How Do I File for Bankruptcy in New York?
What is the Automatic Stay in a Bankruptcy case?
Q: How Do I File for Bankruptcy in New York?
As a result of current economic downturn, residents and business owners of New York face the difficult situation of not being able to meet all of their financial obligations. Filing either Chapter 7 or Chapter 13 (or Chapter 11 for Businesses) Bankruptcy has been the result of a failing economy and job loss around the nation, especially in the New York City area. NY Bankruptcy lawyers are seeing an increase in new clients seeking out representation in Bankruptcy proceedings.
Chapter 7 Liquidation
Discharge under Chapter 7 Bankruptcy, no asset Bankruptcy, releases an individual debtor from personal liability for most debts and stops creditors from taking collection actions against the debtor. Debtors should consult competent legal counsel in NYC prior to filing Chapter 7 Bankruptcy to discuss the full scope of rights and options with respect to filing a Bankruptcy Petition. Generally, individual debtors receive a discharge in more than 99% of Chapter 7 Bankruptcy cases; however, Chapter 7 discharge is subject to many exceptions. In most Chapter 7 proceedings, the only requirement for a debtor to appear is at the 341 Creditor’s Meeting in front of the Trustee handling the Bankruptcy Estate.
A debtor, who finds themselves in financial debt and owns no assets, may find filing Chapter 7 might be the best option to obtain a “fresh start”. The filing of a Chapter 7 petition automatically stops most collection actions pending against the debtor and includes wage garnishments, collection law suits, credit card bills, foreclosures, and calls from bill collectors. A Chapter 7 discharge can eliminate all the debtor’s debts except for taxes, child support, alimony and student loans. In order to qualify for a Chapter 7 discharge, however, the debtor cannot take home a wage that exceeds a certain amount within its household. Only an experienced Bankruptcy lawyer can answer questions and represent a debtor in filing a Chapter 7 petition.
Chapter 13 Individual Debt Adjustment
Chapter 13 Bankruptcy, a wage earner’s plan, allows a debtor to keep property and pay debts over time, usually within three to five years. Many clients find filing Chapter 13 Bankruptcy a better alternative when they own numerous assets and wish to retain as many assets as possible.
There are a number of advantages for some people to file Chapter 13 over filing Chapter 7. Chapter 13 offers individuals an opportunity to save their homes from foreclosure. By filing under this chapter, individuals can stop foreclosure proceedings and may cure delinquent mortgage payments over time. Debt negotiations are conducted by a NY Chapter 13 attorney until the best possible outcome is agreed upon. Nevertheless, they must still make all mortgage payments that come due during the Chapter 13 plan on time. Another advantage of filing Chapter 13 is it allows individuals to reschedule secured debt and extend them over the life of the Chapter 13 Bankruptcy Plan. Chapter 13 acts like a consolidation loan under which the individual makes the plan payments to a Chapter 13 trustee who then distributes payment to creditors. Individuals will have no direct contact with creditors while under Chapter 13 protection; relieving the debtor of the stresses they currently are enduring. Only an experienced Bankruptcy lawyer can advise, answer questions and represent a debtor in filing a Chapter 13 petition, which is complex and time consuming in nature.
Attorney George M. Gilmer represents and counsels clients in New York in the following consumer debt disputes:
- Chapter 7 (No Asset Bankruptcy)
- Chapter 13 (Worker’s Bankruptcy)
- Debt Negotiations
- Credit Report auditing for the length of the Bankruptcy proceedings
If you’re thinking about filing a Bankruptcy Petition under either Chapter 7 or Chapter 13, contact a Bankruptcy expert, Attorney Gilmer.
George M. Gilmer, Esq.
26 Court Street
Brooklyn, New York 11242
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Q: What is the Automatic Stay in a Bankruptcy case?
The decision to file a Bankruptcy petition in the State of New York is never taken lightly whether an individual or troubled corporation. Bankruptcy law is complicated and only an experienced attorney should handle such filings. Each Bankruptcy petition consists of several days’ of legal preparation and in many cases dozens of pages filled out and filed with the Bankruptcy Court in your jurisdiction. Any New York individual, married couple or business entity that qualifies may file one of the three most used chapters of Federal Bankruptcy.
- Chapter 7 (total liquidation)
- Chapter 11 (reorganization)
- Chapter 13 (individual debt adjustment)
Chapter 7 of the Federal Bankruptcy Code is used frequently by those who do not own many assets or real property, such as real estate, they desire to retain. This results in “total liquidation of assets” such as the sale of a debtor's non-exempt property and the distribution of the proceeds to creditors.
Chapter 11 of the Federal Bankruptcy Code generally if used for reorganization involving a corporation or partnership. However, in rare cases Chapter 11 may be utilized by people in business or individuals. A Chapter 11 debtor typically proposes a plan of reorganization to keep its business alive and pay creditors over time.
Chapter 13 of the Federal Bankruptcy Code allows an individual with regular income such as employment, to adjust their debts. New York residents seek out Chapter 13 when their looking to retain property and pay owed debt over time; three to five years.
Before filing Bankruptcy there are two key elements any debtor must know; “Automatic Stay” and “Discharge. An Automatic Stay is an injunction that automatically stops lawsuits, foreclosures, wage garnishments, and all collection activity against the debtor the moment a Bankruptcy petition is filed. Most often Bankruptcy petitions are filed when a debtor is facing eviction, foreclosure or repossession of a motor vehicle. Therefore, an Automatic Stay is vital and has the legal authority to keep a family in their home during Bankruptcy proceedings. Discharge is when the Bankruptcy process in NY is completed, and the judge orders a Discharge of some of the debt; enabling an honest person a fresh start.
The Automatic Stay is a benefit to filing Bankruptcy in New York and protects your property from creditors pursuing collection actions. The moment a petition is filed in the local Bankruptcy court, an Automatic Stay is in place and protects all property listed within the BA petition. There are a few exceptions such as child support debt, federal student loans, and tax assessments or offsets. A Bankruptcy Automatic Stay has no legal influence on pending or previous criminal actions. Keep in mind each individual creditor may file a motion to lift the Automatic Stay. Most Bankruptcy judges won't lift the Automatic Stay without a valid reason and effective documentation. In most cases, the stay is only lifted for secured creditors to take back real property, such as Real Estate under a foreclosure. If a judgment is ordered in favor of the creditor, the legal action may continue with that creditor. Such Bankruptcy cases are complex and only NY Bankruptcy law firm can ensure all your rights are protected.
If a creditor engages in or attempts to breach the Automatic Stay and engage in any collection of debts while the Automatic Stay is in effect, the Bankruptcy court may allow you to recover damages and retain the property from the creditor. Some collection activities may include contacting you by phone calls, emails, social media (yes they do track down debtors), letters, bills or pursuing garnishment of wages. Inform an attorney immediately if any of your creditors violate the Federal Automatic Stay rules.
Only an experienced Federal Bankruptcy attorney may advise, answer difficult Bankruptcy questions, or represent a debtor in filing a NY Bankruptcy petition, which is complex and time consuming in nature. Attorney George M. Gilmer represents and counsels clients in New York in the following consumer debt disputes:
• Chapter 7 (No Asset Bankruptcy)
• Chapter 13 (Worker’s Bankruptcy)
• Debt Negotiations
• Credit Report auditing for the length of the Bankruptcy proceedings
Any New York City resident thinking of filing a Bankruptcy Petition under any chapter should contact Bankruptcy expert, Attorney Gilmer in Brooklyn, NY.
George M. Gilmer, Esq.
26 Court Street
Brooklyn, New York 11242
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