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DISCLOSURES REQUIRED UNDER SECTION 527 AND 342 OF THE BANKRUPTCY ABUSE PREVENTION AND CONSUMER PROTECTION ACT OF 2005.
NOTICE NO. 1 Notice Mandated By Section 342(b)(1) and 527(a)(1) Of The Bankruptcy Code
PURPOSES, BENEFITS AND COSTS OF BANKRUPTCY
The United States Constitution provides a method whereby individuals, burdened by excessive debt, can obtain a “fresh start” and pursue productive lives unimpaired by past financial problems. It is an important alternative for persons strapped with more debt and stress than they can handle.
The federal bankruptcy laws were enacted to provide good, honest, hard-working debtors with a fresh start and to establish a ranking and equity among all the creditors clamoring for the debtor’s limited resources.
Bankruptcy helps people avoid the kind of permanent discouragement that can prevent them from ever re-establishing themselves as hard working members of society.
To the extent that there may be money or property available for distribution to creditors, creditors are ranked to make sure that money or property is fairly distributed according to established rules as to which creditors get what.
This discussion is intended only as a brief overview of the types of bankruptcy filings and of what a bankruptcy filing can and cannot do. No one should base their decision as to whether or not to file bankruptcy solely on this information. Bankruptcy law is complex, and there are many considerations that must be taken into account in making the determination whether or not to file. Anyone considering bankruptcy is encouraged to make no decision about bankruptcy without seeking the advice and assistance of a local attorney who practices nothing but bankruptcy law.
Types of Bankruptcy
The Bankruptcy Code is divided into chapters. The chapters which almost always apply to consumer debtors are chapter 7, known as a “straight bankruptcy”, and chapter 13, which involves an affordable plan of repayment.
An important feature applicable to all types of bankruptcy filings is the automatic stay. The automatic stay means that the mere request for bankruptcy protection automatically stops and brings to a grinding halt most lawsuits, repossessions, foreclosures, evictions, garnishments, attachments, utility shut offs, and debt collection harassment. It offers debtors a breathing spell by giving the debtor and the trustee assigned to the case time to review the situation and develop an appropriate plan. In most circumstances, creditors cannot take any further action against the debtor or the property without permission from the bankruptcy court.
In a chapter 7 case, the bankruptcy court appoints a trustee to examine the debtor’s assets to determine if there are any assets not protected by available “exemptions”. Exemptions are laws that allow a debtor to keep, and not part with, certain types and amounts of money and property. For example, exemption laws allows a debtor to protect a certain amount of equity in the debtor’s residence, motor vehicle, household goods, life insurance, health aids, retirement plans, specified future earnings such as social security benefits, child support, and alimony, and certain other types of personal property. If there is any non-exempt property, it is the Trustee’s job to sell it and to distribute the proceeds among the unsecured creditors. Although a liquidation case can rarely help with secured debt (the secured creditor still has the right to repossess the collateral if the debtor falls behind in the monthly payments), the debtor will be discharged from the legal obligation to pay unsecured debts such as credit card debts, medical bills and utility arrearages. However, certain types of unsecured debt are allowed special treatment and cannot be discharged. These include some student loans, alimony, child support, criminal fines, and some taxes.
Additional information about chapter 7 is available at the Site.
In addition to attorney fees, there is a filing fee that must be paid to the Bankruptcy Court.
In a chapter 13 case, the debtor puts forward a plan, following the rules set forth in the bankruptcy laws, to repay certain creditors over a period of time, usually from future income. A chapter 13 case may be advantageous in that the debtor is allowed to get caught up on mortgages or car loans without the threat of foreclosure or repossession, and is allowed to keep both exempt and nonexempt property. The debtor’s plan is a document outlining to the bankruptcy court how the debtor proposes to dispose of the claims of the debtor’s creditors. The debtor’s property is protected from seizure from creditors, including mortgage and other lien holders, as long as the proposed payments are made and necessary insurance coverages remain in place. The plan generally requires monthly payments to the bankruptcy trustee over a period of three to five years. Arrangements can be made to have these payments made automatically through payroll deductions.
Additional information about chapter 13 is available at the Site.
In addition to attorney fees, there is a filing fee that must be paid to the Bankruptcy Court.
By and large, chapter 11 is a type of bankruptcy reserved for large corporate reorganizations. Chapter 11 shares many of the qualities of a chapter 13, but tends to involve much more complexity on a much larger scale.
However, since chapter 11 does not usually pertain to individuals whose debts are primarily consumer debts, further information about chapter 11 will be provided by reference to the following resource: The A Bankruptcy Basics @ brochure prepared by the Administrative Office of the United States Courts, dated June 2000, and which can be accessed over the internet by visiting the following website:
Chapter 12 of the Bankruptcy Code was enacted by Congress in 1986, specifically to meet the needs of financially distressed family farmers. The primary purpose of this legislation was to give family farmers facing bankruptcy a chance to reorganize their debts and keep their farms.
However, as with chapter 11, since chapter 12 does not usually pertain to individuals whose debts are primarily consumer debts, further information about chapter 12 will be provided by reference to the same “Bankruptcy Basics” brochure referred to above, which can be accessed over the internet at the same said website as mentioned for chapter 11.
What Bankruptcy Can and Cannot Do
Bankruptcy may make it possible for financially distressed individuals to:
1. Discharge liability for most or all of their debts and get a fresh start. When the debt is discharged, the debtor has no further legal obligation to pay the debt.
2. Stop foreclosure actions on their home and allow them an opportunity to catch up on missed payments.
3. Prevent repossession of a car or other property, or force the creditor to return property even after it has been repossessed.
4. Stop wage garnishment and other debt collection harassment, and give the individual some breathing room.
5. Restore or prevent termination of certain types of utility service.
6. Lower the monthly payments and interest rates on debts, including secured debts such as car loans.
7. Allow debtors an opportunity to challenge the claims of certain creditors who have committed fraud or who are otherwise seeking to collect more than they are legally entitled to.
Bankruptcy, however, cannot cure every financial problem. It is usually not possible to:
1. Eliminate certain rights of secured creditors. Although a debtor can force secured creditors to take payments over time in the bankruptcy process, a debtor generally cannot keep the collateral unless the debtor continues to pay the debt.
2. Discharge types of debts singled out by the federal bankruptcy statutes for special treatment, such as child support, alimony, student loans, certain court ordered payments, criminal fines, and some taxes.
3. Protect all cosigners on their debts. If relative or friend co signed a loan which the debtor discharged in bankruptcy, the cosigner may still be obligated to repay whatever part of the loan not paid during the pendency of the bankruptcy case.
4. Discharge debts that are incurred after bankruptcy has been filed.
Bankruptcy’s Effect on Your Credit
By federal law, a bankruptcy can remain part of a debtor’s credit history for 10 years. Whether or not the debtor will be granted credit in the future is unpredictable, and probably depends, to a certain extent, on what good things the debtor does in the nature of keeping a job, saving money, making timely payments on secured debts, etc.
Services Available From Credit Counseling Agencies
With limited exceptions, Section 109(h) of the Bankruptcy Code requires that all individuals who file for bankruptcy relief on or after October 17, 2005 receive a briefing that outlines all available opportunities for credit counseling and provides assistance in performing a budget analysis. The briefing must be given within 180 days prior to the bankruptcy filing. The briefing may be provided individually or in a group (including briefings conducted over the Internet or over the telephone) and must be provided by a non-profit budget and credit counseling agency approved by the United States Trustee or bankruptcy administrator. The clerk of the bankruptcy court has a list that you may consult of the approved budget and credit counseling agencies. In addition, after filing a bankruptcy case, an individual debtor generally must complete a financial management instructional course before he or she can receive a discharge. The clerk also has a list of approved financial management instructional courses.
If you’re not disciplined enough to create a workable budget and stick to it, can’t work out a repayment plan with your creditors, can’t keep track of mounting bills, or need more help with your debts than can be achieved by merely having a few of your unsecured creditors lower your interest rates somewhat, it probably makes little sense to consider contacting a credit counseling organization.
If, on the other hand, you meet all or most of those criteria, there are many non-profit credit counseling organizations that will work with you to solve your financial problems.
But be aware that, just because an organization says it’s “nonprofit,” there’s no guarantee that its services are free, affordable or even legitimate.
Most credit counselors offer services through local offices, the Internet, or on the telephone. If possible, it probably best to find an organization that offers in-person counseling. Many universities, military bases, credit unions, housing authorities, and branches of the U.S. Cooperative Extension Service operate nonprofit credit counseling programs. Your financial institution, local consumer protection agency, and friends and family also may be good sources of information and referrals.
Reputable credit counseling organizations can advise you on managing your money and debts, help you develop a budget, and offer free educational materials and workshops. Their counselors are certified and trained in the areas of consumer credit, money and debt management, and budgeting. Legitimate counselors will discuss your entire financial situation with you, and help you develop a personalized plan to solve your money problems. An initial counseling session typically lasts an hour, with an offer of follow-up sessions.
If your financial problems stem from too much debt or your inability to repay your debts, a credit counseling agency may recommend that you enroll in what is knows as a “debt management plan” or “DMP”. A DMP alone is not credit counseling, and DMPs are not for everyone. You should sign up for one of these plans only after a certified credit counselor has spent time thoroughly reviewing your financial situation, has offered you customized advice on managing your money, and has analyzed your budget to make sure that the proposed DMP is one you can afford. However, remember that all organizations that promote DMP’s fund themselves in part through arrangements with the creditors involved, which are called “fair share”, so you have to be wary as to whose best interest the counselor has in mind. Even if a DMP is not appropriate for you, a reputable credit counseling organization still can help you create a budget and teach you money management skills.
In a DMP, you deposit money each month with the credit counseling organization, which uses your deposits to pay your unsecured debts, like your credit card bills and medical bills, according to a payment schedule the counselor develops with your creditors. Your creditors may agree to lower your interest rates or waive certain fees, but it’s always best to check with all your creditors, just to make sure they offer the concessions that a credit counseling organization is promising you. A successful DMP requires you to make regular, timely payments, and could take 48 months or more to complete. Ask the credit counselor to estimate how long it will take for you to complete the plan. You may have to agree not to apply for C or use C any additional credit while you’re participating in the plan, and a DMP is likely of little value if your problems stem from or involve your secured creditors holding your car, truck or home as collateral. DMP’s are also likely of little value if your problems stem from alimony, child support or overdue taxes.
The bottom line is this: If all you need is a little lowering of your interest rates on some unsecured debts, a DMP might be the answer. However, if what you really need is to reduce the amount of your debt, bankruptcy may be the solution.
NOTICE NO. 2
Notice Mandated By Section 527(a)(2) Of The Bankruptcy Code
NOTICE OF MANDATORY DISCLOSURE
TO CONSUMERS WHO CONTEMPLATE FILING BANKRUPTCY
You are notified as follows:
1. All information that you are required to provide with the filing of your case and thereafter, while your case is pending, must be complete, accurate and truthful.
2. All your assets and all your liabilities must be completely and accurately disclosed in the documents filed to commence your case, and the replacement value of each asset (as defined in Section 506 of the Bankruptcy Code) must be stated in those documents where requested after reasonable inquiry to establish such value.
3. Some sections of the Bankruptcy Code require you to determine and list the replacement value of an asset such as a car or furniture. When replacement value is required, it means the replacement value, established after reasonable inquiry, as of the date of the filing of your bankruptcy case, without deduction for costs of sales or marketing. With respect to property acquired for personal, family or household purposes, replacement value means the price a retail merchant would charge for “used” property of that kind considering the age and condition of the property. Again, replacement value is defined in the Bankruptcy Code as the price that a retail merchant would charge for property of the same kind, considering the age and condition of the property at the time its value is determined. This is not the cost to replace the item with a new one or what you could sell the item for; it is the cost at which a retail merchant would sell the used item in its current condition. In many cases (particularly used clothing, furniture, computers, etc.), this would be “yard sale” value, or what the item might sell for on eBay. In other cases, such as jewelry, antiques or collectables, it may be retail value. For motor vehicles, it would be the third party purchase value. For real property, it is what the real property would sell for, at current Market value. For cash and bank accounts, it is the actual amount on deposit. For stocks and bonds, it is their market value as of the date your case is filed. You must make a reasonable inquiry to determine the replacement value of your assets.
4. Before your case can be filed, it is subject to what is called “Means Testing”. The Means Test was designed to determine whether or not you qualify to file a case under chapter 7 of the Bankruptcy Code, and if not, how much you need to pay your unsecured creditors in a chapter 13 case. For purposes of means test, you must state, after reasonable inquiry, your total current monthly income, the amount of all expenses as specified and allowed pursuant to section 707(b)(2) of the bankruptcy code, and if the plan is to file in a Chapter 13 case, you must state, again after reasonable inquiry, your disposable income, as that term is defined.
5. Information that you provide during your case may be audited pursuant to the provisions of the Bankruptcy Code. Your failure to provide complete, accurate and truthful information may result in the dismissal of your case or other sanctions, including criminal sanctions.
NOTICE NO. 3
Notice Mandated By Section 527(b) Of The Bankruptcy Code
IMPORTANT INFORMATION ABOUT BANKRUPTCY ASSISTANCE SERVICES
If you decide to seek bankruptcy relief, you can represent yourself, you can hire an attorney to represent you, or you can get help in some localities from a bankruptcy petition preparer who is not an attorney. THE LAW REQUIRES AN ATTORNEY OR BANKRUPTCY PETITION PREPARER TO GIVE YOU A WRITTEN CONTRACT SPECIFYING WHAT THE ATTORNEY OR BANKRUPTCY PETITION PREPARER WILL DO FOR YOU AND HOW MUCH IT WILL COST. Ask to see the contract before you hire anyone.
The following information helps you understand what must be done in a routine bankruptcy case to help you evaluate how much service you need. Although bankruptcy can be complex, many cases are routine.
Before filing a bankruptcy case, either you or your attorney should analyze your eligibility for different forms of debt relief available under the Bankruptcy Code and which form of relief is most likely to be beneficial for you. Be sure you understand the relief you can obtain and its limitations. To file a bankruptcy case, documents called a Petition, Schedules and Statement of Financial Affairs, as well as in some cases a Statement of Intention need to be prepared correctly and filed with the bankruptcy court. You will have to pay a filing fee to the bankruptcy court. Once your case starts, you will have to attend the required first meeting of creditors where you may be questioned by a court official called a > trustee = and by creditors.
If you choose to file a chapter 7 case, you may be asked by a creditor to reaffirm a debt. You may want help deciding whether to do so. A creditor is not permitted to coerce you into reaffirming your debts. It may not be in your best interest to reaffirm a debt.
If you choose to file a chapter 13 case in which you repay your creditors what you can afford over 3 to 5 years, you may also want help with preparing your chapter 13 plan and with the confirmation hearing on your plan which, if held, will be before a bankruptcy judge.
If you select another type of relief under the Bankruptcy Code other than chapter 7 or chapter 13, you will want to find out what should be done from someone familiar with that type of relief. However, please be advised that in most cases, you will only be concerned with chapter 7 and chapter 13.
Your bankruptcy case may also involve litigation. You are generally permitted to represent yourself in litigation in bankruptcy court, but only attorneys, not bankruptcy petition preparers, can give you legal advice.
NOTICE NO. 4
Notice Mandated By Section 342(b)(2) Of The Bankruptcy Code
FRAUD & CONCEALMENT PROHIBITED
If you decide to file bankruptcy, it is important that you understand the following:
1. Some or all of the information you provide in connection with your bankruptcy will be filed with the bankruptcy court on forms or documents that you will be required to sign and declare as true under penalty of perjury.
2. A person who knowingly and fraudulently conceals assets or makes a false oath or statement under penalty of perjury in connection with a bankruptcy case shall be subject to fine, imprisonment, or both.
3. All information you provide in connection with your bankruptcy case is subject to examination by the Attorney General.
ACKNOWLEDGMENT OF RECEIPT
By using the Site and/or otherwise accepting this Agreement, you acknowledge that you have received a copy of or been provided with access to all of the following notices:
1. Notice Mandated By Section 342(b)(1) and 527(a)(1) Of The Bankruptcy Code
2. Notice Mandated By Section 527(a)(2) Of The Bankruptcy Code
3. Notice Mandated By Section 527(b) Of The Bankruptcy Code
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No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.
The Alaska Bar Association does not accredit or endorse certifying organizations.
The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide to hire any attorney, ask that lawyer to send you free written information about that lawyer’s qualifications and experience.
The supreme Court of Hawaii grants Hawaii certification only to lawyers in good standing who have successfully completed a specialty program accredited by the American Bar Association.
The Supreme Court of Illinois does not recognize certifications of specialties in the practice of law and that the certificate, award or recognition is not a requirement to practice law in Illinois.
The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.
Memberships and offices in legal fraternities and legal societies, technical and professional licenses, and memberships in scientific, technical and professional associations and societies of law or field of practice do not mean that a lawyer is a specialist or expert in a field of law, nor do they mean that such a lawyer is necessarily any more expert or competent than any other lawyer.
A description or indication of limitation of practice does not mean that any agency or board has certified such lawyer as a specialist or expert in an indicated field of law practice, nor does it mean that such lawyer is necessarily any more expert or competent than any other lawyer.
All potential clients are urged to make their own independent investigation and evaluation of any lawyer being considered. This notice is required by rule of the Supreme Court of Iowa.
The filing of a claim or suit solely to coerce a settlement or to harass another could be illegal and could render the person so filing liable for malicious prosecution or abuse of process.
Any attorney listings or other information pertaining to a particular attorney or law firm on this Site constitutes a paid attorney advertisement, and do not in any way constitute a referral or endorsement by an approved or authorized lawyer referral service.
If a Massachusetts lawyer holds himself or herself out as “certified” in a particular service, field or area of law by a non-governmental body, the certifying organization is a private organization, whose standards for certification are not regulated by the Commonwealth of Massachusetts.
Free Background information is available upon request to a Mississippi attorney.
There is no procedure in Mississippi for approving certifying or designating organizations and authorities.
ADVERTISING MATERIAL: COMMERCIAL SOLICITATIONS ARE PERMITTED BY THE MISSOURI RULES OF PROFESSIONAL CONDUCT BUT ARE NEITHER SUBMITTED TO NOR APPROVED BY THE MISSOURI BAR OR THE SUPREME COURT OF MISSOURI. Neither the Supreme Court of Missouri nor the Missouri Bar reviews or approves certifying organizations or specialist designations.
Neither the state bar of Nevada nor any agency of the State Bar has certified any lawyer identified here as a specialist or as an expert. Anyone considering a lawyer should independently investigate the lawyer’s credentials and ability.
Any certification as a specialist, or any certification in a field of practice, that does not state that such certification has been granted by the Supreme Court of New Jersey or by an organization that has been approved by the American Bar Association, indicates that the certifying organization has not been approved, or has been denied approval, by the Supreme Court of New Jersey and the American Bar Association.
Any certification by an organization other than the New Mexico Board of Legal Specialization does not constitute recognition by the New Mexico Board of Legal Specialization, unless the lawyer is also recognized by the board as a specialist in that area of law.
The Rhode Island Supreme Court licenses all lawyers in the general practice of law. The court does not license or certify any lawyer as an expert or specialist in any field of practice.
Certifications of Specialization are available to Tennessee lawyers in all areas of practice relating to or included in the areas of Civil Trial, Criminal Trial, Business Bankruptcy, Consumer Bankruptcy, Creditor’s Rights, Medical Malpractice, Legal Malpractice, Accounting Malpractice, Elder Law, Estate Planning and Family Law. Listing of related or included practice areas herein does not constitute or imply a representation of certification of specialization.
Unless otherwise indicated, Not Certified by the Texas Board of Legal Specialization.
The Supreme Court of Washington does not recognize certification of specialties in the practice of law and that the certificate, award, or recognition is not a requirement to practice law in the State of Washington.
The Wyoming State Bar does not certify any lawyer as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer’s credentials and ability, and not rely upon advertisements or self-proclaimed expertise.
This site is intended to provide useful, factual information presented in a non-sensational, objective and understandable manner. The images and pictures on this site are not meant to represent or depict actual persons or events, but rather are merely provided for illustrative purposes only.
This Site is not intended for the purpose of advertising legal services to be performed in any state solely by the Law Firms, unless they are specifically licensed to practice in that respective State.
To the extent that this Site does not comply with the laws or regulations of any jurisdiction in which it may be received, the Law Firms do not wish to, and will not knowingly, accept legal representation based on or resulting from the use of the Site from a person located in that jurisdiction. None of the Law Firms wish to, or knowingly will, accept legal representation based on or resulting from the use of the Site from a person located outside the United States.
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21. Exclusions and Limitations
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 19 AND 20 MAY NOT APPLY TO YOU.
22. Entire Agreement
This agreement constitutes the entire agreement between you and us and governs your use of the Site, superseding any prior agreements between you and us. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services, affiliate services, third-party content or third-party software.
23. Choice of Forum
Any disputes arising out or related to use of this Site, this agreement and/or the relationship between you and us shall be submitted to arbitration in Chicago, Illinois carried out in accordance with the rules of the American Arbitration Association.
24. Waiver and Severability of Terms
Our failure to exercise or enforce any right or provision of this agreement shall not constitute a waiver of such right or provision. If any provision of the agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the agreement shall remain in full force and effect.
25. Statute of Limitations
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of this Site, this agreement and/or the relationship between you and us must be filed within one (1) year after such claim or cause of action arose or be forever barred.
26. Attorney Ethics Notice
If you are an attorney, participating in any aspect of this Site, you acknowledge that rules of professional conduct apply to all aspects of your participation and that you will abide by such rules. The rules include, but are not limited to, the rules relating to advertising, solicitation of clients, unauthorized practice of law, and misrepresentations of fact. We disclaim all responsibility for your compliance with these rules.
27. “Life After Bankruptcy”
BankruptcyHQ provides a forum for various mortgage lenders, car dealerships and other service providers to list their contact information. This service is subject to all limitations and disclaimers set forth elsewhere in this Agreement. Specifically, and not by way of limitation, BankruptcyHQ and WP make no representations or warranties regarding these service providers, including, without limitation, that they traditionally work with individuals who have been through a bankruptcy, that they will work with you or that their products and/or services are competitively priced or otherwise offered on attractive terms. This portion of this Site is intended as nothing more than a directory for services providers which may have paid a fee to BankruptcyHQ or WP for inclusion of their listing. Any and all claims arising out of your use of any service listed in this portion of this Site shall be limited to the particular service provider with which you have an issue, and BankruptcyHQ and WP shall not be liable for any costs, damages or expenses incurred by you on account of your electing to work with any of the service providers listed on this Site. You agree to indemnify BankruptcyHQ, WP, and its affiliates for any costs, damages or expenses incurred by it on account of your use of this service.
The section titles in this agreement are for convenience only and have no legal or contractual effect.
The purpose of this web site is to help you learn everything you need to know about bankruptcy, the process, your bankruptcy attorney and your legal rights. The best place to start is with the U.S. Bankruptcy Code. It delivers protection to people in financial jeopardy who are suffering under mountains of debt. Bankruptcy is your legal right.