Louisville Kentucky Bankruptcy Information Chapter 7 13 FAQ
 Louisville Kentucky Chapter 7 and Chapter 13 bankruptcy information FAQ Frequently asked question page. 

 

 
 
 

 

Nick C. Thompson

105 Daventry Lane

Suite 200

Louisville, KY

40223

(502)429-0057

 

 

 

Louisville Kentucky Bankruptcy Information Chapter 7 13 FAQ

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Although these Questions are answered by Kentucky Bankruptcy Law, the Bankruptcy law of your state is almost always the same or similar because it is a federal law that is the same for all the states.  However, the property that you keep is governed by your individual state exemptions law and in some cases we explain the range of the exceptions.  In the bankruptcy manual, over half of the states in the US are covered in a chart explaining the exemptions for most states.  We provide the exemptions for the other states by mailing an additional chart.  Please e-mail us questions and we will add good questions to this ever growing list of commonly asked questions. We trust that you will find that this information is helpful. 

The Top 70+ Frequently Asked Questions at Our Office

This is not legal advice.  Each individual case is different, but these are the “standard” answers to these questions.  If you have a question about your case, you need to ask your Attorney for an answer based on the facts and particular circumstances of your case.

The Top 6 Questions: 

Q1:  It's great that you got our bankruptcy over this soon.  We were not expecting to be discharged until sometime around November or December.  Now, how soon can we begin to look at ways of refinancing our two home loans?  You told us that your wife does some business in this arena.  We owe about $38,000 (@ 13.9%) on the second mortgage and $40,000 on the first (@ 8.0%).  At last appraisal in November 1999, the house was worth $69,500.  Our payments are 1000 a month!  

If you plan this right you could make over $25,000 instead of losing money every month to a 13.9% loan and paying over $78,000 for a $69,000 home.    

Why refinance a house when you owe 125% of what it is worth.   You are far better off letting their home go back in foreclosure!!!!   It takes about 1-2 years to do a foreclosure and you can sit in the house rent free during the foreclosure.  You can also see me and just by filing a simple answer in your foreclosure you can probably extend the foreclosure by at least 6 months and in some cases up to 2-3 years before it will reach a foreclosure sale and you have to move.  It normally takes 2 years after a bankruptcy before you can buy a home if you want a prime lending rate.  

 If a foreclosure is part of your bankruptcy and it is listed in the schedules it will take 3 years before you qualify for a prime mortgage.  It is essential that you use an attorney that knows and plans with you what to do.   In 2004 the rate was about 5% for a 15 year loan and 5.5% for a 30.  Higher rate mortgage companies will lend to you before 2 years but you should wait the two-three years to get the lowest rate which is called a prime rate.   There are B market mortgages but these are much higher rates and it will cost you more in the long run.  Buying at the higher rate is possible and refinancing later but many people cant refinance if their mortgage is written with high penalties for refinancing.

Your bankruptcy cannot be used to deny you a prime mortgage under FHA, VA, and other federal and state guidelines after 2 years, again, if you have a foreclosure, this becomes 3 years.   The myth that you can’t buy a home after a bankruptcy isn’t true.  During that year or two you can save up the $1,000 a month you would have spent on house payments and apply it directly to the principle for a new home.  When just a year is over you would have saved up $12,000 as a down payment if it takes 2 years to foreclose the home, you would have saved up $24,000 as a down payment on a different $69,500 home and it would be almost half paid for.  

Q2:  Should I file Bankruptcy?  A person should file a bankruptcy if, and only if, he or she can’t pay bills as they come due, or is about to lose property, or have property attached by the Court.  Very few people lose any property when they file bankruptcy.  In Kentucky, you are allowed to keep $2,850 equity in a car, over $9,000 in personal property, $18,450 in a home, and at least $1,000 in any property that you choose in a general exemption, plus ½ of the unused portion of the real estate exemption.  For married couples, filing jointly, these exemptions are doubled.  After June 2005 these jump up dramatically (see section 10 of our manual).  In a Chapter 13, the property that can be kept is just about unlimited as the plan pays at least what a Chapter 7 would pay.   To stop a foreclosure in Kentucky with a Chapter 13, you only need to cure the arrearage in 2 years.

Filing a bankruptcy is generally better than having a foreclosure on your credit record.  A person will often be able to rebuild credit and buy a house within 2 years after a bankruptcy. A repossession can do more damage to your credit, and it may take much, much longer to recover.  Government regulations may forever keep you from financing a home with the VA or FHA if you have a repossession for a home, but allows financing 2 years after bankruptcy.  Only 7 magical items may not be bankrupted:  Child Support and Alimony; taxes less than 3 years old; federally guaranteed student loans; debts due to fraud; debts due to drunk driving; debts due to intentional injuries; and criminal restitution.  There are many exceptions to even these.  A driver’s license can be reinstated by filing, if you lost your license because of unpaid damages for an auto accident.  When in doubt, always list the debt when filing.  It may be bankruptable due to an exception.  If you have other questions about filing a Kentucky Bankruptcy, e-mail us.

Q3:  What does it cost to file bankruptcy?  After October 2005, Court costs are about $275 for a Chapter 7 and $196 for a Chapter 13.  After October 2005 Chapter 7 fees at our office will run about $1,000 or a little more (for an individual bankruptcy), plus any filing fees.   We asked four judges who all agreed and expected most offices in Kentucky after October 2005 to charge about $2,000. 

Chapter 13 Attorney fees are set by the Court, and the Court is presently paying $1,600 in Western Kentucky for Chapter 13’s.  Most districts pay about $2,000.  This is paid to the Attorney by installments as you pay the Court. 

Q4:  What happens when I file?  When you file a bankruptcy, a Court Order goes into effect immediately stopping all collection activity.  This includes stopping foreclosures, attachments, garnishments, and Creditors calling you.  The sooner you come in to the law office, the sooner you can get relief—and the more you can save from Creditors.  You will have a 341 hearing within about 4 to 6 weeks after the bankruptcy is filed.  When the bankruptcy is finally over, a discharge is issued.  This is a final and permanent order to stop all collection activity and declaring the debts to be non-collectable.  Bankruptcy does not normally get rid of a security interest that you gave to a Creditor such as a mortgage or a standard car lien, but it does make you not liable for the debt. 

Q5:  I live in Pikeville (Eastern District) can I file in another District (such as Louisville in the Western District)?  A lot of this answer depends on whether or not you have real property and if you are living here at the time of filing.  We understand not wanting to file in the Eastern District.  First, it costs less to file bankruptcy here.  Second, it is more trouble.  Third, perhaps you don’t want the record locally and for family and friends to know.   Fourth, some districts are more conservative and strict than others.   

However, Jurisdiction and Residence is based on your intent to live in a place—so, if you say you live here and you have substantial contacts here such as you live with family, you vote here or have a drivers license with a local address you probably do reside here.  Many people temporarily live here just long enough to file, by moving in with a relative etc.  But if you file here, you are supposed to live here.  The new law has strict residence requirements if you move from state to state.

The Other 70 Questions:

1)  Can I plan my bankruptcy?  Of course!  Good planning is why you read this manual and allows you to save more money and property.   Just like taking proper tax exemptions.  There is nothing illegal or improper with properly taking the exemptions.  

2)  Which bankruptcy is right for me:  Chapter 13 or Chapter 7?  A Chapter 13 is like a bill consolidation loan, and you normally file it to keep property and stop foreclosures.  A Chapter 7 is used to completely wipe out unsecured debts and to get rid of secured debts for property you don't want to keep.  Both will stop garnishments and Creditor harassment.  If you earn more than the average wage for your state and size of family you will normally be required to file a Chapter 13.    

Chapter 13 cases are becoming more popular.  Over 95% of all Chapter 13 cases used to fail because they became unaffordable in Kentucky.  But now 10 and 20% repayment plans are being approved in Chapter 13 cases and they are now more successful.  Plans below 10% are now common.  Often an attorney may want to file a Chapter 13 because he will earn more than he would in a Chapter 7, but you will usually profit far more from filing a Chapter 7.  Usually, the only times you will want to file a Chapter 13 are 1) when you have already filed a Chapter 7 and can't file another one or 2) if you have so much property and equity that a Chapter 13 is necessary to keep that property.

You may have to file a Chapter 13 if you have so much income (after you pay your normal monthly living expenses) that you can repay something to your debts.  A Chapter 13 can no longer be used for special purposes, such as to pay debts due to fraud. But it can repay child support, repay student loans, or protect a co-signer.  The fortunate thing about virtually all Chapter 7 cases is that the Debtor’s assets are normally exempt, so there are rarely any assets to liquidate.  Married couples with valuable assets, such as over $39,000 in equity for a home or over $1,800 equity in cars (these amounts are for Kentucky), may want to choose Chapter 13.  Each state has different rules for what property can be kept.

3)  Why file a Chapter 7?  If you have substantial unsecured debts, you may want to file a Chapter 7.  You may also want to file a Chapter 7 if you want to surrender property and not owe for it.  You can usually keep all your property in a Chapter 7, because you won't have enough equity in any property to exceed the exemptions allowed.

4)  Why file a Chapter 13?  You may want to file a Chapter 13 if you have secured debts and are threatened with foreclosure or repossession, if you filed a Chapter 7 less than 6 years ago, if you wish to protect your cosigner, or if you have debts that are not dischargeable in a Chapter 7 but are payable in a Chapter 13.  Child support can be paid first in a Chapter 13 before secured creditors giving you the advantage of not losing a car or property but having all of your payments go to child support at the start of the case.

5)  Can I convert from a Chapter 13 to a 7 or from a 7 to a 13?  Yes they can be converted.  Few people convert from a 7 to a 13.  However, if you earn over $60,000-$70,000 a year, you have a strong chance that the US attorney’s office will file a 707 b motion that may force you into a 13.   If you file a Chapter 13, you have a good chance that you will have to convert from a 13 to a 7.  Over 3-5 years, you are very likely to miss payments and have the Chapter 13 dismissed (or have to re-file).  Some Chapter 13 cases are never finished and are converted into Chapter 7 cases.  If you are close to completing the plan, you may be granted a hardship discharge.  Plans can also be later modified if incomes change.

6)  How long will bankruptcy take?  It will take about 3 to 4 months for a Chapter 7 to be final. (You will get a letter within 10 days of filing, telling you the time and date of the 341 hearing.  This hearing will be held about 4 to 6 weeks after you file.)  A Chapter 13 will take as long as the repayment plan takes.  Before getting a discharge in a Chapter 13, you will attend a hearing. 

7)  What are the most common mistakes I can make when filing?  Not showing up for your hearing and not listing all of your debts.  Fail to show up at the hearing and your case is dismissed.  Fail to list a debt and you continue to owe it.  Also, people often have too much in a checking account when they file or a tax refund coming.  The best policy is to list all your debts and assets.  Always list every debt, even if you think it is non-dischargeable, it may be discharged anyway.  Even include last month’s utilities.

8)  How do I qualify for bankruptcy? Can I not be approved?  You qualify for bankruptcy if either your outgoing exceeds your income, or your liabilities exceed your assets.  If you don't qualify, we will tell you when we type up the bankruptcy.  It is very rare not to qualify.  I have had one case in my first 15 years of practice not qualify for a Chapter 7.  You basically have to be a US citizen, reside in the state you file in, and not have filed within certain time periods (you can’t file two Chapter 7s within 8 years of each other).

9)  What if the Court does not approve my Chapter 13 or Chapter 7?  If there is anything wrong with your Chapter 13 or Chapter 7 bankruptcy, it will usually be changed and amended.  Of course, it is less costly and time-consuming to do it right the first time.  If you earn so much money that you can afford a Chapter 13, you will be forced to change it from a Chapter 7 to a Chapter 13.  Repayment plans often are amended.

10)  How often can I file?  You can file a Chapter 7 eight years after you filed your last  Chapter 7.  The time is measured from the time of filing your first case to the time of filing of your second case.  You can file Chapter 13s two years after a Chapter 13 discharge.  You can file a Chapter 7 four years after a Chapter 13.   You can only have one bankruptcy going on at a time.

11)  If I file does it mean my old bad debts are erased from my credit report?  NO!  What is reported is that you had a debt and that a bankruptcy was filed.  Bankruptcy does not give you a good credit record or “repair” your credit record automatically.  You repair your credit by paying your debts on time after the bankruptcy.

12)  Can I file without an Attorney?  Yes.  You can file a bankruptcy yourself, and this is called “filing pro se.”  You can also do dentistry on yourself, but we wouldn’t recommend it.  Doing your own case is a very bad idea.  This book alone won’t give you the knowledge you need to file on your own.  Use this manual to educate yourself, so you can find a good Attorney and discuss the issues. 

As an example, if you file a reaffirmation and represent yourself, it must be approved in a hearing by the Judge, and that will mean extra hearings and time for you.  Considering the time and risk involved, we recommend you use an Attorney.  You may lose far more in Court than what the Attorney would have cost—plus there is the extra time and effort on your part doing the work.

13)  What about a Bankruptcy Mill?  Filing a bankruptcy through a Bankruptcy Mill or paralegal may be even worse than doing it yourself and they often charge as much as the attorney.  Many people have lost thousands of dollars with these businesses—through intentional scams or just plain bad work.  Non-Attorney bankruptcy petition preparers are barred by law from providing you with any legal advice.  In enacting legislation governing bankruptcy petition preparers, Congress stated: “These preparers lack the necessary legal training and ethics regulations to provide [legal advice and legal services] in an adequate and appropriate manner.  These services may take unfair advantage of persons who are ignorant of their rights both inside and outside the bankruptcy system.” 

The bankruptcy petition preparer's role is limited by law solely to typing.  Unlike an Attorney, a bankruptcy petition preparer cannot help you understand the law, advise you how to answer questions, assist you in planning, or be in Court.  Federal law requires that bankruptcy petition preparers sign any documents they prepare; print on the document their name, address, and social security number; and furnish you with a copy of the document.  A bankruptcy petition preparer may not sign any document on your behalf, may not use the word “legal” or any similar term in any advertisement, and may not receive any payment from you for Court fees.  The bankruptcy petition preparer is also required to disclose to the Court the amount of any fee you pay.  Beware of any bankruptcy petition preparer who does not comply with these requirements.

14)  Are you a real Attorney?  Yes. 

15)  How much do you charge?  We charge a flat fee of about $1,000 for doing a personal uncontested Chapter 7 bankruptcy.  Court costs are $275.  Your total cost is $1,275.  Chapter 13 Court costs are $196.  Attorney fees in a Chapter 13 are set by the Court.  Generally, there is no shopping around for a low fee in a Chapter 13.  Since the Court sets the fee, it will be the same for whatever Attorney you use.

16)  Can I pay you in payments?  We have taken a boat motor for payment and other items.  For a Chapter 7, our filing fee must be paid before we file the petition.  For a Chapter 13, you only need to pay the filing fee before we file the petition—sometimes, in an emergency, even the filing fee can be paid in payments to the Court.   Our attorney fee is often paid by post dated checks or installments.

17)  How do I get to your office?  Do you have an office in Lexington?  No, we don't have an office in Lexington, but we are only about an hour away from Lexington and Covington, and 2 hours from Bowling Green or Owensboro.  Take I-64 to Louisville, and then the Hurstbourne Exit.  We are at 105 Daventry at the corner of Hurstbourne and Shelbyville Road look for the QDoba's Mexican grill and the Frank's  restaurant and go to then end of that road.

18)  What paperwork do I need to bring to my Attorney?  Bring the names, amounts,  account numbers and proper addresses of all of your Creditors.  You may estimate the amounts.  After 10-2005 you must have the account numbers, but we must at least have perfect addresses to give notice to the Creditors.  Credit bureau reports normally don't have the addresses on them. If you have gotten a Credit bureau report before filing, you still have to get the addresses.

19)  How can I get a copy of my credit report?  You can get a free credit report if you have been denied credit, are unemployed, are a victim of fraud, or are on welfare (or if you live in Colorado, Georgia, Massachusetts,  Maryland, New Jersey or Vermont).  To get one free (if you qualify) or for a small fee (if you don't) without going through a "middle man" just contact any of the 3 major reporting services below.  They will charge you between $3.00 and $8.50 depending on your state of residence.

1.  Experian (TRW) at 1 888 EXPERIAN (1 888 397 3742) allows you to charge your credit report to your Visa or MasterCard over the phone.

2.  Trans Union at 1-800-888-4213 or write to:  Trans Union Corporation Consumer Disclosure Center, P.O. Box 390, Springfield, PA  19064-0390

3.  Equifax at 1-800-685-1111 or write to: Equifax Information Service Center P.O. Box 740241 Atlanta, GA  30374-0241.  For $8, you can get an immediate report online from Equifax at:  http://equifax.com/resources/fcra_info_rights.html

If you decide to write to any of these services, be sure to include your: name,  address, phone number, previous addresses for the past  two years, social security number, birth date, employer, signature—and  be sure to include your payment. (You'll have to call to get the payment amount.) Proof of identity such as a photo copy of your driver’s license will also be required.  Normally you are better off if you just pay for the report.  

20)  Can I file jointly with my spouse?  Does my spouse have to file or sign if I want to file individually?  Yes, you can file jointly.  No, your spouse doesn't have to file but, if most of your debts are joint debts, he or she may want to.  There is no need for a spouse to file if the debts are not in his or her name.  If you are filing a Chapter 7, and the bills are also in your spouse’s name, he or she generally should file to be protected. (Co-signers are protected in a 13 with 100% plans, but are not in a Chapter 7.)  There should be no additional charge for a spouse filing, but some firms charge extra.  The only extra work to do in a joint filing is adding an additional name and social security number to the petition. 

21)  Will it affect my spouse’s credit?  Is he/she responsible for my credit cards if he/she is an authorized user?  No, filing will not affect your spouse's individual credit, but if he or she is a co-signer on any debt that is not paid that will affect him or her.  The fact that you filed bankruptcy does not appear on a spouse's credit report unless he or she also files bankruptcy. 

Unless your spouse has signed to be legally responsible, they are not responsible.  However, many credit card companies will argue that she is responsible.  They may even put a “no pay” on her credit report if the amount is unpaid; however, she may ask any credit reporting service to correct that.  If she does so, the credit card company will have to show that she signed for it.  If they can’t, it will be removed from her credit report file.  In other words, the credit card collectors may try to collect from her by claiming she is liable, but she really is not.  If they damage her credit record, it may be grounds for a lawsuit.  Credit is normally granted based on a score from your past payment history, the amount of debt that you owe, the length of time you have been repaying present credit, if you have opened credit recently, and the types of credit accounts you have.

22)  Will my co-signers be protected?  Co-signers are protected only in a Chapter 13 to the extent that the plan pays the full amount of the co-signed debt.  If the plan pays the debt completely, the co-signer is protected, but it will be listed in his or her credit record as being paid late.  The Creditor may ask the co-signer for any remaining portion of the debt if it not paid completely.  In a Chapter 7, the co-signer will have some small protection regarding the collateral during the proceeding, but only because the Creditor can’t go against the property of the estate.  After a Chapter 7 is over, the Creditor will proceed against the co-signer personally.

23)  Can I file a personal bankruptcy and not have it affect my business?  If you own your own business, the business is a part of your assets.  If it is worth very much, it may be property of the Court.  If your business files bankruptcy, it won’t affect you because the business does not own you.

24)  Can Bankruptcy stop foreclosures, wage assignments, help me get my license back from an uninsured accident, stop evictions, a judgment, or remove a lien? Yes.

25)  What will happen to my bills?  When you file a bankruptcy, a Court order goes into effect that keeps Creditors from legally collecting from you.  When you are discharged (i.e., the bankruptcy is final), the Creditor "charges off" the debt and gets a tax deduction for the loss.  The bill is not paid, and the debt shows up as a bankruptcy charge-off on your credit report.  Some Creditors will attempt to get around the law and will continue attempts to collect after the bankruptcy is filed.  They can be sued for this, but you need to prove they did it.  One of the best methods is to record their call and then surprise them in Court with it when they deny ever making the call.  Most Creditors that ignore the law will never send you letters or anything on paper after you file, but they may make phone calls hoping that you will pay anyway. 

26)  What if I keep getting bills?  You will continue to get some bills from bankrupted debts after you file.  What happens is that the Bankruptcy Court sends out notices to the addresses that you give to them (that is why correct addresses are so important), but some Creditors never get these notices and continue to bill you.  You should make copies of your hearing notice.  If you get a bill from a Creditor, send them a copy of the bill and the notice.  Some Creditors will continue to send bills even if they receive notice.  It may be that their computer can’t stop sending out the bills, or they may simply be ignoring the stay hoping that you will pay anyway.  We can file a motion for contempt with the judge, and we may also be able to sue for a violation of the Fair Debt Collections Practices Act.

27)  Do I have to pay my bills during the Chapter 7 or 13?  No.  Don’t pay any bill until after you file a Chapter 7 until you have negotiated with the creditor to keep the property.  Don’t pay any payment in a Chapter 13 unless it is the regular monthly mortgage payment or car payment, and the 13 was filed to catch up the arrearage.  A stay is a federal Court order to stop.  If the item is secured, your overdue payments will continue to add up while you don’t pay on the item.  However, the Creditor can't take the collateral until the stay is terminated.  If no reaffirmation is filed within 45 days after the bankruptcy is filed, the stay terminates and the bank can take the car.  The Creditor may also file a motion to terminate the stay after the bankruptcy is filed.  Bankruptcy stops your obligation to pay, but the Creditor still has a lien and rights in the property.  You often quit paying for items when you file so that you have time to decide if you want to work out a repayment, redeem, or surrender.  I have rarely ever had a bank refuse to agree to repayment, but you don’t want to make payments if they aren't going to let you keep the property.  Signing a reaffirmation will make you liable for any deficiency if you have it repossessed later.  In some rare cases, with people who are never going to repay, the bank may refuse to reaffirm.  Some credit unions may refuse to keep a car or mortgage unless you also repay their credit cards.  In cases like this, you may want to redeem property instead.  That is why you don’t want to make payments just before or after you file.  You can take the time to negotiate your options.  You don’t have to be caught up on your payments to reaffirm, but some banks may request it—and all of them want it. 

28)  Who notifies the Creditors and bill collectors?  After the bankruptcy petition is filed, the Court mails a notice to all the Creditors listed in the schedules.  This usually takes 1-2 weeks.

29)  Do I have to go to Court?  Not exactly, but you will have to attend a hearing presided over by the bankruptcy Trustee.  This hearing is called the 341 Hearing (Meeting of Creditors).  At this hearing, the Trustee (who is an Attorney) will ask questions, under oath, regarding the content of your bankruptcy papers, assets, debts, and other matters.  It is very much like a deposition, not like a trial.  If you can’t attend (example: if you are in the service overseas), you can answer the questions by Affidavit.  The Trustee is not the judge.  He is there to take any assets from you, if he can, and to check the accuracy of your paperwork.  The Trustee represents the banks—not you.  In a Chapter 13 you will have a second hearing to get your discharge if your case was filed after October 2005.  In this hearing you must show that you are not charged or convicted of a crime of fraud or further behind in support.

30)  Where is my 341 hearing?  Your 341 hearing is always at the Federal Court closest to you. 

In Louisville, your hearing will be on the 5th floor of the Federal Gene Snyder Courthouse at 6th and Broadway.  Use the elevator on the 6th street side, next to the Courier Journal newspaper building.  Hearings are on Tuesdays and Fridays, and the hearings only last about 5 minutes each.  If your paperwork is done correctly, the hearing will be very short.  Just bring your warm body, Documents, proof of insurance on your car, a picture ID, and proof of your social security number (social security card, W-2, etc.) to the hearing. 

In Lexington, the hearings are at 100 Vine St.  In Frankfort, they are at the Federal Courthouse.  Some Courts, such as the Eastern District, require you and or your attorney to bring a second set of documents.

31)  What do I wear to the hearing?  Don’t wear cut-offs or jeans with holes in them and don’t wear sandals.  Suits are not required, but dress properly for a hearing in Federal Court. Children are not supposed to be in the hearing room.  Do not borrow and wear flashy jewelry.  This is not the time to brag about how rich you are or how much you own.  The Trustee is looking for assets to take from you.  He is not your friend.  He represents the persons that you owe.  You must report what you own and it’s real value, but don’t brag about your income and how much your car is worth—especially if you don’t have any.  Save that for when you want to impress the opposite sex in bars.

32)  Do you show up with me at the hearing?  Of course!  We take care of you, and hold your hand through the process.  We don't just file the paperwork.  However, there is some work that you must do on your own and, if you read this manual thoroughly, you should be able to make the most of your bankruptcy without too much help from us.

33)  When should I file tax returns if I am going to file bankruptcy?  If I file in December do I keep my refund?  If you are considering filing a bankruptcy, you must file your tax returns.  No file returns…. no file bankruptcy.  If you can get your refund before you file.  If you do and spend it, you will keep your refund no matter how much it is.  You have a general exemption (in Kentucky) that can protect a refund.  If you get your refund after you file bankruptcy, and the refund is over the exemption, you may lose part of your refund.  File a quick refund if you have to or apply any refund amount to next year’s tax debt.  If you are considering filing in the later part of the year, file before December.  If you file in January, you may have to wait for some time after you get your refund back.  You will be asked when you got your refund and how you spent it if you got a large refund.  We strongly suggest filing long before December, rather than filing in December or January.  Some trustees start claiming tax refunds in November.    

34)  What will happen to my house and car?  Usually, you keep them.  If your equity is less than or equal to your debt and exemption for the property, you keep the property.  You are allowed to keep a certain amount of property in bankruptcy.  When we prepare your bankruptcy we will tell you if you are at risk of losing property.  At the time of filing, all your property that is not exempt belongs to the Court.  The idea is to exempt it all so that you keep it all.  Of course, the law concerning what property you can keep varies from state-to-state.  See the state exemptions in Section 10.  We can provide you with the exemptions for your state if they are not listed.

35)  Do I have to keep up the insurance on my vehicle?  Will my rates be affected or will I be dropped?  If you fail to keep full coverage insurance on your vehicle paid for three months, the Creditor may automatically pick up your vehicle according to the local rules in the Western District of Kentucky.  Other jurisdictions have similar rules. 

36)  Can a Creditor be forced into a reaffirmation or agreement to allow me to keep property in a Chapter 7?  Can a Creditor be forced into redemption?  No, a Creditor can’t be forced into a reaffirmation or work out.  A Creditor can be forced in redemption.

If the bank does not agree to a workout, it will usually take a large loss from selling the vehicle at an auction, or the house in a foreclosure.  It may even violate federal lending rules by refusing to workout a home mortgage.  A bank is able foreclose or repossess, regardless of whether you are in a bankruptcy.  If they have started a foreclosure, the filing of the bankruptcy stops the foreclosure but, in a Chapter 7, the bank may file a motion with the Bankruptcy Court and ask to foreclose anyway.  If a Chapter 13 offers a good repayment plan, the Court will not approve any foreclosure.  If the bank is adamant that it wants the house or car back, it may do so in a Chapter 7 and take a loss.  Normally, the bank will rethink their decision and give you one more chance to make payments, but no one can force them to.

A redemption is an agreement to pay the bank what the security is worth in one lump sum.  They cannot refuse the redemption after the judge orders it.

37)  Can I choose which Creditors I repay?  Yes, you can pay one Creditor, but not another, after the bankruptcy.  By doing this, you can keep one car, but not another, or keep a credit card, but let a lemon auto go back. 

38)  Can I revoke a reaffirmation?  Yes, but it must be revoked within 60 days of the 341 hearing or before discharge, whichever comes first.  It should be revoked in writing and sent by certified mail so you have proof.

39)  I want my house or car to go back.  Will I lose it immediately?  No.  You will normally have until the 341 hearing to return your car and owe nothing until then.  Use that period of time to look for another vehicle you can afford.

If you choose to let your house go back, you will normally have about a year to live in it rent free for some period of time.  The shortest period for a foreclosure is about 6 months, and we have seen it take up to 2 years.  Consider filing an answer to a foreclosure to stay in the home longer.  Remember, a repossession will normally do a lot more damage to your credit than a bankruptcy.  Filing a Chapter 13 to catch up on your payments (within 2 years) is one way to keep your home.  The only good reasons to let your house go back are that you have a large amount of negative equity in it, a bad mortgage or that it is an overwhelming burden.

40)  Will I lose my 401(k) or retirement fund?  No, your retirement is completely exempt and protected under Kentucky law.  Other states have other exemptions to protect retirement plans.  However, you should talk to a qualified Attorney to get his opinion.  The United States Supreme Court has held that pension plans, 401(k) plans, and other “ERISA-qualified plans” are generally excluded from the Bankruptcy Estate under 11 U.S.C. sec. 541(c)(2).  Unlike 401(k) plans, IRA accounts are not ERISA-qualified plans.  However, in Kentucky and most other states, an IRA may be excluded from the Bankruptcy Estate or otherwise exempt because of a state statute.  Some Bankruptcy Court judges have held that an IRA may be partially exempt under 11 U.S.C. sec. 522(d)(10)(E).

41)  I have a personal injury lawsuit—will I lose those funds?  In Kentucky, you can keep up to about $18,500 as an exempted amount of a personal injury lawsuit that you have pending if both are injured you may keep 37,000.  Other states have different rules.

42)  XYZ finance company took my Household Goods as collateral.  Do I have to turn them over?  Well, it is possible that you may be able to avoid such liens, if they are old enough and if you have not borrowed within a certain time before filing bankruptcy.   Also you should consider a redemption.

43)  I was just sued and they have just attached my paycheck or bank account what can I do?  If property was taken from you just before filing bankruptcy, and it was over $600, it can normally be gotten back.  Liens on property that were from a lawsuit can be removed.  Garnishments and foreclosures can be stopped.  The sooner you seek help, the sooner you can stop the procedure.  It is important to seek help as quickly as possible. 

44)  Am I liable for the taxes on items gave up in Bankruptcy Court?  No.  People often give up cars and then the new owner fails to pay the tax on the car and licenses it in another state.  In such cases, the tax bills will continue to be sent to the Debtor even though he gave up the property.  To correct this in Kentucky, we file an affidavit with the County Clerk’s office to correct the matter, attaching the discharge as proof that the Debtor did not have the car after the date of the discharge. 

45)  If the Trustee doesn't want the property, can I have it?  Yes.  But if you hide an asset you have committed fraud and you lose hidden assets.   

46)  How long do I have to repay in a Chapter13?  You can s-t-r-e-t-c-h out your payments and take up to 5 years, but no longer than 60 months, to repay in a Chapter 13.  Kentucky local rules, require that you can only take up to 2 years to catch up overdue payments to stop a foreclosure or repossession.

47)  What happens if I quit making my payments in a Chapter 13?  Your Chapter 13 will be dismissed from Court, and you will go back to owing the original debt and being unprotected.  You will not be able to re-file for 6 months.

48)  Can I reduce my monthly payments in a Chapter 13?  Yes, a Chapter 13 can reduce your monthly payments.  It can also reduce your interest rates to 12%, 10%, or even 0% on tax, secured, and unsecured debts.

49)  Do I have to pay back 100% of what I owe in a Chapter 13?  No.  You can repay as little as 10% to your unsecured Creditors in a Chapter 13.  Your Chapter 13 must pay at least what a Chapter 7 would have paid.  In some states and after 10-2005 certain plans may pay much less than 10% if that is all you can afford.  You must repay your disposable income.

50)  Can I pay some Creditors and not others in a Chapter 13?  You can’t (shouldn’t) discriminate and pay one unsecured Creditor class differently than other unsecured Creditors in that class.  However Secured unsecured and priority debts are paid differently.

51)  Should I try a Debt Counseling Service instead of filing bankruptcy?  How do Debt Counseling services work?  "Debt Counseling Services" are often high-interest loan companies.  Other times, they are agencies that pocket 10-50% of the monthly money that you pay to them as fees for their "counseling".  Most of these services will combine your bills and send a partial payment to each bill that you owe.  Your credit will be listed by the credit card companies as delinquent for sending in partial payments, and the reduced amounts sent in may not even cover the interest that a debt charges.  These "Counseling Services" are often simply rip-offs that pretend to be charities or helping agencies. 

If you pay a debt counseling service $100 a month, what happens is that they take up to $40 for themselves and then send your Creditors $60.  Your bills fall even farther behind. Eventually, Creditors file lawsuits and you are forced into bankruptcy anyway.  Very few of these "repayment plans" work and over 90% fail, leaving you worse off.  Another scam is that some debt counseling companies will charge thousands of dollars by promising to find you a consolidation loan as a loan broker or mortgage broker.  These loans end up being at a high-interest rate or they pocket your money and never give you the loan.  Others strip the equity from your home.  Whatever method used, "Debt Counseling Services" are often scams meant to take your money when you are already in trouble.

Also be wary of using services that claim to “repair” your credit file.  Some may attempt to create a new credit file by getting a new social security number.  Changing your identity is a felony, especially if you steal another person’s identity.  Creating a false identity and using it may also be a felony. 

52)  How long should I keep a copy of my Bankruptcy? 

You should keep a copy of your bankruptcy, with your tax papers, for at least 7 years.  You will need them for any mortgage application but they are now filed electronically and available for download at any bankruptcy attorney’s office if you filed after October 2002.   You are only required to keep receipts 3 years by the tax department—after 3 years they have the burden of proof—but keep tax and bankruptcy records for 7 years anyway. 

53)  When will I be able to get credit again?  Normally, you will qualify for a home mortgage at normal rates within 2 years if you let your home go back in foreclosure you will qualify in 3 years after the discharge of your bankruptcy.  You will be able to get other credit within 6 months to a year.  Your ability to get credit is based on your income and your history of repayment, as well as the security you offer.  You should be able to purchase a car or house if you reaffirm one or two debts and pay for them on time after your discharge.  You always have to be able to afford what you are buying on credit or meet credit standards.  You will have to reestablish your credit by paying on time after your filing.  In Kentucky, we will be happy to talk to you and recommend home mortgage bankers and other services that will assist you in cleaning up your credit file so that you can qualify for a home—or that work specifically with bankrupt Debtors.  There are also companies that lend to you while you are in bankruptcy and just after bankruptcy.  722 Redemption Funding will sell you a car at wholesale price (at about 21% interest), and they will also finance the redemption of some cars at the wholesale book value. 

54)  Will my employer and landlord find out about my bankruptcy?  Bankruptcy petitions are public records; however, under normal circumstances, no one will know you filed a bankruptcy petition unless you tell them.  Chapter 13 Debtors are often required to make payments through wage garnishment, which means the employer will learn about the bankruptcy.

55)  Will this affect my getting an apartment?  Many of the larger apartment complexes are owned by banks, and banks tend to grant leases according to credit bureau reports.  This may affect you.  Small landlords will call former landlords and may not check credit reports. 

56)  Can employers discriminate or fire me?  Generally no.  There is an anti-discrimination section of the Bankruptcy Code that prevents employers and the state of Kentucky from denying you licenses or discriminating against you when hiring.  But do yourself a favor:  Keep it to yourself.  They generally won’t know unless you tell them.

57)  Are there bankruptcy crimes?  Yes.  Criminal statutes related to bankruptcy can be found at 18 U.S.C. sections 151 to 157.  Examples of bankruptcy crimes are knowingly and fraudulently concealing assets, lying under oath or on bankruptcy schedules, and knowingly and fraudulently filing a false proof of claim.  Bankruptcy fraud can also be used to support a RICO claim.  Bankruptcy crimes are often the result of claiming you don’t own property that you do own or that has been transferred to conceal it from the Court. 

58)  Do I have to disclose all of my assets?  Yes.  If you knowingly and fraudulently conceal an asset from the Court, you have committed a felony and you can be fined up to $5000, imprisoned for up to five years, or both.  However, this is rare and normally comes up in only the worst cases.  In addition, the Court can deny discharge, or dismiss or convert your bankruptcy proceeding.

59)  Can I run up charges on my credit cards just before filing?  The official answer is “No”.  Many people do make some minor charges on their charge cards just before filing.  Charges of over $1000 on any one card within 90 days before filing are presumed to be fraudulent and non-dischargeable.  Luxury items of 500 within 90 and Cash advances of 750 within 70 days are non-dischargeable.  Charges to an account more than 90 days before filing are presumed proper regardless of the amount.  But the rule that you cant charge within 90 days of filing isn’t written in stone there are 12 factors that the judge will use to determine if it is fraudulent. 

There is no reason to pay any further on debts that you are planning to avoid in bankruptcy.  Normally, you should file as soon as you can, but it won’t matter if you pay the bills or not before you file.  It doesn’t matter if you owed $10,000 or $10,000,000 before you filed or whether or not you paid on time before you file bankruptcy.

60)  Can I give property away just before filing?  Gifts of property over $600 just before filing are improper, and the Court can go after that property and the person you gave it to. Gifts under $600 are not improper.  For example, give one gift of $900 to your child, and that is improper. But, give two separate gifts of a $450 computer and a 450 car to go to college—even minutes apart—and that should be proper.

61)  Can student loans or taxes be bankrupted?  (YES, in certain cases)  If someone tells you it can't be done, it often means that he doesn't know how to do it—or that he doesn't want to do it.  Student loans over 7 years old were dischargeable until October 1998, but are no longer bankruptable in a Chapter 7 unless you get a hardship discharge although this normally require disability or retirement it is possible.  

62)  Can I bankrupt my utility bill?  Yes, but they may make you pay a deposit equal to one month's service to keep service with them. Cable TV is the exception because it is a luxury not a utility.   Cable TV can discontinue service if you bankrupt their bill.  You won’t have to pay it but they don’t have to turn it back on until you do. 

If you include utilities in your bankruptcy, you need to immediately advise your utility phone water gas and electric company that you have filed and tell them your case number and the date you filed. If you simply file a Chapter 7, don't pay, and don't contact them, you may end up having your service turned off.  It may be a month before the utility finds out that you have filed, so if you list a utility advise them immediately.

63)  Can bankruptcy stop a lawsuit?  Yes, but it will not stop criminal cases or criminal restitution.  Criminal restitution is not bankruptable.

64)  Can I get my drivers license back?  If you have lost your license due involvement in an accident where you had no or too little insurance, filing bankruptcy will restore your license.  We have the forms!   Fax forms to 502-564-3250 in Frankfort

65)  Can bankruptcy help with tax matters or high rates and penalties?  Yes, bankruptcy can get rid of income taxes, reduce interests and penalties in a cram-down Chapter 13.  You can include taxes and student loans in a Chapter 13 repayment plan.  Filing a Chapter 7 can also get rid of a tax lien if it impairs your equity in a property to the amount that your exemption is impaired.  For instance, let’s say you have a $50,000 house, a $20,000 tax lien, and the mortgage is $42,000.  Your exemption is $5000, so the IRS’s lien could be reduced to $3000.  If the house is worth $45,000, the government would have no lien at all on the house.  A lien can be reduced to only the equity left in the home after your exemption.

66)  What are predatory lenders?  Certain Lenders don't care if you ever repay them not:  They lend not on your ability to repay, but instead based on the equity that they can steal from your home or in their ability to overcharge you and then sell the very profitable loan to another lender.  When you fail to pay, they foreclose to collect.  They charge prepayment penalties, higher interest, and upfront loan costs to get you the loan.  They often use unfair lending tactics, like flipping and packing, to increase income and then don't keep the loan but sell it to another company.  They target poor, elderly, minorities, and the uneducated in advertising and overcharge heavily so that the loan can never be paid off.  Home improvement companies will sometimes use these mortgage companies to process loans for home improvements that are poorly made (if they are made at all), and the result is that you have signed away your home for second-class home improvements.  Predatory Lenders often overcharge for filing fees, reporting costs, and closing fees, and then fail to report the charges.  If you are lucky, you will be able to sue them for truth-in-lending violations and, perhaps, have a free home.  The more they steal or overcharge you, the more proud they are of doing it to you.

67) What if my question isn't answered here?  Send your question to the Law Offices of Nick C. Thompson, and we will try to help you.  Make sure you tell us where you live.  Please keep in mind that we can not provide legal advice over the Internet or answer questions about state law (other than in Kentucky, and Indiana, where we are licensed).  This book is for informational purposes only.  It will give you ideas for questions to ask to your Attorney and help you to save thousands of dollars.  You must ask your Attorney about the issues specific to your case.  Most bankruptcy Attorneys, such as us, do provide free initial consultations and can provide you with the guidance you need to decide whether or not to file a bankruptcy petition and what you, specifically, need to do.

68)  I have a small retirement accounts is it exempt?  My regular stock brokerage cash account on the day of filing will only have a minimal amount (if any) of cash and some shares of companies who are bankrupt and as of the moment, the stock is worthless.

Normally retirement accounts can’t be taken by creditors or the bankruptcy court.  The question is whether or not this is a retirement account. Just calling it a retirement account does not make it one.  Real retirement accounts can’t be assigned or attached. If it can be easily spent by you, assigned, or attached it isn’t a retirement account for purposes of the exemption. Of course putting large amounts of money into an account just before filing (within 6 months) is wrong.     

If the stock is worthless you can list it and if the trustee abandons it then it will belong to you.  However at the moment of filing your Chapter 7 bankruptcy all your property technically belongs to the Trustee.

69) I notice that you have a few more creditors such as the IRS and utilities listed on my bankruptcy that I don’t owe.   This is just me covering all the bases and insuring that you bankrupt every possible person.  Yes you can bankrupt last month's bill and the worst they can do is ask for a deposit equal to one month's service. 

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