Phone: 770.485.4290 | Office Locations in Cobb, Cherokee and Fulton Counties | FREE Consultations | Payment Plans Accepted
Veterans Discount Available | Weekend and Evening Appointments

Archive for December, 2019

Representation in a Bankruptcy Case


You have 2 options when it comes to representation in your bankruptcy case:

  1. Hire an attorney to represent you OR
  2. Represent yourself (this is called “pro se”).

There are many complicated issues that arise in a bankruptcy proceeding, and an attorney can effectively navigate these complexities for you.

A recent Federal Bankruptcy Court filing report showed that only 61% of Chapter 7 pro se bankruptcy cases end up with a positive outcome (an order of discharge) versus 99% of Chapter 7 cases filed with an attorney. While there are several reasons for this, the most important thing to understand is that every single case filed must, with no exceptions, follow the strictly regulated Federal Bankruptcy Code, in addition to following any and all local/state procedures. If these rules are not properly followed, the case may be dismissed.

Some of the more common mistakes made by people filing for bankruptcy without an attorney:

  1. Incorrectly filing for a Chapter 7 instead of a Chapter 13 (or vice versa);
  2. Failing to apply the Chapter 7 Means Test correctly;
  3. Failing to timely file necessary documents with the court;
  4.  Claiming an inaccurate number of property exemptions;
  5. Making mistakes regarding reaffirmation agreements (i.e. vehicles);
  6. Responding to a creditor’s objections incorrectly;
  7. Misunderstanding the terms of documents filed with the court;

Any one of these mistakes may be enough for the court to dismiss your case, denying a discharge in your case, or possibly cause you to lose property that you own. While it is true that there are fees involved when you hire an attorney to represent you, there are also fees if filing pro se.

There are rules in the Bankruptcy Code as to attorney fees, and these fees are always approved by the court

In the long run, if a case is filed pro se and is then dismissed, the restrictions imposed on you by the court are serious. It is possible that a judge may not allow you to file another case for a number of months or years. If your case is dismissed, then you automatically lose all of the important protections you received upon your case filing, including protection from foreclosure and repossession.

DEBT CONSOLIDATION: CHAPTER 13 VS. DEBT CONSOLIDATION PROGRAM


It is important to understand the difference between a Debt Consolidation/Counseling Program and Chapter 13 Bankruptcy

There are many advantages to filing a Chapter 13 Bankruptcy. The number one reason is the simple fact that a Chapter 13 Bankruptcy plan has the power of the Federal Bankruptcy Code to oversee it. The Bankruptcy Code protects you immediately upon filing your bankruptcy case. This does not occur when consolidating your debt with a debt consolidation program (perhaps offered by a bank or counseling service). The following advantages apply once you file a Chapter 13:

  1. You have immediate relief by a Court Order to any and all of your current debt collectors. 1) You have immediate relief by a Court Order to any and all of your current debt collectors. All collection action against you is ordered by the court to stop—this is called the Automatic Stay. This collection activity includes (but is not limited to): foreclosure, wage garnishment, vehicle repossession, lawsuits from creditors and creditor harassment.
  2. You can include the following types of debt in a Chapter 13, but not in a debt consolidation program: car payments, mortgage arrears, child support arrears, and tax debt.
  3. Bankruptcy law is Federal law, as opposed to a debt consolidation program. The Court has the power to tell your creditors what to do and when to do it, and to impose punishments when these orders are not followed. With debt consolidation, your creditors can voluntarily opt out at any time.
  4. A Chapter 13 Plan typically lasts for 3-5 years. With a debt consolidation plan, the repayment plan could drag on indefinitely.
  5. There are no interest or late fees paid to creditors in a Chapter 13 plan.
  6. Your attorney is obligated to represent your best interests. With a debt consolidation program, you do not have someone to ensure that you are well represented.
  7. With the power of the Bankruptcy Code, you can prioritize which creditors are paid first, and you are not penalized for given preferential treatment to your home mortgage or car finance company. This is not the case with debt consolidation programs.

While filing bankruptcy may not be right for everyone, you owe it to yourself to see if it is right for you.