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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Bankruptcy Law
Satisfied Customers: 13077
Experience:  B.A.; M.B.A.; J.D.
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I am wife, married 18 years, on disability, receive $2000 per

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I am wife, married 18 years, on disability, receive $2000 per month plus medicare, husband is computer network administrator, makes $67000 per year. We have $60,000 in credit card debt with US Airways Mastercard, CitiBank, Arizona Central Credit Union Visas, $40,000 his student loan, $20,000 my student loan, House is upside down, two mortgages, Wells Fargo $70,000 and Arizona Central Credit Union $67,000, Car Loan on Kia Sportage 2011 for $19,000, own 10 years old chevy truck and 18 year old motorcycle. Need to file for bankruptcy. Is it possible??? and should it be done before or after divorce?? Any special exclusions due to me for disability??? Should small things be sold before or after??
Submitted: 2 years ago.
Category: Bankruptcy Law
Expert:  Phillips Esq. replied 2 years ago.
Thank you for giving me the opportunity to assist you. Kindly use CONTINUE or REPLY button to ask for clarification or follow-up questions.



I am wife, married 18 years, on disability, receive $2000 per month plus medicare, husband is computer network administrator, makes $67000 per year. We have $60,000 in credit card debt with US Airways Mastercard, CitiBank, Arizona Central Credit Union Visas, $40,000 his student loan, $20,000 my student loan, House is upside down, two mortgages, Wells Fargo $70,000 and Arizona Central Credit Union $67,000, Car Loan on Kia Sportage 2011 for $19,000, own 10 years old chevy truck and 18 year old motorcycle. Need to file for bankruptcy. Is it possible???




Response 1: It is possible. However, you need to do it after divorce because your husband makes too much money. You qualify to file for bankruptcy alone as a single person but not as married person. If you are married, your husband's income would be used to calculate the Means Test, your eligibility for filing for bankruptcy protection.




and should it be done before or after divorce??



Response 2: After divorce.




Any special exclusions due to me for disability???



Response 3: Your Social Security Disability income would not be used in calculating the Means Test. So, if you file as a divorced person, you would meet the Means Test.



Should small things be sold before or after??



Response 4
: It does not matter so long as they are sold at fair market value.



You would be eligible to file for Chapter 7 bankruptcy protection, if you meet the Means test—the income test. If your income is equal to or less than the current income guidelines for your family size in your state, you would be eligible to file for a Chapter 7 bankruptcy all things being equal. The income used in calculating the means test is the income for the 6 months before the filing of the bankruptcy petition. This means that if you are filing for bankruptcy protection this month, September 2012, the income that would be used is your income from March 2012 to August 2012. If you are filing next month, October 2012, the income that would be used in the means test calculation would be the income from April 2012 to September 2012, etc. In Chapter 7, if the Court grants you a Discharge your debts will be wiped out with some exceptions as student loans, taxes, and alimony. You would get a clean state, a fresh start.

If you want your student loans discharged, you must filed adversary proceeding—unless you file adversary complaint with the Bankruptcy Court to determine the dischargeability of the debt due to extreme hardship and the Court rules in your favor, the student loans would not be discharged as part of a bankruptcy case. See 11 U.S.C. Section 523(a)(8). The adversary complaint is similar to a regular civil case with the student loan lender most likely to respond to your complaint to determine the dischargeability of the debt and file discovery requests including but not limited to requests for production of documents, interrogatories, and deposition.



The filling fee for Chapter 7 is $306.00. You may able to waive this filing fee if your income is 150% below the current poverty guidelines. Click here for current poverty guidelines:

http://www.uscourts.gov/bankruptcycourts/resources.html



These are current income guidelines for the State of Arizona:

Family size of one person $42,691.00
Family size of two persons $
55,479.00
Family size of three persons $
58,292 .00
Family size of four persons $
63,201.00
Add $7,500.00 for additional individual

You must receive budget and credit counseling from an approved credit counseling agency and obtain a Certificate of Credit Counselling to be filed with his bankruptcy case. The agency will review possible options available to you in credit counseling and assist you in reviewing your budget. Different agencies provide the counseling in-person, by telephone, or over the Internet.

It is usually a good idea for you to meet with an attorney before you receive the required credit counseling. Unlike a credit counselor, who cannot give legal advice, an attorney can provide counseling on whether bankruptcy is the best option. If bankruptcy is not the right answer for you, a good attorney will offer a range of other suggestions. The attorney can also provide you with a list of approved credit counseling agencies, or you can check the website for the United States Trustee Program office at http://www.usdoj.gov/ust/eo/bapcpa/ccde/cc_approved.htm

After your case is filed, you must complete an approved course in personal finances. This course will take approximately two hours to complete. Your attorney can give you a list of organizations that provide approved courses, or you can check the website for the United States Trustee Program office at http://www.usdoj.gov/ust/eo/bapcpa/ccde/de_approved.htm

Consult a local bankruptcy attorney for further explanations of your rights and responsibilities.

The sites below are good resources for finding bankruptcy attorneys in your area:

http://www.nacba.org/


http://www.naca.net/


http://www.justia.com/

http://www.lawyers.com/

If you cannot afford an attorney, then the next best alternative will be to use bankruptcy petition preparer. Bankruptcy petition preparers prepare bankruptcy forms but they cannot give you legal advice because they are not attorneys. Click on the links below for some of the bankruptcy petition preparers. You can do some searches on Google or Yahoo if you do not like the ones on the links below.




http://bridgeportbankruptcy.com/bridgeport/index.asp


http://usabankruptcyassociates.com/usabk/moreinfo.asp#wedo


Customer: replied 2 years ago.

If I decide to stay married can we reaffirm or file the one that wipes out the second mortage based on the house being worth less than the second mortage?

Expert:  Phillips Esq. replied 2 years ago.
If I decide to stay married can we reaffirm or file the one that wipes out the second mortage based on the house being worth less than the second mortage?


Response: Yes, you may consider filing for Chapter 13 and strip the second mortgage, if you are eligible.

An individual or individuals (“consumer debtor” or “debtor”) would be able to file a Chapter 13 if the debtor has disposable income--extra income after necessary expenses every month to fund a Chapter 13 plan and the debtor must also meet the debt limit requirement. In order to file for Chapter 13, a debtor's unsecured debts must be less than $360,475.00 and secured debts must be less than $1,081,400.00. In Chapter 13, the debtor prepares a payment plan and makes payments to his/her creditors on 3 or 5-year plan. If the debtor's income is equal to or less than the current income guidelines for his/her family size in his state, the debtor would do a 3-year plan. However, if the debtor's income is more than the current income guidelines for his family size in his state, he would do a 5-year plan. His mortgage arrears and unsecured debts would be paid through the Chapter 13 plan.

The filing fee for Chapter 13 is $281.00

Customer: replied 2 years ago.

Lastly in chapter 13 you do get to keep your house correct??? And the balance of the debt after the 5 years is wiped out???

Expert:  Phillips Esq. replied 2 years ago.

Lastly in chapter 13 you do get to keep your house correct???




Response 1: Yes, you can keep the house both in Chapter 7 and Chapter 13 so long as mortgage payments are being made.




And the balance of the debt after the 5 years is wiped out???





Response 2:
No. All unsecured debts are paid off through the Chapter 13 plan. You would continue to pay for the first mortgage after the conclusion of the Chapter 13.

Customer: replied 2 years ago.

Sorry one more, If we do not stay together and split up during the chapter 13 reassignment plan what happens? I am on disability, do I end up taking half of the reassigned debit with me for the remainder of the 5 years? If I cant pay it do I end up in jail??

Expert:  Phillips Esq. replied 2 years ago.

Sorry one more, If we do not stay together and split up during the chapter 13 reassignment plan what happens? I am on disability, do I end up taking half of the reassigned debit with me for the remainder of the 5 years? If I cant pay it do I end up in jail??


Response: Everything remains the same if both of you continue to make payments under the plan. However, if payments are not made, the Chapter 13 would be dismissed and both of you would remain liable for the debts as if you never sought for bankruptcy protection.

Phillips Esq., Attorney-at-Law
Category: Bankruptcy Law
Satisfied Customers: 13077
Experience: B.A.; M.B.A.; J.D.
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Phillips Esq.
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B.A.; M.B.A.; J.D.