Law Firm of Min G Kim, PLLC http://www.mgkimlaw.com Attorneys at Law Mon, 05 Feb 2018 18:56:03 +0000 en-US hourly 1 https://wordpress.org/?v=5.1.1 Houston Foreclosure- My home is being foreclosed?! http://www.mgkimlaw.com/houston-foreclosure/ Wed, 18 Feb 2015 01:56:30 +0000 http://www.kimlylaw.com/?p=498 Houston Foreclosure – My home is being foreclosed?! In a Foreclosure conducted in Texas, there are 2 different methods that are commonly utilized by the mortgagee (i.e. mortgage lender/holder of the security interest) to foreclose on real property, Judicial Foreclosure … Continue reading

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Houston Foreclosure - My home is being foreclosed?!

In a Foreclosure conducted in Texas, there are 2 different methods that are commonly utilized by the mortgagee (i.e. mortgage lender/holder of the security interest) to foreclose on real property, Judicial Foreclosure and Non-Judicial Foreclosure.

In a Foreclosure conducted in Houston, Texas and the state of Texas, the Texas Property Code Chapter 51 governs the Foreclosure procedure.

Texas Foreclosure laws require that the Mortgagee/Foreclosing party to have followed the Foreclosure procedure stated under the Texas Property Code Chapter 51.

This article will address the Non-Judicial Foreclosure of your Homestead by your Mortgage Lender/Mortgage Servicer.

Understanding your Foreclosure Rights in Houston Texas

If you are facing a Foreclosure in Houston, Texas on your home, Texas Foreclosure laws requires that you received proper notice at certain stages prior to your home being set for a foreclosure sale.

The Mortgage Lender/Servicer will utilize the Non-Judicial Foreclosure process to proceed with the foreclosure of your home. This means that your Mortgage Lender/Sender will not have to file a lawsuit first with the Court to proceed with the foreclosure.

Specifically for a Foreclosure on a real property that is your home, the Mortgage Lender/ Mortgage Servicer will generally be required to send you the following notices prior to the Foreclosure Sale:

  1. Demand Notice (aka Notice of Default)
    1. A written notice of default providing a 20 days to cure the default amount will be served on the Debtor's residence by certified mail.
  2. Notice to Accelerate
    1. A written notice that if the Debtor does not cure the default amount then the Mortgage Servicer/Lender will accelerate the mortgage note to the entire unpaid balance under the Acceleration Clause in the Deed of Trust
    2. The Notice of Default and the Notice to Accelerate may be combined
  3. Notice of Acceleration
    1. If the Debtor does not cure the default amount within the 20 days period, than the Mortgage Servicer/Lender has accelerated the entire unpaid balance of the note.
  4. Notice of Foreclosure Sale
    1. A Notice of Foreclosure will be sent 21 days before the foreclosure sale date by certified mail to the Debtor's last recent address on the Mortgage Servicer/Lenders records.
    2. The Notice of Foreclosure will identify 3 things
      1. Time of the Foreclosure Sale- In Texas, the Foreclosure Sale may occur between 10AM-4Pm but must be within 3 hours of the specified time on the Notice of Foreclosure Sale.
      2. Date of the Foreclosure- In Texas, a Non-Judicial Foreclosure will be conducted on the 1st Tuesday of the Month.
      3. Foreclosure Sale Location- A written Notice of Foreclosure Sale must be posted on the posted at the "courthouse doors" in the county where the real property is located. The same written notice will be filed with the county clerk where the property is located.

What are my Options?

Whenever you are facing a foreclosure you must act fast. Your options may be limited but you still have the opportunity to save your home.

  1. File a Chapter 13 Bankruptcy
    1. Filing a Chapter 13 Bankruptcy will immediately stop the foreclosure sale at the time of filing your bankruptcy case. This is due to the "Automatic Stay" that becomes your legal shield to protect you and your assets from any further collections actions including the prevention of the foreclosure of your home.
    2. The Chapter 13 Bankruptcy will allow you to protect your home and afford you the opportunity to reorganize the behind payments (arrearages) on your mortgage and get you current by the time your bankruptcy is concluded.
    3. Additionally, during the time you are in the Chapter 13 Bankruptcy, you can proceed with applying for a modification once again. This time around, your mortgage will most likely be transferred to your mortgage bankruptcy department and the process (from some clients) becomes more smoother and expedited.
  2. File a Lawsuit against the Mortgage Lender/Servicer AND a TRO (Temporary Restraining Order) 
    1. Many times people need extra time to work out a deal with the mortgage company and consider filing a TRO in the State Court to stop the foreclosure for a temporary period. HOWEVER, a TRO is a ancillary form of relief meaning that it has to be filed WITH a legitimate lawsuit has been filed against your Mortgage lender/servicer. A TRO cannot be filed alone in itself.
    2. If you do not have a legitimate cause of actions against the Mortgage lender/servicer you may be subject to fines and penalties by the Court for filing a "Frivolous" lawsuit resulting in the case being dismissed and you going back to square 1 (one) with more money that you lost.

The Law Firm of Min Gyu Kim provide a FREE Consultation for our 1st meeting either over the phone or at either of our 2 offices located in Houston.

Please Contact us so that we can help you during your difficult time!

The Law Firm of Min Gyu Kim, PLLC is a Bankruptcy Law Firm providing Bankruptcy assistance in the  Houston areas of Harris County, Fort Bend County, Brazoria County, Montgomery County and the surrounding areas of Houston.

Links:

Texas Property Code Chapter 51 -Click here

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Where do I file my Bankruptcy case? http://www.mgkimlaw.com/where-do-i-file-my-bankruptcy-case/ Tue, 25 Mar 2014 04:11:45 +0000 http://www.kimlylaw.com/?p=478 Where do I file my Bankruptcy case? More often than not, many people ask the question “Where do I file my Bankruptcy Case?” Although it may simply come down to where you live, there are other things to consider when … Continue reading

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Where do I file my Bankruptcy case?

More often than not, many people ask the question "Where do I file my Bankruptcy Case?" Although it may simply come down to where you live, there are other things to consider when filing your bankruptcy case.

A person who wants to file a bankruptcy must first determine where they need to file their bankruptcy case.

A bankruptcy case must be filed in the proper "venue" or federal judicial district or the bankruptcy case will be subject to dismissal.

How do one know which federal judicial district or "venue" is proper for me to file my bankruptcy case?

Venue in a bankruptcy case is set forth under Title 28 of the United States Code, Section 1408(1). Most of the time, For an individual or a married couple who are filing a bankruptcy, the proper venue or federal judicial district is clear and straight forward. The proper venue or judicial federal district that an individual or married couple will file their bankruptcy case will be the place the person has lived for the last 3 (three) months prior to the date of filing their case. In plain language, the statute states that a bankruptcy case should be filed in the venue or judicial district where either the bankruptcy filers are domicile, resident, principle place of business or principal assets have been located for the majority portion of the 180 days or 91 days preceding the bankruptcy case being filed.

Where should I file if I can file my bankruptcy case in multiple venues?

Sometimes a person may meet the requirements to file their bankruptcy case in multiple venues because they meet the definition provide under Section 1408. To decide which bankruptcy venue is best suited for you to file your bankruptcy may come down to the exemptions of the State the bankruptcy is to be filed to protect the assets of the bankruptcy filer.

What is an Exemption and how is it applied in a bankruptcy?

Exemption are what the law provides to protect the assets that the bankruptcy filer may have interest or possession of. Exemptions vary from State to State and can impact the what is protected from liquidation in a bankruptcy to which Chapter of a bankruptcy a person may file to protect the assets that the bankruptcy filer has. Exemptions in a bankruptcy is provided under Title 11 of the United States Code Section 522. Exemptions and bankruptcy is discuss further in this link.

Ask your Bankruptcy questions to the Houston Bankruptcy Attorneys at the Law Firm of Min Gyu Kim, PLLC

The first Bankruptcy Consultation is Free over the phone or at either of the 2 office location in Houston

Links:

Title 28 of the United States Code, Section 1408(a): http://www.law.cornell.edu/uscode/text/28/1408

Title 11 of the United States Code Section 522: http://codes.lp.findlaw.com/uscode/11/5/II/522

 

The Law Firm of Min Gyu Kim, PLLC is a Bankruptcy Law Firm providing Bankruptcy assistance in the  Houston areas of Harris County, Fort Bend County, Brazoria County, Montgomery County and the surrounding areas of Houston.

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KimLy Law Firm, PLLC Video http://www.mgkimlaw.com/446/ Sat, 18 May 2013 03:58:50 +0000 http://www.kimlylaw.com/?p=446 The post KimLy Law Firm, PLLC Video appeared first on Law Firm of Min G Kim, PLLC.

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Social Security Overpayment (and long-term disability overpayment) is discharged in Bankruptcy, HOWEVER… (citing In re Caldwell, 350 B.R. 182 (Bankr. E.D. Pa. 2006) http://www.mgkimlaw.com/social-security-overpayment-and-long-term-disability-overpayment-is-discharged-in-bankruptcy-however-citing-in-re-caldwell-350-b-r-182-bankr-e-d-pa-2006/ Wed, 01 May 2013 17:39:21 +0000 http://www.kimlylaw.com/?p=439 There is many times where recipients of social security or even long-term disability are faced with a situation where the SSA or their insurance company tells them that they have overpaid them. Generally, if the recipient has been receiving the … Continue reading

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There is many times where recipients of social security or even long-term disability are faced with a situation where the SSA or their insurance company tells them that they have overpaid them. Generally, if the recipient has been receiving the long term disability and, subsequently, applies for SSA and is approved, the recipient will be notified that under their insurance policy the overlapping payments would require the long term disability to have ceased or reduce significantly from what it used to be. This would mean that the recipient has been “overpaid” for the overlapping period.

What does this mean?

This means that the recipient is now burdened with a debt that may be more than they could afford to pay back.

Bankruptcy can discharge your overpayment owed

Simply, by filing a bankruptcy, the overpayment can be discharged subject to an objection that may be filed by the SSA or the insurance company on the basis of fraud. SSA or the insurance company has the burden to prove that the recipient committed fraud or misrepresentation in obtaining the benefit, but rarely does so.

Exceptions: Recoupment – SSA v. Long term disability

However, although the person’s personal liability to the overpayment is discharged, depending on if it is the SSA or insurance and whether or not you will continue to receive such benefits, the ability for “Recoupment” may come into affect.

Recoupment is an “equitable defense” theory that is outside the limitation of the bankruptcy code. As such allows for off-setting the amount owed from your on-going benefit received.

If the overpayment is made by the SSA and you will continue to receive the benefit after filing the bankruptcy, than the recoupment theory will not apply and you can continue receiving the regular payment.

However, if the overpayment was made by your long-term disability under your insurance, case law have reached a different conclusion. The theory of recoupment will allow your insurance to “recoup/off-set”  the amount that was overpaid from your “on-going” future payments. Although, you will not be personally liable, the insurance company can off-set the overpayment from your future benefits.

If your long term disability ceases or ceased, than the debt arising from the overpayment will be discharged in the bankruptcy.

Case Law

Couple of cases addressed the issue above and the citation is provided below:

In re Caldwell, 350 B.R. 182 (Bankr. E.D. Pa. 2006)(distinguishing Lee v. Schweiker, 739 F.2d 870 (3d. Cir. 1984))(SSA is a govern by a “social welfare” statute that is an “entitlement” compared to the case in hand where the benefit is governed by a “contract” between the parties”))

In re Terry, No. 08-43123, Adv. No. 09-3031 (Bankr. W.D. Mo 2010)(affirming In re Caldwell, theory of recoupment applies to long-term disability)

In re Beaumont, No. 09-7006 (10th Cir. 2009) (Theory of recoupment does apply to VA overpayment)

The Law Firm of Min Gyu Kim provide a FREE Consultation for our 1st meeting either over the phone or at either of our 2 offices located in Houston.

Please Contact us so that we can help you during your difficult time!

The Law Firm of Min Gyu Kim, PLLC is a Bankruptcy Law Firm providing Bankruptcy assistance in the  Houston areas of Harris County, Fort Bend County, Brazoria County, Montgomery County and the surrounding areas of Houston.

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Are my Social Security Benefits protected if I file a Chapter 13 Bankruptcy? Beaulieu v. Ragos (5th Cir. 10.29.2012) http://www.mgkimlaw.com/are-my-social-security-benefits-protected-if-i-file-a-chapter-13-bankruptcy-beaulieu-v-ragos-5th-cir-10-29-2012/ Tue, 06 Nov 2012 20:04:14 +0000 http://www.kimlylaw.com/?p=430 Many times, people who considering filing bankruptcy because of limited funds and/or limited income that are available to them. Specifically, many people receiving limited income through social security benefits receive just enough, if even that, to meet their monthly needs. … Continue reading

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Many times, people who considering filing bankruptcy because of limited funds and/or limited income that are available to them. Specifically, many people receiving limited income through social security benefits receive just enough, if even that, to meet their monthly needs.

In such situation, many people consider filing bankruptcy to get rid of their unsecured debts such as credit card debts, payday loans, medical bills, etc., pretty much "trim the fat" in their financial situation so that they can meet their reasonable and necessary needs.

However, because their only source of income is from social security, many people want to make sure that their social security benefits are protected or cannot be taken from them if they file a bankruptcy.

Not to worry, in the bankruptcy code, social security benefits are excluded from the determination of "current monthly income" pursuant Section 101(10A) as well as under the Social Security Act Section 407(a) which specifically prevents moneys received under the Social Security Act from being subject to any bankruptcy or insolvency law.

Although this analysis seems fairly straight forward, when this issue is presented before the Court's in a Chapter 13 bankruptcy, confusion of whether or not social security benefits is included in the determination of projected disposable income under Section 1325(b)(1) has brought different conclusion between the courts.

Recently, here in the 5th Circuit, a case called Beaulieu v. Ragos, an appeal filed from the bankruptcy court for the Eastern District of Louisiana, the Court held that Social Security Income was excluded from both the determination of disposable income under Section 101(10A) as well as from the projected disposable income under 1325(b).

The relied on the language provided under section 101(10A) as well as the Social Security Act to discuss the expanded reading to encompass the determination of projected disposable income. Moreover, the Court relied on the reading under In re Nowlin, 576 F.3d 258 (5th Cir. 2009) and Hamilton v. Lanning, 130 S.Ct. 2464 (2010) to discuss the rebuttable presumption regarding the deviation between the figures used for the disposable income and projected disposable income.

In conclusion, Social Security benefits are protected in a Chapter 13 bankruptcy to the extent that it will not be required to be included under the disposable income and projected disposable income. 

If you have any questions about your rights and concerns regarding the bankruptcy process, contact us.

The first consultation is free.

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Can I keep my stuff if I file for Bankruptcy? http://www.mgkimlaw.com/can-i-keep-my-stuff-if-i-file-for-bankruptcy/ Wed, 26 Sep 2012 21:47:09 +0000 http://www.kimlylaw.com/?p=402 Most of the time when I speak with my clients, there are 2 big concerns that my clients usually have when we are preparing for their bankruptcy case. First, what can I get rid of in a bankruptcy  and Second, … Continue reading

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Most of the time when I speak with my clients, there are 2 big concerns that my clients usually have when we are preparing for their bankruptcy case. First, what can I get rid of in a bankruptcy  and Second, can I keep the stuff that I already have.

The first concern is addressed in my other post, click here, which goes in to detail of the types of debts that can be discharged or wiped away in a bankruptcy.

This article will address the Second concern regarding what you can keep in your bankruptcy.

When a person files his bankruptcy, something called a "bankruptcy estate" is formed. The bankruptcy estate consist of all your "legal and equitable interest". Legal interest is where your name is on the title of that property, such as legal title on your house or car or whatever you have purchased under your name. An equitable interest consist of property that may not have your name on the legal title but you are in possession and using for your benefit that particular property. Example of equitable interest may be a car that you are driving and making the monthly payments and insurance, but due to financial reason, the car was purchased and in the name of your parents or 3rd party.

However, exception do apply to the bankruptcy estate. This means that there are property that you may have the legal title to but may still be excluded from your bankruptcy estate and not made part of your bankruptcy case. Specifically, if you only have "mere legal title" to the property, meaning the only relation you have to a particular property is only the title to the property, but have no "equitable interest", such as the mortgage is under someone else's name, the payments are made by someone other than yourself, someone else lives or uses that property for their benefit, someone else maintain the property and pays everything in relations to the particular property that you have legal interest in, than, the bankruptcy estate only includes to the extent your legal title but not any of the equitable interest in such property that you don't hold. For example, a car that is in the possession of your child, but the title is in your name.

In addition to the exception under the "bare legal title", a different set of exceptions apply  for married couples residing and filing their bankruptcy in a community property state. (This may or may not apply to all the community property states.) In Texas, the rule of community property upon marriage applies. Only few exceptions apply to the rule of community property that makes such property separate property, such as inheritance, gift and in certain personal injury damages. Although the general rule of community property encompasses all property acquired during the marriage, both the state and bankruptcy distinguish what type of community property can be included in a debtor's bankruptcy estate if only one spouse of the marriage files the bankruptcy. Specifically, in Texas, there are different levels of community property. There is the general or joint managing community property and special or sole managing community property. Joint managing community property is generally property that is acquired, accessible and used by both parties benefit. Contrarily, sole managing community property is property that was acquired during the marriage (hence "community property") but is in the sole possession, use and access of that particular spouse. Under Texas family law, depending on the type of community property, liabilities and debts arising out of the marriage may or may not subject the other spouse's sole managing community property.

Under Section 541(a)(2)(B) of the Bankruptcy Code, only property that is under the "sole, equal or joint mangement and control of the debtor" is included in the Debtor's bankruptcy estate. This section specifically excludes any of the non-filing spouse's sole managing community property. This means that if there is property that is only under the non-filing spouse's name and is only used by her, than that particular property would not be included in the debtor spouse's bankruptcy estate. To be safe, it should still be identified but an explanation should be provided.

Filing a bankruptcy requires careful analysis and understanding of all the important rules and procedures that may pertain to the filer's case. Specifically, when it comes to identifying the debtor's bankruptcy estate, a mistaken understanding of the do's and don'ts may harm the the debtor and his spouse, if married, where a careful understanding of the law could have prevented such miscalculation.

Consult the Houston Bankruptcy law firm of KIMLY LAW FIRM, PLLC, to assist you in your bankruptcy decisions.

Comments and Questions???

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Criminal or Civil Contempt in Enforcement of Spousal Support and Violation of Bankruptcy Stay: Is there a Difference??? In re Small, 5th Circuit 8/16/2012: http://www.mgkimlaw.com/criminal-or-civil-contempt-in-enforcement-of-spousal-support-and-violation-of-stay-is-there-a-difference-in-re-small-5th-circuit-8162012/ Mon, 20 Aug 2012 20:53:54 +0000 http://www.kimlylaw.com/?p=394 In re Small, no 11-40888 (5th circuit, 8/16/2012) In a recent case coming out of the 5th circuit, In re Small examined the intricacy of a enforcement action for spousal support in the family district court and the automatic stay … Continue reading

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In re Small, no 11-40888 (5th circuit, 8/16/2012)

In a recent case coming out of the 5th circuit, In re Small examined the intricacy of a enforcement action for spousal support in the family district court and the automatic stay pursuant the bankruptcy code.

In re Small stands for the proposition that (1) enforcement of spousal maintenance did not fall within the exception to the violation stay where the enforcing party failed to adhere to the bankruptcy court’s ruling to identify the Debtor's property that was not part of the bankruptcy estate for payment on the spousal maintenance and (2) although a criminal contempt may be subject to the exception to the automatic stay, where the nature of the criminal contempt was used as an inducement for payment of spousal support, such criminal contempt fell outside the exception of the automatic stay.

The facts of this case is simple and ordinary. The Debtor’s ex spouse filed for divorce and was granted temporary spousal support. Subsequently, after a jury returned its findings, but prior to having the final order entered by the court regarding division of community property and value thereof, Debtor filed for a chapter 7 bankruptcy. Debtor’s ex spouse filed a relief of stay with the bankruptcy court to have the divorce proceed in state court. After a hearing, the bankruptcy court modified the stay to (1) allow the state court to enter the jury’s findings (2) enter a divorce between the parties and (3) to allocate the community estate. Additionally, the court modified the stay to allow the state court to include this specified language :

(ii) to determine the amount of any future support…so long as such support is paid from the future earnings of the debtor and not from the property of the bankruptcy estate; [and] (iii) to determine the amount of any monetary damage claim held by [Ex-spouse] against [Debtor].

Subsequent the divorce, the Ex-spouse filed an enforcement of the temporary spousal support order. The trial court sentenced and held Debtor in civil contempt resulting in imprisonment, but granted probation for 1 year on condition Debtor paid the approximately $124,000.00 is past due support, attorneys’ fees, and continued spousal support. Debtor filed a mandamus with the Texas court of appeals on the grounds that the enforcement order was in violation of the bankruptcy automatic stay. The Court of Appeals agreed. The trial court amended its order to grant the enforcement only on “criminal contempt” and a money judgment.

In this case, Debtor filed an adversary pro se, against his ex spouse and attorney for violation of stay. The bankruptcy court found that the Ex-spouse did violate the stay where it ‘knew’ of the stay and acted ‘intentionally’ in violating it. The District court affirmed and the Ex spouse filed an appeal to the 5th circuit.

The Ex-spouse, among other arguments, argued that the criminal contempt ordered by the state court’s pertaining to the enforcement did not violate the automatic stay under Section 362(b)(1). In reaching its decision, the 5th circuit looked to the substance of the criminal contempt rather than merely the title of what was being sought. Specifically, the 5th Court looked at the supporting evidence to find that the incarceration sought in the criminal contempt order was used as a means of inducing payment of the spousal support. The 5th Circuit reached this finding on the grounds that the District Court gave the Debtor an opportunity to come up with the money prior to the incarceration.

Further, the Ex-spouse argued that the exception to the automatic stay applied pursuant Section 362(b)(2). The 5th circuit agreed with the bankruptcy court that the enforcement sought was in violation of the stay due to the non-compliance with the bankruptcy court’s modified order. Specifically, the bankruptcy court required that a finding be made as to “whether there was property that was not property of the estate from which to make the payment.” The Ex-spouse failed to make such attempt nor get such ruling.  Thus; the enforcement fell outside the exception.

link: http://volo.abi.org/mcmaster-v-small-in-re-small/opinion

KimLy Law Firm, PLLC is a Houston Family Law and Houston Bankruptcy Law Firm assisting the community of Houston and the surrounding counties.

Call your Houston Family Law Firm and Houston Bankruptcy Law Firm Attorneys at KimLy Law Firm to help you.

616 F.M. 1960 West, Suite 105
(Inside CHASE Building)
Houston, Texas 77090

TEL: 832-446-6391
FAX: 903-416-8218
Email: kimlylaw@kimlylaw.com

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2nd Bankruptcy?: Can I file a 2nd bankruptcy even if I filed a bankruptcy before? http://www.mgkimlaw.com/need-to-file-another-bankruptcy-after-getting-a-discharge-in-the-first-bankruptcy-not-a-problem-but/ Thu, 29 Mar 2012 23:52:29 +0000 http://www.kimlylaw.com/?p=356 Once you have filed for bankruptcy your ultimate goal is to get the discharge that relieves you of all personal liability to the debts identified in your bankruptcy case. However, life isn’t that straight cut. There may be circumstances where … Continue reading

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Once you have filed for bankruptcy your ultimate goal is to get the discharge that relieves you of all personal liability to the debts identified in your bankruptcy case. However, life isn’t that straight cut. There may be circumstances where filing a second bankruptcy just makes sense or is the only option that you have left.

Under your first bankruptcy, although you may have gotten most of your debts discharge, there may be some debts that were not able to discharge due to their non-dischargeable nature and you need the automatic stay protection that is available through the bankruptcy to protect you and your assets. Or, you may not have gotten that job or source of income to alleviate your financial situation as you expected when you got out of the first bankruptcy. At such times, filing a second bankruptcy may provide you with the relief you may need. However, there are limitations. Specifically, under the bankruptcy code, for you to get a discharge in your second bankruptcy after getting a discharge in your first bankruptcy, you must wait a certain amount of years. Depending on what type of bankruptcy you filed for your first case and the type of bankruptcy you are seeking in your second may vary to waiting period. The following is the break down provided under the bankruptcy code

1. If you filed a Chapter 7 and received a discharge, you must wait 8 years from the “date you filed the first Chapter 7 case” before you can receive a discharge in your 2nd Chapter 7 bankruptcy.

Ie: You filed your 1st Chp 7 bankruptcy on July 1, 2006. You received a discharge on October 30, 2006. In order for you to qualify for another discharge in your 2nd Chp 7 bankruptcy, you must wait until July 2, 2014 to file your 2nd Chp 7 bankruptcy to get a discharge.

2. If you filed a Chapter 7 and received a discharge, you must wait 4 years from the date you filed your Chapter 7 case before you can receive a discharge under your 2nd bankruptcy case under a Chapter 13 case.

Ie: You filed your 1st Chp 7 bankruptcy on July 1, 2006. You received a discharge on October 30, 2006. In order for you to qualify for another discharge in your 2nd bankruptcy under a Chapter 13, you must wait until July 2, 2010 to file your 2nd bankruptcy under a Chapter 13 to receive a discharge.

3. If you filed a Chapter 13 and received a discharge, you must wait 2 years from the date you filed your Chapter 13 case before you can receive a discharge under a 2nd bankruptcy case under a 2nd Chapter 13 case.

Ie: You filed your 1st Chp 13 bankruptcy on July 1, 2006. You received a discharge on July 1, 2011. In order for you to qualify for another discharge in your 2nd bankruptcy under a Chapter 13, you must wait until July 2, 2008 to file your 2nd bankruptcy under a Chapter 13 to receive a discharge.

4. If you filed a Chapter 13 and received a discharge, you must wait 6 years from the date you filed the first Chapter 13 case before you can receive a discharge in your 2nd bankruptcy filing under a Chapter 7. *Exception* If your Chapter 13 proposed a Plan that provided more than 70% to your unsecured creditors and you received a discharge, than you can file your 2nd bankruptcy under a Chapter 7 within the 6 years from the date of filing your first bankruptcy under a Chapter 13.

Ie: You filed your 1st Chp 13 on July 1, 2006. Your Chp 13 Plan proposed to pay 70% to your unsecured creditors. You received a discharge in your Chp 13 on July 1, 2011. In order for you to qualify for another discharge in your 2nd bankruptcy under a Chapter 7, you can file within 6 years from the date you filed your first case under a Chp 13 bankruptcy.

Filing your bankruptcy within the proper time frame does not mean that you cannot file a bankruptcy during the time frame. It is not unusual for an individual to have filed a Chapter 7 bankruptcy and get a discharge and immediately afterwards file a Chapter 13 bankruptcy. This is called a Chapter 20. The reason why someone will file a subsequent bankruptcy during the non-dischargeable time period is to utilize the bankruptcy protection rather than getting the bankruptcy discharge the 2nd time around. This situation may occur where debts that were non-dischargeable in a Chapter 7 carries over and in order for the individual to protect his assets, he may file a Chapter 13 to further protect himself from the non-dischargeable debt.

Filing a second bankruptcy has its obstacles and requires a certain level of scrutiny and concern. Allow KimLy Law Firm, PLLC, your Houston Bankruptcy Attorneys to assist you to determine the best options for you.

The 1st consultation is FREE with an live Attorney

Contact Us:
Phone number: (832) 446-6391

Address:
616 FM 1960 Rd West (616 Cypress Creek Pkwy)
Suite 105
Houston, Texas 77090

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What can I get rid of in a Bankruptcy….and some that won’t http://www.mgkimlaw.com/multiple-bankruptcy-discharge-and-rules-to-know/ Thu, 29 Mar 2012 22:31:47 +0000 http://www.kimlylaw.com/?p=342 Bankruptcy provides a fresh start to individuals and families who are faced with difficult financial strains due to being laid of work, unforeseen medical procedures, overwhelming credit card, etc.. But, what does it mean by “fresh start”? When a person … Continue reading

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Bankruptcy provides a fresh start to individuals and families who are faced with difficult financial strains due to being laid of work, unforeseen medical procedures, overwhelming credit card, etc.. But, what does it mean by “fresh start”? When a person files for bankruptcy, the purpose of that bankruptcy is to receive a discharge. A discharge means that the person’s personal liability to their debts disappear. In another words, once you have complete your bankruptcy and the Court signs and files your discharge, your creditors cannot call you, commence a lawsuit against, or do anything against you for those particular debts included in your bankruptcy discharge.
However, there are debts that are commonly non-dischargeable under the Bankruptcy Code. Depending on the Chapter that you file, either Chapter 7 liquidation bankruptcy or the Chapter 13 repayment bankruptcy, the debt may or may not be dischargeable. The following are some common debts that may not be dischargeable:

Chapter 7: non-dischargeable debts

1. Taxes and tax liens (depending on the statutory time period, they may be dischargeable)
2. Student loans
3. Domestic Support Obligation
a. Including :
i. Child support
ii. Spousal support
4. Non-Domestic Support Obligation
a. Including
i. Property settlement agreement
5. Debts obtained through fraud, false pretenses or false representation
a. Including:
i. Cash advances taken within 70 days of filing for bankruptcy
ii. Luxury good purchases within 90 days of filing for bankruptcy
6. Criminal fines
7. Debts for fines and penalties owed to governmental units
8. Debts for fraud while the debtor was acting within a fiduciary capacity
9. Debts for judgment in wrongful death or personal injury lawsuit resulting from motor vehicle, vessel or aircraft accidents while you were intoxicated
10. Condominium or association fees or assessments
11. Debts for willful and malicious injury

Chapter 13: non-dischargeable debts

1. Domestic Support Obligation
a. Including:
i. Child support
ii. Spousal support
2. Student loans (unless you show undue hardship)
3. Criminal fines
4. Debts for fraud while the debtor was acting within a fiduciary capacity
5. Debts for judgment in wrongful death or personal injury lawsuit resulting from motor vehicle, vessel or aircraft accidents while you were intoxicated
6. Debts for willful and malicious injury
7. Debts incurred after your bankruptcy filing (unless you convert to another Chapter or modify)

Each case is unique and not one is the same as another. Everyone has their own unique facts and interest that they want to protect through a bankruptcy. Depending on your situation, you may qualify for both Chapter 7 or Chapter 13 bankruptcy. But which case is best for you and your interests?

Allow KimLy Law Firm, PLLC, your Houston Bankruptcy Attorneys to assist you in determining what your best options are in your current situation.

The 1st consultation is FREE with a live attorney.

Contact us:
Phone number: (832) 446-6391

Address:
616 FM 1960 RD West (616 Cypress Creek Pkwy)
Suite 105
Houston, Texas 77090
(Inside the CHASE office building)

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What a Deal! In re Crawford, Bankruptcy Case No. 11-24158 (Bankr. D. Colo. March 19, 2012): Keep my house and not pay a single cent to the creditor during the Chp 13. http://www.mgkimlaw.com/what-a-deal-in-re-crawford-bankruptcy-case-no-11-24158-bankr-d-colo-march-19-2012-keep-my-house-and-not-pay-a-single-cent-to-the-creditor-during-the-chp-13/ Wed, 28 Mar 2012 21:31:34 +0000 http://www.kimlylaw.com/?p=337 In the recent case, In re Crawford, arising out of the District of Colorado Bankruptcy Court, the Court was approached with the issue of whether a debtor’s proposed chapter 13 plan that proposes to pay all the debts, including the … Continue reading

The post What a Deal! In re Crawford, Bankruptcy Case No. 11-24158 (Bankr. D. Colo. March 19, 2012): Keep my house and not pay a single cent to the creditor during the Chp 13. appeared first on Law Firm of Min G Kim, PLLC.

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In the recent case, In re Crawford, arising out of the District of Colorado Bankruptcy Court, the Court was approached with the issue of whether a debtor’s proposed chapter 13 plan that proposes to pay all the debts, including the mortgage on the home subject to arrearages, at the time the debtor is able to sale the home, but where the debtor proposes not to pay any regular payments to her mortgage company throughout her Chapter 13 bankruptcy Plan?

The bankruptcy court held that subject to the debtor including a default provision in case the home fails to be sold during the Plan period, the Debtor’s plan is confirmed.

In In re Crawford, as in a typical foreclosure situation, the debtor filed a bankruptcy to stop the foreclosure sale of her home. In brief, prior to the foreclosure sale, the debtor took series of proactive steps to cure the arrearages including seeking a loan modification as well as hiring a realtor to commence the sale of her home. The debtor’s home was of significant value, valued anywhere from 1 million to 1.5 million. The only debt that the debtor held was the mortgage and its arrearages arising out of facts that are not essential to the case. The proceeds that the debtor could have been realized, depending on the sale amount of the home, ranged anywhere from $400k to $1 million after all the amount had been paid to the creditors, including the mortgage.

In her bankruptcy chp 13 plan, the debtor proposed to sell her home, whose equity would pay and cover all debts due to all her creditors. Specifically, she proposed a 36 month plan consisting of $150 dollars a month that went solely to her unsecured creditor with a provision in her Plan that provided to exclude any payments to her mortgage company until she had sold her house and from whose proceeds she will pay the mortgage debt in full. She also provided that she has hired a “professional real estate agent” to sell her property. Subsequently, the mortgage company objected to the debtor’s proposed Plan.

In reaching its conclusion, the Court analyzed the 6 factors identified under Section 1325(a) and the supporting facts of the debtor’s case. Specifically,  the Court held that under 1322(b)(5), it is “permissive” rather than “mandatory” for the debtor to propose a chp 13 plan where debtor pays a regular monthly payment. Rather, the Court looks to section 1322(b)(8) and provides that:

“Where a debtor has ample resources to pay a claim, but those resources are tied up in a real property encumbered by a creditor’s security interest…section 1322(b)(8) allows a court to confirm a plan in which the debtor proposes to pay off that claim within a reasonable amount of time through the sale of the real property.”

The Court disagreed with the creditor’s “debtor is living for free” argument. The Court reasoned that considering the proactive approach by the debtor in trying to sell the house commingled with the amount of equity that is available on the real property, the idea that debtor was prolonging the sell thereby placing an undue risk on the Creditor’s interest in the property was unwarranted. The debtor and the debtor’s real estate agent’s testimony was credible where they testified to their aggressiveness in trying to sell the home. Moreover, the Court acknowledged that the longer the debtor doesn’t sell the property the more her debt to the mortgage creditor will rise, thereby eating away at her equity that she could retain upon the sale of the real property. Further, the Court held that the creditor was provided “adequate protection” by the shear fact that the equity on the home was so substantial. However, although the Court believed that the real property was able to be sold within the proposed 36 month bankruptcy plan based on the evidence and testimony of the marketability of the real property, the Court did concede that a “default provision” covering the possible event of when the sell of the real property did not occur within the life of the debtor’ chp 13 bankruptcy, was permissible.

In conclusion, the Court held that subject to the “default provision”, the debtor’s “sales plan” which withheld the payment of any payments on her mortgage to her home property contingent upon the sale of the same property was permissible under section 1325 and 1322(b)(8).

Link: http://dtc-systems.net/wp-content/uploads/2012/03/74-Memorandum-Opinion-and-Order.pdf

QUESTION AND/OR COMMENTS??

The post What a Deal! In re Crawford, Bankruptcy Case No. 11-24158 (Bankr. D. Colo. March 19, 2012): Keep my house and not pay a single cent to the creditor during the Chp 13. appeared first on Law Firm of Min G Kim, PLLC.

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