Bankruptcy Q&A

Chapter 7 is a procedure under the U.S. Bankruptcy Code to obtain Court protection of a person's or business's property, be relieved from paying certain debts, and liquidate assets that the debtor cannot exempt and keep. It is generally the simplest, quickest, and most common form of bankruptcy.

Individuals, couples, sole proprietors of unincorporated businesses, partnerships and incorporated businesses. If you have previously filed and obtained a discharge in a previous bankruptcy case filed within 8 years, you are not eligible.

No, you do not have to prove any specific reason to file, though many people file because of unemployment or underemployment, a divorce, a work or other injury, or catastrophic medical expenses.

A bankruptcy starts with the filing of the official petition, schedules and statement of financial affairs with the bankruptcy court. You list all of your property and debts, along with some recent financial history. As soon as you file for bankruptcy, creditors are prevented from trying to collect on your debts, through what’s called an “automatic stay.” The stay is designed to preserve your property and to give you a break from litigation. Generally speaking the assistance of a lawyer is needed in order to advise you concerning your rights and obligations in a Chapter 7 proceeding, and to prepare the necessary papers for filing with the Court.

A Trustee is appointed by the Court to review the petition and to meet with you and your lawyer in order to determine if you own any assets besides what you are entitled to exempt and retain. If you have assets valued at more than what you can exempt, then the trustee takes control of it. From the sale of your property, the trustee pays the administration fees and expenses of the case, and then disburses the remaining money if any to creditors according to the priority of the claims. However, in 98% of consumer cases, this doesn’t happen, and the debtor gets to keep everything they owned before filing. That is because property that is “exempt” isn’t legally available to pay the claims of creditors, and you can keep it, even though you filed bankruptcy.

An injunction, commonly called “automatic stay,” is entered immediately upon the filing of the petition that prevents all of your creditors from filing lawsuits, starting foreclosures or repossessions, or making direct contact with you concerning your accounts. Secured creditors must file a motion to obtain permission from the Court to foreclose or repossess property if you are not able to continue payments to them, but in the meantime, they cannot repossess or foreclose no matter how far behind you are on the loan. Tired of collection calls? They will stop, probably forever, when you file.

If the property or car is not worth more than what you owe on it, plus your exemption allowance, you can generally retain ownership so long as you continue to pay the mortgage or lien holder. If you are not a homeowner, there are generous exemptions that you can use for anything. See us for details.

The Court charges a $335.00 filing fee which has to be paid when your petition is filed. Attorney's fees generally range from $1,500.00 in non-complex cases that do not involve a large number of creditors up to $ 2,500.00. The attorney's fee increases in accordance with the complexity of the case, and the number of creditors involved. Do NOT be fooled by the bankruptcy “mills” advertising on television who promise to “start” your case for little or nothing down. The law requires that attorney’s fees be paid in full before the case is actually “filed” in court.

We will start your case for a down payment and work out an affordable payment plan, if necessary, so look at the total cost before deciding whether to go with a mill. Many things can affect the total cost, but in most cases, our basic fee covers everything from start to finish. We offer personalized service, we will know who you are, you will not be a face lost in the crowd. If you are thinking of filing, stop paying your credit cards. Paying them is simply money down the drain that can be better used to get your case filed as soon as possible.

No, not in most cases, but you will have to go to what is called a “341(a) hearing” or “Meeting of Creditors”. No judge will attend this meeting, and it will be in an office building downtown, not in court. Your lawyer will be present with you, and the purpose of the meeting is to give the Trustee an opportunity to ask you questions under oath about your property and debts. Creditors can also question you on those subjects, but seldom do. Generally, the only responsibilities you have after the bankruptcy 341(a) meeting is to assist the trustee in providing any additional requested information and also to complete the final debtor financial management course.

Creditors have a limited period of time after the 341(a) meeting to file litigation or take certain other actions, but this happens only infrequently. Creditors may also approach you about what’s called “reaffirmation” of debts. Secured car lenders frequently want a formal written reaffirmation of the debt in order to permit you to keep your car and keep making payments. Other unsecured creditors may offer deals for new credit based on reaffirming the existing balance on the card. In many, if not most cases, you will hear nothing further until about 4 months later, when you get your discharge..

If creditors haven’t filed a suit to stop you from getting out from under your debts within 60 days of the 341 meeting, the court will enter an order granting the “discharge” of all dischargeable debts that existed on the date the case was filed.

Personal loans, credit cards, repossession deficiencies, auto accident claims (most), judgments (many), unsecured business debts, leases, guaranties, negligence claims, medical and doctor bills, some taxes, unsecured debts.

Recent taxes;

debts obtained through false pretense, fraud, embezzlement, or larceny;

debts of over $500.00 for luxury goods or services obtained within 90 days of the filing or cash advances of more than $1,000.00 obtained within 90 days of the filing under a consumer credit arrangement;

debts not listed in the schedules (possibly);

child support and alimony;

debts based upon willful or malicious injuries to personal property of another; fines or penalties owed to the government;

government guaranteed educational loans (if less than 7 years from the date repayment fell due, including deferrals);

debts based upon death or injury arising from debtor's intoxicated operation of a motor vehicle, debts listed in prior bankruptcy where debtor was denied a discharge;

Homeowner’s Assoc. dues and debts incurred to pay otherwise non-dischargeable taxes.

Any debts that were “reaffirmed” (such as car loans) survive the bankruptcy. The issue of dischargeability can be a complex one, and there are other variables and limitations beyond the exceptions described which should be discussed with your lawyer.

Each of your creditors will be notified, and the Credit Bureau will normally be aware of your filing by checking the Court records. Your employer is generally not notified.

No. Federal laws prohibit your employer from firing you or discriminating against you simply because you have filed a proceeding under the Bankruptcy Code.

Long term “secured” debt like mortgages also aren’t usually affected by bankruptcy. Most creditors with a security interest in real estate are happy to continue receiving payments on the debt, so long as the debtor continues to stay current. If you have used property you own to “secure” debt, you could also choose to “redeem” the property by paying the secured creditor the current value of the property in a single cash payment. If there is still money owed, it’s treated as an unsecured debt and goes away with your other debts.

You can also just give the property to the person to whom you owe the debt. The creditor can sell the property to pay some of the debt. Even if the property isn't worth what is owed on it, the unpaid balance is discharged in the bankruptcy. The other option, not discussed in the bankruptcy code, is to do nothing with respect to a lien on property. In California, if you continue to make car payments on a debt secured by a car, for example, the creditor cannot repossess the car.

If you have a debt that someone else has co-signed, your filing Chapter 7 will not protect the co-signer from the creditor. Although your legal obligation on the debt is discharged, the creditor may still look to the co-signer for payment.

A credit reporting agency such as a Credit Bureau can report that you filed a Chapter 7 proceeding for a period of 10 years. If you have been late on your bills, Chapter 7 may actually only have little adverse effect on your credit, and after your discharge, you may even be solicited by banks for new credit cards! In most cases, assuming no further bad recent credit, you will be able to obtain car loans and even home loans within two to 4 years from the date of discharge.

In order to evaluate your financial situation, and to qualify for our lowest fees, you should bring ALL of the following documents at the time of your first appointment:

  • Credit card statements – most recent statements, sorted by creditor in date order
  • Collection agency notices (if any)
  • A list of any and all personal debts (loans from family, friends, etc.)
  • All bills or statements or other evidence of the indebtedness (e.g., promissory notes, loan documents)
  • Credit report(s) – if you have them. (Try to obtain one in advance)
  • Tax return for prior year . If not filed, W-2’s/1099’s
  • Tax delinquency notices
  • Current (or most recent) Year to Date "YTD" pay stub, as well as 6 months most recent pay check stubs.
  • If you are a homeowner, a copy of Homestead Declaration (if recorded) or Deed (if not). Please try to find out current market value of your home. A realtor can usually give you a free “market evaluation” based on comparable properties in your area. You MUST know your current loan balance(s)
  • If you are renter, a copy of your rental agreement or lease.
  • Lawsuit papers (if applicable) – including copies of any judgment liens
  • For all vehicles you own (whether title is held in your name or not),
  •      title or registration: you must know the year, make, model, options, and approximate MILEAGE so we can obtain the current book value
  •      if you still owe money on any car loan, please bring your loan documents or payment book to show current balance – you MUST know the approximate loan      balance

[decneo_section_heading heading=”Wills, Trusts, and Estate Planning Q&A” additional=”frequently asked questions about wills and trusts”]

The probate Court decides who will administer your estate, who will become guardian of your minor children.

The State of California makes a Will for you and decides who gets your money and you belongings.


  • The wrong person is selected by the court to administer your estate.
  • An inappropriate guardian is selected by the court.
  • Children receive their share when they become “adults”, at the age of eighteen (18) years.
  • Beneficiaries are not those you wanted.

Handwritten Wills are easily challenged because of unclear (non-legal) language and lack of witnesses to prove the person writing the Will was legally competent.

Lawsuits challenging the Will are expensive and usually result in a compromise, with the beneficiaries you wanted to eliminate getting part of your estate.

Caution: Do not attempt to change a Will prepared by your attorney by writing on the document. Adding words or crossing out language could invalidate the entire Will.

If a coupled is married, holding assets in joint tenancy between spouses is okay, but not ideal. Married couples living in a community property state can obtain a “step-up” in basis in both the decedent’s half of community property as well as the survivor’s half, but they lose this advantage by keeping assets in joint tenancy.

     However, adding anyone else as a joint tenant can create other problems, such as:

  • The new joint owner could misappropriate the asset. After all, you gave it to him/her.
  • Did you file a gift tax return when you added his/her name to your asset? Adding a name to an asset is a gift.
  • Do you really want to expose your money to someone else’s problems (for example, adding children or relative as joint tenants)? If the joint tenant gets involved in a divorce, bankruptcy or lawsuit, your asset may be tied up in a long legal battle and you lose your money.
  • Joint tenancy means “automatic right of survivorship” so the surviving joint tenant will get the entire asset regardless of what your Will says.

A simple Will does not avoid probate. If your assets exceed $100,000.00 at your death, probate will take at least one year and 6%-8% of your estate before your beneficiaries receive any money. (See Appendix “A” for approximate probate expenses.)

Trust provisions within a Will can prevent an 18-year old from inheriting his/her entire share in one payment.

People with large estates will create a tax for their beneficiaries from 37% to 50% of the amount exceeding $1,000,000 by relying on a simple Will or joint tenancy. Utilizing tax provisions in your estate documents help protect your heirs from estate taxes.

A trust can protect what you want your children to inherit.

A Living Trust avoids probate, thereby avoiding delay and expense. A Living Trust avoids the need for conservatorship if you should become incompetent or incapacitated. A Living Trust provides possible tax savings.

     A Living Trust can continue for the benefit of:

          Your loved-ones

          Minor Child/ren

          Elderly dependant parents/s

          Adult child/ren with drug or alcohol problems, mental, physical, or educational special needs, or developmentally adult children on SSI.

Yes, for several reasons:

  • If you want to leave specific items (such as jewelry or furniture) to certain individuals.
  • As a safety net to pour assets into your Trust in case you have forgotten to put something into it.
  • To provide for the care of your minor children or other dependants.

Yes. Financial Powers of Attorney are extremely important if you have only a Will. With a living Trust, a Special Financial Power of Attorney allows your Agent to transfer assets to the Trust, sign income tax returns, deal with Social Security , pensions, IRA’s, insurance, and other legal documents outside Trust where your signature is required.

You need a special document known alternatively as a Durable Power of Attorney for Health Care or an Advance Health Care Directive. This document is invaluable in the event. You become in incapacitated for whatever reason, since it allows you to designate who will make health care decisions for you if you are unable to make them for yourself. Without such a document, you may be required to go through an expensive, time-consuming and public conservatorship proceeding before anyone will be allowed to make such decisions for you.

Health Care Powers of Attorney should contain correct addresses and telephone numbers of your named agents, and should typically have an unlimited duration.

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NO! If you do so, the entire of your retirement account will be immediately taxable.

If you have a “Roth” IRA, its benefits will not be taxable to your children or your estate. If you have a “Non-Roth” IRA and your children or anyone other than a spouse is the beneficiary, there will be a tax. If you are married and your spouse is the only beneficiary or your retirement account, taxes can typically be deferred on your “Non-Roth” IRA.

Despite a potential tax disadvantage, some people consider designating the Trust as beneficiary of all or a portion of their “Non’- Roth” IRA in order to care for special needs children who would otherwise receive the IRA portion outright.

Yes. Leaving part of your estate to a special-needs child who is receiving disability of Medi-cal payments could have the effect of terminating those payments until the child has exhausted the entire amount of the bequest. If you find yourself in this position, discuss it with us privately and carefully consider what you should do before you make any decision.

We normally recommend that you name your revocable living Trust as the primary beneficiary of your life insurance. If you are married, your surviving spouse is typically the Trustee of the Trust and the beneficiary of the Trust, and thus would manage and insurance proceeds paid to the Trust for his or her benefit. In the event that the surviving spouse is legally incapacitated, the successor Trustee will step in to manage and distribute the insurance proceeds for the benefit of the incapacitated surviving spouse. If you are single, or your spouse predeceases you, the proceeds are paid to the Trust and the successor Trustee then administers and distributes those funds to your contingent beneficiaries (children, grandchildren, etc.) in accordance with the distribution provisions you have outlined in your Trust. This is particularly beneficial for beneficiaries’ who are still minors.

In the event that the net value of your insurance policy(ies), when added to your remaining estate, will cause your estate to exceed the estate tax exemption limit (currently $5,5000,000) we recommend establishing a special irrevocable Trust for you life insurance to remove the proceed value from your taxable estate.