Tag Archives: debt collectors

Newly Discovered Creditors

Newly Discovered Creditors

Newly Discovered Creditors – Sometimes, after your bankruptcy case has closed, you discover that you inadvertently left off a creditor on your schedule.  (Newly Discovered Creditors) What happens next?  If your case is still open you can amend your schedules adding the creditor.  But what happens if you don’t discover the creditor until after your bankruptcy closes?  It happens all the time, you lose track of a creditor.  The chances are great that the debt will still be considered discharged.

If your case is a no-asset case (meaning all your property was exempt), the debt is considered discharged unless by leaving out the Creditor , the Creditor lost the opportunity to contest the discharge on the ground that the debt was caused by a fraudulent or embezzling conduct, or by a willful and malicious act (such as assault).  It is generally possible to reopen the bankruptcy and let the bankruptcy Judge rule on whether the debt is, in fact, dischargeable.

If your case is an asset case (meaning some of your property was distributed to the unsecured creditors), the answer is more difficult and you should contact a knowledgeable attorney.  Your nonexempt assets were already distributed to your other unsecured creditors, so the omitted Creditor would be unfairly discriminated against if the debt was discharged.

If you have left off a creditor on your bankruptcy petition, and the newly discovered creditors debt was a large one you may want to discuss with a lawyer re-opening your case.

Newly Discovered Creditors – For more information about Bankruptcy Laws – and what happens if you leave creditors off of your schedules after your case closes, contact the Remboldt Law Firm at 404-348-4081. We offer a Free consultation with an attorney at the Remboldt Law Firm, LLC and an appointment can be scheduled by calling 404-348-4081.  We offer weekend and evening hours as well as payment plans.

Foreclosure Bankruptcy Laws

Foreclosure Bankruptcy LawsForeclosure Bankruptcy Laws – Foreclosures are initially stayed by a bankruptcy. But, the stay won’t apply if you filed another bankruptcy case within the previous two years and the court, in that proceeding, lifted the stay and allowed the lender to proceed with the foreclosure. Sadly, the law does not allow you to prevent a foreclosure by filing serial bankruptcies.

Even if this is your first bankruptcy, filing doesn’t stop time periods associated with the state’s foreclosure procedures from “running”. For example, once a homeowner receives advance notice of foreclosure, the home may not be sold until the notice period has ended. Filing bankruptcy won’t stop the notice period from elapsing. But the sale itself can’t happen while you are in bankruptcy unless the foreclosing party gets permission form the bankruptcy judge by filing a Motion to Lift Stay.

Even in circumstances where the stay would otherwise apply, you can lose its protection through your own actions. The stay may not protect you from collection efforts if 1) you had a bankruptcy case pending within the year before you file your current case, and the court refuses your request to allow the stay to kick in, or you don’t meet the deadlines set out in the bankruptcy code for dealing with property that serves as collateral for a secured debt.

If you are facing the threat of the foreclosure of your home you need to act quickly if you would like to use the Foreclosure Bankruptcy Laws to help you protect your home. An attorney can help you decide if foreclosure bankruptcy laws can help by discussing all your options.

For more information about the Foreclosure Bankruptcy Laws in GA – contact Cynthia Remboldt, at the Remboldt Law Firm at 404-348-4081. FREE consultations can be scheduled by calling 404-348-4081.  Evening and Weekend hours are available to meet with an attorney.  If bankruptcy turns out to be the best way to move forward considering your alternatives, goals and financial challenges, payment plans are available if you need them.

 

Automatic Stay Violations

Automatic Stay ViolationsAutomatic Stay Violations – When you file for bankruptcy, the automatic stay goes into effect. The stay prohibits creditors and most kinds of debts you owe them from continuing to attempt to collect the debts, unless the law or the bankruptcy court says they can.  It’s “automatic” because you don’t have to ask the court for the stay, and the court doesn’t have to take any special action to make it effective; once you file a bankruptcy, the stay is in place automatically.

Sometimes, the creditor can file an action in court to have the stay lifted (this is called a Motion to Lift Stay). However, there are times when the automatic stay does not apply and the creditor can simply begin collection proceedings without seeking advance permission from the court.  If you have questions about if a debt will be subject to the bankruptcy automatic stay, you really need to contact a knowledgeable bankruptcy attorney.

Thankfully, the most common types of creditor collection actions are still stopped by the stay – harassing calls by debt collectors, threatening letters by attorneys and lawsuits to collect payment for credit card and health care bills. Following are some of the debts which collection “may” be stopped by the automatic stay.

1. Credit Card Debts, Medical Debts, and Attorney Fees
2. Debts Associated with Criminal Proceedings
3. IRS Liens and Levies
4. Foreclosures
5. Utilities

Automatic Stay Violations – if you believe a creditor has violated the automatic stay or you have questions about the automatic stay violations or the times the automatic stay would not apply – contact Cynthia Remboldt, at the Remboldt Law Firm at 404-348-4081. FREE consultations can be scheduled by calling 404-348-4081.  Evening and Weekend hours are available to meet with an attorney.  If bankruptcy turns out to be the best way to move forward considering your alternatives, goals and financial challenges, payment plans are available if you need them.

Are Pre-petition checks delivered post-petition avoidable?

Are Pre-petition checks delivered post-petition avoidable?Are pre-petition checks delivered post-petition avoidable?   Here’s the story:  One day before filing for bankruptcy, a Debtor obtained a cashier’s check payable to his former personal injury attorney.  The check was sent express mail to the law firm’s post office box. The Trustee learned of the transaction, and established that the cashier’s check was not negotiated until five days after the debtor’s petition was filed. When the Trustee sought to avoid the payment under § 549,
the defendant (the personal injury attorney) argued that delivery of the check was before the petition was filed.  In re Scheu, 356 B.R. 751 (Bkrtcy. D. Idaho 2006 ).

Judge Pappas cited In re Mora, 199 F.3d i024 (9th Cir. 1999). which held that “the transfer of a cashier’s check for purposes of § 547(b) occurred at the time it was delivered rather than honored.” Applying Mora to § 549, the issue to be determined in this case was whether the transferee received the cashier’s check before the petition was filed. Based on the Trustee’s showing that the check was negotiated post-petition, the Court found the burden was on the transferee to prove it was delivered pre-petition. Refusing to take judicial notice that “express mail” is delivered on the day following mailing; the Court held for the Trustee, due to the defendant’s inability to prove when the check was actually received. Therefore, the check mailed before the debtor’s petition was presumed to be delivered post-petition and was avoidable under § 549.

Are Pre-petition checks delivered post-petition avoidable? For more information about Bankruptcy and the questions – are pre-petition checks delivered post petition avoidable – contact Cynthia Remboldt, at the Remboldt Law Firm at 404-348-4081. FREE consultations can be scheduled by calling 404-348-4081.  Evening and Weekend hours are available to meet with an attorney.  If bankruptcy turns out to be the best way to move forward considering your alternatives, goals and financial challenges, payment plans are available if you need them.

Bankruptcy and Cars

Bankruptcy and CarsBankruptcy and Cars

Bankruptcy and Cars.  What options do I have to keep my Car is I file Bankruptcy and I have a loan on my car? When you file a bankruptcy, you will have the option to declare your the intention to “retain collateral and continue to make regular payments” on a car loan.  You should not that the Court finds that: 1) the automatic stay expires 30 days after filing, 2)the collateral was no longer property of the bankruptcy estate, and 3) repossession of the vehicle did not violate the say after 30 days. For more information you can review the case:  In re McFall, 356 B.R. 674 (Bkrtcy. N.D.) Ohio 2006).

Under S 521(a)(2) a debtor who has financed their car, and filed bankruptcy, has 30 days to declare their intention to reaffirm, redeem, or surrender their car (or other personal property); and another 30 days after the 341 hearing to perform that intention. If the debtor does not reaffirm, redeem, or surrender their car (or other personal property) timely, then X362 (h) provides that the stay is lifted as to the property and the creditor is able to recover the car (or other collateral), since it ceases to be part of the property of the bankruptcy estate. Thus, in such cases, not only can the creditor take the collateral, but the Trustee in a Chapter 7 case also loses the bankruptcy estate’s interest in it as well and is not able to take possession of the property.

For more information about Bankruptcy and cars and your concerns regarding your car – especially if it is financed  – contact Cynthia Remboldt, at the Remboldt Law Firm at 404-348-4081. FREE consultations can be scheduled by calling 404-348-4081.  Evening and Weekend hours are available to meet with an attorney.  If bankruptcy turns out to be the best way to move forward considering your alternatives, goals and financial challenges, payment plans are available if you need them.