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Bankruptcy law allows for individuals to keep property from being sold to pay creditors through “exemptions”. In a Chapter 7 filing, any property which is not claimed as “exempt” is potentially available to be taken by the trustee for paying creditor claims. Therefore, prior to a bankruptcy filing, individuals must list their assets as well as the value of the asset or the equity owned in the asset to determine whether the available exemptions are enough to protect all of the assets.
You should consult with an attorney to determine which exemptions are applicable to you and what is the best way to protect as many of your assets as possible during the bankruptcy.
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You may be able to discharge federal income tax in a Chapter 7 bankruptcy case if the tax debt meets certain criteria:
Discharging tax debt is a complex area with many rules surrounding it. If you are burdened with federal income tax debts, you should consult with a bankruptcy attorney to determine whether, and to what extent, the debt would be dischargeable in bankruptcy.
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Occasionally, someone facing bankruptcy will transfer ownership of property to someone else (usually a friend or family member) for less than fair market value under the assumption that this transfer will protect the property during bankruptcy. However, if the transfer is done within a certain amount of time from the bankruptcy filing, not only does it not protect the property, such a transfer can be a reason not to grant a discharge in bankruptcy entirely.
Section 548 of the Bankruptcy Code allows trustees to recover property that was transferred for less than fair market value in the two years prior to filing. Additionally, Section 727 denies a Chapter 7 discharge to an individual who transferred property with the intent to hinder, delay or defraud creditors within one year of filing. If you are considering filing for bankruptcy, you should consult with an attorney before transferring or selling any property to make sure that your actions don’t bring about the results you were trying to avoid.
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Life is full of the unexpected, so it frequently happens that individuals need to file for bankruptcy relief more than once in their lifetime. There is no limit to the frequency of bankruptcy filings, but there are limits to how frequently a discharge of debts in bankruptcy is allowed. Generally, the time frames are:
The time period is measured from filing date to filing date. However, there may be circumstances where it would be beneficial to file for bankruptcy even if no discharge is available. You should discuss your individual circumstances with a bankruptcy attorney to formulate a plan that is right for you. Please contact our office for additional information or to schedule an appointment.
Bankruptcy is based on the proposition that all similarly situated creditors are (or should be) treated equally. In the eyes of bankruptcy, unsecured loans from friends and family members are viewed in the same manner as unsecured loans from credit-granting agencies (such as credit cards). Friends and family members are viewed as “insiders” and any more than nominal payments made to them in the year prior to filing for bankruptcy must be disclosed during the case as a preferential transfer. In that case, the trustee has the option of bringing suit against the insider who received the repayment in order to recover the payment for equal distribution among all your creditors. So, while repaying your family before filing may feel like the right thing to do, it could be the worst thing you can do for them! Please contact our office for more information about preferential transfers or to speak with an attorney about your specific circumstances.