Chapter 7 Bankruptcy Bankruptcy Lawyers for Over 40 Years
CAUTION! Its tax season so remember that you may lose most -- if not all -- of your income tax refunds if you file bankruptcy. Even if you file bankruptcy after filing your taxes, you can still lose what you get back as a refund from the Government -- even if you have spent your refund. There are legal ways to keep this from happening.
Call us toll free at (877) 886-5955 if you are considering bankruptcy before you file your income tax returns to learn how to legally avoid losing your income tax refunds.
What is Chapter 7 Bankruptcy?
Different "chapters" of federal bankruptcy law authorize five types of bankruptcy: (i) Chapter 9 for cities and other governmental entities; (ii) Chapter 11 for large businesses; (iii) Chapter 12 for farmers and ranchers; and (iv) Chapter 13 sometimes called consumer reorganization bankruptcy or wage earner bankruptcy for persons with regular income and modest amounts of debt. This page deals with Chapter 7 also called straight bankruptcy or liquidation bankruptcy that cancels or dischargesmany and often all of your debts. Explore these and other topics below or use the Buttons to the left.
Why File Chapter 7 rather than Chapter 13?
Chapter 7 immediately stops mortgage foreclosures, wage garnishments, IRS tax collectors, vehicle repossessions and bill collectors.
Chapter 7 is fast normally taking three to six months. Chapter 13 takes three to five years.
Chapter 7 discharges most, if not all, of your debts; however, if you want to keep your home or car that you have mortgaged, you must pay the mortgage. Chapter 7 does not give you time to catch up or cure defaults on mortgages or taxes. Chapter 13 does.
Chapter 7 is the most common type of bankruptcy. It has advantages over Chapter 13; however, Chapter 13 has advantages over Chapter 7. Call our experienced bankruptcy lawyers at (877) 886-5955 to discuss whether Chapter 7 or Chapter 13 is best for you.
Call us 24/7 toll free at 877-886-5955 for a free consultation with one of our experienced bankruptcy lawyers and so we can answer any questions that you have.
This website is not intended as legal advice to you because Chapter 7 is complicated and depends on your specific circumstances. If you are considering a Chapter 7, call us toll free at (877) 886-5955 for a free consultation for legal advice tailored to your specific unique situation. There is no obligation and the call is confidential. Or, email us using the form at the right with your questions. Please include your phone number so we can better advise you. There is no obligation. We will respond to your inquiry promptly.
This is you. When someone files a Chapter 7 bankruptcy, they are called the Debtor. If you file for bankruptcy, you are a Debtor. In Chapter 7 Debtors may keep some or all of their property by paying some or all of their debts. This all depends on your own unique circumstances.
United States District Courts
All bankruptcy cases are handled in federal courts under the provisions of the Bankruptcy Code. Oklahoma is divided into three United States District Court Districts: (i) the Western District headquartered in Oklahoma City; (ii) the Northern District headquartered in Tulsa; and (iii) the Eastern District headquartered in Muskogee and Bankruptcy Court seated in Okmulgee.
The Western District of Oklahoma generally includes those counties touching and to the West of Interstate highway I-35. This includes Alfalfa, Beaver, Beckham, Blaine, Caddo, Canadian, Cimarron, Cleveland, Comanche, Cotton, Custer, Dewey, Ellis, Garfield, Garvin, Grady, Grant, Greer, Harmon, Harper, Jackson, Jefferson, Kay, Kingfisher, Kiowa, Lincoln, Logan, Major, McClain, Noble, Oklahoma, Payne, Pottawatomie, Roger Mills, Stephens, Texas, Tillman, Washita, Woods and Woodward Counties. Bankruptcy hearings are conducted in Enid and Lawton as well as Oklahoma City.
The Bankruptcy Judge
The person with ultimate authority over your Chapter 7 is the Bankruptcy Judge normally just called Judge. Each District has at least one Bankruptcy Judge; the Western District has two. While the Judge has authority over your Chapter 7, the typical Chapter 7 Debtor rarely has any direct contact with the Judge.
The Bankruptcy Trustee
The Trustee is a person – typically a lawyer – appointed to administer Chapter 7 cases, sell non-exempt assets with equity, review creditor’s claims and pay valid claims to the extent there are available funds among other things. The Trustee will preside at your 341 Hearing and in most cases be the only person affiliated with the bankruptcy court with whom you will deal. To some degree the Trustee represents the Judge and it is important that you cooperate with him. In the Western District there are over a dozen Trustees.
The Trustee will examine documents you must supply including tax returns and bank statements to make sure they are complete and to look for non-exempt property to sell to benefit your creditors. The Trustee will also look at your financial transactions during the previous year to see if any can be undone to have money to distribute to your creditors. With our advice before you file Chapter 7, it is often possible to legally protect or eliminate property the Trustee can take from you. With our advice the Trustee rarely finds anything of value belonging to our clients to sell.
The Trustee’s primary duty is to see that your creditors are paid as much as possible that you owe them. While you must fully cooperate and be courteous with the Trustee, the more property the Trustee recovers for your creditors, the more the Trustee is paid. The Trustee is not your friend. However, do not misunderstand. You must be open and honest with the Trustee and not attempt to hide or conceal any assets. Any attempt to do so can be a federal crime subjecting one to a fine and imprisonment.
Chapter 7 Eligibility
You are not able to file Chapter 7 bankruptcy if you received a bankruptcy discharge in the last six to eight years depending on the type of bankruptcy you filed. Or, if based on your income, expenses and debts, you could feasibly complete a Chapter 13 then you cannot file Chapter 7. If so, you may want to consider a Chapter 13. This determination of your ability to complete a Chapter 13 involves a complicate calculation known as a Means Test that we will perform for you shortly after you retain us.
Requirements to File
Before you file a Chapter 7, you must receive credit counseling from an approved agency and pay its fee. As your Chapter 7 lawyers, we will prepare a large number of documents and forms required by the Bankruptcy Code using information that you provide us. These documents will be filed with the court to initiate your Chapter 7. You must also pay the filing fee imposed by the Bankruptcy Court at the time we file your Chapter 7. Finally, you need to make acceptable arrangements with us to pay our attorney fee.
Control of Financial Affairs
When you file Chapter 7, you place all of your property and debts in the hands of Trustee. You cannot sell or give away any of your property after you file Chapter 7 nor can you pay any of your pre-filing debts. However, with a few exceptions, you can do what you wish with property you acquire and income you earn after you file for Chapter 7.
Moreover, if you have recently made payments or transfers, those, too, may also create serious problems for you. For example, if you pay certain debts shortly before you file Chapter 7, the Trustee may sue who you paid to recover those payments for the benefit of other creditors. Or, if you transfer property without adequate compensation to anyone on the eve of Chapter 7, again the Trustee may sue that person to recover what you transferred to benefit your creditors. This is a very complicated area that requires competent legal advice. If you have made such payments or transfers, we may be able to advise you how these problems can be legally overcome.
The Automatic Stay
Filing Chapter 7 bankruptcy invokes the automatic stay that is an enormous benefit to you. The automatic stay immediately stops most creditors from trying to collect what you owe them. Accordingly, at least temporarily, creditors cannot legally garnish your wages or bank account, repossess your car, foreclose on your home or cut off your utility service. The automatic stay also stops bill collectors from calling you.
First Meeting of Creditors
Shortly after the Chapter 7 is filed, notices of the first meeting of creditors will be mailed to you and all creditors and interested persons as required by Section 341 of the Bankruptcy Code. This first meeting of creditors is also known as a 341 Hearing chaired by the Trustee and at which you must appear. We will meet with you before the 341 Hearing to answer your questions and appear with you to protect your interests. At this hearing the Trustee will administer an oath to you and ask you simple questions about your financial affairs. Creditors may also appear and ask you questions. Typically there are a number of other Debtors just like you at the 341 Hearing and it is fairly informal.
Debtors living in central Oklahoma near Oklahoma City must attend 341 Hearings in Oklahoma City. The 341 Hearings for Debtors that live in counties adjacent to Enid and to the North and West of Enid are held in Enid. Consequently you will not need to drive to Oklahoma City. The same is true of Debtors who live near Lawton as 341 Hearings for those people are held in Lawton.
This 341 Hearing is normally the only time you have to appear in court. Only on rare occasions are our clients required to appear before the Judge. You must provide certain documents like tax returns, bank statements and wage statements to the Trustee prior to the 341 Hearing. If these documents are not provided the Trustee, your 341 Hearing will be continued to a later date and you and your lawyer will have to appear in Oklahoma City for this continued 341 Hearing.
What Happens to Your Property
If, after the 341 Hearing, the Trustee determines that you have non-exempt assets, you may be required to surrender that property or provide the Trustee with cash equal to the value of the non-exempt asset. If the property is of minimal value or would be cumbersome for the Trustee to sell, the Trustee may abandon the property meaning you keep it, even though it is non-exempt.
Since most property owned by Chapter 7 debtors is either exempt or is of negligible value to pay creditors, few Debtors end up having to surrender any property, unless it is collateral for a secured debt discussed below.
If you pledged property as collateral for a loan, this is a secured debt. Collateral can be a home, vehicles or similar property. If you are late on payments, the creditor can ask to have the automatic stay lifted to repossess or foreclose on the property. However, if you are not delinquent on payments, you can retain the property and continue making payments as required by your loan. An exception is if the property is non-exempt and you have sufficient equity in the property to justify its sale by the Trustee. In that case if you want to retain the collateral and can quickly pay the equity to the Trustee, you should be able to keep making payments to the creditor and keep the collateral.
If a creditor has recorded a lien against your property because of a debt you have not paid like a judgment in a lawsuit, that debt is also secured. You may, however, be able to void the lien in Chapter 7 but that is a complex area that you should discuss with us so we can properly advise you after we know all relevant facts.
Bankruptcy law allows you to keep certain property designated as exempt under Oklahoma law – known as exempt assets. These exempt assets include your home, contents of your home, clothing, tools of the trade, pension plans, guns and one vehicle among other things – but not in limited amounts. We can advise you exactly what you own that is an exempt asset. Everything else you own is a non-exempt asset subject to being lost in Chapter 7 and includes things like income tax refunds, additional vehicles, boats and recreational vehicle among other things.
However, if you provide us all relevant information about your property before you file Chapter 7, we are quite adept at legally advising our clients about how to protect non-exempt assets and not lose them in Chapter 7.
Finally, if you have given a creditor a lien on any of your exempt assets, you must pay that debt to keep the exempt asset with some limits.
Chapter 7 Discharge
At the completion of your Chapter 7, all debts eligible for discharge are cancelled or discharged meaning that you are no longer legally obligated to pay such debts.
Certain debts are not discharged, namely: (i) those that automatically survive bankruptcy like child support, most tax debts and student loans, unless the court rules otherwise, and (ii) those that the court has declared non-dischargeable because the creditor objected, e.g., debts you incurred by fraud or malicious action. If you believe you may have these kinds of debts that are potentially not dischargeable, call us toll free at (877) 886-5955 for a free consultation so we can provide legal advice tailored and specific to your unique situation.
A Chapter 7 is very complex. This is just an abbreviated description of what is required with a number of details omitted to keep this from being overly long. There are other potential pitfalls that are omitted. While it is possible to file a Chapter 7 without a lawyer, that is ill advised and short sighted. Without competent advice it is possible you will lose property unnecessarily or pay more than required. We encourage you to call us for a free consultation to determine if you are eligible for Chapter 7 and whether Chapter 7 is in your best interests.