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Category: Bankruptcy

6 Questions to Ask a Bankruptcy Attorney When Considering Bankruptcy

 

bankruptcy and my inheritance

If you’re in dire financial straits and considering bankruptcy, being prepared before you meet with lawyers is incredibly important. The right bankruptcy attorney can make a meaningful difference in the outcome of your bankruptcy case. Many attorneys offer free consultations, and this can offer you a low-stakes way to find the right counsel for you.  

At Brenner, Spiller & Archer, LLP, we’re experienced bankruptcy lawyers who know how nerve-wracking bankruptcy can be. We’ve put together this list of six essential questions to ask bankruptcy attorneys when considering a bankruptcy lawyer

1. How Much Will This Cost Me?

Attorney’s fees can vary dramatically from firm to firm, and it’s okay to ask for a fee estimate upfront. You can even ask if the firm operates on a project fee basis. Any fee quotes your attorney provides should typically include the cost of filing your case in court. 

In the list of questions to ask a bankruptcy attorney, you should also ask what types of expenses your attorney expects to be reimbursed for. For instance, is printing included? Will you be charged for faxes to the court? So before signing the contract, be sure you understand how your attorney will handle unforeseen expenses that arise. And always understand up front whether you can enter into payment plans!

2. Will I Lose My House? Or My Car?

Many people are able to keep their house and car after bankruptcy. It often depends upon the type of bankruptcy you choose to file and the nature of the asset. In Chapter 7 bankruptcy, many people are able to keep their house. In fact, a significant number of Chapter 7 filers are able to keep their houses, cars, and many personal possessions. The rules may be slightly different in a Chapter 13 bankruptcy, but these are excellent questions to ask bankruptcy attorneys. Be honest about your assets and resources. Talk through your priorities. Whichever lawyer you choose, never give up your biggest assets without getting professional advice.

3. Can I Keep a Credit Card?

You typically cannot keep your credit cards in bankruptcy. When you file for bankruptcy, you need to disclose all your credit cards, so long as they have a balance. Most creditors actively search bankruptcy filings or subscribe to a service that matches their borrowers to open bankruptcy cases. Even if your account has a zero balance, any active account that matches up to a bankruptcy case usually loses its borrowing privileges immediately. 

Access to credit following a bankruptcy can be extremely tight. Make sure to ask any potential bankruptcy lawyer how they plan to help you handle this tricky part of your case. 

4. How Long Will This Be on My Credit Report?

A bankruptcy will stay on your credit report for 7-10 years, depending upon the type of bankruptcy case filed. It’s one of the good questions to ask a bankruptcy attorney when considering whether to file a Chapter 7 or Chapter 13 bankruptcy case.

5. So I Will Just Have No Credit for the Next 7 to 8 Years?

Whether you’ll have access to credit in the period after you file for bankruptcy depends on a number of factors. Filing bankruptcy is a very serious act that takes lots of careful consideration. 

Asking an experienced bankruptcy lawyer about the pros and cons of filing for bankruptcy can help you understand what to do if you have limited access to credit. One of the questions to ask bankruptcy lawyers might also be whether they can refer you to a financial planner. A good financial planner can help navigate limited access to credit.

6. What If I Don’t Get Approved for Bankruptcy?

When you file a bankruptcy plan with the court, the goal is always to have the court approve the plan. And, of course, to pay your creditors appropriately! One of the key questions to ask a bankruptcy lawyer is how they would respond if the court does not approve your bankruptcy plan. What is their experience with this situation? How would they prevent it? Finding a lawyer who responds in a way that makes you feel confident is essential.

How We Can Help

At Brenner Spiller & Archer, LLP, we are experienced New Jersey bankruptcy lawyers. We have deep expertise in providing a broad range of options to families in turmoil—while offering the compassion and sensitivity that your family needs. We’re here to help you move your life forward when you need it the most. Contact us today for a free case consultation. We’d love to discuss how we can help you navigate your own bankruptcy and move past this most difficult time.

Are My Retirement Accounts Protected in Bankruptcy in New Jersey?

ira protected in bankruptcy

Filing for bankruptcy helps people who cannot afford to pay their creditors.  Bankruptcy can put a  pause on everyone trying to get your money and give you a chance to catch your breath and figure out how to take care of your debts.

But many people who are considering filing for bankruptcy have retirement accounts, own a home, or owe payments on a vehicle loan. You might be worried that filing for Bankruptcy could cause you to lose your house, car, retirement savings, etc…  Rest assured that the Bankruptcy laws were set up to allow certain property to be protected from the Bankruptcy so that you don’t leave Bankruptcy with nothing.

Our Bankruptcy attorneys at Brenner Spiller & Archer, LLP, can answer your questions regarding which property you can be protected 

Contact our office today so we can start reviewing your case. 

Common Questions About Bankruptcy

For many people, bankruptcy offers an opportunity to escape from serious financial difficulties. The reasons for filing bankruptcy vary from person to person. It could be mortgage foreclosure or property taxes.  In some cases, crippling medical bills that overwhelm the debtor can lead them to consider filing for bankruptcy. Alternatively, someone with a mountain of credit card debt might file for bankruptcy to restart the process of building their credit. At Brenner Spiller & Archer, LLP, we understand that bankruptcy laws can be quite difficult to understand. We are here to help review your case and answer any questions you have about the process.

What Debts Can I Discharge in Bankruptcy?

If you are at all familiar with bankruptcy, you might know that bankruptcy law does not allow you to discharge certain debts. By filing for Chapter 7 bankruptcy, you can discharge most types of unsecured debt, including credit card debt and medical debt. Debts that are not discharged in bankruptcy include:

  • Certain tax obligations;
  • Student loans (possible to discharge, but not automatically discharged);
  • Child support or alimony;
  • Debt incurred by fraud;
  • Debt incurred by the debtor’s willful and malicious injury to another; and
  • Fines or penalties due to a governmental unit.

Individuals, married couples, corporations, and partnerships can file for Chapter 7 bankruptcy. If you have questions about whether your debt is dischargeable in bankruptcy proceedings, contact Brenner Spiller & Archer today. 

Are Retirement Accounts Protected in Bankruptcy?

Before moving to file, many people want to know if their Individual Retirement Account (IRA) is protected in bankruptcy. The federal government recognizes that people put in years of hard work to build up their retirement accounts. Additionally, the government realizes that if they take away your retirement account, it could easily result in your having to live off of government welfare programs later in life. As a result, the Bankruptcy Code has a 401K bankruptcy exemption that allows you to keep your retirement account. 

However, if you inherited a retirement account after the death of its original owner, that account is not exempt from bankruptcy proceedings. Additionally, if you withdraw the funds from your retirement account and put them into a checking or savings account, the funds are no longer protected against bankruptcy.

If you have more questions about whether your IRA is protected in bankruptcy, contact Brenner Spiller & Archer, LLP today.

Contact Our New Jersey Bankruptcy Lawyers at Brenner Spiller & Archer, LLP

We know that the decision to file bankruptcy is never an easy one. Our bankruptcy attorneys represent clients throughout Central and South New Jersey in their bankruptcy proceedings. We have helped hundreds of clients achieve a fresh financial start through this process. Whether you are concerned about stopping foreclosure on your home or avoiding the repossession of your vehicle, our team is here to walk you through the process. And if you decide that bankruptcy is not the right choice for you, we can help you consider other options that can alleviate your financial burden. 

At Brenner Spiller & Archer, LLP, we have over 40 years of experience assisting our clients with bankruptcy matters. Our experience in the bankruptcy industry has given us a wide and deep knowledge base from which to pull when assessing your specific situation and needs. We also know of the strategies the opposing side will use against you to try to make this process harder, and we know how to protect you in the face of these tactics. In short, we have the expertise necessary to represent you effectively and efficiently in your bankruptcy case. Contact our office today to schedule your free consultation. We look forward to serving you!

Understanding the Difference Between a Garnishment and a Levy

Understanding the Difference Between a Garnishment and a Levy

Wage Garnishment

If you’re struggling to pay your bills, you might receive a notice that a creditor is placing a levy or garnishment on your bank account or wages. A creditor can be a medical provider, the IRS, or anyone who can prove that you owe them money. 

Most creditors must give you written notice before they can take money from your account or paycheck. Still, it’s important to understand the difference between garnishment and a levy and how you can stop creditors from accessing your income and deposits. This page will give you an introduction to garnishments and levies, how an experienced debt-reduction attorney can help you keep your money, and how bankruptcy can temporarily protect your assets.

What Are Levies and Garnishments?

Levies and garnishments are similar in that they allow creditors to collect payments from your accounts or paycheck. In most cases, creditors must first go to court and obtain a judgment against you, proving that you owe them money (the IRS is one exception). The difference between garnishment and a levy is where the creditor can collect the money.

With a garnishment, your employer withholds a portion of your paycheck and pays it to the creditor. With a levy (also called an attachment), the bank freezes your account, and the creditor can withdraw any future deposits.

When considering garnishment vs. levy, both are ways for creditors to obtain the money they are entitled to from a legal judgment. The difference is where they can access the money: from your bank account (levy) or out of your paycheck (garnishment).

What Are the Limits on Levies and Garnishments?

A bank levy doesn’t mean you lose the money in your bank account. It only means it is frozen. The creditor must file a Motion to Turn Over Funds with the courts before it can collect from your account. A judgment creditor has 20 years to execute the levy. If you object, file for bankruptcy, or file for an exemption, the levy can be lifted, and you’ll be able to access the money in your account. 

In addition, the law limits the amount a creditor can garnish from your wages. Creditors cannot reach the first $217.50 that you earn each week. Also, under New Jersey law, creditors may only collect up to 10% of your income if you earn 250% or less of the federal poverty level for a household of your size. State law provides more protection than federal law (which allows creditors to take up to 25% of your wages). If a creditor exceeds the collection limit through garnishment and attempts to levy your bank account, you should file a complaint with the court. Finally, you should know that an employer cannot fire you from your job for having a garnishment.

What Types of Income Are Exempt from Levy or Garnishment?

Federal and state law protects certain types of income from creditors. When you receive notice from a creditor of a levy or garnishment, you should receive paperwork to claim exemptions. If you object to the levy and the court grants an exemption, your bank must protect the exempted amounts. Commonly protected funds include two months of:

  • Social Security benefits;
  • Student financial aid;
  • Workers’ compensation disability payments;
  • Unemployment benefits;
  • Welfare benefits (such as TANF or SNAP);
  • Retirement or pension amounts;
  • Child support; and
  • Alimony.

In addition, up to $1,000 of your personal property is protected from levy. If your account holds exempted funds and income from other sources, creditors may still be able to claim the funds that do not meet the exemption. 

What Is the Effect of Filing for Bankruptcy on Garnishments and Levies?

When you file for bankruptcy, you get the immediate relief of an automatic stay. When your attorney notifies creditors that you have filed for Chapter 7 or Chapter 13 bankruptcy, they must stop all collection activities. The creditor must lift bank levies, end garnishments, and stop calls, letters, and emails. If a creditor continues with collection efforts, it could face substantial penalties under the Fair Debt Collection Practices Act (FDCPA). 

When the court grants your bankruptcy petition, federal bankruptcy law exempts some assets from payment to creditors. Typically, the law protects your house, car, and household effects up to a specific value. While bankruptcy sounds like a worst-case scenario, it is common for the law to give consumers a second chance. 

If You Have a Levy or Garnishment, Call Brenner Spiller & Archer, LLP

If you have increasing debt and threats of foreclosure, levies, or garnishments, it is common to feel overwhelmed. Fortunately, the experienced attorneys at Brenner Spiller & Archer, LLP, are here to help. Our attorneys have been helping resolve bankruptcy issues and personal injury cases for over 35 years. We provide friendly, caring, and affordable legal services to those in need throughout New Jersey. When you contact us for a free consultation, we’ll explain the legal implications of a garnishment or levy and discuss which exemptions and limits may apply to your case.

How Common Are Adversary Proceedings in Bankruptcy?

How Common Are Adversary Proceedings in Bankruptcy?

The purpose of a bankruptcy proceeding is to determine the extent to which the person seeking bankruptcy can cover their expenses. Expenses that the petitioner cannot pay either get reorganized up into a repayment plan in a Chapter 13 bankruptcy or discharged in a Chapter 7 bankruptcy. Traditionally, the bankruptcy process is non-adversarial in that the person filing for bankruptcy presents information to the bankruptcy trustee, and they determine the appropriate course of action. However, in some bankruptcy cases, there are disputed issues that result in bankruptcy adversary proceedings. This can complicate and delay a bankruptcy case.

Many bankruptcy cases proceed from beginning to end without an adversary proceeding. However, adversary proceedings are far from rare. While some adversary proceedings stem from the filer’s conduct, that is not always the case, so it’s almost impossible to determine at the outset whether an adversary proceeding is on the horizon. However, once it becomes clear that an adversary bankruptcy proceeding is imminent, it is important to retain the assistance of a New Jersey bankruptcy lawyer who is knowledgeable in that particular area.

What Is an Adversary Proceeding in Bankruptcy Court?

At this point, you may wonder, What is an adversary proceeding? An adversary proceeding is a separate lawsuit that is filed in relation to a bankruptcy case. Adversary proceedings become necessary when an issue comes up during a bankruptcy that the bankruptcy court needs to resolve. Any party of bankruptcy can file an adversary proceeding, including debtors, creditors, and trustees. Once a party files an adversary proceeding, the court will assign the case a separate case number. And once a party initiates an adversary proceeding, the bankruptcy case cannot conclude until the court resolves the contested matters.

Federal Rule of Bankruptcy Procedure Rule 7001 lists some actions that must proceed as adversary proceedings. However, the following situations are the most likely to result in an adversary proceeding.

Disputes Surrounding the Dischargeability of Certain Debt

Many types of debt are dischargeable through a Chapter 7 bankruptcy. In fact, this is one of the main benefits of filing for bankruptcy. However, certain debts are not dischargeable. For example, student loans, state and local taxes, child support, and alimony are all non-dischargeable debts. However, there are also other debts that cannot be discharged due to the debtor’s malfeasance. If a creditor or the bankruptcy trustee believes that certain debts of the bankruptcy petitioner should not be discharged, they may file for an adversary proceeding.

General Objections to the Discharge of All Debt

In certain situations, when creditors or the bankruptcy trustee believes that the debtor wrongfully transferred property or hid assets, they may object to the discharge of any debt. Creditors and bankruptcy trustees can go back as far as two years if there is evidence of a wrongful transfer.  

Fraudulent Transfers

Bankruptcy trustees and creditors are on the watch for any fraudulent transfers that may adversely affect their interests. For example, if you plan on filing for bankruptcy, you cannot transfer your entire bank account balance to your sister for safekeeping. If a bankruptcy trustee or a creditor believes this to be the case, they may file for an adversary proceeding in an attempt to “clawback” the assets.

A Violation of the Automatic Stay

Once someone files for bankruptcy, the court will impose an automatic stay. This prevents all creditors from making efforts to collect what they are owed during the case’s pendency. If a creditor violates the terms of an automatic stay, a bankruptcy petitioner may file an adversary proceeding. If successful, the bankruptcy petitioner can recover actual damages, including costs and attorney’s fees.

Lien Stripping

Bankruptcy petitioners may file an adversary proceeding to “strip” certain debts of their secured status. This is referred to as lien stripping. Lien stripping is when a debtor in a Chapter 13 bankruptcy case seeks to “strip” a junior debt holder’s interest. If successful, the junior debt holder’s interest becomes an unsecured claim, which will eventually get combined with all other unsecured debt.

Preferential Payments and Compelling a Party to Turn Over Assets to the Trustee

If a bankruptcy trustee believes that a third party is holding assets of the debtor, the trustee can file an adversary proceeding naming the third party as a defendant. Similarly, a bankruptcy trustee may pursue an adversary proceeding to recoup money the debtor paid to a creditor shortly before filing for bankruptcy.

Unrelated Legal Matters Arising During the Bankruptcy Process

After someone files for bankruptcy, other legal issues that are unrelated to the bankruptcy may require the bankruptcy court’s attention. Any party who intends to bring a proceeding that would normally be filed in state court will typically be filed as an adversary proceeding if there is an ongoing bankruptcy pending. For example, a bankruptcy court may resolve contract and business disputes through this process.

Bankruptcy law is always complex—however, this is especially the case when adversary proceedings in bankruptcy arise. Anyone who receives notice that another party filed an adversary proceeding against them or believes they need to file an adversary proceeding to protect their own interest should consult with an experienced New Jersey bankruptcy attorney.

Contact the Law Offices of Brenner Spiller & Archer, LLP., to Learn More

If you are in the process of filing for bankruptcy and the words “adversary proceeding” come up, it’s best to reach out to a knowledgeable attorney. Even if you already have a bankruptcy lawyer working on your case, the scope of an adversary proceeding may exceed the scope of that attorney’s experience and knowledge. This is where the Law Offices of Brenner Spiller & Archer, LLP., can help. Our New Jersey bankruptcy attorneys have over 40 years of experience helping clients navigate the complexities of the bankruptcy process. We regularly handle Chapter 7 and Chapter 13 bankruptcies and a wide range of adversary proceedings for our clients. To learn more and to schedule a free consultation with an attorney at Law Offices of Brenner Spiller & Archer, LLP., give us a call at 856-963-5000. You can also connect with us through our online contact form.

The living room of a rental apartment.

How Chapter 13 Bankruptcy Can Save You From Apartment Eviction

Struggling to make your rent payments? If so, you’re probably on edge anticipating an eviction. However, if you’re considering filing for Chapter 13 bankruptcy, it may protect you from getting kicked out of your apartment.

In the state of New Jersey, a tenant can only be evicted if the landlord obtains a Judgment for Possession. But filing for Chapter 13 bankruptcy protection will stop a Judgement for Possession immediately, thanks to The Automatic Stay provision.

How Filing a Chapter 13 Bankruptcy Can Save Your Apartment

Normally, The Automatic Stay is used to stop creditors from trying to collect debts and prevents them from pursuing legal action against you. It can also halt foreclosure and repossession proceedings, which can include apartment eviction.

In other words, filing for Chapter 13 bankruptcy can help you get out of debt and keep your apartment. The process has its share of intricacies and an attorney can help guide you through the process, but here’s a general overview of how it works:

  • If you file for Chapter 13 bankruptcy before the Judgment for Possession is entered, you can keep living in your rental apartment while paying back any missed payments.
  • Even if a Judgment for Possession has been entered, it still might be possible to stay in your apartment by filing for Chapter 13 bankruptcy. Contact us today to learn more!
  • Past-due apartment rental payments can be discharged through Chapter 13 bankruptcy.

Beyond saving your home, Chapter 13 can help relieve your financial burdens and protect your short-term and long-term finances. If this sounds like an option you want to take, you need to be fully prepared before filing. A qualified New Jersey bankruptcy lawyer can help you through this tough time.

Contact an Experienced Chapter 13 Bankruptcy Attorney Now!

At Brenner Spiller & Archer, LLP, we provide friendly, caring, and affordable legal services. We serve clients throughout central and south Jersey with offices in West Berlin, Mount Holly, Vineland, and Freehold. If you need an experienced bankruptcy attorney, call 856.963.5000 right now to schedule your free consultation with one of our skilled lawyers.

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