Hello: This is PhillipsEsq. I am a licensed Attorney and I will be assisting you today.
I have filed a motion to stay pending appeal, it was denied and i will appeal the order asap.
However, at this point, if I understand well, even if I have filed the emergency motion to appeal at the DCA, my opponent can levy my assets and garnish incomes with the limitations of the homestead exemptions.
My question is a WHAT IF question :
What if i file a suggestion of bankruptcy Chapter 7 ?
Should I file this BEFORE or AFTER I get a notice of levy or I see a garnishment ?
Response 1: Before you get a notice of the levy or see garnishment. You do not want your assets to be attached and then have to go to Court again to get the assets returned. That can be quite messy and there is no guarantee of the return of the assets.
Can I cancel or suspend the Bankruptcy procedure it if my motion to stay the judgment filed at the DCA is granted ?
Response 2: It is not as easy as that. You can file a Motion to Dismiss. However, unlike in a Chapter 13, a debtor in a Chapter 7 case does not have absolute right to dismiss. The Bankruptcy Trustee may object to the Motion. Your creditors may object to the Motion. The Court may deny the Motion. Also, the fact that you have filed for Chapter 7 would show up on your credit report, but the fact that the case has been dismissed would also appear on your credit report. See 11 U.S.C. Section 707. In any event, below is a Sample Motion to Dismiss. Modify as appropriate.
Sample Motion to Dismiss
[Caption: Official Form 16A]
Debtor’s Motion to Dismiss
Chapter 7 Case
The Debtors in the above-mentioned case, by their attorney, pursuant to 11 U.S.C. § 707, hereby move to dismiss their bankruptcy case for the following reasons:
1. A voluntary petition under chapter 7 of the Bankruptcy Code was filed by the Debtors on [date].
2. No complaints objecting to discharge or to determine the dischargeability of any debt have been filed in the case.
3. The Debtors have realized that filing a chapter 7 case was a mistake, made because they were unaware of the value of certain family heirlooms which they had inherited prior to the case, and which are sufficiently valuable so that they may not be claimed as exempt.
4. No creditor has filed a claim in this case.
5. The Debtors are willing to compensate the trustee for any expenses incurred herein.
WHEREFORE, the Debtors pray that this bankruptcy case be dismissed without prejudice.
Attorney for Debtors