We have always known that the moment a bankruptcy petition is filed, that is when I press the button on my computer and e-file the petition, an automatic stay against most collections actions takes effect.
It is still automatic in the first case, but if someone has had a previous case that was pending within one year, then the stay terminates at least in parþ after 30 days, unless you file a motion and the judge holds a hearing within the 30 days and decides to extend the stay.
You have to prove to the judge that this case is filed in good faith and is likely to succeed unlike the previous one. It is best to show a change in circumstances.
The more difficult situation is when you have had two or more cases pending “within the previous year.” No one knows if that means the previous 365 days or the previous calendar year. Regardless of which period applies if they apply you have no stay at all. A judge can impose a stay the same way as they can extend it. Since there is no stay, there is no protection from foreclosure or repossession until the judge signs an order imposing a stay.
If a previous case was not dismissed it does not count against you. Also in Chapters 12 and 13 there is a codebtor stay protecting cosigners and the property on consumer debts which can be a good fall back if you do not have an automatic stay.
May 17th, 2009
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The automatic bankruptcy stay is no longer always automatic for repeat filers
Sunday, May 17th, 2009There are actually two different credit counseling requirements in order to file both before and after filing
Sunday, May 17th, 2009Yes that is correct. The first one is the pre-filing credit counseling requirement. All individuals who file must have completed this one with very narrow exceptions. It has to be done within 180 days before filing. The law is unclear and still developing on whether you can do it the same day that you file, but you must do it before you file. Without this counseling you are ineligible and the case will be dismissed by the judge.
The other one is the post-filing financial management course which is shorter and tends to cost less and can be done entirely on the internet without a telephone component. This course is required before a discharge can issue. The certificate and in some judicial districts Form 23 a sworn certification that you took the class must be filed. In Chapter 7 you must take the class within 45 days of the first setting of the creditors meeting. Some courts will close the case without a discharge if this deadline is not adhered to, requiring a motion to reopen and a new filing fee.
Don’t transfer assets before filing bankruptcy especially not to family or other insiders.
Sunday, May 17th, 2009One of the biggest mistakes people can make is to transfer away assets to friends or family members before filing for bankruptcy. A bankruptcy trustee can void transfers made while you were insolvent if you did not receive reasonably equivalent value in return. In other words you can sell your house for fair market value without problems but not for $10.
When the trasnfer is to an insider which includes family and certain people involved in your business, the trustee can void transfers ocurring up to two years before filing and possibly longer under state law.
The lesson is don’t put stuff in other peoples’ names because they can still lose the asset if you or they file for bankruptcy.
Don’t transfer assets before f…
Sunday, May 17th, 2009Don’t transfer assets before filing bankruptcy especially not to family or other insiders. http://post.ly/ZkG
