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For a NewYork lawyer. What are the per requisites and procedures

For a NewYork lawyer. What are...
For a NewYork lawyer.
What are the per requisites and procedures for filing a bankruptcy for credit card debts?
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Answered in 20 minutes by:
7/18/2013
Law Pro
Law Pro, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 24,870
Experience: 20 years experience in consumer advocacy, debt collection violations, contracts, construction
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Welcome to JustAnswer! My goal is to do my very best to understand your situation and to provide a full and complete excellent answer for you.

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Please bear with me if you believe my answer isn’t coming fast enough because I’m also working with other customers too. I apologize for any seemingly late response.


Since bankruptcy is federal - the federal bankruptcy laws apply.


There are 2 options for a debtor - Chapter 7 and Chapter 13.

In a Chapter 7 filing, some of your property might be seized to satisfy creditors, but many possessions are exempt. Your home in New YorkState can't be seized so long as your equity does not exceed $50,000 if you're single or $100,000 if you're married and both you and your spouse own it.

 

Chapter 13, known as the wage earner's bankruptcy, is designed for people able to repay their debts over time (3 to 5 years). It's an option for those who want to keep property that a debtor is behind on paying that might be seized by creditors in a Chapter 7 filing (ie home or car, etc.).

 

A Chapter 13 bankruptcy filing takes much longer than a Chapter 7 filing — up to five years — and involves periodic repayment of at least some of your debts. You need a steady source of income to file a Chapter 13 bankruptcy.

There is a bankruptcy "means test".

The means test is a formula devised to restrict bankruptcy petitioners with higher incomes from wiping out their debt entirely under Chapter 7 when they could be repaying a portion of their debts under Chapter 13. However, this does not necessarily mean consumers have to be flat broke in order to qualify for Chapter 7 bankruptcy relief, and only debtors with mostly consumer debts, not business debts, are required to take the means test.

 

A debtor who is below the median income, which is currently $47,790 for a household size of 1 in New York State, does not need to take the means test. A debtor who is married or has kids will have a larger household and the median income threshold is higher. For example, currently in New York State the median income for a family of 2 is just over $59,000. So a single parent whose income is below $59,000 will not be required to take the means test.

 

Current monthly income is defined to be the average income over the last six months before filing for bankruptcy. If a debtor is above the median income deductions can be used to pass the means test.


Here is a link for you to determine:

http://www.legalconsumer.com/bankruptcy/means-test/state.php?st=NY

The filing for bankruptcy is certainly an alternative - a bankruptcy stays on your credit report for 10 years.

However, a money judgment obtained in the State of New York stays on your credit report is generally enforceable for a period of twenty (20) years. (Chptr. 8, Art. 2, Sec. 211, New York State Consolidated Laws.)

So, although bankruptcy stays on your credit report for a long time - a judgment stays on even longer.

A judgment in NY may be enforced against any property which could be assigned or transferred, whether it consists of a present or future right or interest and whether or not it is vested, unless it is exempt from application to the satisfaction of the judgment. A money judgment entered upon a joint liability of two or more persons may be enforced against individual property of those persons summoned and joint property of such persons with any other persons against whom the judgment is entered. (Chptr. 8, Art 52, Sec. 5201, New York State Consolidated Laws.) In general, ninety per cent (90%) of the earnings of the judgment debtor for his personal services rendered within sixty days before, and at any time after, an income execution is delivered to the sheriff, is exempt from execution of a money judgment. (Chptr. 8 Art. 52, Sec. 5205(d), New York State Consolidated Laws.)

A money judgment generally may become a lien against the real property of a judgment debtor either from the time of the docketing of the judgment with the clerk of the county in which the property is located until ten years after filing of the judgment-roll, or from the time of the filing with such clerk of a notice of levy pursuant to an execution until the execution is returned. (Chptr. 8 Art. 52, Sec. 5203, New York State Consolidated Laws.)


So, what I would recommend is that you look in the local Yellow Pages or contact the County Bar Association for an attorney who can assist you filing a bankruptcy.

Thank you so much for allowing me to help you with your questions. I have done my best to provide information which will be helpful to you. If I have not fully addressed your questions or if you have any follow up questions, or if I have misinterpreted your questions in any way, please do not rate me yet, but simply ask a follow up question without rating so I can provide you with a fully satisfactory answer. If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service with 3, 4, or 5 faces so I can receive credit for helping you today. I thank you in advance for taking the time to provide me a positive rating!
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Customer reply replied 4 years ago
Thank you for your prompt reply. I should have given you more specific info on the person seeking relief fom his debt thru banckruptcy. The person is 63 yrs old and since 1996 has been jobless and no realty property, no car , living in with family and relatives and thru some monetary help to tide him. Could not continue paying card debt worth $10k.
My questions are:
1. Would chapter 7 be his best option please explain?
2. How long will this process take?
3. Are there lawyers who would give free service ?
4. How much is usual legal fees lawyer charge to file bankruptcy a bankruptcy case?
Thank you.
The person is 63 yrs old and since 1996 has been jobless and no realty property, no car , living in with family and relatives and thru some monetary help to tide him. Could not continue paying card debt worth $10k.

My questions are:
1. Would chapter 7 be his best option please explain? Yes, because it's a complete discharge of their debt. A ch 13 would make him make payments over time. However, given the facts you stated - they clearly could file a ch 7.


2. How long will this process take? A ch 7 takes about 6 months from the start to end when they would get their discharge.

3. Are there lawyers who would give free service ? Not that I know of for bankruptcy. For other things - yes, like housing, consumer protection, etc.. But not bankruptcy.

4. How much is usual legal fees lawyer charge to file bankruptcy a bankruptcy case?

Generally, it's somewhere between $1,200 to $2,000 (exclusive of the bankruptcy filing fee which could be waived by the court in this case) depending on the attorney one uses for a simple ch 7 bankruptcy. So it would be in their best interests to shop around and contact a multitude of attorneys and ask what their fees would be.


Thank you so much for allowing me to help you with your questions. I have done my best to provide information which will be helpful to you. If I have not fully addressed your questions or if you have any follow up questions, or if I have misinterpreted your questions in any way, please do not rate me yet, but simply ask a follow up question without rating so I can provide you with a fully satisfactory answer. If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service with 3, 4, or 5 faces so I can receive credit for helping you today. I thank you in advance for taking the time to provide me a positive rating!
Ask Your Own Consumer Protection Law Question
Customer reply replied 4 years ago
Sorry forgot to ask Before I give you an excellent rating,
When the bankruptcy case is filed, does the petitioner need to appear in court or it s the lawyer handling the case who appears on behalf of the petitioner?
The bankcruptcy stay o f 10 years in your credit report is also the same in California?
Thank you
Depending upon which chapter a debtor files - they do have to appear in court.

The debtor must appear at the 341 hearing or meeting of the creditors hearing.

The 341 hearing is an opportunity for the trustee and your creditors to ask you questions about your proposed Chapter 13 plan or your income and debts and your finances and assets.

It's actually a very quick hearing - takes about 5 minutes usually at maximum and the attorney does almost all the talking. There is a group of debtors all there for the same hearing - it either goes in alphabetical order or case number XXXXX as to who goes first, second, etc.


Nothing to worry about whatsoever.


Thank you so much for allowing me to help you with your questions. I have done my best to provide information which will be helpful to you. If I have not fully addressed your questions or if you have any follow up questions, or if I have misinterpreted your questions in any way, please do not rate me yet, but simply ask a follow up question without rating so I can provide you with a fully satisfactory answer. If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service with 3, 4, or 5 faces so I can receive credit for helping you today. I thank you in advance for taking the time to provide me a positive rating!
Ask Your Own Consumer Protection Law Question
Customer reply replied 4 years ago
A follow up question before my rating , since it is not a chapter 13 filing but a chapter 7 filing will the petitioner still appear and have the 341 meeting? Thank you
Yes, absolutely. But realize that's it's very nominal - 5 minutes and it's over.

There are few questions that they are asked and they confirm what their attorney stated.


I would NOT worry about that whatsoever - it's simple.
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Thank you so much for allowing me to help you with your questions. I have done my best to provide information which will be helpful to you. If I have not fully addressed your questions or if you have any follow up questions, or if I have misinterpreted your questions in any way, please do not rate me yet, but simply ask a follow up question without rating so I can provide you with a fully satisfactory answer. If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service with 3, 4, or 5 faces so I can receive credit for helping you today. I thank you in advance for taking the time to provide me a positive rating!
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