Law Office of
Jeffrey B.Peltz, P.C.
26 Court Street, Ste. 503
Brooklyn, New York 11242
Telephone: (718) 625-0800
Chapter 7 Bankruptcy
Chapter 7 is the most common type of bankruptcy. Chapter 7 Bankruptcy eliminates or, in legal terms, discharges most types of debts, including credit cards, medical bills, money owed due to cars that have been repossessed and homes that have been foreclosed. Certain debts are never discharged in Chapter 7 Bankruptcy, such as court ordered child support, parking tickets or other types of civil or criminal fines. Some debts may be dischargeable under certain circumstances, such as income taxes and student loans. Even if a debt is dischargeable, you may wish to continue paying the debt anyway. For example, if you have a home with a mortgage or a car with a loan, you must continue to pay the mortgage or car loan if you want to keep those items.
When you file a Chapter 7 Bankruptcy, the bankruptcy trustee, who represents the court, may take possession and sell your property to raise funds for your creditors. This sounds far harsher than it really is, because laws exempt specific items of your property from the trustee and allow you to keep them. As a result, in the vast majority of cases, there are no assets for the trustee to sell. The laws that protect your property are called bankruptcy exemptions.
The term "exemptions" refers to the types of property that you are allowed to keep when filing for Chapter 7 bankruptcy. States have the option to follow either the Federal exemptions or their own. New York offers a choice between the Federal bankruptcy exemptions and its own New York bankruptcy exemptions. When you file bankruptcy, you must choose either the Federal exemptions or the New York exemptions. You cannot select some from one and some from the other. The exemptions limits are periodically updated. If you are filing a joint bankruptcy with your spouse, you may double the amounts of either the New York or Federal exemptions.
New Jersey also allows people filing bankruptcy to choose either the New Jersey bankruptcy exemptions or the Federal bankruptcy exemptions. However, since the New Jersey bankruptcy exemptions are generally less generous than the Federal bankruptcy exemptions, most people filing bankruptcy in New Jersey select the Federal bankruptcy exemptions. Again, if you are married and filing bankruptcy together, you may double the Federal Bankruptcy exemptions.
Some of the more commonly used New York bankruptcy exemptions:
If you are married and file a joint bankruptcy petition, the amount of each of these exemptions are doubled. The amounts of the above listed New York exemptions are adjusted every three years. The next adjustment will take place on April 1, 2018.
Federal Bankruptcy Exemptions:
If you are married and file a joint bankruptcy petition, the amount of each of these exemptions is doubled. The amounts of the above listed Federal exemptions are adjusted every three years. The next adjustment is scheduled for April 1, 2019.
Due to the more generous homestead exemption, if you own a home with more than $25,000 in equity, you probably should use the New York exemptions. However, if you do not need the New York exemptions, you probably will do better using the Federal exemptions. However, due to other differences in the New York and Federal exemptions, you should decide which to use only after a careful analysis by an experienced bankruptcy attorney.
If you have an asset that is not exempt in a Chapter 7 bankruptcy and you want to keep that asset, you should consider Chapter 13 bankruptcy for relief.
Questions About Bankruptcy Exemptions?
Call Us at (718) 625-0800 to Schedule a Free Consultation
Call Jeffrey B. Peltz, P.C., at 718 625-0800 to speak to an experienced bankruptcy attorney regarding New York and Federal exemptions to Chapter 7 bankruptcy. We have evening and weekend appointments available and are fluent in multiple languages.
If you have an asset that is not exempt in a Chapter 7 Bankruptcy and you want to keep that asset, you should consider Chapter 13 Bankruptcy for relief.
To qualify for a Chapter 7 Bankruptcy, you must first pass the “Means Test,” which requires that your income not exceed a certain amount. This test requires that you first add up your income earned during the six previous complete months. Next, add up all of the income from all sources in your household, including yours and the income of the other members of your household during the same six month period. Certain types of income, such as social security, are not included in your calculations. Then, multiply the resulting number by 2 to obtain your yearly income.
Once you have determined your yearly income, compare it to the median income for your state. These figures are periodically revised. As of November 1, 2015, the amounts in New York are as follows: The median income for a family of 1 is $ 50,768; for a family of 2, $65,233; for a family of 3, $74,925; and for a family of 4, $90,852. For households with more than 4 family members. $8,400 is added for each additional family member. If your yearly income is less than the median income for your state, you will qualify for a Chapter 7 Bankruptcy.
Information on median income for states other than New York
If your income exceeds the median income in your state, all is not lost. There is a second step that allows you to deduct certain expenses from your income. This part is not as straight forward. Some of the expenses that may be included are not your actual expenses, but the average expense for someone living in the country in which you reside. Some of the expenses that you are allowed to use are your actual expenses. After applying these additional deductions, if your net income does not exceed the allowed amount, you will pass the “Means Test.”
Information on allowed expenses
If your income exceeds the allowed limits, you may still pass the Means Test, if your income exceeds the allowed amount by less than $128.33 per month.
After completing the Means Test, if you are still above the allowed income limit, you will not qualify for a Chapter 7 Bankruptcy. In that case, you will have to look to Chapter 13 for relief.
If you pass the “Means Test,” you must still pass the budget analysis. If your monthly income exceeds your monthly expenses by $100 or more, you will not qualify for Chapter 7 and must instead look to Chapter 13 for relief.
As you can see from this short summary, this is a complicated area of the law. You risk much if you make an error. To find out if Chapter 7 Bankruptcy is right for you, it is best to consult with an experienced bankruptcy attorney.
We offer a free consultation and help clients who live in the following counties of New York: Kings (Brooklyn), New York (Manhattan), Staten Island (Richmond), Queens, Bronx, Nassau, Suffolk, Westchester, Rockland, Putnam, Dutchess, Orange, Sullivan, Albany, Clinton, Columbia, Essex, Franklin, Fulton, Greene, Jefferson, Montgomery, Rensselaer, St. Lawrence, Saratoga, Schenectady, Schoharie, Ulster, Warren, and Washington. In addition, we cover all of New Jersey.
During our free consultation, we will discuss your options in bankruptcy and non-bankruptcy options that may be available. We will determine our fee for a Chapter 7 Bankruptcy based on the facts of your particular situation. We consider such factors as whether you are filing with your spouse, the total amount of your debt, the type of debts you have, the amount of money you earn (whether you are over the median income), and whether you own real estate or a business. Our fee for a typical, simple bankruptcy will likely cost between $1,200 and $1,700. For a more complicated Chapter 7 Bankruptcy case, our fee will likely cost between $2,000 and $3,000. The most complicated cases will cost more than $3,000. In addition to our legal fee, you must pay $335 for the court filing fee, $38 for a credit report (combined from all three major credit reporting agencies), and $24 for the two required classes. During our free consultation we will let you know exactly how much your bankruptcy will cost.
If you wish to retain our office to represent you in a Chapter 7 Bankruptcy, we will prepare a retainer agreement. Upon signing the retainer agreement, you will be required to pay $200 as a deposit, which is also known as a retainer fee. You will pay the balance of our fee in a monthly amount of at least $200 until the fee is paid in full. We will provide you with detailed instructions regarding the information that we will need to prepare your bankruptcy petition. Once you have retained our law office, you should stop paying the bills that you intend to be discharged in bankruptcy. You should also tell your creditors to call us and to stop calling you.
When you have paid our fee in full, you will need to complete the first of two required classes, DebtorCounseling. This class must be taken within 180 days of the filing of your petition. Once we file your bankruptcy, you must also complete a second class entitled Personal Financial Management. If you do not complete your Personal Financial Management class within 45 days of your bankruptcy hearing, your petition will be denied. Each class takes approximately two to three hours to complete, is offered by a court-approved company ,and costs a modest fee of usually $25 to $50. The classes may be taken in person, on the telephone, or on the Internet and are offered in many different languages.
Once you have completed the Debtor Counseling class, you will visit our office for a few hours, bringing the information that we will instruct you to bring, so that we may prepare your bankruptcy petition.
Once we complete and you sign your bankruptcy petition, we will file it with the Bankruptcy Court. The moment that we file your bankruptcy petition, an automatic stay will be issued through the Court that will stop your creditors from taking or continuing collection and legal actions against you. This means that, if your wages are being garnished or if your bank accounts have been frozen, the creditor must stop such actions. If any money is taken from you once we file your petition, the money must be returned to you.
When we file your bankruptcy petition, the Court will schedule a hearing, which is known as a 341 meeting or a meeting of your creditors. This is a bit of a misnomer, since creditors rarely appear. At the hearing, you will be questioned by the bankruptcy trustee, who is a court-appointed attorney to handle your case. The bankruptcy trustee will question you regarding your assets and your debts. The questioning usually takes about ten minutes. If the bankruptcy trustee is satisfied with your answers and has no further questions, the trustee will “close” the meeting, and no further appearance will be needed. However, if the bankruptcy trustee has further questions that cannot be answered at that time, you will be required to attend a second hearing that will be scheduled to occur approximately two weeks later.
During the two months after the date of the 341 meeting, your creditors will have the opportunity to file an objection with the Bankruptcy Court regarding the discharge of their debt. Such objections are usually filed when a debtor has made significant and recent use of credit before filing bankruptcy, especially if few payments were made. We will not file a petition for bankruptcy for a person who has committed such acts. If an objection by a creditor is threatened or filed, it is usually resolved through a negotiated settlement.
Approximately four months after filing your petition, you should receive your discharge from the Bankruptcy Court. The discharge states that you are not legally liable for your discharged debts. You should save the discharge notice and a copy of your petition for at least the next ten years, because they will be your proof that you are not obliged to pay the discharged debts. You will then be ready to embark on your fresh financial start and to rebuild your good credit.
Once you obtain a discharge, you may not file another Chapter 7 Bankruptcy for a period of eight years from the date of your prior filing even if you encounter new financial problems during that period. However, you may file a Chapter 13 Bankruptcy four years after filing a Chapter 7 Bankruptcy, in which you received a discharge.
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