For most people, a bankruptcy lawyer is an indispensable part of filing for bankruptcy, going through bankruptcy proceedings and recovering after discharge is complete. A bankruptcy attorney has several functions throughout the process and can help a client determine the best courses of action. Bankruptcy is a very complex legal procedure, and bankruptcy courts are not tolerant of mistakes. Even slight mistakes may cause a judge to dismiss the case or cause the person filing to lose important assets, such as a home or car. Experienced attorneys make sure that no mistakes are made and clients’ assets are protected to the full extent of the law.
Bankruptcy Attorneys Help You Understand What Bankruptcy Is
One of the most important functions of a bankruptcy attorney is explaining bankruptcy to clients. Before speaking to an attorney, most people have only a vague understanding of bankruptcy law. They know that it can help them erase debt, but they are not fully aware of the consequences and available options. Bankruptcy may not be the right decision in every situation. For some individuals, debt settlement may be more beneficial, and most bankruptcy lawyers can start such a program. Not everyone is aware that individuals have a choice of two different types of bankruptcy: chapter 7 and chapter 13. Both types have different sets of benefits, but one is almost always a better choice over the other when considering an individual’s specific situation. We even have zero down options.
Chapter 7 Bankruptcy
Chapter 7 bankruptcy is sometimes referred to as straight bankruptcy, but it is also known as liquidation bankruptcy. In chapter 7, the debtor agrees that his or her assets will be sold, and the proceeds will be split amongst the creditors. Certain personal assets are protected, such as a level of equity in a home, a personal vehicle and personal effects. Even if the value of the assets falls short of the money owed, the total debt is discharged. Chapter 7 bankruptcy usually only takes a few months, and it eliminates nearly all forms of unsecured debt.
Chapter 13 Bankruptcy
Chapter 13 bankruptcy is also known as debt adjustment bankruptcy. It is actually a form of debt consolidation mandated through the court. In chapter 13 bankruptcy, debts are consolidated and adjusted so that the debtor makes a single monthly payment for three to five years. At the end of the term, the debts are fully settled. This type of bankruptcy is very advantageous for those who have a steady income and assets they would like to protect.
Explaining the Bankruptcy Process
Bankruptcy lawyers handle every phase of the bankruptcy process. In chapter 7 bankruptcy, the process begins with an approved class for credit counseling. An attorney will set up an appointment for this to be done. Once it is completed, it is time to prepare the petition and supporting documents. In some cases, the petition can be up to 60 pages in length. After the petition is filed, creditors are barred from contacting a debtor. If a creditor does contact the debtor, an attorney can usually prevent that specific creditor from doing so again.
The next step in the process is the meeting of creditors with the trustee. The trustee is in charge of handling the details of the bankruptcy case. It is the trustee that usually makes the decisions in a bankruptcy case because the judge rarely goes against the trustee’s recommendations. If any creditors object to the debt discharge, an attorney can defend a debtor’s position. After the meeting of creditors is settled, the debtor must take a financial management course before the discharge is complete.
Filing without an Attorney
Filing personal bankruptcy under Chapter 7 or Chapter 13 takes careful preparation and understanding of legal issues. Misunderstandings of the law or making mistakes in the process can affect your rights. Court employees and bankruptcy judges are prohibited by law from offering legal advice.
The following is a list of ways your lawyer can help you with your case.
• Advise you on whether to file a bankruptcy petition.
• Advise you under which chapter to file.
• Advise you on whether your debts can be discharged.
• Advise you on whether or not you will be able to keep your home, car, or other property after you file.
• Advise you of the tax consequences of filing.
• Advise you on whether you should continue to pay creditors.
• Explain bankruptcy law and procedures to you.
• Help you complete and file forms.
• Assist you with most aspects of your bankruptcy case.
Pro se litigants are expected to follow the rules and procedures in federal courts and should be familiar with the United States Bankruptcy Code the Federal Rules of Bankruptcy Procedure and the local rules of the court in which the case is filed. Local rules, along with other useful information, are posted on the court’s website and are available at the local court’s intake counter. Court employees and bankruptcy judges are prohibited by law from offering legal advice.
Bankruptcy Forms are available to the public free of charge.
• Use the forms that are numbered in the 100 series to file bankruptcy for individuals or married couples.
• Use the forms that are numbered in the 200 series if you are preparing a bankruptcy on behalf of a non-individual, such as a corporation, partnership, or limited liability company (LLC).
• Sole proprietors must use the forms that are numbered in the 100 series.
Many courts require local forms. You should check your court’s website before filing any documents.
Non-attorney Petition Preparers
If you file bankruptcy pro se, you may be offered services by non-attorney petition preparers. By law, preparers can only enter information into forms. They are prohibited from providing legal advice, explaining answers to legal questions, or assisting you in bankruptcy court. A petition preparer must sign all documents they prepare for you; print their name, address and social security on the documents; and provide you with a copy of all documents. They cannot sign documents on your behalf or receive payment for court fees.
How Bankruptcy Works in Utah
In most respects, filing for bankruptcy in Utah isn’t any different than filing in another state. The bankruptcy process falls under federal law, not Utah state law, and it works by unwinding the contracts between you and your creditors—that’s what gives you a fresh start. But Utah’s laws come into play, too, in a significant way. They determine the property you can keep in your bankruptcy case. You’ll also need to know other filing information, which we explain after going over some basics.
Choosing the Right Bankruptcy Chapter For You in Utah
Chapter 7 is often a bankruptcy filer’s first choice for several reasons. It’s quick—it only takes a few months to complete. And it’s cheap, you don’t pay anything to creditors. It works well for those of us whose property consists of the essential items needed to live and work. People with more assets could lose them, however, especially if they own unnecessary luxury items. Unlike Chapter 13, Chapter 7 doesn’t have a payment plan option for catching up on late mortgage or car payments. So you could lose your home or car if you’re behind when you file.
By contrast, Chapter 13 filers must pay creditors some or all of what they owe using a three- to five-year repayment plan. But the payment plan allows Chapter 13 to offer benefits not available in Chapter 7. For instance, not only do you keep all of your property, but you can save your home from foreclosure or your car from repossession. If you need time to repay a debt you can’t discharge in bankruptcy, you can use this chapter to force a creditor into a payment plan. It can be expensive. Many people can’t afford the monthly payment.
Will Filing Bankruptcy in Utah Erase My Debts?
Bankruptcy wipes out many bills, like credit card balances, overdue utility payments, medical bills, personal loans, and more. You can even get rid of a mortgage or car payment if you’re willing to give up the house or car that secures the debt. (Putting property up as collateral creates a “secured debt”—if you don’t pay what you owe, the lender gets to take the property back.) But you can’t discharge all debts. Non-dischargeable debts, like domestic support arrearages and recent tax debt, won’t go away in bankruptcy, and student loans aren’t easy to wipe out (you’d have to win a separate lawsuit). You’ll want to be sure that bankruptcy will discharge (get rid of) enough bills to make it worth your while.
Keeping Property When Filing Bankruptcy in Utah
You won’t lose everything in bankruptcy. You’ll use your state bankruptcy exemption laws to protect your property. We list the significant exemptions below, but first, understanding the following will help you maximize what you’ll keep in your case.
• Exempt and nonexempt property. You can keep property protected by an exemption or “exempt” property. When a bankruptcy exemption doesn’t cover the property, you’ll either lose it in Chapter 7 or have to pay for it in the Chapter 13 repayment plan.
• Choosing state or federal exemptions. Unlike some other states, you can’t choose between the state exemption list and the list of federal bankruptcy exemptions. You must use Utah’s exemptions. But you can use the federal non bankruptcy exemptions.
• Doubling exemptions. Spouses filing together can double the exemption amount unless noted otherwise.
Utah Homestead Exemption
You can exempt up to $43,300 of the equity in any real estate if it’s your primary residence, including your home, mobile home, or any water rights you have. You can exempt up to $5,100 in real estate that is not your primary residence.
Utah Motor Vehicle Exemption
You can protect up to $3,000 of equity in a car, van, motorcycle, truck, SUV, or another motor vehicle. (Utah Code Ann. § 78B-5-506(3).)
Other Utah Exemptions
• Personal property. Animals, books, and musical instruments up to $1,000 total; artwork depicting or produced by a family member; bed, bedding, and carpets; burial plot; clothing (but not furs or jewelry); dining and kitchen tables and chairs up to $1,000 total; any three of the following firearms: shotgun, handgun, shoulder arm and 1,000 rounds of ammunition for each firearm; food to last one year; health aids; heirlooms up to $1,000 total; personal injury and wrongful death recoveries for you or someone you depended on; proceeds from sold, lost, or damaged exempt property; refrigerator, freezer, microwave, stove, sewing machine, washer, and dryer, sofas, chairs, and other furniture up to $1,000 total.
• Pensions. ERISA-qualified benefits, IRAs, Roth IRA, if the benefits have accrued or the contributions were made at least one year before you filed for bankruptcy other pensions and annuities that you need for support
• Public benefits. Crime victims’ compensation. general assistance occupational disease disability benefits; unemployment compensation, veteran’s benefit workers’ compensation
• Tools of the trade. Tools, books, and implements used in your trade or profession up to $5,000.
• Wages. Unpaid earnings due as of the bankruptcy filing.
• Insurance. Disability, illness, medical, surgical, or hospital benefits fraternal benefit society benefits; life insurance policy cash surrender value, but not payments you’ve made on policy within the year before filing; life insurance proceeds if the beneficiary is the insured’s spouse or dependent and if the proceeds are needed for support
• Miscellaneous. Alimony that you need for support.
Preventing Bankruptcy Exemption Problems
Exempt your property carefully. The bankruptcy trustee—the court-appointed official assigned to manage your case will review the exemptions. A trustee who disagrees with your exemptions will likely try to resolve the issue informally. If unsuccessful, the trustee will file an objection with the bankruptcy court, and the judge will decide whether you can keep the property.
Example. Mason owns a rare, classic car worth $15,000, but the state vehicle exemption doesn’t cover it entirely. Believing that the car qualifies as art—at least in his mind—Mason exempts it using his state’s unlimited artwork exemption. The trustee disagrees with Mason’s characterization and files an objection with the court. The judge will likely decide the vehicle doesn’t qualify as art.
Purposefully making inaccurate statements could be considered fraudulent. Bankruptcy fraud is punishable by up to $250,000, 20 years in prison, or both.
Qualifying for Bankruptcy in Utah
If you’ve never filed for bankruptcy before, you’ll meet the initial requirement. Otherwise, check whether enough time has passed to allow you to file again. The waiting period varies depending on the chapter previously filed and the chapter you plan to file. Learn more about multiple bankruptcy filings.
You’ll also need to meet specific chapter qualifications.
You’ll qualify for Chapter 7 bankruptcy if your family’s gross income is lower than the median income for the same size family in your state. Add all gross income earned during the last six months and multiply it by two. Compare the figure to the income charts on the U.S. Trustee’s website (select “Means Testing Information”).
Want an easy way to do this online? Use the Quick Median Income Test. If you find that you make too much, you still might qualify after taking the second part of the “means test.” If, after subtracting expenses, you don’t have enough remaining to pay into a Chapter 13 plan, you’ll qualify for Chapter 7.
Qualifying for Chapter 13 can be an expensive proposition because the extra benefits come at a hefty price, and many people can’t afford the monthly payment. To qualify, you’ll pay the larger of:
• your priority nondischargeable debt
• the value of nonexempt property, or
• your disposable income.
Find out more about calculating a Chapter 13 bankruptcy payment.
Hiring a Bankruptcy Lawyer in Utah
Most people find it worthwhile to get counsel. A bankruptcy attorney will help you:
• qualify for the chapter of your choice
• determine when it’s time to file
• help you keep the property you want
• make sure you don’t run afoul of fraud or other issues, and
• explain when you can stop paying the bills you’ll erase in your case.
You can expect creditors to call until you file. It’s usually best to ignore them because telling creditors about your bankruptcy can encourage them to take more drastic collection steps before losing the right to collect altogether. However, if you hire counsel and refer creditors to your lawyer, they’ll have to stop calling you.
After Filing for Bankruptcy in Utah
Your creditors will stop bothering you soon after you file. It takes a few days because the court mails your creditors notice of the “automatic stay” order that prevents most creditors from continuing to ask you to pay them. Here’s what will happen next:
• You’ll turn over financial documents proving the statements in your bankruptcy paperwork.
• You’ll attend the 341 meeting of creditors—the one appearance all filers must attend.
• You’ll complete a debtor education course and file the completion certificate.
These things all must happen before you get a Chapter 7 bankruptcy discharge. Chapter 13 filers will also attend a repayment plan confirmation hearing and complete the three- to five-year payment plan.
Free Bankruptcy Consultation
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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