serving the residents of and businesses located within Western Chester County and Eastern Lancaster County, Pennsylvania, including the communities in and around Atglen, Bird in Hand, Caln, Christiana, Coatesville, Downingtown, Eagle, Exton, Fallowfield Gap, Honeybrook, Lancaster, Lincoln University, Modena, New Holland, Parkesburg, Paradise, Ronks, Sadsbury, Thorndale, Valley Township, Wagontown & West Chester,  Pennsylvania. If you reside or do business in the area and need assistance with a legal issue, please call Mr. Carr at (610)380-7969 or write him at cccarresq@aol.com today!  


I also provide Mortgage Modification Services.

Other Attorneys Blogging on the Letter U Include:

U.S. Trustee Omaha and Lincoln, Nebraska Bankruptcy Attorney, Ryan D. Caldwell http://bankruptcyblog.caldwell-lawfirm.com/2011/11/23/bankruptcy-alphabet-u-is-for-u-s-trustee.aspx Unauthorized Practice of Law Cleveland Bankruptcy Attorney Bill Balena http://ohiobankruptcysource.com/?p=2601 Underwater Jay Fleischman, bankruptcy attorney in New York City http://www.consumerhelpcentral.com/bankruptcy-alphabet-underwater/ Underwater Metro Richmond Consumer and Bankruptcy Attorney, Mitchell Goldstein http://www.morethanbankruptcy.com/u-underwater.html United States Trustee Maui Bankruptcy Attorney, Stuart Ing http://www.bankruptcyhi.com/2012/02/u-is-for-the-united-states-trustee/ Unsecured Cathy Moran, Bay Area Bankruptcy Lawyer http://www.bankruptcysoapbox.com/bankruptcy-alphabet-2/ Upside-Down Vehicles Wisconsin Bankruptcy Lawyer, Bret Nason http://nasonlawfirm.com/archives/962 Unlisted Asset Allen Park, Michigan bankruptcy lawyer, Christopher McAvoy http://downriverbankruptcy.com/unlisted-undervalued-assets-bankruptcy/#axzz1uLBcDSOL Unsecured Creditor Livonia Bankruptcy Attorney, Peter Behrmann http://www.livoniamichiganbankruptcy.com/u-is-for-unsecured-creditor-in-bankruptcy/

 

Law Offices of Christopher C. Carr, MBA,  P.C., is a quality Chester County Bankruptcy Practice, located in  Valley Township, west of Coatesville, Pennsylvania, where Attorney Carr, who has over 30 years if diversified experience as an attorney, concentrates his practice on serving the residents of and businesses located within Western Chester County and Eastern Lancaster County, Pennsylvania, including the communities in and around Atglen, Bird in Hand, Caln, Christiana, Coatesville, Downingtown, Eagle, Exton, Fallowfield Gap, Honeybrook, Lancaster, Lincoln University, Modena, New Holland, Parkesburg, Paradise, Ronks, Sadsbury, Thorndale, Valley Township, Wagontown & West Chester,  Pennsylvania. If you reside or do business in the area and need assistance with a legal issue, please call Mr. Carr at (610)380-7969 or write him at cccarresq@aol.com today!


©Christopher C. Carr, Attorney at Law, 2012, All Rights Reserved.  See Disclaimers.

Photo by Striatric

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K is for “Knight in Shining Armor”

Knight1 form Pranavian

By Christopher C. Carr, Esq. Chester County bankruptcy attorney. Tel: 610-380-7969 Email: cccarresq@aol.com Web: westchesterbankruptcyattorney.org

  It is simply AMAZING what a good bankruptcy lawyer can accomplish for you. In perhaps no other sector of the law are we attorneys handed a SWORD with which we can in a single blow, release the chains that bind our clients to the downward spiral of debt and a SHIELD with which to protect our clients against their predators (oops, I meant creditors).

Just look at what this mighty power we weild allows competent and compassionate counsel to do for you:

Eliminate Debt:

Credit Cards

Medical Bills

Liens and Judgments

Retain Assets:

Your Home

Retirement Accounts

Your Vehicles

Stop/Prevent:

Foreclosure/Repossession

Wage Garnishments

Creditor Harassment

Utility Shut Offs

Loss of Rental Unit

Reduce/Restructure/Strip Off:

Second & Beyond Mortgages

Late Model Vehicle Loans

& even retain for you or restore to you your very liberty, they even sometimes can keep you out of jail.

But BEWARE: of the novice, unskilled lawyer or the cut rate lawyer who “only does Chapter 7 bankruptcies”.  These types, through ignorance or lack of concern, will simply not be equipped to wield that sword and shield to fashion the relief that you need.  You need an EXPERIENCED FULL SERVICE CONSUMER BANKRUPTCY EXPERT to advise you and most importantly what your OPTIONS are and to help you to plan so that you can optimize your bankruptcy.

And where does this incredible power that we wield come from? Well, our forefathers, many of whom who had seen or even experienced firsthand the evils of the European debtor’s prisons, considered it a fundamental underlayment of the freedoms that we all enjoy that in times of need a “fresh start” could be obtained. So they instituted for all of the people of our great nation within the United States Constitution[1] the rights and protections of the bankruptcy clause!

Law Offices of Christopher C. Carr, MBA,  P.C., is a quality bankruptcy and debt relief practice, located in  Valley Township, west of Coatesville, Pennsylvania, where Attorney Christopher Carr, a Chester County bankruptcy attorney, who has over 30 years if diversified ;egal experience, concentrates on serving the residents of and businesses located within Western Chester County and Eastern Lancaster County, Pennsylvania, including the communities in and around Atglen, Bird in Hand, Caln, Christiana, Coatesville, Downingtown, Eagle, Exton, Fallowfield Gap, Honeybrook, Lancaster, Lincoln University, Modena, New Holland, Parkesburg, Paradise, Ronks, Sadsbury, Thorndale, Valley Township, Wagontown & West Chester,  Pennsylvania. If you reside or do business in the area and need assistance with a legal issue, please call Mr. Carr at (610)380-7969 or write him at cccarresq@aol.com today!  

I also provide Mortgage Modification Services.

Other Attorneys Blogging on the Letter K Include: See Comments Below.

©Christopher C. Carr, Attorney at Law, 2012, All Rights Reserved.  See Disclaimers.


[1] Article 1, Section 8, Clause 4

T in the bankruptcy Alphabet is for the Missing Tax Refund

By Christopher C. Carr, Esq. Chester County bankruptcy attorney.

Tel: 610-380-7969 Email: cccarresq@aol.com Web: westchesterbankruptcyattorney.org

T 5309561982_8b35ba89ec_t[1] So you filed a Chapter 7 bankruptcy and then filed for a tax refund for the same year. YOUR REFUND NEVER ARRIVES. Surprise Surprise! The bankruptcy trustee had it directed to him. A trustee’s primarily job is to represent your unsecured creditors and he/she can submit a request for your federal tax refund on behalf of the bankruptcy estate and distribute the funds to them.

Think about it, when you file for bankruptcy what is the no. 1 thing the trustee is interested in?  Your INCOME of course. And what is a tax refund really but INCOME that you let Uncle Sam hold for you (interest free). The trustee under most circumstances is entitled to it.

Could this have been avoided? The answer is most certainly “yes” with a little planning. Unless an emergency bankruptcy has to be filed to save a home from Sheriff’s sale or a car from repossession, most clients have a good deal of time between the time they come in to meet with me for the first time and filing. A good bankruptcy lawyer will examine your most recent tax return to see if your refund is too high. If so, I will advise you to immediately reduce your payroll tax deduction (by increasing your exemptions on your W-4 withholding form which you have the right to do at any time.) This will put money in your pocket NOW and you can likely show a tax refund small enough so that your trustee will not even bother with it.

Law Offices of Christopher C. Carr, MBA,  P.C., is a quality bankruptcy and debt relief practice, located in  Valley Township, west of Coatesville, Pennsylvania, where Attorney Christopher Carr, a Chester County bankruptcy attorney, who has over 30 years if diversified ;egal experience, concentrates on serving the residents of and businesses located within Western Chester County and Eastern Lancaster County, Pennsylvania, including the communities in and around Atglen, Bird in Hand, Caln, Christiana, Coatesville, Downingtown, Eagle, Exton, Fallowfield Gap, Honeybrook, Lancaster, Lincoln University, Modena, New Holland, Parkesburg, Paradise, Ronks, Sadsbury, Thorndale, Valley Township, Wagontown & West Chester,  Pennsylvania. If you reside or do business in the area and need assistance with a legal issue, please call Mr. Carr at (610)380-7969 or write him at cccarresq@aol.com today!  

I also provide Mortgage Modification Services.

Other Attorneys Blogging on the Letter T  Include: .

  1. Omaha and      Lincoln, Nebraska Bankruptcy Attorney, Ryan D. Caldwell T is for Transfers.
  2. Bankruptcy      Lawyer Jay S. Fleischman T is for Trustee.
  3. Kauai      Bankruptcy Attorney, Stuart T. Ing T is for Taxes.
  4. San Mateo      County Bankruptcy Lawyer Cathy Moran T is for Tension.
  5. Metro      Richmond Consumer and Bankruptcy Attorney Mitchell Goldstein T is for Thirteen.

©Christopher C. Carr, Attorney at Law, 2012, All Rights Reserved. See Disclaimers.

Photo by Jetheriot

“R” in Bankruptcy is for Rental vs. Chapter 13 Home Retention: A Tax Benefit Analysis

  r^36 by mag3737 is for Rental vs. Home Retention

By Christopher C. Carr, Esq. Chester County bankruptcy attorney. Tel: 610-380-7969 Email: cccarresq@aol.com Web: westchesterbankruptcyattorney.org

Deciding whether to keep your home or not  is not always a simple “Rent/bankruptcy vs. “Keep/no bankruptcy” decision: if you have regular income  and otherwise are eligible to file a Chapter 13 Bankruptcy you should also consider keeping the property in a 13. In a  13 you still have to pay principal and interest and escrows, if any but the 13 Plan, once confirmed by the Court, will allow you to hang on to this most precious of assets and pay the arrears in the plan over a 3-5 year period instead of selling at a loss and in many cases owing the deficiency to the lender.

The decision is not an easy one and there are almost always emotional ties to a home as well.  But one thing is for certain: you have to pay taxes and anything that saves you a dollar in taxes is like a dollar in your pocket right?

Some lawyers and others will, in “knee jerk” fashion, tell you that since your house is under water you should short sell and “find another place to rent”.  However, any analysis which does not “add back” into the equation the net present value of the tax advantages of home ownership at your marginal tax rate is telling you only half the story.  Renting has little or no tax advantage, mortgage payments do. (Same for state and local taxes that you pay or are escrowed by your lender)  Let’s say your mortgage is $950 a month you are in the 25% bracket for example and your property taxes are $3,600 a year or $300 a month, then the ownership “savings”  is computed as follows:  ($950 + $300) x .25 or $312.50. Another way to say it is that the government is subsidizing 25% of your ownership cost under these assumptions (not quite because as I explain below, we also have to consider insurance in the computation).

The pragmatic way to analyze this as they taught us in MBA School, is to compute  your net after tax cost of home ownership and ask yourself the question: CAN YOU REALLY FIND EQUIVALENT RENTAL HOUSING FOR A PRICE AS GOOD  or BETTER THAN YOU ARE PAYING NOW?  Let’s look again at the example I have been exploring above.  To get the full cost of ownership you have to add in home insurance (which is not tax deductible). Let’s say that is another $75 a month. So your fully loaded cost (assuming you live in a place with no association fees) is (950 + 300 + 75)-312.50 = $1012.50.  Note when you figure in the tax savings in it brings the overall cost of home ownership down to only a few dollars more than the amount of your  mortgage payment.  So ask yourself, using your actual costs and tax bracket instead, can I find adequate rental housing for that net figure (in my example $1012.50 a month)?  If not, you might want to consider a Chapter 13 to allow you to keep your current residence.

Of course, the above analysis while a good starting point, it is just one of the factors to be considered. A couple of examples: if you can strip out your second mortgage in a Chapter 13 because your home is completely under water as to the second (meaning that there is not enough equity coverage for the second and any homestead or other exemptions that are applicable in your jurisdiction), that will further reduce your ownership costs by the amount of the monthly payment you make on the second now. And if you can get rid of your credit card debt to boot, you are that much more ahead (assuming you are still paying on them).  In a 13 keep decision, these things also have to be weighed against the rental advantages. Also consider any costs of sale and the effects of the deficiency judgment (see above) that you might incur!  See my article in this series called: J is for “Judgment” Lien and its Impact upon Homeowners for more information.

One factor that may seem to favor renting is the negative impact that a decision to go bankrupt will have on your credit.  Financial advisers warn that foreclosure will leave a “strong negative” on a credit report for as long as seven years from the date of discharge (which can be longer than 5 years from the date of filing in a Chapter 13), though the impact on a borrower’s rating declines over time. But remember that if you are far behind on you payments and/or your credit cards your credit has already been affected… and, a good bankruptcy lawyer can show you ways to rebuild credit even while in a Chapter 13 bankruptcy plan period (3-5 years).

Whatever your decision may be, I wish you luck.

Law Offices of Christopher C. Carr, MBA,  P.C., is a quality bankruptcy and debt relief practice, located in  Valley Township, west of Coatesville, Pennsylvania, where Attorney Christopher Carr, a Chester County bankruptcy attorney, who has over 30 years if diversified ;egal experience, concentrates on serving the residents of and businesses located within Western Chester County and Eastern Lancaster County, Pennsylvania, including the communities in and around Atglen, Bird in Hand, Caln, Christiana, Coatesville, Downingtown, Eagle, Exton, Fallowfield Gap, Honeybrook, Lancaster, Lincoln University, Modena, New Holland, Parkesburg, Paradise, Ronks, Sadsbury, Thorndale, Valley Township, Wagontown & West Chester,  Pennsylvania. If you reside or do business in the area and need assistance with a legal issue, please call Mr. Carr at (610)380-7969 or write him at cccarresq@aol.com today!  

I also provide Mortgage Modification Services.

Other Attorneys Blogging on the Letter R Include: .

  • New York Bankruptcy Lawyer, Jay S. Fleischman on R is for Redemptions.
  • Omaha and Lincoln, Nebraska Bankruptcy Attorney, Ryan D. Caldwell on R is for Reaffirmation Agreements
  • Bay Area Bankruptcy Lawyer Cathy Moran on Retirement.
  • Colorado Springs Bankruptcy Lawyer Bob Doig on Repossession.
  • Kona Bankruptcy Lawyer, Stuart T. Ing also on Repossession

©Christopher C. Carr, Attorney at Law, 2012, All Rights Reserved.  See Disclaimers.

Photo by mag3737.