Bankruptcy – How to File
1. Analyze your debt.
Some debts, such as child support obligations, are not dischargeable in Chapter 7 bankruptcy. And if you pledged collateral for a debt, the creditor can take the property if the debt isn’t paid.
2. Determine your property exemptions.
New York has exemption laws, which dictate what types of property (or, in some cases, how much equity in particular types of property) you are entitled to keep if you file for Chapter 7 Bankruptcy.
3. Make sure you are eligible.
If your average income during the six months before you file is more than the median income for a family of your size, you may not be allowed to use Chapter 7, depending on your income and debts.
4. Obtain Credit Counseling
Credit counseling is conducted by a credit counselor and must be completed before you file for Bankruptcy. It is a requirement for all individual debtors. When you have received your credit counseling, the credit counselor will issue a certificate that must be filed with the bankruptcy court. If you are filing jointly with your spouse, both of you must complete credit counseling. The failure to timely file a properly issued credit counseling certificate will result in the dismissal of your bankruptcy case.
5. Redeem or reaffirm secured debts.
If you pledged property as collateral for a loan, you’ll need to pay something to the creditor if you want to keep the property. When you file for bankruptcy, you’ll be asked to decide whether you want to “redeem” the property (pay the creditor the current replacement value of the property), “reaffirm” the debt (agree on new contract terms with the creditor), or “surrender” the property (let the creditor take it — if the property is worthless, the creditor may not bother). Depending on where you live, there may be other options as well.
6. Fill out the Bankruptcy forms.
You complete forms, in which you tell the court about all of your property, debts, income, and expenses. You’ll list the names of all your creditors, note which debts are disputed, decide what property you are claiming as exempt, and decide what you want to do about each of your secured debts.
7. File the forms.
Filing your petition (the main Bankruptcy form) officially starts your case. Most people file all the forms at once, but if you’re in an emergency, you can file just a two-page form, and then file the complete set of the forms within 14 days.
8. Go to a meeting.
In most cases, you’ll need to go to court only once, for a short meeting known as a creditors meeting with the trustee (and possibly a creditor or two) to review your case and answer any questions about the information in your forms. The meeting of creditors is a hearing all debtors must attend in any Bankruptcy proceeding. It is held outside of the presence of the judge and usually occurs between 20 and 40 days after the filing of the Bankruptcy. In chapter 7 Bankruptcy and Chapter 13 Bankruptcy cases, the trustee assigned to the case conducts the meeting. In a chapter 11 case, a representative of the United States Trustee’s Office conducts the meeting.
The meeting permits the Trustee to review the debtor’s petition and schedules with the debtor. The debtor is required to answer questions about the debtor’s conduct, property, liabilities, financial condition, and any other matter that effect the administration of the case or the debtor’s right to discharge. In addition, the Trustee will ask questions to ensure that the debtor understands the bankruptcy process.
The meeting is referred to as a meeting of creditors because creditors are notified that they may attend and ask the debtor questions pertaining to assets or any other matter pertinent to the administration of the case. It is also referred to as a 341 meeting because it is mandated by Section 341 of the Bankruptcy Code. Creditors are not required to attend these meetings and do not waive any rights if they do not attend. The meeting usually lasts only about ten to fifteen minutes and may be continued if the trustee or U.S. Trustee’s representative is not satisfied with the information presented.
9. File objections or motions if needed.
If you dispute a creditor’s claim against you or you want to eliminate certain liens, you’ll need to address these matters before your bankruptcy case is closed.
10. Wind up your secured debts.
When you filed your Bankruptcy forms, you completed a form in which you stated how you intended to handle your secured debts. Before your case is closed, you’ll need to act on these matters.
11. Get your discharge.
At the end of a successful Bankruptcy, the court will issue an order saying that your dischargeable debts are officially discharged. Once a debt is discharged, you no longer have a legal obligation to pay it and the creditor has no legal right to demand it.
Issues associated with the preparation and filing of a Bankruptcy proceeding are complicated and time consuming, Parties should speak with an attorney before proceeding. We offer complimentary-no obligation consultations. You are welcome to schedule your consultation by calling us at 212-921-1600.