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Discharging Income Taxes in Bankruptcy

Personal income taxes are an important source of revenue for the operation of our Federal and State government. When the Bankruptcy Code was enacted, the laws made it very difficult to discharge tax debts in Bankruptcy with the operations of government in mind. Getting tax relief by filing Bankruptcy is a very difficult process, but not an impossible one. Certain criteria must be met in order for tax debt to be deemed dischargeable. The Year of Taxes Owed (Three-Year Rule) Tax owed must be for taxes that were due at least three years prior to the filing of the Bankruptcy. For example, if a Chapter 7 Bankruptcy case is filed on August 15, 2013, then the taxes that are owed from the years 2009 and back could be discharged if the return was filed by the due date of that tax year, which would be April 15, 2009. Many individuals request extensions until August, if this is your case, then the debt will not be discharged unless the Bankruptcy case was filed on November of 2013. If the return was not filed by you (or your tax preparer), and instead was prepared by the IRS, then you do not qualify. Year of Taxes Filed (Two-Year Rule) This criterion requires that a tax return for each year in question, be filed at least two years prior to filing the Bankruptcy. This is determined by the date the IRS actually received the return and not the mailing date of the return. In Chapter 13 Bankruptcy, the tax debt may be dischargeable even in the occasion that that the return was received by the IRS after the Bankruptcy was filed. 240-Day Rule The State or IRS must have assessed the income tax debt at least 240 days before the Bankruptcy is filed. This time requirement is very complex, and can be reset by certain events. No Tax Fraud or Evasion The statute of limitations on tax liabilities is three years, but if you filed taxes with an attempt to evade or circumvent the tax rules (i.e., willful evasion, concealment of assets, destroying financial documents) then your tax debts will not be discharged and the statute of limitations will no longer be applicable. If all requirements are met, the taxes owed may be dischargeable using Chapter 7 or Chapter 13 Bankruptcy. Certainty is an absolute necessity in declaring your tax liability. If you are unsure of your Federal Tax history, you can call the IRS at 800-829-1040 and ask them for a “MFTRA-X” which is basically a transcript of your Federal taxes. For Illinois State Tax history you can call 800-732-8866. Besides some the criteria mentioned above there are other factors that might determine your eligibility to discharge tax debts. Given the complexity of tax liability in Bankruptcy, it is really important to seek advice and representation from a Bankruptcy attorney. As always, the Chicagobankruptcy attorneys at the Law Office of William J. Factor are more than happy to help you with this matter. Don’t hesitate, pick up the phone and call us at (312) 878-6976 for your free, no obligation consultation!! Read More
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Section 341 Meeting?! What To Expect In Your Meeting With Your Creditors

Individuals after filing Bankruptcy are often taken by surprise when they find out that they actually have to face their creditors in what is formally called a “Section 341 Meeting” or otherwise known as a “Trustee Meeting.” The trustee presiding over the case is required under Bankruptcy Rule 2003(a) to call a meeting with creditors no fewer than 20 and no more than 40 days after the commencement of the Bankruptcy proceeding. The fact that a debtor has to face their creditors can understandably be perceived as a potentially intimidating experience. Our attorneys are very distinguished in this field and can help make this meeting be a comfortable one for you. Below are a few common questions answered about Section 341 meetings. DO I HAVE TO ATTEND? Attendance is MANDATORY for all debtors in the case. So if your wife or husband is a co-debtor in the Bankruptcy proceeding, she/he must attend. Failure for any debtor to attend the Section 341 meeting is grounds for dismissal of the case. Attendance is crucial in order to move the Bankruptcy proceeding swiftly! WHAT DO I HAVE TO BRING? Unless you are told otherwise, you should bring the following documents. Identification documents – Social Security Card, Driver’s license/State I.D, Passport if applicable. Just make sure you bring some sort of government issued identification. Tax Returns – You should bring your most recent tax return, as it will be one of the documents looked at to verify the accuracy on your Bankruptcy schedules. Bank Statements – Again, these are used to verify the information inputted on the Bankruptcy schedules filed. You should at least bring one that covers the date from the filing date to the prior day of the Section 341 meeting. Pay Stubs –  You should definitely bring your most recent pay stub to the meeting. Property Tax Notice – If you own a home, you should bring your most recent county property tax notice. Car Titles/Mortgage Documents – If applicable. Any Other Information Requested by the Trustee Although, a Section 341 meeting can seem cumbersome, by bringing all the paperwork above, the meeting can be a very manageable and speedy one. WHAT KIND OF QUESTIONS WILL I BE ASKED? This is one of the main concerns, but usually most of the Trustee’s questions are pretty standard. Some questions include: Why are you filing Bankruptcy? Have you filed before? Has anything changed since you filed Bankruptcy? Have all your creditors been listed? Have all of your assets been disclosed? Since most questions are pretty standard, a standard “yes” or “no” will satisfy the trustee. If the question requires a more descriptive answer, just be as concise as possible. A debtor should not be defensive, or go on a rant when answering these questions. If they do, then it opens the door for creditors to ask the debtor more questions. This makes the meeting longer and more uncomfortable for the debtor. Remember that you will be under oath, so make sure to answer your questions accurately. A Section 341 meeting does not have to be an intimidating one. We can prepare anyone for this process in order to ensure a swift and comfortable meeting. If you, a family member, or friend are considering Bankruptcy and have questions please contact one of our distinguished Chicagoland Bankruptcy attorneys at the Law Office of William J. Factor for your free, no obligation consultation!! Read More
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The Means Test: Do I Automatically Qualify For Chapter 7 Bankruptcy?

Many individuals are still financially struggling to recover from what has been described as one of the worst economic climates since the great depression of the 1930’s. In this current era of financial hardship, Chapter 7 Bankruptcy is seen as an alternative for individuals unable to find a solution to their debt problems. Chapter 7 Bankruptcy, otherwise known as straight liquidation, is where assets not protected by the law are collected by the trustee and sold to pay all or part of what is owed to the creditors. Unlike Chapter 13 Bankruptcy, there is no repayment plan in Chapter 7 Bankruptcy. Once the trustee sells your unprotected assets, your remaining outstanding debts are discharged. Prior to October 17, 2005, Bankruptcy Judges were largely responsible for determining whether or not a debtor met Chapter 7 filing requirements. When President Bush signed into law “The Bankruptcy Abuse Prevention and Consumer Protection Act,” debtors were automatically deemed eligible to file Chapter 7 Bankruptcy if they met certain criteria, in particular the means test.  Failure to meet the new criteria, forces the Bankruptcy Court to convert the Chapter 7 case into a Chapter 13 case. Below you will find the means test criteria, which must be met in order for you to be automatically eligible to file Chapter 7 Bankruptcy: The Bankruptcy Means Test This test is used in order to determine your automatic Chapter 7 Bankruptcy eligibility. If your current yearly income is less than the median income for the household of your size in your state, you pass the means test.  Bankruptcy law determines your income by looking at your household income during the six full calendar months before your Bankruptcy filing. The following are the median yearly amounts for the state of Illinois: Household of 1: $47,485 Household of 2: $59,861 Household of 3: $68,721 Household of 4: $80,776 For Each Additional Dependent Member In the Household: Add $8,100[i] **It should be noted, that if your debts are primarily business debts, then you will not be subject to the means test and will automatically qualify for Chapter 7 Bankruptcy. If you pass this test, then you are automatically eligible to file Chapter 7 Bankruptcy. If your household income exceeds the state median, DON’T BE ALARMED, YOU CAN STILL QUALIFY TO FILE CHAPTER 7 BANKRUPTCY.  In order to determine if you are still able to file Chapter 7 Bankruptcy after not passing the test above, complex computations need to be made in order to assess your potential Chapter 7 Bankruptcy eligibility. These complex computations are aimed at calculating your monthly disposable income. These calculations involve determining your allowed expenses. These allowed expenses vary from county to county and household size. Some of the expenses commonly allowed are for example: grocery expenses, mortgage payments, and transportation expenses.   There can potentially be a big difference between filing Bankruptcy in Chicago and filing Bankruptcy in Joliet. Free Consultation with a Chicago Bankruptcy Attorney Bankruptcy is a complex process. Whether you think you are not eligible for Bankruptcy, earn too much money, or just need to hear advice, contact us! For more information about Bankruptcy requirements contact one of our distinguished Chicagoland Bankruptcy attorneys at the Law Office of William J. Factor! [i] http://www.justice.gov/ust/eo/bapcpa/20130401/bci_data/median_income_table.htm Read More
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Credit Counseling Requirement For Filing Bankruptcy in Chicago

If you are thinking about filing Bankruptcy, it is important to note that there is a credit counseling requirement that must be met. In accordance with Section 109(h)(1) of the Bankruptcy code, credit counseling must be completed with a non-profit credit agency. The United States Trustee’s Office must approve the agency that you use for credit counseling. Our Chicago bankruptcy attorneys can make sure that you deal with an approved agency. There is a fee you must pay the agency for credit counseling, but if you cannot afford to pay the fee, a fee waiver may be available with the agency you choose. The credit counseling session usually takes 60-90 minutes long. It can also take place anywhere convenient for you, from being in person, on the phone, and even online. Once the credit counseling is completed, you will receive a certificate as proof of having completed this requirement. Credit counseling is an important step, as it will provide you with advice on how to avoid getting back into debt in the future. A question always made by potential Bankruptcy filers is by when must the credit counseling requirement be met? The Bankruptcy code states that the counseling  requirement must be completed within the 180-day period ending on the date of filing the petition. There have been issues in the past where Debtors have filed Bankruptcy and completed counseling later that day. Many courts in the past have held that it must be done before you file the Bankruptcy petition. Well, it appears we finally have an answer!  On December 9, 2013,  a decision  was made by Judge Timothy A. Barnes, of the Bankruptcy Court in Chicago, clarifying the credit counseling deadline. In this case the Debtor filed for Chapter 13 Bankruptcy. Later on that same day, the Debtor obtained credit counseling as required by the Bankruptcy code. The Debtor later filed the certificate of credit counseling demonstrating the completion of the requirement. The issue brought up by the Trustee was if the Debtor had actually met the deadline by completing the credit counseling requirement following the Bankruptcy filing. Judge Barnes ruled that the Debtor was in compliance with the Bankruptcy code’s credit counseling petition. As long as the credit counseling requirement is completed by the end of the day when the petition is filed, the requirement is deemed as met. It is important to note that there are exemptions to the credit counseling requirement. One of the main exemptions is if you are unable to receive credit counseling because you are incapacitated, disabled, or an active military member in the combat zone. It should also be noted that this view has not been wholly adopted by other surrounding areas or other judges. Given the relatively new amendments to this section, decisions regarding the interpretation of sections such as this one will eventually be promulgated. Schedule a Free Consultation with a Chicago Bankruptcy Attorney As always, if you have any questions, please do not hesitate to contact us at (312) 878-6976 for your free, no obligation consultation!! Read More
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Do You Qualify For Rental Protection Under the Keep Chicago Renting Ordinance?

On June 5, 2013, Chicago City Council passed the Protecting Tenants in Foreclosed Rental Property Ordinance, otherwise known as the “Keep Chicago Renting Ordinance” with a 45-4 vote. The ordinance went into effect on September 24, 2013. The ordinance is expected to protect over 10,000 families per year, which might include yours. If you’re a tenant, the following is a walkthrough to see if you qualify to be protected under the ordinance, and your rights accordingly. You Need To Be A Qualified Tenant Not every tenant qualifies for protection under this ordinance, you must be a “qualified tenant.” In order to be a “qualified tenant” you must meet the following criteria: (1)must be a tenant in the foreclosed rental property on the day that a person becomes the owner of that property; and (2) have a bona fide rental agreement to occupy the rental unit as a the tenant’s principal residence You must meet both of the criteria listed above. If you have a copy of your lease available look at the lease start date and compare it to the date the rental building was foreclosed on. You can check what date your rental building was foreclosed on by checking the tenants notice sent by the new owner. The new owner of the building is required under this ordinance to send each tenant a notice within 21 days of becoming owner of the rental property or post it on the main entrance of your building. If your lease started before the rental property was foreclosed on, then you meet the first criteria, otherwise regrettably you don’t . In order to meet the second criteria, you cannot be related to the mortgagor (the individual that the property is being foreclosed on) as a child, spouse, or parent. The rent you pay must not be substantially less than the fair market rent for the property. So if for example, you were able to receive a great discount on the rent because you were good friends with the building manager, you will be in jeopardy of not qualifying for the protection under the ordinance. The last aspect of the second criteria is that your dwelling unit must be your principal residence. If you have a second or even third unit, a good rule of thumb is to estimate how many days you will stay at each of your units, the one you stay at the most is most likely your principal residence. Other factors may include where you ask your mail to be sent, where you are registered to vote, etc. If you qualify under the criteria listed above, then you are afforded great protection by the ordinance. The owner of a foreclosed rental property must offer a qualified tenant a one-time relocation assistance fee of $10,600. or offer the option to renew or extend the tenant’s current rental agreement with an annual rental rate that for the first 12 months of the renewed or extended lease, does not exceed 102 percent of the qualified tenant’s current annual rental rate and for any 12 month period thereafter, does not exceed 102 percent of the immediate prior year’s annual rental rate. It is important to note that this time the effect of the ordinance and the applicability of it will have to be defined through judicial decisions and practice. Read More
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Chapter 20 Bankruptcy Explained

Most individuals have heard or read about Chapter 7, 11 or 13 Bankruptcy. With big cities such as Detroit filing Bankruptcy, Chapter 9 Bankruptcy (municipality restructuring) has become a more mainstream term. Chapter 12 Bankruptcy also exists, but is mainly just a form of reorganization for farmers and fishermen. Oddly enough, nowhere in the Bankruptcy code is there anything actually called Chapter 20 Bankruptcy. Although not expressly mentioned in the Bankruptcy Code, Chapter 20 Bankruptcy  is a real thing. Filing Chapter 20 Bankruptcy in Chicago Chapter 20 Bankruptcy is a colloquial term given to a situation where a debtor files Chapter 7 and Chapter 13 Bankruptcy back-to-back (7+13=20). It should be noted that Chapter 20 Bankruptcy is not a common occurrence, it’s a unique strategy that we can offer in the right circumstances, particularly for homeowners who owe more than their home is worth. Although most debts can be discharged by filing Chapter 7 Bankruptcy, some debts will remain. Some examples are domestic obligations, tax debts, student loans and mortgages on your home. The first step of Chapter 20 Bankruptcy is filing Chapter 7 Bankruptcy. When a debtor files Chapter 7 Bankruptcy, if the mortgage isn’t paid, whether it is your first or second mortgage on your home, the creditor will have the right to foreclose on your home. This foreclosure can take place immediately after the Bankruptcy is completed or if the creditor obtains special permission from the Bankruptcy court. These mortgages remain on your home notwithstanding your Chapter 7 discharge because they are secured obligations against you and the home. Someone who wants to pay the debts financing the purchase of their home in order to keep the property must act quickly if they are behind on their payments. Thus, a subsequent filing of a Chapter 13 Bankruptcy case is taken as the next step in order to reduce that loan amount to the fair market value of the property. This creates an unsecured obligation that is removed from the property with a Chapter 13 Bankruptcy discharge, this is what is known as lien stripping. An example of Lien Stripping is when a homeowner has a home mortgage principle balance of $125,000, along with a second mortgage of $25,000. The home in this example is currently valued at $100,000 in the market. Although there is not enough equity in the home to secure the second mortgage, it could possibly be stripped or removed as a secured attachment from the home in a chapter 13 case and instead become a unsecured debt. This is very important because unsecured debts can be restructured in a Chapter 13 payment plan, and are eligible to be discharged once the payment plan is complete. We often recommend this approach to individuals and families who have a tremendous amount of unsecured debt and who are behind on mortgage payments as well. The goal of Chapter 20 Bankruptcy is to discharge as much debt as possible. When Chapter 7 Bankruptcy is filed and discharge is granted, we can then establish a sustainable repayment plan through Chapter 13 Bankruptcy to help you stay afloat on the debts that survive the initial Chapter 7 Bankruptcy discharge. Schedule a Free Consultation with our Chicago and Northbrook Bankruptcy Attorneys Chapter 20 Bankruptcy is a complex strategy because it involves two separate Bankruptcy actions. With the right legal assistance, this strategy can be a viable and beneficial one.  Don’t hesitate, pick up the phone and call us at (312) 878-6976 for your free, no obligation consultation!! Read More
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Bankruptcy Court: You Can Save for Retirement in Chapter 13

In a recently issued order, Judge Pamela S. Hollis, of the Bankruptcy Court in Chicago, ruled that individuals in chapter 13 bankruptcy cases can make 401(k) contributions while making payments to creditors under a debt repayment plan. The order, which was issued on October 22, 2013, in the case In re Hall, confirms that individuals in chapter 13 cases may continue to plan for their future while addressing their current debt problems. Under chapter 13 of the Bankruptcy Code, an individual proposes a plan to repay creditors over a three- to five-year period. The individual must commit all of her “disposable income” to the plan. “Disposable income” is calculated using a formula defined by the Bankruptcy Code. The debtor in the Hall case had proposed to pay $500 per month to her creditors and $700 per month to her 401(k). The chapter 13 trustee objected to the debtor’s plan and asked the Court to decide whether a chapter 13 debtor could continue making voluntary 401(k) contributions, or whether those amounts were part of “disposable income” that had to be paid to creditors through the chapter 13 plan. Courts outside of Chicago have addressed this issue before, and the Hall order outlines the three competing rules that those other courts have developed. First is the majority rule: voluntary retirement contributions are not “disposable income,” so debtors can continue to make them during a chapter 13 plan period. Second is the opposite rule: voluntary retirement contributions are “disposable income” and must be paid to creditors while a chapter 13 plan is in effect. Third is the middle ground: a debtor may continue to make contributions she made before filing for bankruptcy, but may not increase the contribution level or begin making contributions for the first time. In adopting the majority rule—that a debtor may make voluntary contributions during a chapter 13 case, even if she has not made them before bankruptcy—the Court relied on a close analysis of the text of the Bankruptcy Code, as well as Congress’s expressed policy of encouraging debtors to save for retirement. The Court’s rule is favorable to individuals considering a chapter 13 bankruptcy filing. A bankruptcy filing does not mean choosing between relief from debts now and financial security in retirement. Instead, an individual can repay her creditors, get a bankruptcy discharge, and continue (or even begin) planning for retirement, all at the same time. It is important to note, however, that Judge Hollis is just one of 12 bankruptcy judges for the Northern District of Illinois, the judicial district encompassing Chicagoland. The judges can and often do disagree with each other, and any one of them may preside over a particular case. Another judge may decide that 401(k) contributions are “disposable income” and must be paid to creditors. Until that happens, though, the Hall order provides a basis for individuals to propose debt repayment plans that protect their retirement as well.   Read More
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Top 5 Bankruptcy Myths Debunked

Bankruptcy has many misconceived stigmas to it. Frankly, there is a lot of misinformation out there, and much of the stereotypes regarding Bankruptcy are just not true. With just over One Million people declaring Bankruptcy as of the 12 month period ending on September 30, 2013, you are not alone in this process.[i] With Bankruptcy folklore continuing to emerge, our Chicago bankruptcy attorneys want to debunk some of these popular myths for your sake. Bankruptcy does not have to be a scary process, and we hope that this article helps clear some of the misconceptions you might have read or heard. 1.  You Must Be Broke Before Filing Bankruptcy A very common misconception. You should not wait until an emergency with bank restraints or until your home is getting foreclosed on to file Bankruptcy. A good rule of measure is to look where you will be financially six months from now. If for worse, then Bankruptcy might be worth looking into. 2. Bankruptcy Will Discharge All Debts NO! There are certain debt obligations that are nearly impossible to discharge. A great example is domestic support obligations (i.e., Child Support and Alimony).  Also, as a result of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005, student loans fall in a similar category as domestic support obligations. Student loans can be forgiven if you are able to prove hardship, such as a permanent disability, but even that standard is nearly impossible to meet. 3. If I File Bankruptcy, I Will Lose Everything I Own If you file Chapter 13, you actually get to hang on to all your assets as long as you remain current in your payment plan. If you file Chapter 7, most exemptions provided in the State you file will let you keep your valuable assets. Our distinguished attorneys at the Law Office of William J. Factor are more than happy to discuss how your valuable assets can be protected in Bankruptcy. 4. Only Financially Irresponsible Individuals File Bankruptcy Definitely not true! Did you know Donald Trump filed Bankruptcy? Heck, even Mark Twain, one of America’s greatest authors, filed Bankruptcy. Unexpected-life changes always happen such as job loss, divorce, serious illnesses, etc. The Bankruptcy code was enacted to protect the “unfortunate but honest debtor,” with the idea of giving a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt. Bankruptcy is meant to give you the fresh start you need! 5. I Can Only File Bankruptcy Once In My Lifetime This popular myth is also not true.  If you have received a discharge in a previous Bankruptcy proceeding, that does not preclude you from filing again in the future.  If you received your first discharge under a Chapter 7 Bankruptcy, you cannot receive a second discharge in any Chapter 7 case within eight years from the date that the first Bankruptcy was filed. If you received your first discharge under Chapter 13, you cannot receive a second discharge in any Chapter 13 case that is filed within two years form the date that the first Bankruptcy was filed. Schedule a Free Consultation at (312) 878-6976 to Speak with a Chicago Bankruptcy Attorney There are many more common misconceptions out there. Before you decide to take the leap into Bankruptcy, consult one of our distinguished Chicagoland bankruptcy attorneys at the Law Office of William J. Factor, and learn the facts about how Bankruptcy will affect you. At the Law Office of William J. Factor we pride ourselves in having the “Big Firm Expertise at Reasonable Rates.” Don’t hesitate, pick up the phone and call us at (312) 878-6976 for your free, no obligation consultation!! [i] http://www.uscourts.gov/uscourts/Statistics/BankruptcyStatistics/BankruptcyFilings/2013/0913_f2.pdf   Read More
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Full Disclosure: Why It's Important to Tell Your Chicago Bankruptcy Attorney EVERYTHING When Filing Bankruptcy

The decision to file bankruptcy is a difficult one for most people, and it requires disclosure of a tremendous amount of information. The temptation can be great to hold back in some areas, just to feel like one is retaining a little bit of control. Perhaps there’s some jewelry that was just received as a gift, or an inheritance that is expected soon. Will what your lawyer doesn’t know hurt him? Maybe not–but it will very likely hurt you. Whether you are filing Chapter 7 or Chapter 13 bankruptcy, failure to accurately disclose every detail of your financial situation can come back to haunt you in a number of very serious ways. Just because you don’t tell doesn’t mean they can’t find out You may think that holding something back from your attorney means that the information is a secret. The reality is that bankruptcy trustees are skilled in looking for hidden assets, and technology has made it easier than ever. Many trustees and their staff regularly make use of social media to discover information that might not have made it onto the bankruptcy schedules. Even if you think your social media accounts are locked up tight, they’re probably not as private as you think. And you have no control over what other people’s privacy settings, and what they share about you. If you’re in a Chapter 7 case, and your best friend tags you in a picture with your new X-Box  or iPad you “forgot” to disclose, there could be trouble. If you’re in a Chapter 13, and a friend congratulates you on that new freelance gig you neglected to mention to your lawyer or the trustee, you are going to have some explaining to do. Tell the truth–or face the consequences If you fail to disclose assets, at the very least, you may be denied a discharge of certain debts. At worst, you could face jail time. Here are some of the possible consequences for failure to disclose information in a bankruptcy case: Your discharge will be denied, meaning that whatever debts you hoped to erase by filing bankruptcy will have to be paid in full. Even if you file a subsequent bankruptcy, you will not be able to discharge debt identified in a previous case where you failed to disclose assets. Your bankruptcy case may not be dismissed, meaning that even though your discharge is denied, the trustee can still collect and liquidate your assets to pay your creditors. If you’ve already received a discharge, it can be revoked. A bankruptcy discharge does not close the bankruptcy case. A discharge that has been granted can be revoked up until the case is closed, and in some cases, even after the case is closed. You could go to jail–for years. When you sign your bankruptcy schedules, it’s just like testifying to information in court: you are under oath. Misrepresenting or failing to disclose could lead to a perjury conviction, subjecting you to up to five years’ imprisonment and up to hundreds of thousands of dollars in fines. There is nothing to be gained by holding information back from your attorney. Don’t think of your lawyer as one more person trying to catch you with your hand in the cookie jar. Instead, realize that he’s trying to help you keep as many “cookies” as he legally can, so you can enjoy them without forever having to look over your shoulder. Schedule a Consultation with Our Chicago or Northbrook Bankruptcy Attorneys If you’re contemplating filing bankruptcy, contact our office today to learn how we can help you to protect as many assets as possible. Read More
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What NOT to Do Before Filing Bankruptcy

Most people who file a Chapter 7 or Chapter 13 bankruptcy have done everything they could to avoid filing, or even consulting with a bankruptcy attorney. People take pride in being to solve their own financial problems. Unfortunately, sometimes their honest attempts to do what they think is best end up jeopardizing their chance for a financial fresh start. Here are some things that you should NOT do if bankruptcy is a possibility in your near future–even if they initially seem like a good idea. Don’t spend down your retirement accounts. When there are piles of bills to be paid, the temptation to borrow from your 401(k) or other retirement accounts in an attempt to stave off bankruptcy is great. After all, it’s your money, it’s just sitting there, and you need it now. Why you shouldn’t do it: Borrowing from, or completely liquidating, your retirement accounts may not be enough to prevent an eventual bankruptcy. If you leave those funds where they are, they will very likely be exempt in a bankruptcy–meaning that when your debt is gone, you’ll still have your retirement funds. Also, if you do take money from retirement accounts, there may be stiff penalties and taxes that cannot be discharged in bankruptcy. Last but not least, those funds won’t be available when you really need them. Don’t sell or give away property to friends or family. Another temptation when the possibility of bankruptcy looms is to raise funds by selling your property, or to protect it by giving it to a family member for safekeeping. You get some much-needed cash, and your brother gets your motorcycle for a great price. It seems like a win-win. Why you shouldn’t do it: Bankruptcy trustees are highly suspicious of transfers of property to friends or family, especially if fair market value was not received for the items. The trustee might undo the transfer. Worse, you may be found to have intentionally committed fraud and have your bankruptcy discharge denied. Worst of all, criminal charges for fraud might be brought against you. Don’t repay family or friends money you owe them. You don’t have much cash on hand, and bankruptcy seems like a likely option. Shouldn’t you use what little you have to repay your mother for those few months’ rent she gave you the money for? It seems like the honorable thing to do. Why you shouldn’t do it: If you’re looking at a bankruptcy, your mom isn’t the only one to whom you owe money. The bankruptcy courts don’t permit debtors to give one creditor preferential treatment over others. The trustee has the right to reclaim preferential payments and redistribute them. Don’t run up your credit card bills. You know you shouldn’t, but you also know that once you file bankruptcy, you’re not going to be able to use your cards, and there are some things you really want. The credit card debt is going to be discharged in bankruptcy anyway; you’re just adding a little more. Is it really such a problem to do a little extra spending before you give up your cards? Why you shouldn’t do it: People who ran up credit card debt, then tried to have it discharged in bankruptcy, inspired some 2005 changes to the Bankruptcy Code. These changes, aimed at preventing such abuses, lowered the threshold for “luxury” purchases, and extended the period prior to the bankruptcy filing in which purchases are most carefully scrutinized. If the trustee finds that you ran up debt you didn’t intend to repay, he or she may not allow that debt to be discharged, and you’ll be on the hook for it. There are more “don’ts,” and many “dos,” to observe when considering bankruptcy. Don’t decide on your own. Call our Chicago bankruptcy firm for a consultation. Read More
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