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cortrightlaw
cortrightlaw, Attorney
Category: Bankruptcy Law
Satisfied Customers: 513
Experience:  Attorney practicing Bankruptcy Law including Chapter 7, Chapter 11, Chapter 12, and Chapter 13.
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When thinking about a Chapter 7 BK, does a current 401k loan

Customer Question

When thinking about a Chapter 7 BK, does a current 401k loan and a 10 month ago $45k from grandmother leaving an account matter?

With the 401k, we borrowed money from mom to pay off one of the loans (we have 2 and can only have 2 loans at once) with the promise of paying her back within 30 days. We just ordered the new loan (that we need to take out to repay mom and get our financiances in order a bit). With this new loan opened and the money on it's way (in 7 days) and with the earlier $45k from the account (it was a right of survivorship that my husband had with his grandmom and he got the funds that totaled $45k that was left over) will this prevent us from filing a Chptr. BK now?

Thank you, Jackie
Submitted: 2 years ago.
Category: Bankruptcy Law
Expert:  cortrightlaw replied 2 years ago.

cortrightlaw :

I am currently reviewing the details of your question I will respond in just a minute

cortrightlaw :

Your questions is a little unclear, lets discuss the 401 k loans first what was the first one used for?

Customer:

The first one was done to pay off some debt. I think that one was done about 3 years ago and it was at the end of its cycle. We only had to borrow 5300.00 from my mom, which we did. We paid it off, and just turned around and ordered a new loan for 23k. This money is on its way.

cortrightlaw :

Ok then the first loan is not an issue, when did you borrow the money from your mom and when did you pay it back.

Customer:

We just borrowed the money from my mom at the beginning of November around the 5th or so. We haven't received the new loan money yet to repay her. That money is ordered and should be in our account by the 15th of this month at the very latest.

cortrightlaw :

Ok your mother is consider a creditor equal to your other unsecured creditors so you can not pay her back right before you file bankruptcy or the trustee can go after that money from your mother and spread it out between all of your creditors. You are not allowed to pick and chose which creditors to pay. It is also not a good idea to be moving money around just prior to filing bankruptcy as will draw the attention of the trustee. It would be best to not get the loan at this time, file bankruptcy first, then when all of your debts are eliminated you can get the loan and pay off your mom.

cortrightlaw :

Did your husband inherit $45,000 if so when, and what was that money used for.

Customer:

Or, if we are able to delay filing the bankruptcy, how long would we have to wait to file it?

Customer:

I was thinking about trying to do a debt consiltation (sp? sorry, just a bit tired) to try to work with the debts. Then, if we must do a bankruptcy we can then do it later.

cortrightlaw :

Is it a preference?



Bankruptcy Code §547 defines a preference as




  1. Payment on an antecedent (as opposed to current) debt;




  2. Made while the debtor was insolvent;




  3. To a non insider creditor, within 90 days of the filing of the bankruptcy;




  4. That allows the creditor to receive more on its claim than it would have, had the payment not been made and the claim paid through the bankruptcy proceeding.



Customer:

My husband had a right of surviviorship account with his grandmother. It wasn't part of the Will. It was just money in the account that went directly to him as sole owner once his grandmother passed. The account became his.

cortrightlaw :

Debt consolidation usually does not work and most companies that do it are scams charging very high fees. Chapter 7 bankruptcy is the better option most of the time. Also remember that your 401k is really going to be needed for retirement if you use it all now you wont have it later.

cortrightlaw :

the money from the grandmother would be considered an asset then so when did he receive it and were is it now?

Customer:

She died Jan. this year. He became sole ownership of the account sometime in Feb. this year.

Customer:

If we wait to do the Chpt. 7, how long do we have to wait after the 401k loan?

Customer:

The money from that account has been used. Part of it was used to pay an inexpensive car that we ended up needing, the other was used to try to pay off some of debt at that time.

Customer:

We understand about the needing the 401k later, but we are in great need of it now.

cortrightlaw :

I would recommend waiting until the bankruptcy case is deemed a no asset case and discharged usually about 6 months.

cortrightlaw :

As to your comment about the consultation you had with an attorney, I would recommend you go meet with another one. If you did not get a good feeling trust it.

Customer:

My concern is that the money for the 401k is on it's way and we really need it. The bankruptcy was something that we thought of, but can cope with if we have to wait. I just need to know how long after getting money like the money from the grandmom and the 401 do we have to wait to file the bankruptcy.

Customer:

Could we file in 3 to 4 months, or will the court go back and see that and reclaim it?

Customer:

I don't understand "deemed a no asset " case, when do they consider it to be that during the process?

cortrightlaw :

The trustee deems it a no asset case a couple months after you have your 341a meeting and he has had time to review your case. And I do understand that you need to 401k money now, so if you go that route I would wait at least 6 months before filing. Also be prepared to detail were all of the money went, as long as you can explain it if asked it should not be an issue.

Customer:

ok. thank you.

cortrightlaw, Attorney
Category: Bankruptcy Law
Satisfied Customers: 513
Experience: Attorney practicing Bankruptcy Law including Chapter 7, Chapter 11, Chapter 12, and Chapter 13.
cortrightlaw and 3 other Bankruptcy Law Specialists are ready to help you

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