Posts Tagged ‘automatic stay’

As the Great Recession continues to take its toll on the economy and employment landscape, millions of Americans in debt are turning to bankruptcy . Others are trying to negotiate with their debt collectors. But that’s rarely an easy task, especially during high-stress interactions like contact from a debt collector.

It’s important to remember that, even though you owe someone money, you still have rights: you can and should expect to be treated respectfully by collectors and, no matter how much pressure one puts on you, there are a few things that analysts suggest you should avoid.

Here’s a look at some of those no-nos.

  • Sending a post-dated check: While it may be tempting to get a debt collector off your back by sending a post-dated check to cover what you owe, sources indicate that it’s generally not a good idea. Why? Some collectors, it seems, have been known to deposit such checks early, and most banks permit them to do so. This could leave you with bounced check fees and other unpleasant matters to deal with if you don’t have sufficient funds in your account.
  • Divulging your bank account number: No matter how much money you owe, debt collectors are not legally entitled to your bank account number or other sensitive financial data. Even if you decide to make regular payments from a certain account, opt for a money order or a cashier’s check from a bank other than your own. If you’ve already given out an account number, keep a careful eye on the activity in that account and be prepared to challenge any withdrawals you haven’t approved.
  • Indicating that you’ll be applying for a loan: Sometimes, before applying for a loan, consumers attempt to clean up their credit reports by paying old debts and trying to get rid of other negative information. But letting a collector know what your goals are can work against you—instead, if you choose to contact a creditor, ask him to verify a debt in writing. Then, ask for written proof that he will remove the negative information from your credit report after you’ve paid; once you receive that proof, you can repay the debt.

The difficult economy has meant that more Americans than ever are struggling with day-to-day expenses, and the FTC noted that complaints about debt collectors rose by 12 percent in 2009 and outnumbered all other complaint types.

For a more detailed look at what you can expect, check out this page on your consumer rights with debt collectors. Further, know that debt collectors cannot legally contact you:

  • To collect debts whose statute of limitations has passed;
  • To collect debts that have been discharged in bankruptcy; or
  • To collect debts while bankruptcy’s automatic stay is in place.

Wednesday, February 10th, 2010

The Right Time to File Bankruptcy?

A refreshing article published recently in the Kalamazoo (Mich.) News underscores the role bankruptcy plays in helping filers overcome debt and draws attention to the oft-neglected question of when is the best time to file.

The article points out that too many people try to avoid filing bankruptcy at all costs and wait until they are financially desperate to file. Unfortunately, this is not always a good plan, as it may mean that filers use up retirement accounts (which are often exempt from creditors in bankruptcy court) and set themselves back for their post-bankruptcy life.

The article provides a helpful list of warning signs that filing for bankruptcy may be a good option sooner rather than later:

  • Borrowing money to pay debts: Whether you're using one credit card to pay another, relying on payday loans or hitting up family and friends for cash, this is a bad sign.
  • Dipping into retirement funds to pay debts: Again, your qualified retirement savings will likely be safe in bankruptcy court and heavily taxed if you take it out early. And once you spend that money, it's gone.
  • Falling short of minimum payments: If you cannot make even a minimum credit card payment each month, bankruptcy may be a good option.
  • Selling your goods to pay debt: If this is a one-time thing and you're shedding appliances you can do without, you may be fine. But if you're consistently scouring the house for stuff to trade for cash, you may be in trouble.
  • Getting contacted by bill collectors: Phone calls and mailings from your creditors, especially when they start to add up, can be halted by bankruptcy's automatic stay.
  • Having your wages garnished: If creditors are going straight to your employer to collect on debt, take it as a warning sign.
  • Dealing with increased tension or stress: Money can be tough on your home life. Whether you're having trouble sleeping, fighting more or just generally stressed out, you may need a serious solution for your debt.

A New Beginning

It's important to understand that filing for bankruptcy does not mean admitting defeat or failure. Rather, it is a proactive and difficult decision you must make to save your financial future. Filing for bankruptcy can:

  • Help you save your retirement fund so that you’re not destitute or a burden on taxpayers in your golden years.
  • Give you a chance to start over financially and the knowledge you need to make better decisions in the future.
  • Stop stressful contact from creditors.

Of course everyone's financial situation is different, and this post is not meant as advice for any one situation. If your finances are at their breaking point, considering contacting a local bankruptcy attorney for an evaluation.

Monday, March 30th, 2009

Chapter 13 Bankruptcy: The Process

Curious about Chapter 13 bankruptcy? Talk to a bankruptcy lawyer about whether it could help you.

Chapter 13 has helped many resolve their debts and save their homes from foreclosure. Here’s a bit more on the process and what you may expect:

Credit counseling briefing: This is a pre-filing requirement for all filers, and it’s designed to make sure your financial situation demands the protection of bankruptcy (and not, say, debt negotiation). Once your lawyer files your certificate of completion with the court, your case can officially begin.

Automatic stay: As soon as your case is filed, the automatic stay takes effect and prevents your creditors from making any collection actions. This means that foreclosure, garnishment, lawsuits and repossession are all halted. As long as you adhere to the terms of your bankruptcy case, the stay should last for the duration of your case.

The next three to five years: One of the papers your lawyer will file with the court will be a repayment plan. This plan provides a repayment schedule that you’ll stick with to catch up on your past-due balances while staying current with other payments.

Your bankruptcy trustee: This is a federal employee who will be assigned to your case to oversee your paperwork and distribute your money to your creditors every month.

The first payment: You must make your first payment (as part of the repayment plan) within 30 days of filing your petition – otherwise, the court may decide to dismiss your case.

Meeting of the Creditors: Within six weeks of filing your petition, you’ll have to testify to the completeness and accuracy of all information in your petition. While all your creditors are invited, most probably will not attend.

Financial management course: Before you’re eligible for your bankruptcy discharge, you must complete a financial management (debtor education) course. The course is designed to help you learn strategies for handling money, working with credit and generally making your fresh financial start a success.

Five years after filing: You’re required to make your final payment within five years of filing your petition. After doing so, you’ll receive your bankruptcy discharge and officially be out of bankruptcy.

The Next Four Years: You are not eligible for Chapter 13 bankruptcy protection if you’ve filed for bankruptcy in the past four years, so make sure you fill your bankruptcy lawyer in on your financial past when discussing your case.

Learn more about filing bankruptcy.

Thursday, February 26th, 2009

What’s the Bankruptcy Automatic Stay?

You’ve probably heard the phrase “bankruptcy protection”, but do you know how filing for bankruptcy could actually protect you?

The bankruptcy automatic stay offers one of the major protections in a bankruptcy case. Here are some basics on the automatic stay:

Immediate effect: Usually, right after filing bankruptcy, the automatic stay goes into effect. It prevents collection action against you of any kind, including:

  • Creditor contact
  • Foreclosure
  • Repossession
  • Garnishment
  • Lawsuits

Duration of protection: The automatic stay’s protection lasts as long as your bankruptcy case is pending – for a Chapter 7 case, usually a few months; for a Chapter 13 case, typically three to five years.

Note: In some cases, the automatic stay can be lifted before a bankruptcy discharge. If a creditor requests the stay be lifted, a judge may do so. If the property protected by the stay no longer makes up a part of the bankruptcy estate, the automatic stay’s protection may lapse.

Will the Bankruptcy Automatic Stay Help You?

If you’re trying to hang on to your home or car, struggling to keep the utility company from shutting off your service, being harassed by creditors or experiencing wage garnishments, the bankruptcy’s automatic stay may be able to help you.

Contact a bankruptcy lawyer.

If you’re considering filing bankruptcy, you probably have many questions on your mind.

Take a look at these frequently asked questions about bankruptcy to learn the answers you may need to move forward.

  • Do I need a bankruptcy lawyer? Since the introduction of the new bankruptcy law in 2005 (BAPCPA, or the Bankruptcy Abuse Prevention and Consumer Protection Act), filing for bankruptcy has been much more difficult. Because you need to fill out vast amounts of paperwork, meet strict deadlines and file reams of paperwork with the court, you should consider working with a bankruptcy lawyer.
  • What is the automatic stay? The automatic stay is one of the most powerful protections bankruptcy offers. It works by preventing your creditors from taking any collection action against you and lasts throughout the duration of your bankruptcy case, as long as you adhere to the rules set up by the court.
  • Can bankruptcy prevent foreclosure? Foreclosure is considered a form of collection, so when you file for bankruptcy, foreclosure can be prevented by the automatic stay. Because Chapter 13 bankruptcy cases last for three to five years, you may be able to prevent the foreclosure of your home long enough to make other plans or catch up on your mortgage payments.
  • How do I know if bankruptcy is right for me? A bankruptcy lawyer can help you make this important decision, but you can help yourself by doing some research on your own. You can find lots of useful information on both Chapter 7 bankruptcy and Chapter 13 bankruptcy on Total Bankruptcy’s web site.
  • What are the bankruptcy laws in my state? Technically, bankruptcy is ruled at the federal level, so laws are the same across the country. Each state, though, has different Chapter 7 exemptions, which determine what property you can hang on to if you decide to file under Chapter 7 of the U.S. Bankruptcy Code. Check out your state bankruptcy laws.