Category: chapter 13

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Top 7 Myths About Bankruptcy: Myth No. 3 – My Credit Will Be Ruined For 10 Years or More

Credit report obtained by lawyer

By Dave Kelly, Minnesota Bankruptcy Lawyer

I don’t claim to be a credit expert. What I know about credit and the effect of bankruptcy filing on it is what I hear from my clients. Almost everything I know is hearsay. It would not be admissible as evidence in court. But I’ve heard the same thing many times and from many different people. I may have some wisdom on the subject that I can pass along.

Won’t Bankruptcy Wreck My Credit?

One of the most common questions I hear is on the phone is “won’t filing bankruptcy wreck my credit forever?” Typically these callers are deep in debt. They are spending all their energy trying to juggle various credit accounts – accounts that they will never be able to pay. They may be using credit to pay credit, taking cash advances on one to make payments on another. The juggling act gets to the point that it is hard to think about or imagine anything else.

The answer to the question is NO. It is true that the bankruptcy filing will show on your credit report for ten years. But it is not true that your credit will be harmed for that whole time.

You’ll Get Credit Offers Right After Your Bankruptcy is Filed

Almost as soon as the case is filed, there are predatory lenders who will offer you credit cards and car loans. The terms for these will be terrible. Interest rates will be high, late fees will be high, and credit limits will be low. It is best to avoid these credit offers if you can. My advice as a general rule usually is stay away from these offers and live without credit for a while. One exception might be when you need a credit card for work or for essential travel. If you do get such a card, it’s important to pay it off every month. Don’t let them get their hooks into you again.

Another exception would be when you just have to get another car. Surrendering your previous car might have been necessary. You may have been really up-side-down on the loan, or you may have had a catastrophic mechanical issue. But now the only way to get another vehicle might be to get one of the loans you are being offered.

Three Years After Bankruptcy

Your credit prospects will improve with time. Within one year after your bankruptcy, you may be surprised to see your credit score going up. At first that doesn’t necessarily mean that you will be eligible for much. But after a couple more years of clean living, you will start noticing that your credit has bounced back. At about the three year mark after the case is completed, I will typically get a phone call from my former clients. My clients tell me that they are about to refinance a mortgage, buy a house or buy a car. There is a loan officer who says the loan will be approved, but first some details about the bankruptcy are needed. This is info that I can email. They thank me for my help in getting the loan. Also they usually tell me that things are really going well and they are glad they did the bankruptcy.

There is a point somewhere between three and five years after the case is done where the bankruptcy just doesn’t affect credit any more. The greatly improved debt to income ratio may even result in much better credit than before.

Credit Might Not Be Helping You

Maybe your credit looks pretty good right now. But if you are doing a juggling act to keep it up, it might be hurting you more than helping. Imagine what it would be like to get off the treadmill and be free of all that debt. If you could just get rid of all that debt, there wouldn’t be such a great need for more and more credit. Perhaps it’s time to call someone to explore the fresh start that bankruptcy offers.

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Hearings Never Going Back to the Way They Were

Lawyer wingtip shoes

By Dave Kelly, Minnesota Bankruptcy Lawyer

What Happens at the Meeting of Creditor Hearing

About a month after a personal bankruptcy is filed, whether it’s a Chapter 7 or a Chapter 13, there is a hearing they call the “First Meeting of Creditors.” Most of the time I just call it the “hearing”, although the official name is “First Meeting of Creditors.” I think “hearing” is a more accurate term because for one thing, in the vast majority of cases, the last thing you will ever see at one of these events is a creditor. The creditors are invited to appear, but they know it’s a waste of their time and almost never show up.

“Hearing” is also a good way to describe what happens. The process is presided over by either the bankruptcy Trustee or a lawyer on the staff of the bankruptcy Trustee. This Trustee is not a judge, but from my perspective he or she might was well be. Nobody has more power or influence over how the case goes than the Trustee. The person who filed the bankruptcy is put under oath and asked a series of questions. Depending on the answers, things can expand into even more questions. In a simple case it might only take ten minutes. But I have seen complicated cases where it has taken over an hour; and in those more complicated cases it can easily take more than one sitting.

Traditionally these hearings/Meetings of Creditors always took place at a federal courthouse or some other location like a federal courthouse, depending on the county in which the Debtor lived. I would put on my traditional lawyer outfit, including my lawyer shoes, and head for the designated location. I had it down to a science. I knew where I wanted to park and where I wanted to meet my clients before the hearing. It was usually kind of fun, because I would see my lawyer friends there. This was the norm. It was how things were done.

Covid Hit and Everything Changed

In early 2020 when Covid hit the whole process changed dramatically. The Trustees started conducting these hearings remotely by Zoom or some similar method. Everyone assumed this change was temporary and we’d be back to the courthouses when the virus passed. It never occurred to any of us that the change might become permanent. There may have been jokes about it becoming permanent, but nobody considered it a serious possibility – at first.

But I did start noticing that not going downtown saved time, and grief and parking money. People including the Trustees started to like doing it remotely, so did I. Many of my clients said they didn’t want to go downtown and expressed relief that we were not going to have to. My clients could stay home if they wanted to and do the hearing from there; but it has always been my preference to have them come to my office for the hearing. Even if we are not going down to a courthouse, I still think there is a tremendous benefit to being physically present in the same room with my clients when this hearing takes place. As I have always done, I like to meet early before the hearing with my clients and do preparation. I almost always know approximately what the Trustee will be asking. I want to go over the expected questions with my client and have my client as ready as possible.

When Are We Going Back to In-Person? Never!

Late last year as I usually do I attended the Bankruptcy Institute, a big series of classes and talks put on by Minnesota Continuing Legal Education. I was assuming that one of the things I would learn would be what the plans were for returning to in-person hearings for the Meetings of Creditors. In-person hearings were already taking place before the judges for the more complicated matters such as motions, adversary proceedings and reaffirmation agreements. Instead what I heard was that the switch to remote for the Meetings of Creditors was going to be made permanent. A nationwide protocol for doing it by Zoom on a permanent basis was going to be promulgated some time in 2023.

My Lawyer Shoes Continue to Gather Dust

Usually I manage to avoid those in-person hearings in front of the judges. Those tend to only be required if something has gone wrong with the case. If the case is put together well, we should be able to stay away from the judges. So these days I am only dressing like a lawyer from the waist up. It may be a long time if ever that I again have to wear the pants that come with my suit. The same goes for my lawyer wingtip shoes, which have been gathering dust in the corner of my bedroom. Maybe I’ll just have to wear the pants and the shoes some time for the heck of it.

Call Dave at 952-544-6356

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Welcome to My Youtube Channel

welcome to Dave's bankruptcy Youtube channel

By Dave Kelly, Minnesota Bankruptcy Attorney

Youtube recommends that every channel should have a welcome video. The video designated as the welcome video will be the first thing a person sees when they go to a particular channel. The video should be a short statement of what the channel is about and what information can be found there. My channel has videos going back to 2007; but until now there was no welcome video. I just uploaded it a few days ago, and here it is:

Information you can find on my Youtube channel includes but is not limited to the following:

• Going to jail for debt
• Bank accounts – which ones should be closed
• Questions to expect at the hearing
• Documents you will be required to produce
• What about rental properties in bankruptcy
• Property that is exempt
• What does bankruptcy cost
• Debt settlement programs
• 7 things to not do before bankruptcy
• 7 things you should consider doing before bankruptcy

You will also find a lot of information about how to qualify for bankruptcy and what kind of bankruptcy you might qualify for.

It looks like my videos are attracting quite a bit of traffic. Youtube is peppering my videos with all sorts of commercials over which I have no control and from which I don’t get a cent. In order to get paid anything at all from the advertising revenue, they require a lot more subscribers than I currently have. So please do me a favor. If you find my channel helpful at all, PLEASE SUBSCRIBE.

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Fresh Increases in Minnesota State Exemptions

Exempt property claim form

By Dave Kelly, Minnesota Bankruptcy Lawyer

In a Chapter 7 bankruptcy if you want to keep your assets and belongings, they have to be claimed as exempt under an applicable exemption law. In Minnesota there are two exemption laws to choose from, the federal list and the state list. I have written a lot elsewhere about why one would choose one list or the other. That is not my topic here. I just want to talk about how most of the state exemptions are going up in a few days. The federal exemptions were increased on April 1st this year. I covered that in a recent blog post.

On July 1st in even numbered years, certain parts of the Minnesota state exemptions are updated to keep up with inflation. Since this year is even numbered, we are about to have another update. I am glad to see that all the numbers which can be changed are going up.

Summary of Minnesota Exemption Increases

  • Household furniture, household goods increased from $11,250.00 to $11,700.00.
  • Wedding rings increased from $3,062.50 to $3,185.00.
  • Tools of the trade increased from $12,500.00 to $13,000.00.
  • Life insurance benefits increased from $50,000.00 to $52,000.00.
  • Additional dependent insurance benefits increased from $12,500.00 to $13,000.00.
  • Motor vehicle increased from $5,000.00 to $5,200.00.
  • Insurance policies increased from $10,000.00 to $10,400.00.
  • Employee benefits (retirement accounts) increased from $75,000.00 to $78,000.00.
  • Homestead (limited to 160 acres) increased from $450,000.00 to $480,000.00.
  • Homestead used primarily for agriculture increased from $1,125,000.00 to $1,200,000.00.

Our Minnesota State Exemptions Remain Far from Perfect

For a more complete rundown on how this all works, take a look at my exemptions page. These state exemptions leave a lot to be desired. They have a lot of gaps which seem to always allow the bankruptcy trustees to require my clients to buy back some of their stuff. Most jewelry is not exempt. Most electronics are not exempt. There is no exemption that covers tax refunds, and there are issues with money in bank accounts. I have ranted about this on this blog before. The legislature needs to fix it but they don’t.

The Minnesota state exemptions are primarily good for one thing. They allow you to protect lots of equity in your homestead, unlike the federal exemptions which are very limited in that area. I don’t think any of the increases here have kept up with the real rate of inflation; so in fact we seem to be loosing ground.

If you don’t properly claim any asset as exempt, you risk losing it to the trustee. It’s tricky and risky and should not be attempted without a lawyer.

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Top 7 TO DO’s Before Bankruptcy: Item 4 – Retain an Attorney

Real Bankruptcy Lawyer

By David J. Kelly, Minnesota Bankruptcy Attorney

Get Professional Advice

Filing a bankruptcy is a big step. You don’t want to do much or go very far before you consult a lawyer. In preparing to file your case, there may be some financial moves you should make. I cannot emphasize more strongly that you should not make any major changes of any kind without consulting a lawyer first. Be sure that the lawyer knows bankruptcy law – many do not. I often suggest that whoever you talk with should belong to the National Association of Consumer Bankruptcy Attorneys (NACBA) . Any attorney who is serious about learning what they are doing in the field of consumer bankruptcy would be a member. You need someone to consult. You need somebody to plan with. You can’t afford to make a mistake at this phase of things. It’s time for you to hire (“retain”) a bankruptcy lawyer.

Things You Can’t Do Without Retaining an Attorney First

Once you retain a lawyer, that is once the attorney-client relationship is brought into existence by means of a retainer agreement, you have the ability to do several things you could not do before.

For one thing, you can refer calls from bill collectors to you lawyer. I like to keep the bill collectors in the dark about what we are up to. But sometimes they may start calling your mother, or one of your children, or your place of employment. Sometimes they manage to be such a nuisance that you really need them to stop. Once your case is filed they will be under a court order to stop. But what can you do before the case is filed? Here’s what. Answer the phone. Tell whoever it is that you have retained an attorney to do a Chapter 7 or Chapter 13 bankruptcy and you have been advised to not speak with them. But then you give them your lawyer’s name and phone number and say they should call your lawyer. Normally that will be the last you hear from those people.

For another thing, you can set up a payment plan with the lawyer so you can get the attorney fee paid by the time the bankruptcy is ready to file. In Chapter 7 cases your attorney has to be paid before the case is filed. After the case is filed, if you owe money to your lawyer he or she is just another creditor who is forbidden from trying to collect from you. Since it usually takes a few weeks if not longer to prepare a case for filing, this is the perfect time to make payment arrangements for the attorney fee, court filing fee and perhaps also the credit report fee. In Chapter 13 cases the attorney fee can be paid as part of the Chapter 13 plan, but most attorneys still like to have a good part of their fee and costs paid before the case is filed.

And of course hiring a lawyer means you now have somebody to consult with and plan with as you go about the difficult job of planning and putting together your bankruptcy case.

Disclaimer

I am a debt relief agency. I help people file for bankruptcy relief under the federal bankruptcy code. This post is for general information purposes only and does not create an attorney-client relationship. It is not legal advice. Seek the advice of the attorney of your choice concerning the details of your case.

Call Dave at 952-544-6356

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Top Seven TO DO’s Before Bankruptcy: Item 2 – Get Your Credit Reports

Credit report obtained by lawyer

By David J. Kelly, Minnesota Bankruptcy Attorney

This is the second in a series of seven blog posts about my top seven things that you should do if you are preparing to file a bankruptcy. This also applies even if you are just considering filing a bankruptcy – either Chapter 7 or Chapter 13. What I want to talk about it getting your credit reports. I wouldn’t dare want to file somebody’s bankruptcy without reviewing at least one credit report. There are three major reporting agencies which each produce their own reports – Experian, Equifax and Trans Union. Usually all three reports are about the same, but not always.

Easiest way: Authorize Your Lawyer Get Your Credit Reports

While you can get your reports on your own, your best choice is to have your lawyer get them for you. For $37 per person I can get a report that pulls information from all three credit reporting bureaus. We will have to provide your email address and social security number. After that we will have to answer three questions to which only you would have the answers. Then I can download your comprehensive credit report info directly into my bankruptcy software. And I will print a copy of the report for you. As a bonus it provides your credit score along with a prediction of what filing bankruptcy will do to your credit score. Somewhat surprisingly, the prediction is usually for an improvement in the score.

The Hard Way: Get the Reports Yourself

If you want to get the reports on your own, the best place to go and the only place I recommend is https://annualcreditreport.com​. There is a federal law that requires the three major reporting agencies to make a report available to each individual once a year. This site was created by the agencies to satisfy this requirement. Unlike the other resources I am aware of, this web site is really free. All the other sites will want you to subscribe or sign up for something. The one exception at annualcreditreport.com is if you ask for your credit score. Don’t do that. It looks like they want to get something in exchange for that, and I don’t need the credit score. I just want to know who the creditors are.

It helps me if you can download each report as a pdf document and then print it on paper as well. If you don’t have a printer, send me the pdf and I’ll print it. There is often a problem in printing these reports where the printer cuts off the top, bottom or side of the pages. If that happens the report is often missing so much that it is not useable. Problems like this can be avoided of course if you just have me get the reports instead.

The Bankruptcy Must List All Your Debts

I can’t emphasize enough how important it is that we list all your debts. Failure to list a debt could result in that debt not being discharged. Unlisted debts aren’t discharged in Chapter 7 cases where there are assets for the creditors. Unlisted debts are also not discharged in Chapter 13 cases. In those situations the creditor could have filed a claim and gotten their share of the payments or assets. But they can’t file a claim if they are never notified. So the discharge doesn’t apply to them.

Creditors can be added for a while after the case is filed, but it is obviously much better to get them all listed to begin with.

Sometimes certain debts don’t show on your credit reports. An example of this is medical bills. The medical people have a confidentiality requirement and don’t want to just tell the world that you owe them money. Typically medical bills don’t show up on credit reports unless they have been sent to a collection agency. In order to report to a credit bureau, the creditor has to have a membership in that bureau. Many small businesses do not have or can’t afford to have that, and debts owing to those businesses won’t be on the reports either. Please keep in mind that even if the debt doesn’t show on the reports, it is still your responsibility to make sure all your debts are listed in the case. You have to give this info to your lawyer. Your lawyer isn’t a psychic.

Disclaimer

This post is for general information purposes and is not legal advice. It does not create an attorney-client relationship. Small details in your case can make a big difference. Consult the attorney of your choice concerning the details of your case. I practice in Minnesota. Laws and practices may be a lot different in your state.

Call Dave – It’s Free

Call Dave for a free telephone consultation. 962-544-6356.

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Top Seven TO DO’s Before Bankruptcy: Item 1 – Gather Your Financial Records

Taking Covid safety measures

By David J. Kelly, Minnesota Bankruptcy Attorney

This is the first in a series of seven posts about my top seven things that you should do if you are considering bankruptcy or preparing to file – either Chapter 7 or Chapter 13.

Item 1 on my list is that you should gather the financial records that your attorney will need to process your case. These will include payroll check stubs, bank statements, mortgage records, and tax returns. You should also be gathering together your monthly statements for all your debts. Include any nasty letters you may be receiving from lawyers or collection agencies. Don’t just gather the records you have, but also start keeping records of all your financial transactions. Keep track of your expenses. Keep all your receipts. If there is legal action against you, keep all the paperwork from that. There is a human tendency to want to throw away paperwork that contains bad news. Don’t do it. Keep it and give it to your lawyer.

Income Information

Your attorney will want to see at least six months of income information. Typically this would be pay stubs from any employment you have had during the most recent six months. He or she will also need to know about unemployment benefits, disability benefits, social security benefits, retirement income and any other income source for that six months. If you are self employed or operating a small business, create a cash in – cash out statement. This is a listing of funds received and business expenses paid over that the most recent six months. I prefer to it broken down by month. For a self employed person, “income” usually will be the difference between the cash in and the cash out.

Bank Statements

The trustee in your bankruptcy case will always ask to see at least 30 days of bank statements. Maybe they will ask to see as many as six months of bank statements. This would be a printout or statements for any bank accounts you may have. It always has to include the balance on the day the case is filed. If there are red flags in your bank statements, you want your lawyer to see them before somebody else does. Most of the time I start by asking to see my client’s most recent bank statement. Then I may ask for more depending on what I see.

Keep Your Receipts

If you do a lot of your financial business with cash, it is best to keep very careful records of what you are doing with the cash. Keep your receipts. Keep records for everything you do. You might or might not be asked to produce the receipts, but you should have them ready in case the trustee wants to see them.

Tax Returns

The bankruptcy trustee will require that you produce your most recent state and federal tax returns. I will want to see at least the last two years of your tax returns. There are income questions on the bankruptcy petition that go back two years. The best place for me to get your income information is from the tax returns. If you have unfiled tax returns, I will ask that you get your tax filing up to date before we file the bankruptcy. We have to list all your assets and all your debts. If you owe taxes that’s obviously a debt, and if you have a refund coming that’s an asset. Either way I need to know what that is.

Bills, Nasty Letters and Legal Actions

Even if we eventually get a credit report, there are many things that do not show on those reports. Or the reports might be wrong. So I want to see the statements and letters you have been receiving from your creditors. If there is a lawsuit or a threat of one, I want to see all the paperwork you have about that as well.

Documentation of Assets

If you own your home, find your deed from when you bought the place. Best too if you find a copy of the mortgage you signed at that time. If you have refinanced, find the papers about that too. Usually you get a big folder of stuff when you buy a house or refinance. Just bring that folder to your lawyer and he or she will pick out the needed documents. If you own a car, trailer, camper, or motorcycle, find the title certificates. If you have a boat or an ATV that is registered with the state, find your registration card or papers – your lawyer will need them.

Maintain ongoing records

Finally keep in mind that preparing a bankruptcy is an ongoing process. You are never realy done gathering records. As your attorney works with you to prepare the case, which could take several weeks, continue to keep records. When anything new turns up, be sure you give it to your lawyer.

Disclaimer

I am a debt relief agency. I help people file for relief under the federal bankruptcy code. This pose is for general information purposes only and is not legal advice. It does not create an attorney client relationship.

Call Dave – It’s Free

Call Dave for a free telephone consultation. 962-544-6356.

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Things to Avoid Before Bankruptcy: Item 7 – Recent Debt Run-up

Credit Card Debt

By Dave Kelly, Minnesota bankruptcy attorney

This is the last in my series of articles about the top seven things that in my opinion you should avoid doing prior to filing a Chapter 7 or Chapter 13 bankruptcy. My list is not exclusive. There are lots of other things to be avoided. On one web page I saw a list of 33 things to avoid. All I am saying is that this list is my top seven. Others may disagree on my ranking of these.

Why is Debt Run-up Before Bankruptcy a Problem?

The reason you should avoid running up debt right before filing a bankruptcy is that doing so may result in an objection to your discharge from one of the creditors. Typically this would not be an objection to your entire bankruptcy case, but just an objection to the one particular debt owing to that particular creditor. The larger the debt and the closer to the filing date of the bankruptcy it was incurred, the greater the risk.

The creditor will review the account and use the history of the account to try and prove that you had no intent of paying the debt at the time you ran it up. If you had no intent to pay when you incurred the debt, the creditor can object on the grounds of false pretenses and fraud. The evidence that the creditor will use will usually be entirely circumstantial . Basically they put together their case and ask the judge “what’s this look like to you?” Often it can be pretty obvious, other times not.

Worse if for Luxury Good or Services

The creditor’s case is always stronger if the debt is for luxury goods and services, especially if the purchases spike right before the bankruptcy is filed. When somebody who hardly ever goes farther then Duluth suddenly decides they need a trip to Europe, it looks suspicious. Expensive restaurants, large purchases of alcohol, spas and pedicures don’t look so good either. On the opposite end of the spectrum is medical expense. People usually don’t have control of medical costs, and the medical providers almost never object.

What the Law Presumes

Ordinarily the creditor has the burden of proof when they file an objection to discharge. This means that the creditor has to prove their case and the debtor does not have to necessarily prove anything. The bankruptcy statute has two situations, however, where certain presumptions shift the burden of proof to the debtor. Here they are:

1.  Any consumer debt for goods and services owed to a single creditor in excess of $725 incurred within 90 days of filing is presumed to be for luxury items. With the proper evidence in your favor, the presumption can be rebutted; but it’s best just to wait so you don’t have to go through a potential objection from the creditor.

2.  Cash advances in excess of $1,000 made within 70 days of filing are presumed non-dischargeable. Again, if this has happened it may be best to wait until the time period has passed before filing.

What this Really Means

As a practical matter what does all this mean? In my opinion it means that you might not want to file a bankruptcy if you have run up a debt on any one account in an amount of more than 4 or5 thousand dollars in the past six months. If it’s much less than that, the creditor probably can’t afford to do an objection. If it’s much older than that, it’s might be too hard for the creditor to prove. This kind of recent debt runup doesn’t necessarily mean you should not file a bankruptcy. But it could be a good reason to delay the filing for a while.

Disclaimer

This post is for general information purposes only and is not legal advice. It does not create an attorney-client relationship. Consult the attorney or your choice about the details of your case.

 

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Filing Chapter 7 Easier After November 1st: MN Median Incomes Rise Despite Covid-19

Higher Median Income for MN

By David Kelly, Minnesota Bankruptcy Lawyer

Why Your Median Income is Important if you are Thinking of Bankruptcy

If your income is below the median for your household size in your state, you can file a Chapter 7 bankruptcy without having to take and pass the means test. I expected that with the Covid epidemic in progress the income numbers would be dropping substantially. At least for the state of Minnesota, this is not what has just happened. They actually went up. Quite a bit up in fact, as of November 1st 2020. This means that many people who may not have been able to file a Chapter 7 bankruptcy earlier will be able to do so now.

Twice a year the Department of Justice updates it’s official median income tables. Numbers are assigned on a state by state and a household size basis, supposedly based on figures from the Census Bureau. A new set of numbers is out for November 1, 2020. The numbers went up at a rate higher than usual. This is a happy surprise.

Are These Numbers For Real?

I can’t help but wonder if somebody is messing with the numbers. Frankly, they don’t look right to me based on what I have been seeing. But I should not be looking a gift horse in the mouth. This helps my clients. It will be a lot easier to file a Chapter 7 bankruptcy in Minnesota after November 1, 2020 than it was before. Another benefit is that if for some reason you need to file a Chapter 13 bankruptcy, having an income below median means that your payment plan can run only three years instead of the usual five years.

Here are the Minnesota median income numbers effective November 1, 2020:

One person:$  61,811 – an increase of $3,761 since April 2020
Two people:$ 81,478 – an increase of $3,776 since April 2020
Three people:$100,430 – an increase of $2,773 since April of 2020
Four people:$118,646 – an increase of $4,320 since April of 2020
Five people$127,646 – an increase of $4,320 since April of 2020
Six people: $136,646 – an increase of $4,320 since April of 2020
Add $9,000 for each individual in excess of 6

Call 952-544-6356 to Find Out How This Helps You

When it comes to eligibility for filing Chapter 7 bankruptcy, or for Chapter 13 if that’s what you need, things are looking up. Now is a good time to contact me for a free telephone consultation to discuss how this helps you.

This post is for general information purposes only and is not legal advice. It does not create an attorney-client relationship. Seek the advice of the attorney of your choice concerning the details of your case. I am a debt relief agency. I help people file for relief under the federal bankruptcy code.


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