Iowa Bankruptcy Legal Questions

Generally, when a debtor files a bankruptcy, notifies the mortgage lender of the bankruptcy, and does not sign a reaffirmation agreement with the mortgage lender, then the debtor is discharged from any personal liability for the mortgage loan. However, the real estate is still subject to the mortgage loan security interest. A reaffirmation agreement is an agreement by a chapter 7 debtor to continue paying a dischargeable debt (such as a mortgage loan) after the bankruptcy, usually for the purpose of keeping collateral (i.e. the house) that would otherwise be subject to foreclosure. If a creditor seeks payment from a chapter 7 debtor after the debt was discharged, then the creditor may be in violation of the discharge injunction, and could be subject to sanctions and penalties. References http://www.uscourts.gov/FederalCourts/Bankruptcy/BankruptcyBasics.aspx  http://www.uscourts.gov/FederalCourts/Bankruptcy/BankruptcyBasics/Chapter7.aspx  http://www.uscourts.gov/FederalCourts/Bankruptcy/BankruptcyBasics/Glossary.aspx  ... Read More

You first asked if you could sue your attorney.  The answer is always yes you can, but the real question is whether you can win the lawsuit.  To sue an attorney, I would suggest finding an attorney that handles lawsuits against other attorneys and have him/her review your case.   There are too many unknown facts in this case to give an answer in an email.  You should sit down with an attorney to discuss these facts.  By not reaffirming a loan, the bank could foreclose on the loan.  You mention that you kept the building and business from the bankruptcy, this could be bankruptcy fraud if you did not list all your assets and liabilities.  You need to discuss this issue with an attorney immediately.... Read More

The simple answer is, to do whatever you can to make it until the time period where you can refile another chapter 7 bankruptcy. You have no legal protection within this time period, because of your previous chapter 7 bankruptcy filing and discharge. The only other alternative you have would be to file a chapter 13 bankruptcy, which you may do within four years of receiving a chapter 7 bankruptcy discharge, rather than waiting an entire eight years to refile another chapter 7 bankruptcy. You may simply want to wait and deal with the repercussions of your creditors attempting to collect on debt until you may refile. If you're only one months in default, it usually takes creditors longer than six months to get you into court and receive a judgment, so you may have enough time to just wait and then refile another chapter 7 bankruptcy after eight years have passed from your previous chapter 7 bankruptcy discharge.   I have responded to your inquiry according to the laws of Massachusetts, where my firm is located. Laws can vary significantly from state to state and cases tend to be rather fact-specific, so you are best served by consulting with a knowledgeable attorney in weighing your options. Email messages/Online Correspondence are akin to conversations and do not reflect the level of analysis applied to formal legal opinions. Email/Online responses do not form an attorney-client relationship.    Joseph F. Botelho, Esq. BOTELHO LAW GROUP Attorneys At Law http://fallriverbankruptcyattorney.com/ 901 Eastern Ave.  Unit 2 Fall River, MA 02723  Office:  888-269-0688 FAX:    877-475-8147... Read More

If you're asking whether or not the debt is dischargeable in his bankruptcy case, the answer is yes, unless you timely and successfully object to the discharge which you can do if you have some legal basis to do so, such as fraud.  Were there findings of fraud made by the court in the small claims case?  If so, you have a chance of getting the debt declared to be nondischargeable under 11 U.S.C. 523.  Otherwise, you probably don't. You should consult with a bankruptcy attorney in the location where the case was filed for further details. Mark Markus has been practicing exclusively bankruptcy law in California since 1991.  He is a Certified Specialist in Bankruptcy Law by the State Bar of California Board of Legal Specialization,  AV-Rated by martindale.com, and A+ rated by the Better Business Bureau.   ... Read More

I believe you mean you listed your landlord as a creditor.  The amount you listed does not matter.  If you listed him with his correct address and you received your discharge, the debt was discharged.  If your landlord is suing you to collect on the debt that was owed prior to filing your bankruptcy case, he is in clear violation of the post-discharge injunction of 11 U.S.C. 524 for which contempt of court sanctions are available. You should hire a bankruptcy attorney to protect your rights.   Mark Markus has been practicing exclusively bankruptcy law in California since 1991.  He is a Certified Specialist in Bankruptcy Law by the State Bar of California Board of Legal Specialization,  AV-Rated by martindale.com, and A+ rated by the Better Business Bureau. ... Read More

Yes, you need to seek a contempt order and damages for violation of the automatic stay.  You really need to hire an attorney to do all this as it is going to get very involved and the procedures for enforcing a contempt or other court order are going to depend in part on local practice in your area. They are probably committing these blatant violations because you don't have an attorney. Mark Markus has been practicing exclusively bankruptcy law in California since 1991.  He is a Certified Specialist in Bankruptcy Law by the State Bar of California Board of Legal Specialization,  AV-Rated by martindale.com, and A+ rated by the Better Business Bureau.  ... Read More

Yes, you can file a bankruptcy without including your husband.  You would file, "married without declaration of separate households."  Are you on the title to those cars?  If you are on title, you must account for them as an asset on your bankruptcy petition schedule B; however, they may be exempt using one of Iowa's state exemptions.  You will need to check to see what the exemptions are.  They may also be exempt as tenants by the entirety.  If you are not on the title, you do not have to list them as an asset.  You must also account for your husband's income on your petition in the means test.  I suggest that you meet with a bankruptcy attorney to better understand your rights.  I hope you found this answer useful.  ... Read More

What assets you lose depends on which chapter you file, the value of your assets, and the exemption laws that apply to your case. Exemptions are "protections" for value you have in certain assets such that they are "exempt" from collections.  Every state has different exemptions amounts available. Exemption laws are based on the state where you resided for the 2 years prior to filing your bankruptcy case or, if you lived in more than 1 state during that period, in the state where you resided for the greater part of the 180 days prior to that 2 year period. In a Chapter 13 case, you would not lose any assets, but would have to pay out at least as much as your creditors would receive in a Chapter 7 liquidation case. Mark J. Markus, Attorney at LawCertified Bankruptcy Law Specialist--State Bar of California Board of Legal SpecializationHandling exclusively bankruptcy law cases in California since 1991.http://www.bklaw.com/bankruptcy blog: http://www.bklaw.com/bankruptcy-blog/Follow Me on Twitter:  @bklawr  ... Read More

Your question has nothing to do with bankruptcy law.  It is purely a state law real estate question and should be directed to such an attorney in your geographic area.  Mark J. Markus, Attorney at LawCertified Bankruptcy Law Specialist--State Bar of California Board of Legal SpecializationHandling exclusively bankruptcy law cases in California since 1991.http://www.bklaw.com/bankruptcy blog: http://www.bklaw.com/bankruptcy-blog/Follow Me on Twitter:  @bklawr... Read More

You really need to find some money and hire an attorney.  Your creditors will not likely just go away, but there is not much they can realistically do, other that bother you.  As far as liens being filed on your house, Iowa has a very liberal homestead exemption.  It is based on the lot size (1/2 A in a city, 40 A rural) with unlimited value.  So I am not sure what you are referring to in that regard.  If all of your income is from disability, I'm not sure what your creditors can do.... Read More

The way to find out your options and which is the best route to go, is to have a consultation with a bankruptcy attorney in your area.  Most attorneys offer free initial consultations.  I highly suggest taking advantage of that if you are serious about dealing with your financial issues.   Mark J. Markus, Attorney at Law Handling exclusively bankruptcy law cases in California since 1991. http://www.bklaw.com/ bankruptcy blog: http://bklaw.com/bankruptcy-blog/ Follow Me on Twitter:  @bklawr... Read More

This is a very good example of why people need to go to "real" bankruptcy lawyers, rather than bankruptcy filing factories.  Consult a bankruptcy lawyer when you think bankruptcy is a possibility.  Do not try to do things on your own. The 401K is very possibly out of the reach of your creditors already.  As soon as you try to make changes to keep it out of the hands of creditors you can actually be exposing yourself, and your son, to the claims of creditors as it could be deemed a fraudulent conveyance since it was a transfer with the actual attempt to keep it from the reach of your creditors.  Your divorce lawyer should know a bankruptcy lawyer who you can consult with.  We are not in Iowa, so we cannot help you, but I know there are many fine bankruptcy lawyers in Iowa.... Read More

Under sec 101(9), a "corporation" includes a business trust.  Under 101(41), a "person" includes a corporation.  Under section 109, a person can file, with exceptions that do not apply, so, it can file.  The issue is then, who has the power to file the petition, and only a review of the trust agreement would resolve that issue.... Read More

What happens to home equity loans would depend upon the circumstances of the case, and the case law differs depending upon the circumstances.  Thus, it is imperative that the debtor contact an attorney to assist the debtor through the bankruptcy and should be able to answer this question for the debtor in his/her specific case. I am assuming that that Justin is referring to Chapter 7 in which nonpriority debts can be discharged. If the loan exceeds the value of the home, it is possible that the amount of the loan exceeding the value of the house could be discharged. If the equity loan is a second loan and the primary loan secures the value of the home, with the second loan being totally unsecured, it is possible that the loan could be discharged.  The loan could also be secured by the home and if the debtor wants to retain the home, the loan may not be discharged.  The debtor needs to contact an attorney to sort out the facts and determine whether the loan could be discharged or not.  ... Read More

Student loans are not normally dischargeable in bankruptcy.  They are considered priority loans and are not in the same category as consumer debts which may be discharged depending upon the chapter that the debtor utilizes for filing. Student loans may still be discharged in a Chapter 7 or 13 under some conditions.  For a full discussion of student loans and bankruptcy, you can review these situations on my webpage http://www.robertpetersonlaw.com/Firm%20Info/Practice%20Areas/Bankruptcy.aspx ... Read More

Student loans are not discharged in a bankruptcy unless excepting them from discharge would impose an undue hardship on the debtor and the debtor's dependents.  Section 523(a)(8) is generally seen as a bar to discharge, but while some may disagree with me, I think there have been a few encouraging cases lately, especially, in the Eighth Circuit, which includes Iowa (and my state, Minnesota).  Whether you would prevail is difficult to say, and may well depend on your future prospects, as opposed to your current situation.... Read More

A married woman can file an individual bankruptcy case.  But why wouldn't you want to see what the divorce was likely do to your debt?  In any event, you should coordinate your bankruptcy and divorce. The divorce may result in debts being allocated to one or both spouses and the bankruptcy will not relieve a debtor from an obligation imposed in the divorce.... Read More

If I understand the question correctly, you have twice filed for bankruptcy and have now received some land and money, and are asking if the state can require you to pay them back.  Bankruptcy is a federal court action conducted in federal bankruptcy court. The State has no action in the court except as a possible creditor. State debts may have some priority and may or may not be discharged depending on the type of debt. When you file for bankruptcy, your property is technically placed in an estate administered by a trustee.  Depending upon the chapter under which you filed, different actions occur with the property.  Assuming that you filed under Chapter 7 which may discharge unsecured, nonpriority debts, you have declared your assets at the time of filing the bankruptcy, and normally assets that you obtained after the filing date are not included in the bankruptcy.  However one exception is an inheritance (which I assume you are discussing).  Inheritances obtained following bankruptcy filing may become part of the estate, even if the court has issued an order discharging the debtor's debts. If the inheritance is part of the estate, it would be the trustee acting on the behalf of the federal government, not the state, that would be seeking repayment. Whether or not the inheritance would retroactively become part of the estate, depends upon several factors, including the length of time after filing your case.  The inheritance would not be part of your first Chapter 7 (assuming that there were 8 years between filings), but may be part of the latest Chapter 7.  Please contact your bankruptcy attorney for clarification.... Read More

Chapter 13 bankruptcy has its pros and cons. One of the biggest benefits of Chapter 13 bankruptcy is the ability to stop a foreclosure on your home. However, one of the cons of Chapter 13 bankruptcy is the inability to lower your mortgage payment simply by filing bankruptcy. In other words, a Chapter 13 bankruptcy cannot lower your monthly mortgage payment. However, you may have the option of trying to refinance your mortgage during your bankruptcy. Remember, you must ask for Court permission to do so, but this may be an option for you during your bankruptcy to lower your mortgage payment. Terry Duncan Charlotte, NC Bankruptcy Lawyer... Read More