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Filing for Bankruptcy After the Revocation of a Discharge

What to do if Your Bankruptcy Discharge is Revoked

Transcript:

Hi, I'm Matt McArthur, bankruptcy attorney at Clear Counsel Law Group.

Another question that we recently had submitted to us was whether or not a person can file for bankruptcy after the revocation of a discharge and in a prior bankruptcy case. That's a mouthful, so let's take a minute to talk about what that means exactly.

By "revocation of a discharge" - the discharge is the order at the end of the bankruptcy case, that wipes out the debt, or eliminates the debt. Revocation of that discharge means this person had actually gotten to the point in their bankruptcy where they received the order that wiped everything out, the discharge order, and then it was taken away. It was revoked. The question then, as we've broken that down, is can I refile for bankruptcy if in a previous bankruptcy I received a discharge that was taken away or revoked?

bankruptcy discharge, Nevada, Las Vegas

Now, generally speaking, as long as there wasn't a court order specifically preventing you from refiling a case, then yes. Filling again another bankruptcy is possible. There's nothing that would prevent and individual from doing that. Once you have had an issue like this, you need to be careful because when you file your new bankruptcy case, the court is going to have access to all the records that were in your prior bankruptcy case. If there were issues that remain unresolved from the previous case, that resulted in the revocation of your discharge, then you may need to address that before you refile for another bankruptcy case.

This can be a very delicate and tricky situation to navigate on your own, and I would strongly recommend meeting with a bankruptcy attorney before refiling a case after a case has been revoked, or previously dismissed.

Please come in and see me, Matt McArthur, Clear Counsel Law Group. You can reach us at 702-476-5900 or you can visit our website, Clear Counsel and we'll get you scheduled for a consultation right away, and I'll give you the best advise possible for your situation.

Bankruptcy / Bankruptcy Videos - 02/18/2016

Will Declaring Bankruptcy Cause You to Lose Your Pet?

The Bankruptcy Laws and Your Pet

Transcript:

Hi, I'm Matt MacArthur, bankruptcy attorney at Clear Counsel Law Group. A common question that's received by me when I'm interviewing a client that owns pets is whether or not they'll be allowed to keep their pets in bankruptcy, and this is a very good question, because in our society we often think of pets as our family members. They're very close to us, they're part of the family. We feed them, we take them for walks, they're very loved and they feel like one of us. However, we need to remember that the law recognizes pets as property. Just like anything else in bankruptcy, when we're speaking about property, we need to determine whether or not it's something that can be protected. That brings us to the analysis of how much is your pet worth, and do we have a protection available to protect your dog?

pet, bankruptcy, Nevada, Las Vegas

I have never seen a pet taken in bankruptcy, so there is good news on that front. Used pets tend to not go for as much as perhaps a purebred puppy, or a thoroughbred horse, or something along those lines. If we're talking about a simple house pet, it's extremely unlikely that you would lose this dog as part of the bankruptcy process. If you do have a higher priced type of pet, like a pure breed animal that's quite valuable, then you would want to definitely speak with an experienced bankruptcy attorney. If you're afraid of losing your pet and you do have a more valuable type of pet, please come in and see me, and we'll discuss this in more depth and how it applies to your particular pet, and I can give you a very good sense of whether or not you'll be allowed to keep your pet in bankruptcy.

However, if I was afraid of you losing your dog I would definitely let you know. It would be the first time that I've seen it happen, but there's always a first time for everything, so you can't ever be too sure, especially if it's a dog that you care very much about, as I suspect would be the case. Please come in and see me, Matt MacArthur at Clear Council Law Group, and we'll discuss your ability to keep your pets in bankruptcy.

Bankruptcy / Bankruptcy Videos - 02/05/2016

Are Overseas Assets Subject to a Chapter 7 Bankruptcy?

Must You Claim Overseas Assets if You Declare Chapter 7 Bankruptcy?

Transcript:

Matt: Hi, I'm Matt McArthur, an attorney at Clear Counsel Law Group. Regularly practice in bankruptcy, and one of the questions that I received from a potential client was, "I have assets overseas. I want to know whether or not I'll be able to keep those assets if I file for Chapter 7 bankruptcy." The answer is, as always, it depends. You have to keep in mind with a Chapter 7 bankruptcy, we're talking about a liquidation, which is the legal way of saying that the court has the authority to sell your assets that you cannot protect. What we look at then is what are you allowed to protect?

If you have assets overseas and they happen to fall within one of the allowable legal exemptions that we can take, then, "No, you won't lose those assets even though they may be overseas." Another reason that you may be able to keep the assets is if the value of the assets is low enough and it's going to be costly enough for the trustee to acquire those assets, investigate what those assets are and their value and to try and liquidate those assets, it might not make sense from a financial perspective for the trustee to get involved.

assets, overseas, foreign, money, Las Vegas, Nevada

In other words, if there's not going to be a net gain for the bankruptcy estate and for your creditors, it is something that you may be able to keep if the trustee abandons that property back to you as a debtor filing for bankruptcy. However, you do need to realize that everything you own, even if it's an overseas asset, is subject to the bankruptcy analysis and it may ultimately end up being liquidated to pay off your creditors in exchange for the bankruptcy discharge. Brian, I see we had a follow-up question on this.

Brian: You discussed the analysis done by the trustee to determine whether they're going to go after assets overseas. If someone came in with their overseas assets to you, would you be able to make an estimate for them whether or not they would be subject to the bankruptcy?

Matt: It would be a rough analysis. We can look at what the current estimated value of the property is and depending on the type of asset, we could determine how difficult it would be for the trustee to make contacts in this particular country and give a rough estimate of what the expenses would be involved in that. However, ultimate decision does lie with the bankruptcy trustee. The trustee has the ultimate say whether or not they're going to pursue the liquidation of an asset if it's something that is not exempt on your bankruptcy schedules.

If you do have overseas assets and you're worried about filing for bankruptcy and potentially losing them, please come and see a bankruptcy attorney like myself. We will go over this analysis. We'll give you the clear legal advice that you need to make the best decision for you in your situation. I'm Matt McArthur at Clear Counsel Law Group. I hope to hear from you soon.

Bankruptcy / Bankruptcy Videos - 02/01/2016

How Your Spouse's Assets May Affect Your Bankruptcy Declaration

Must Your Spouse Declare Her Assets if You Declare Bankruptcy?

Transcript:

Matt: Hi, Matt McArthur, Clear Counsel Law Group bankruptcy attorney here. I recently received a question that I receive on a regular basis. It was from an individual who was married that wanted to file without their spouse, wanted to file for bankruptcy and not have any negative ramifications on their spouse's credit. What they wanted to know was whether or not their non-filingphad to disclose their financial information to the bankruptcy court. The answer is yes. The reason is twofold.

First, if the individual is filing for Chapter 7 bankruptcy, even though the spouse is not filing bankruptcy with this person, we still have to look at the non-filing spouse's income to determine whether or not the person looking to file for bankruptcy passes the Chapter 7 means test. If an individual makes too much money, if the household income is too great, then that individual won't be allowed to file for this specific kind of bankruptcy. Because the person is married, the non-filing spouse, whether they're filing or not is included in the analysis of what the income is for the household.

spouse, bankruptcy, Nevada, Las Vegas

We have to look at the non-filing spouse's income. We also need to look at the non-filing spouse's property. In a Chapter 7 bankruptcy, it's a liquidation. We determine whether or not a filing person has the ability to protect all property that they have a legal right in. Even though the spouse is not filing bankruptcy, if you live in a community property state, like Nevada, the spouse that is filing for bankruptcy may actually have a legal right to property that is owned by the non-filing spouse so the non-filing spouse's property could come into question. If it is separate property, then obviously that is not subject to liquidation. I see that we have a question related to this topic. Brian?

Brian: Does it make sense then to just file Chapter 7 bankruptcy together as a couple because the property and the income will be subject to it?

Matt: Yes, for many cases it makes most sense to file jointly for both spouses. The reason you would do that is you're disclosing all of this information about income and assets anyway so you might as well gain the advantage of getting a discharge for debts that are in both spouses' names. There may be a reason why one partner might not want to file for bankruptcy. It wouldn't appear on the non-filing spouse's credit report, the bankruptcy wouldn't and it might make it easier to qualify for obtaining mortgage loan within the first couple of years after the filing of bankruptcy. Otherwise, the advantages of filing jointly outweigh a separate filing.

If you're thinking of filing for bankruptcy and you're a married individual and you're worried whether or not it would be best to file alone or together, please come in and see me. I'll discuss the ramifications of both scenarios with you. We can talk about what makes best sense for you in your particular situation. I look forward to seeing you soon. Take care.

Bankruptcy / Bankruptcy Videos - 01/25/2016

Bankruptcy and Taking the Credit Counseling Class

Attending a Credit Counseling Class is Necessary to File for Bankruptcy

Transcript:

Hi, Matt MacArthur at Clear Counsel Law Group, here to speak to you about one of the requirements of filing for bankruptcy. One of the recent questions that was submitted to our firm was, "Do I have to take a class before I can file for bankruptcy?" The answer is, yes. There is a requirement for all individuals who wish to file for bankruptcy that must be completed before we can actually file or start the case. That is a credit counseling course from an accredited agency must be completed before we file the case.

credit counseling class, Las Vegas, Bankruptcy, Nevada

It's a fairly simple straight forward class. It typically lasts about an hour. You are able to take this session online. I've seen the prices of this class range from anywhere between $8 to $40 or $50. The quality in the different classes may vary from different agency. If it were me filing for bankruptcy, I would probably just go with whatever the easiest, cheapest option was that's allowable by the court. Once this class is done, you'll have satisfied the requirements to complete the course, and there will be a certificate issued to the individual that took the class. That certificate has to be filed with your case in order for the bankruptcy to ultimately be successful.

This is Matt MacArthur giving you a little bit more insight as to the requirements of filing for bankruptcy. If you're thinking about filing bankruptcy, please come see me, and I'll take care of you. See you soon.

Bankruptcy / Bankruptcy Videos - 01/12/2016

Before Declaring Bankruptcy, When Should You Stop Using Your Credit Cards?

When Should You Stop Using Your Credit Cards?

Transcript:

Matt: Hi, Matt McArthur, Clear Counsel Law Group. Question that I was just recently provided was, if I'm thinking about filing or planning on filing for bankruptcy when is it advisable to stop using my credit cards? My first instinct is to respond immediately. If you know you're going to file for bankruptcy, you shouldn't be getting yourself deeper into the hole. Continuing to use your credit cards when you know that you are planning on filing for bankruptcy can be what we call bad faith. By bad faith it simply means that you know you're going to file bankruptcy and you have no intention of repaying this debt. It's essentially unfair, unjust, morally wrong to continue to rack up the bill on these credit cards when the credit card company has no idea that you are filing bankruptcy, but you do. It puts the lender, the people that are making these purchases on your behalf in essence, at an unfair disadvantage.

credit cards, debt, bankruptcy, Las Vegas, Nevada

With that being said, generally speaking, if you have used credit cards recently but you've only recently decided to file for bankruptcy because you've taken a hard look at your financial situation and come to the realization that you're not going to be able to repay the debt, that doesn't mean you can't file for bankruptcy sooner than later. It just essentially goes to what your intent is. If you had the true, honest intent to repay these debts at the time you made the purchases you should be all right. Definitely the best advice I can give is if you know you're thinking of filing bankruptcy stop using the credit cards immediately.

Follow-up question?

Brian: Yes. Will a judge or any other legal entity question your intent during the bankruptcy proceeding?

Matt: Not usually. Not unless there's a credit card company that, for some reason, has reason to believe that you were acting in bad faith. For example, if you were making large credit card purchases up to the week before you filed for bankruptcy that looks pretty suspicious, and it's possible that the credit card company could get involved in your bankruptcy case on a more detailed level where they file documents, motions, requests of the court to take a closer look at your situation. There's a number of ways they could get involved in your case, anything from appearing at the meeting of creditors to filing an adversary proceeding and asking that the debt not be wiped out.

That's why the best rule of thumb is if you actually know that you're going to file for bankruptcy, don't incur any more debt. It's dishonest and it's acting in bad faith. It can only cause problems in your bankruptcy case. If you're at all concerned about recent credit card uses and you're thinking about filing for bankruptcy, please come in and see me. I'll talk to you about the situation and I would give you a good expectation of what I would foresee happening in your case. We can give you all of the information you need to make the best decision possible for you. I hope to see you soon.

Bankruptcy / Bankruptcy Videos - 01/07/2016

How Soon After Bankruptcy Will You Have Credit Again?

How Long Does it Take to Get Credit Again after Filing Bankruptcy?

Transcript:

Matt: Hi, Matt McArthur at Clear Counsel Law Group. Common question that's presented to me is when after filing bankruptcy am I realistically going to be able to apply for credit again. The answer to this question is almost immediately. There are several different ways to get new financing, whether it's through a credit card, secured credit card, or a new car loan. The options are pretty vast considering the individual has just filed for bankruptcy. Many of my clients will often tell me after we filed their bankruptcy case that they're getting more junk mail than they've ever received and it's full of credit card offers and prequalification offers for car loans. I always caution them to be very careful with these offers because one, they've just filed for bankruptcy and the point of bankruptcy is to get out of debt; and two, because they have just filed bankruptcy, they may not qualify for the best terms for these financing options that are available to them at that time.

If you're looking at qualifying the finance the purchase of a home through a mortgage, you're more likely looking at a two to three-year time period after filing bankruptcy. Essentially, everything else though, credit cards and car loans, you're looking at almost an immediate turnaround after filing your bankruptcy case. Brian, you had a question related to this?

Brian: Would you advise people to get one credit card after filing bankruptcy to make small charges to rehabilitate their credit that way?

Matt: That's a very good question. There's different schools of thought on this. One school of thought is credit cards may be a source of weakness for you and it's better not to touch them at all. Don't even worry about your credit score. Just start going to a cash basis method where you set aside a little bit of savings and you're very meticulous and detailed with your monthly budget. You're able to then set aside a small savings and build up a rainy day fund. If you ever need to purchase something that's an emergency or something that may not fit into your monthly budget, then you then borrow for yourself in a sense and you can pay for the purchase outright rather than relying upon credit.

Now, I don't necessarily subscribe to that theory because I think that there are many practical uses of having a good score. What I would recommend is yes, getting one small card and only purchasing things on it on a monthly basis that you would be purchasing anyway, and built that into your monthly budget. For example, if you have a car and you regularly fill it up once a week, or however often that is, just decide that you're going to make all your gasoline purchases on the card and pay it off in full every month. That's going to provide you with a positive payment history after filing the bankruptcy, and it will help rehabilitate your credit score post-bankruptcy.

That would be my advice after filing bankruptcy. Do apply for one small card and don't go nuts with it, but make small, modest purchases that fit into your budget anyway and pay it off every single month. You'll see your credit score rebound or go up immediately after filing bankruptcy, and that will just help the rise of the credit score. My name's Matt McArthur, experienced bankruptcy attorney. If you're thinking about filing bankruptcy, worried about your credit score and how that may relate to the bankruptcy, please come in and see me and I'll take care of you. Take care.

Bankruptcy / Bankruptcy Videos - 12/31/2015

May a Bank Place a Lien on Your Home After a Chapter 7 Bankruptcy Discharge?

What to Know about a Bank Lien and Your Chapter 7 Bankruptcy

Transcript:

Hi, Matt McArthur here at Clear Counsel Law Group. I'm here to answer another question that's been submitted to our office. The question was, "Can a bank place a lien on my property after a Chapter 7 discharge?"

Now I'm going to make a couple of assumptions here with respect to this question, and the first assumption I'm going to make is that this was a debt that was included and noticed and part of the Chapter 7 bankruptcy process. Assuming that this was a dischargeable debt that was listed in an individual's Chapter 7 bankruptcy, the answer to the question is no. A lien cannot be placed on your property after a discharge has been entered by the court.

The reason being is there's something called a discharge injunction that goes into place upon the receipt of Chapter 7 discharge. The discharge injunction prevents a creditor from collecting on any debts that were included as part of the bankruptcy process and discharged at the end of the Chapter 7 bankruptcy. Placing a lien on your property that is related to this debt that was included in the bankruptcy isn't an action to collect against the debtor. That action is a violation of the discharge injunction. Has it ever happened where a creditor has attempted to collect on a debt after filing bankruptcy? Yes. It can happen for a number of reasons; perhaps the creditor's failed to take note of the notice that they received, perhaps they weren't listed in the bankruptcy, there can be a number of reasons why they may not have honored the discharge injunction.

That being said, once the discharge injunction is in place, it's something that needs to be obeyed and a creditor that is found to be in violation of the discharge injunction can be subject to potential liability in the form of court sanctions, attorney's fees, damages, et cetera. It's a very powerful tool within the bankruptcy process that prevents future collections actions against debts that were already wiped out.

One note that I want to make about liens and Chapter 7 bankruptcies, is typically speaking if a lien is already in place as the result of a debt and then the lien does not necessarily go away with the bankruptcy discharged. Think of a car loan for example, or a home mortgage. By signing up for a home mortgage, signing a promissory note and executing a deed of trust or a mortgage, you are granting the lender a lien on the house. Filing for Chapter 7 bankruptcy would eliminate any personal responsibility to pay on the house, but if you want the lien removed continued payments under the contract terms would need to be made in order to satisfy the lien and make it go away.

The bankruptcy discharge itself does not wipe out the lien. What this allows an individual to do is if for example they wanted to keep their house moving forward after bankruptcy, the they could, as long as they remain current on their monthly payments, they could continue to pay on their mortgage and eventually at the end of the mortgage term when all payments have been made, title would then be transferred to the debtor or the individual making the payments and they would be the sole owner of the house free and clear.

If they couldn't ever make the payments down the road before the completion of the mortgage payments had run their course, then they could walk away from the house no strings attached and the bank couldn't ever go against that person personally to collect against the debt, so that would mean wage garnishment, bank levees, other types of collection actions. They could however, still go after the house, because their lien is in place regardless of whether there was a discharge or not.

It's kind of a lot of information to take in and I know it can be very confusing so if you are confused about liens and how it relates to a bankruptcy please come in and see me, I'll make sure to take the time to walk you through the process and how it relates to your particular situation and make sure that you're feeling comfortable with the different options that may be facing you that you may have to take going forward.

Please come and see me, Matt McArthur, Clear Counsel Law Group, and I'll get you set to move forward.

Bankruptcy / Bankruptcy Videos - 12/26/2015

Is a Cosigner Responsible for the Entire Unpaid Loan Balance?

What are the Responsibilities/Obligations of a Cosigner?

Transcript:

Matt: Hi, Matt McArthur at Clear Counsel Law Group. I recently had a question from an individual who had cosigned on a car loan for a friend. Their question was: If my friend stops paying on the loan, am I legally obligated to pay for that car loan when my friend stops making payments? The answer is simply yes. That's essentially what the lender requires the cosigner for, is it gives the lender the added security that if the individual signing up for the car and the car loan fails to make payments, that they have somebody else on the hook that they can collect against. The reason that they would require a cosigner is they simply don't trust the individual that they are tendering the loan to. In other words, if a car lender won't give your friend a loan because they have poor credit history or they don't have sufficient income, but they will give them a loan with you added as a cosigner, it means that the only reason they're tendering the loan is because they think that they can collect against you if it doesn't work out with your friend.

Unfortunately, you're on the hook if you've entered into one of these center obligations with a lender for a friend or a family member. You want to be very careful if you're still considering cosigning for another person and their vehicle, or their student loans, or any other type of debt. Because if the individual that's primarily responsible for the loan fails to make the payments, the lender can come after you. I see that we have a question, Brian.

Brian: Is there a way for a cosigner to be removed from a loan if the payer has demonstrated the ability to make payments over a period of time?

Matt: That's an excellent question. There is a way. Unfortunately, it usually involves the mercy of the lender. In other words, the lender will set certain criteria. Once that criteria has been met, and the primary account holder has demonstrated responsibility and a history of being able to make the payments, they may voluntarily agree to modify the center to where the cosigner is removed and their financial obligation to back up the loan is taken off of the center. However, you want to be very careful because it needs to be in writing and all parties need to sign off on it for it to be a valid and binding contract modification.

I'm Matt McArthur. I have a lot of experience dealing with cosigner situations, especially when it comes to car loans. If you're caught up in the mess of being on the hook for somebody else's car loan, please come in and speak with me. I'll help you walk through the situation, explain the different options that you may have as responsible party for the loan, and give you the best advice possible to move forward. Look forward to hearing from you soon. I'm Matt McArthur at Clear Counsel Law Group.

Bankruptcy / Bankruptcy Videos - 12/17/2015

How to Deal with Credit Card Debt of a Deceased Spouse

How Community Property Law Affects the Credit Card Debt from a Deceased Spouse

Transcript:

Hi I'm Matt McArthur, attorney at Clear Counsel Law Group. I recently had an individual come into my office whose husband had recently passed away unfortunately. Her husband had acquired a substantial amount of credit card debt and the credit cards were only in his name and he didn't really leave any assets to his surviving wife. So the question that she had is because he has now died, is she responsible to repay his credit card debt even though the credit cards were only in his name?

Now to answer this question, we have to talk about which state we're living in and which state is applicable to this scenario. I'm going to be speaking as though we're operating within the jurisdiction of the state of Nevada. In the state of Nevada, we have what we call community property law. In a community property state, any assets generally speaking acquired during the course of a marriage are considered community property. What that means is each spouse owns or is entitled to 50% of the assets acquired. Unfortunately, the same thing applies to debt. There's such thing as community debt in community property states.

So even though the husband racked up credit card debt in his name only, from a legal standpoint, the credit card debts could pursue the community debt against the surviving spouse. Now it's very unlikely that credit cards will actually pursue this type of debt in this type of situation in my experience, if the surviving spouse was nowhere to be found on the account, the credit card company does not pursue collecting this debt against the surviving spouse. So what my recommendation would be would be to hold off on any type of settlement negotiations or a filing of bankruptcy until you're actually sure that the credit card companies are going to be trying to collect against you. It may be a little premature just knowing that these debts exist and proactively trying to take care of them because there's a pretty fair chance that the credit card companies will simply leave the surviving spouse alone.

If you have any questions about this, please come and see me, an experienced bankruptcy attorney who has a vast amount of experience dealing with these types of situations and I'll give you the best advice for your particular situation and help you get on the right path. Hope to hear from you soon.

Bankruptcy / Bankruptcy Videos - 12/11/2015

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