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JoeLawyer
JoeLawyer, Attorney
Category: Bankruptcy Law
Satisfied Customers: 767
Experience:  Attorney in the practice of Bankruptcy Law since 1996
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Its about bankruptcy. I am being sued because I have defaulted

Customer Question

It's about bankruptcy. I am being sued because I have defaulted on a major credit card. I have many more defaults (aprox. $20,000). I am self employed and since the hurricane last year my income has been cut in half. I am also behind on my income taxes (3 yrs.). I have not paid my property taxes for last year and this years is due. I am really overwhelmed. Is bankrupty the way to go?
Submitted: 4 years ago.
Category: Bankruptcy Law
Expert:  reneearaujo replied 4 years ago.

Bankruptcy can be a way to get back on your feet, however some of your debt may not be discharged by bankruptcy, such as the back taxes. In addition, there are several types of bankruptcy and depending upon your income and amount of debt, you may be required to pay some of it back.

 

You should consult with a reputable bankruptcy attorney. They usually give an initial free consultation to evalutate whether bankruptcy would be the best way to go.

Customer: replied 4 years ago.
I am sorry but you have not said anything I did not know. I don't know much about bankruptcy but my accountant gave me that information for free. I thought this was free legal advise??? I have hardly any income. I can barely make it. If I had income I would not need to look into bankruptcy.
Expert:  JoeLawyer replied 4 years ago.
Hi Patty:

Before I get started, I will point out that we cannot give legal advice on here, only information, and telling someone which chapter of bankruptcy to file constitutes legal advice, so I cannot do that. But, I can give you information which will help you know what options are out there and help you formulate questions to ask an attorney if you decide to file bankruptcy.

There are several Chapters of bankruptcy, but realistically most people file one of two chapters: 7 or 13.

If you want to keep the house but you cannot catch up property taxes, you could potentially file Chapter 13, which is where you make payment to the Bankruptcy Court for 3 to 5 years in a Chapter 13 Plan. This Chapter allows you to cure back property taxes through the Plan, and the county cannot sell your home at a tax sale when you are curing property taxes through the Plan. Another advantage (or disadvantage as it may be) is that all back income taxes also get paid through the Plan, and when back income taxes are being paid through Chapter 13, the IRS/State CANNOT add on additional penalties and interest after the Chapter 13 is filed (an advantage you do not have outside of bankruptcy or in Chapter 7). However, I said it might be a disadvantage because you are REQUIRED to pay the income taxes in full through the Plan, and if the tax liability is gigantic, this may not be feasible to do over a 3 to 5 year period, so it may effectively wipe out your ability to file Chapter 13.

If you do not want to keep the house, then curing the property taxes is not such a big issue, so Chapter 7 might work. It is quick and comparatively cheap, and wipes out all of your debt which is dischargeable. Income taxes less than three years old are typically NOT dischargeable, so if you filed Chapter 7 you could wipe out all your debt and end up only owing the income taxes, while the property taxes, lawsuits, credit cards, mortgage, etc would likely be completely discharged.

You could also file Chapter 7 and keep the home as long as mortgage payments are current, but you would have to catch up the property taxes on your own relatively quickly, and you would have to set up payments on the income taxes with the IRS/State and pay penalties and interest. But, Chapter 7 would get the unsecured creditors off your back which might free up enough money to make this feasible, which is normally cheaper than Chapter 13 in terms of attorney fees and court fees, but may end up costing more if you have to pay a lot of penalties and interest on the taxes.

Another factor is that you normally have to be current on a mortgage to file Chapter 7 and KEEP the house, whereas you don't in a Chapter 13 since if the mortgage is behind, you can cure it through your Chapter 13 Plan.

Unsecured debt (credit cards, collection lawsuits, medical bills, etc) are all wiped out in either Chapter 7 or Chapter 13, so these won't likely matter as to which chapter you decide to file. Once they obtain a judgment against you, the judgment attaches to real estate you own as a lien, but these liens can normally be wiped out in either Chapter 7 or Chapter 13 as long as you file the appropriate motion during you case, which your attorney should take care of (see 11 U.S.C. 522(f)).

Read more about Chapter 7 vs. Chapter 13 by going HERE.

If you decide not to file bankruptcy, you can try to settle the unsecured debts, but you have to have cash to do this. They will often settle for around 40% if you have a lump sum to pay them, and you negotiate the settlement - and get it in writing - BEFORE sending them the money. You can also try credit counseling, but if they are already suing you this may not be very effective at this point. Neither of these options will help you get the property taxes cured though, and if they get too behind the county could do a tax sale.

Again, I don't know all the details (and the devil is in the details) and even if I did I could not advise you what to do in this forum, but I think you may benefit from consulting with a bankruptcy attorney since it may make your life A LOT less stressful and set you up under a budget and payment where you know everything is getting paid and you can sleep at night (which is exactly what the Bankruptcy Code is for - honest people who had something bad happen).

I know I covered a lot of info, and I'm sure I missed some angles or didn't explain everything clearly, but making these decisions - and discussing these options - is a lot more complicated that you would think. I typically meet with clients for multiple hours and review several documents (taxes, pay stubs, profit and loss statements, tax assessments, bills, lawsuit paperwork, bank statements, etc) to help a client decide, so figuring anything out definitively with a few sentences to go on is impossible. BUT, I think I know enough to say: see a lawyer.

If you have any other questions or if something I wrote doesn't make sense, please let me know and I will be happy to try to clarify.

Thanks,
Joe

LEGAL NOTICE: I am only licensed to practice law in certain state(s) and I cannot give legal advice to someone who does not reside in a state in which I am licensed, nor shall anything I say in the above answer or elsewhere on this site be deemed legal advice, even to someone who resides in a state in which I am licensed. Fees I receive for answering questions are paid for information, not for legal advice. This forum is designed to provide general information only, and information herein is not warranted to be correct or applicable in any way since laws may have been misinterpreted herein, since laws change from time to time, and since the impact of those laws on any particular situation varies. The information presented in this site shall not be construed to be formal legal advice nor the formation of an attorney-client relationship. Persons accessing this response are encouraged to seek independent legal counsel in their jurisdiction for guidance regarding their individual circumstances. Do not take any action or inaction based on information presented herein since it is informational and may not be accurate or applicable to you; it merely attempts to give you a basis of knowledge to help you formulate questions to ask a legal or other professional in a face-to-face meeting in your jurisdiction. Joseph Ross does not hold himself out to be a specialist or expert in any area, regardless of assertions made by any third party, and any implication of being an expert or specialist herein is made in error. I hope the information presented above is useful to you. Answer above is (c) Joseph Ross. All rights reserved.

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