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Where home foreclosures seem to be commonplace, and where debtors have few options to stop a foreclosure, when the bank does not want to negotiate with the debtor, a chapter 13 filing may be the only way out. The bankruptcy code has set a time frame which a debtor can not file and obtain a discharge in a chapter 13 case, if they have already filed another chapter.
In today’s poor economy, where home foreclosures seem to be commonplace, and where debtors have few options to stop a foreclosure, when the bank does not want to negotiate with the debtor, a chapter 13 filing may be the only way out. The bankruptcy code has set a time frame which a debtor can not file and obtain a discharge in a chapter 13 case, if they have already filed another chapter. When a debtor is forced to file a chapter 13, in order to protect their home, many trustees will simply file a motion to dismiss the case without taking into consideration the strict language of the code. The code does not in fact prohibit a debtor from filing a chapter 13, even if they are still in another 13 or 7, but rather, prohibits a discharge. As such, many trustees do not consider that a debtor may be seeking the protection of certain chapter 13 benefits outside of a discharge.
There is some, although limited case law on point, which would protected the homeowner seeking to save their home, by using the automatic stay, at least for a period of five years. In a 2008 case, the trustee contended that, because debtors were ineligible for discharges under 11 U.S.C.S. § 1328(f), they should not be allowed to file a Chapter 13 petition. The court held that a debtor was not precluded from filing in good faith a new Chapter 13 bankruptcy case even though he was ineligible for a discharge under § 1328(f). … Whether an individual may be a debtor under Chapter 13 is established under 11 U.S.C.S. § 109(e) 11 U.S.C.S. § 1328(f) never mentions the word “filing,” speaks only of “discharge,” and does not purport to limit the eligibility provisions of 11 U.S.C.S. § 109(e). Therefore, the plain language of 11 U.S.C.S. § 1328(f) does not prohibit a debtor who is ineligible for a discharge from filing a Chapter 13 petition. Branigan v. Bateman (In re Bateman), 515 F.3d 272 (2008). The Bateman decision further held, 11 U.S.C.S. § 1328(f) does not prevent a debtor from filing a Chapter 13 bankruptcy case even though he is ineligible for a discharge.
In Branigan v. Khan (In re Khan), Bankr. L. Rep. (CCH) P80,820 (2006), the court held a Chapter 13 debtor may not always be motivated by the availability of a discharge, so courts would be wrong to impute bad faith to a Chapter 13 petitioner simply because discharge was unavailable. Although the availability of a discharge is undoubtedly the main reason Chapter 7 cases are filed and Chapter 7 debtors view the bankruptcy discharge as “the holy grail,” a Chapter 13 debtor ineligible for a discharge may file a Chapter 13 case and utilize the tools in Chapter 13 to cure a mortgage, deal with other secured debts, or simply pay debts under a plan with the protection of the automatic stay. Thus, in many Chapter 13 cases, it is the ability to reorganize one’s financial life and pay off debts, not the ability to receive a discharge that is the debtor’s “holy grail.”. The court father held, Congress has expressly prohibited various forms of serial filings in 11 U.S.C.S. § 109(g) (no filings within 180 days of dismissal), 11 U.S.C.S. § 727(a)(8) (no Chapter 7 filing within six years of a Chapter 7 or Chapter 11 filing), and 11 U.S.C.S. § 727(a)(9) (limitation on Chapter 7 filing within six years of Chapter 12 or Chapter 13 filing). The absence of a like prohibition on serial filings of Chapter 7 and Chapter 13 petitions, combined with the evident care with which Congress fashioned these express prohibitions, convinces the Supreme Court of the United States that Congress did not intend categorically to foreclose the benefit of Chapter 13 reorganization to a debtor who previously has filed for Chapter 7 relief. … The language of 11 U.S.C.S. § 1328(f) is clear and unambiguous. It prohibits only the grant of a discharge under Chapter 13, and does not address the circumstances, set out in 11 U.S.C.S. § 109, under which a Chapter 13 bankruptcy petition may be filed.
The goodwill and compassion of certain individuals at the big corporations can make a tremendous difference. The smart companies are having a change in attitude. Now the margins are a little tighter and the big companies are beginning to work with people to help keep them on their feet.
Acquiring credit cards after bankruptcy is relatively easy. However most of the offers received in the mail are nothing short of scams. If you carefully read the credit card agreement carefully you will find that there are many pit falls that will quickly cause financial problems.
Many people have the misconception that filing bankruptcy will erase all their liabilities. There would be no obligation to pay the amounts that they owe to their various creditors. However, this not true at all. There are certain kinds of loans that have been considered as non-dischargeable ones.
When you file for personal bankruptcy, you certainly do not want to lose your home. You see this hard step as an opportunity to get rid of the mounting debts that owe to various creditors. You certainly do not see insolvency as the end of your financial life. Your intention by taking this unfortunate step is to give a fresh start to your non-existent fiscal life.
The collapse of the Investment Banking Firm, Bear Stearns will cause massive lay-offs. How many is not yet known, but it could well be into the neighborhood of 12,000 or more, currently it appears they have somewhere just over 14,000 employees, but of course, they will no longer be needed, and looks as if their 401Ks may be completely depleted. Many of the Bear Stearns employees, will be laid off or terminated and that means a huge hit to the dismal job figures for the next quarter in the US economy, however the real pain will be to those employees who lose their jobs and will most likely be forced into foreclosure and bankruptcy.
Harvard Law is going to offer third year Law School Students some “free tuition” if they promise to work in the Public Sector (government) or for a non-profit for five years. The Law School now has an incredible endowment fund and the Dean is a little concerned with the percentage of students going into the non-profit or government sector. If you will recall Mr. Elliot Spitzer graduated from Harvard Law School and went to work for the government, became New York Attorney General and then Governor of New York.
If you are beset by financial problems then you will know how stressful life can be. Find out how bankruptcy lawyers and attorneys can help you sort out these problems and relieve your stress levels.
Bankruptcy is a very difficult experience and the process can be very confusing without the proper education. Recent changes in bankruptcy law have caused those filing for bankruptcy even more confusion. One important topic regarding bankruptcy is how having a 401(k) loan or child support payments can affect your bankruptcy case the amount of repayment the debtor will be responsible for. Being educated and informed about the new bankruptcy laws is crucial in ensuring a relatively painless bankruptcy process.
