Posted On: October 22, 2010

Tax "return" must be filed 2 years before filing bankruptcy

Taxes for which returns were not filed at all or...were filed, but within 2 years of filing a bankruptcy are not dischargeable.

The issue here is not always just the two year date as that becomes relatively easy to calculate.

It is more often whether or not the return is actually a "return" for purposes of this rule.

If the IRS has filed a substitute return and then the filer submits a correct return later, and more then two years before the bankruptcy filing, the two year rule may not be met as the return may not qualify as a "return".

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Posted On: October 17, 2010

3 years before bankruptcy is filed and tax debt

Tax debt that is based on your income and for which a return was required to be filed within 3 years prior to the filing of your bankruptcy petition is not dischargeable in bankruptcy. See 11 U.S.C. Sect 523(a)(1)(A).

The "due date" includes extension dates. So if you filed for an extension to Oct. 15. you would not begin counting the three year period until Oct 15.

The 3 year period is also extended by a prior bankruptcy plus 6 months.

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Posted On: October 14, 2010

Recent Chapter 7 Bankruptcy and Need to File Again?

If you filed a chapter 7 bankruptcy within the last 8 years and received a discharge, you cannot file another chapter 7 bankruptcy.

It is common for chapter 7 bankruptcy filers to need another bankruptcy. So, what do they do?

If it has been less then 4 years, they use a chapter 13 bankruptcy.

11 U.S.C. Section 1328 (f)(1) lays out the rule.

A debtor cannot receive a discharge under chapter 13 if he or she received a discharge in a chapter 7, 11, or 12 bankruptcy filed within the last 4 years.

If it has been 4 years and a day, another bankruptcy can be filed.

There are circumstances where the discharge is not needed, and a chapter 13 bankruptcy may be used for other reasons. In those situations, it may be possible to file the chapter 13 bankruptcy post chapter 7 and prior to the 4 year period,

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Posted On: October 12, 2010

A prior Chapter 12 or Chapter 13 Prevents a Chapter 7 bankruptcy Discharge

If you have filed a chapter 12 or more commonly a chapter 13 bankruptcy and received a discharge of one of those cases within the the last 6 years i.e. you cannot file a chapter 7 bankruptcy and receive a discharge.

This scenario is much less common in my experience than the debtor who has filed a chapter 7 bankruptcy previously and is seeking to file another chapter 7. In that situation the time between filing dates must be 8 years.

Read 11 U.S.C. Sect 727 (a)(9) for more.

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Posted On: October 8, 2010

A Prior Bankruptcy Prevents a Chapter 7 Discharge

If you filed a chapter 7 bankruptcy and received a discharge within 8 years of the filing of your present chapter 7 bankruptcy case, you are not entitled to receive a discharge in the present case.

It is 8 years not 6.

Look at 11 U.S.C. Section 727 (a)(8).

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Posted On: October 7, 2010

You qualify to file a chapter 7 bankruptcy but do you qualify to receive a discharge?

Just because you are eligible to file a chapter 7 bankruptcy doesn't mean you are entitled to a discharge of debt. The following is a list of the major parts of Bankruptcy Code Section 727(a) which describes the requirements and limits on receiving a discharge.

1. You must be an individual

2. You can't with an intent to hinder, delay or defraud a creditor or officer of the bankruptcy estate transfer, remove, destroy, mutilate or conceal, or allow someone else to do so any property that you own within one year before the bankruptcy filing date or after the date of filing.

3. You must keep good records and protect your records

4. You can't knowingly and fraudulently make a false sworn statement, make a false claim, accept money or a promise to act or fail to act, or withhold information or documents.

5. You have to be able to explain any loss of assets or deficiency of assets to meet your liabilities

6. You can't refuse to obey an order of the court, refuse to answer questions that may incriminate yourself if you have been granted immunity on the issue

7. You can't have received a discharge in another chapter 7 case filed within the last 8 years

8. You can't have received a discharge in a chapter 13 that was filed in the last 6 years unless 100 percent of the allowed unsecured claims were paid in the case or 70 percent of them were paid but the plan was proposed in good faith and was based on your best effort

9. You must take a financial management course after the filing of the case

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Posted On: October 6, 2010

Considering bankruptcy - don't mess with your retirement account

Most retirement accounts are protected from seizure by creditors. Therefore, if you have serious debt, a retirement account, and feel like bankruptcy may be in your future, you shouldn't do the following:

1. Don’t Cash It Out
The fact that you are having to pull money from the account is a sign that you should be talking to a bankruptcy attorney. Once you take the money out of it’s protected "cocoon", it may not be safe from creditors and the bankruptcy trustee.

2. Don’t Borrow Against It
Borrowing against the retirement account can create a number of problems. The first is similar to the “cash out” problem mentioned above. The cash in your hand is not protected. You have also created a new “debt”, that must be paid or you may suffer tax consequences.

3. Don’t Use The Account As Collateral For a Loan
Doing so could jeopardize the full effect of the retirement account protection.

If you feel like you need the funds from your retirement account to survive, and you have serious debt issues, spend the time to speak to an experienced bankruptcy attorney first. You may be glad you did.

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Posted On: October 3, 2010

Filing for Bankruptcy - Experience matters when choosing an attorney

A short note on who not to choose to help you with your consumer or small business bankruptcy case.

1. The cheapest lawyer

The problems associated with this are summed up by the too often used phrase, "you get what you pay for". I won't say that this is always the case, but in an office that is based on very high volume and very low fees, many little things and some big things will give way at some point and on a consistent basis.

2. The "new" lawyer

I went fishing in Alaska once. The salmon started a run and the town showed up. It was shoulder to shoulder. There are nuances in catching the salmon, nuances learned via hard knocks and time in the water in both good and bad weather. I could tell who had been fishing many times before, after just a few minutes of observation, and it wasn't me.

Not to compare my clients to fish, but bankruptcy has become a popular choice for Americans, and the attorneys have shown up as well, shoulder to shoulder. Unfortunately for the consumer and small business person, bankruptcy has many nuances. Nuances learned via hard knocks and time in the water. You get my "drift".

3. The lawyer next door

Just because I am a lawyer, have a nice car and am your "neighbor" or best friend's neighbor, doesn't mean I should take on the defense of your criminal case. Lawyers focus on related practice areas as a result of the law and it's complexity.

Continue reading " Filing for Bankruptcy - Experience matters when choosing an attorney " »

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Posted On: October 3, 2010

JP Morgan Halts 50,000 foreclosures

According to ABC News/Money, JP Morgan has stopped 50,000 foreclosures while it reviews documents for errors.

http://abcnews.go.com/Business/wireStory?id=11759376

This decision appears to be the result of JP Morgan's concern that many of their loan documents are "faulty". Courts across the country have begun to take notice of faulty affidavit procedures and other document problems that call into question the legality of the foreclosure process in those cases.

If you are facing foreclosure, have an experienced attorney look at your loan documents.

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