What If My Bankruptcy Has a Motion to Dismiss?

It is very important that you make your Chapter 13 bankruptcy payments every month as required by your Chapter 13 plan. If you fail to make your monthly payment to the Trustee, the Trustee will ask the Court to dismiss your case. He or she does this by filing a “Motion to Dismiss.” The Trustee will schedule a hearing to discuss the reason(s) you fell behind on your payments. If you receive a Motion to Dismiss you will need to contact your attorney immediately to discuss your options. If you do not want your case dismissed, the Trustee may, under certain circumstances, be able to adjust your plan payment or term to pay the amount you are behind.

Is My Property Protected in Bankruptcy?


One of the biggest fears people have in filing bankruptcy is being able to protect their property. Here is the good news – we can almost always protect all of your property. You are entitled to keep a generous amount of your belongings when filing bankruptcy. North Carolina law now provides higher personal exemptions–items that are protected from seizure by your creditors.

Can I Keep My House?

Keeping House in Bankruptcy | Duncan LawNorth Carolina law allows each spouse or individual to keep equity in a homestead. Currently in North Carolina a person can protect $35,000 of equity in a homestead. A married couple can protect $70,000. A homestead is your personal residence that you are living in at the time of the bankruptcy filing. Equity is determined by subtracting the amount that you owe on your mortgage (and second mortgage) from the fair market value of your home. A good way to determine the fair market value of your home is looking at the county tax value. Your house may be worth more or less than this number but, again, it’s a good starting point.

You should not have a problem keeping your home in a Chapter 7 bankruptcy, as long as you are current on your house payments at the time of filing the bankruptcy. Of course, if you fall behind on your mortgage payment after filing your bankruptcy they can try to foreclose on your house like they could at any other time.  Another important consideration when filing a Chapter 7 bankruptcy is meeting the exemption qualifications that we discussed above. If the equity (difference between what your house is worth and what is owed) in your home exceeds the allowed exemption amount ($35,000 for one person and $70,000 for a married couple) or if you are behind in your mortgage payments and unable to get caught up, a Chapter 13 bankruptcy may allow you to save your home and be a better option.

Filing a Chapter 13 bankruptcy will protect your home as long as you can make the monthly payments required in a Chapter 13 bankruptcy. To get a good idea of what those payments are you will need to set up a consultation with a bankruptcy attorney.

Can I Keep My Vehicle(s)?

The short answer is yes, usually. In North Carolina you are allowed to use up to $3,500 in a motor vehicle with the motor vehicle exemption. However, you will likely be able to protect more than that amount by using at least a portion of your wild card exemption. They key component that will be evaluated when looking at protecting your vehicle is the amount of equity in your vehicle. Like determining the equity on a house, you can determine the equity in your vehicle by subtracting the amount you owe from the retail value of your automobile. In other words, if you owe $6,000 on a vehicle and NADA says that it is worth $10,000 then you have $4,000 in equity. In that example we would use your $3,500 motor vehicle exemption and, likely, $500 of your wild card exemption to protect the vehicle and all of the equity in the vehicle.

Another important point is that you must remain current on your vehicle payments if you want to keep the vehicle. If you fall behind then it could be repossessed by the financing company.

Will I Lose My Retirement Savings?

Most retirement savings plans are protected by the Employee Retirement Income Security Act (ERISA), and are, therefore, fully protected in bankruptcy. To find out if your retirement account is ERISA qualified you should check the plan summary, which you should receive once a year from the plan administrator. You can also contact your plan administrator and ask them to send you something in writing stating that your retirement account is ERISA qualified. In addition to retirement accounts, 529 college savings plans are also protected under than bankruptcy.

Will the Court seize my personal belongings?

Bank accounts, cash, household goods and furnishings, jewelry, clothing, insurance policies, etc. are all classified as personal property.  There are a number of exemptions to protect all of these items for you when filing bankruptcy. Unless you have a unique situation, your personal property should be protected.

Can I keep my Cell phone?

Contracts and/or leases that you are currently in, such as an apartment lease, cell phones contracts, gym membership, storage units, furniture rental, etc. can all be retained as long as you are current with your payments.

Can I keep the furniture I’m still paying on?

Furniture that you are making payments on would be considered a secured debt. As long as you are current on secured debts you will be able to keep them when filing a Chapter 7 bankruptcy. If you are behind you have the option of surrendering that property, getting current before you file a Chapter 7 bankruptcy or filing a Chapter 13 bankruptcy.

How Does a Bankruptcy Affect a Judgment Against Me?

Icon Image of A Orange FlagFirst, let’s discuss what a judgment is. It is important to understand the lawsuit process in order to understand a judgment. When a creditor wants to pursue legal action against you for a debt, they will file a lawsuit against you by filing a “Complaint” or “Civil Summons” against you. In North Carolina, you generally have 30 calendar days to respond the lawsuit, either by filing an “Answer” with the civil court where the lawsuit was filed or by filing a bankruptcy.

If you do not file an Answer or a bankruptcy within the 30 calendar days, the creditor will go to the court and automatically obtain a judgment against you. This means that the creditor has won the lawsuit and has the authority to send the sheriff out to execute the judgment. This means that the sheriff can take any assets or property that you have that has any value to it – anything that the creditor can sell to try to pay off what you owe them.

The thought of being sued and having a judgment filed against you is scary, but the good news is that by filing bankruptcy, you can take care of the lawsuit, the judgment, and the debt owed. The bankruptcy automatic stay will stop the judgment creditor from trying to collect a debt from you. In a Chapter 7 bankruptcy, the debt is eliminated completely. In Chapter 13 bankruptcy cases, you are paying a portion of that debt back through the bankruptcy.

If you own a home, there is a good chance that the judgment has attached a lien to the home. This means that if you ever want to sell your house, you will have to pay off the judgment amount in full before you can sell the house. If you have a judgment lien against your house and you file bankruptcy, a separate motion will need to be filed with the Bankruptcy Court to remove the attachment of the lien to your home.

As you can see, the lawsuit and judgment process is complicated, but the good news is that bankruptcy can help you get out from under the debt. Contact us today to see how we can help you wipe out a judgment through bankruptcy or possibly remove a judicial lien from your property.

Do I Have to Live in North Carolina to File Bankruptcy Here?

It depends. Normally, you must have resided in North Carolina for the greater part of 180 days before you can file a Chapter 7 bankruptcy or Chapter 13 bankruptcy in North Carolina. Under 28 U.S.C Section 1408 of the Bankruptcy Code a person or entity filing a bankruptcy must have resided at least 180 days in the judicial district, or the greater part of the 180 days (91 days) if they were residing in another judicial district.

Are you confused yet?

Generally speaking, you must have resided at least 91 days in the judicial district, such as the Western District (Charlotte area) or Middle District (Greensboro area) of North Carolina before you can file a bankruptcy in this state.

To eliminate this problem, you would normally wait until you had met the residency requirements before you file the bankruptcy. However if you just moved a few days ago to North Carolina from California or another state and you have to file a bankruptcy due to an emergency, you would probably have to file the bankruptcy in the previous state you lived in.

Some judicial districts may allow a resident of one state to file in another state. For example, if you live in Ft. Mill, South Carolina, which is just a mile or two across the North Carolina state line, and you work and shop in North Carolina on a daily basis and have other “connections” to North Carolina, you could probably file the bankruptcy in Charlotte, North Carolina. This is valid only if a creditor does not object to the residency requirements. However, you could not live in Texas and decide to file bankruptcy in North Carolina because you believe the North Carolina laws would be advantageous to you. You would have to file the bankruptcy in Texas.

Also remember even though you may meet the residency requirements to file in North Carolina, you must use the exemptions of the state where you resided two years before you file the bankruptcy. 11 USC 522(b)(3)(A). For example, if you just moved to North Carolina one year ago from Rhode Island you would meet the residency requirements to file in North Carolina, however you would have to use the Rhode Island exemptions to protect your property. (Note: Some states require you use the federal exemptions).

We hope this has helped you to understand the residency requirements to file bankruptcy in North Carolina.

What is the Statute of Limitations for a Nursing Home Abuse and Neglect Case?

If you or a loved one has been injured or severely neglected in a nursing home, the timeframe to seek damages against the facility and staff is limited by law in North Carolina to three years from the last act of malpractice. In other words, you must file a lawsuit prior to the three year deadline or you are forever barred from suing the facility and staff.

It helps to understand how nursing home abuse and neglect cases are viewed by the legal system. A nursing home abuse and neglect case is considered a malpractice case. As defined by the N.C. General Statutes, malpractice arises from the performance of or failure to perform professional services. N.C. Gen. Stat. § 1-15(c) limits the timeframe to three years from the last act of malpractice. Only in extremely rare cases of nursing home abuse and neglect would the timeframe to file a lawsuit be extended to four years from the last act of malpractice.

Therefore, if you believe you or your family member has been a victim of nursing home abuse or neglect, you should seek legal advice as soon as possible. Most attorneys need six months to review the case and obtain the required expert witnesses (usually doctors and nurses) prior to filing a lawsuit.

Who Is A Medical Expert?

Expert witnesses play a vital role in the success of a case at trial. Typically, both the plaintiffs and the defendants will have expert witnesses that testify that either the standard of care was or was not violated. The outcome of a case may depend upon which expert witness the jury believes more. Therefore, having reliable and qualified expert witness that can assist the jury with the evidence is paramount to having a successful outcome at trial.

The role of an expert is to assist the jury in how they understand the evidence in the case. According to the North Carolina Rules of Evidence an expert is, “a witness who has specialized knowledge may be qualified as an expert witness, upon a showing of his specialized knowledge, skill, training, experience, or education, and may testify in the form of an opinion, if that will be helpful to the jury.” N.C.R. Evid. 702(a).

A medical expert comes in many forms. Typically, an attorney will have a medical expert that is familiar with and focuses on a particular practice of medicine. For example, a trial dealing with injuries suffered during birth would likely have an OB/GYN as the medical expert. An injury dealing with the spinal cord would have a neurosurgeon or rheumatologist. A case dealing with the neglect in a nursing home may only need a registered nurse as an expert.

When put in its simplest form, a medical expert is someone who can help the jury understand the medical side of a trial. The best experts are the best educators. Medical experts will usually explain to the jury what the standard of care or usual actions of the medical industry are. This, in turn, allows a jury to determine liability.

What Happens After the Creditor's Meeting?

At your Creditor’s Meeting, the Trustee sometimes asks for additional documents. You will have a specific time frame (usually no later than 15 days) to get these documents in to him or her. These need to be sent certified mail, and also mail a copy of what you are sending to the Trustee to our office. If you have not taken your financial management course already, this needs to be done ASAP! You will need to have that notarized and pay your fee ($8 per person). This needs to be turned in to our office, so that we may file that with the court.


Once you have tied your loose ends with the Trustee and have taken the financial management course online, it is more of a waiting game. Normally a Chapter 7 bankruptcy lasts 4-6 months. Your creditors’ meeting is roughly 30 days after you file, so you can guesstimate yourself another 2-5 months of wait time. A Chapter 13 bankruptcy usually lasts 60 months (5 years), with the creditor’s meeting happening roughly 45 days after you file. In Chapter 13’s, continuation of timely payments is essential to staying in the Chapter 13 bankruptcy and receiving a discharge.

What is a Consent Order?

A Consent Order is an agreement between you (usually written up by your bankruptcy lawyer) and the mortgage company or homeowner’s association to allow you to get caught on any Chapter 13 bankruptcy payments so you can keep your house. There are a few situations to be aware of when it comes to getting together a consent order.

Charlotte Office Clients:
If you filed a Chapter 13 bankruptcy before July 1, 2009, your Chapter 13 payment does not include your monthly mortgage payment(s) on your house. You must make your mortgage payments directly to your mortgage company. If you have homeowner association dues (HOA), you must also make your payments directly to your homeowners association.

If you filed a Chapter 13 bankruptcy on or after July 1, 2009, your mortgage payment is included in your Chapter 13 payment to the Trustee.

Greensboro Office Clients:
Your Chapter 13 payment may or may not include your mortgage payment. If you were behind on your mortgage payments when you filed the bankruptcy, then your Chapter 13 payment will include your mortgage payment. If you were not behind on your mortgage payments when you filed the bankruptcy, then you had the option of paying the mortgage payment yourself or including the mortgage payment in the bankruptcy. If you are unsure, check with your attorney. If you have homeowner association dues (HOA), you must make your payments directly to your homeowners association.

Charlotte and Greensboro Office Clients:
If you fall behind on your mortgage or HOA payments, the mortgage company or HOA will file a Motion for Relief from Automatic Stay asking the court for permission to foreclose on your property. If your mortgage company or HOA files a Motion for Relief from Stay it is very important you contact your attorney immediately. In many cases your attorney can work out a Consent Order with the mortgage company or HOA’s attorney that would allow you to catch up on the payments you are behind. Your attorney cannot work out a Consent Order with the mortgage company or HOA’s attorney without your assistance and agreement on the terms. The Consent Order may give you one last chance at keeping your property. Failure to comply with the terms in the Consent Order will result in the mortgage company/ HOA getting relief from the automatic stay and being able to proceed with foreclosure.

Contact us today for more information on what happens if you get behind on your mortgage payments while in bankruptcy.

Can I Wipe Out Student Loans in Bankruptcy?

Many people wonder whether or not student loans can be discharged in a Chapter 7 bankruptcy or a Chapter 13 bankruptcy. In almost all circumstances, student loans cannot be discharged. The only time a student loan can be discharged is when there is a hardship on the debtor that makes it impossible for him or her to ever be able to pay off the loan.

This does not apply to a debtor that is unable to pay the debt back in a reasonable time, this applies to debtors that have faced some extreme hardship. This means the debtor would have to become completely incapacitated either physically or mentally, or the hardship is such that the debtor is required to be the main caregiver of an immediate family member because of an injury or accident. It is only in very extreme circumstances that a debtor can discharge student loans in a bankruptcy.

In order to qualify for the ability to wipe out student loans in bankruptcy, there would also have to be a hearing to prove the debtor’s hardship. The ability to wipe out student loans because of hardship is not something that is automatic. It should be understood that in almost all bankruptcy cases student loans will not be discharged.

If we can help you file your Chapter 7 bankruptcy or Chapter 13 bankruptcy contact us today.

-David | High Point, NC

“They [Damon and Melissa] go the extra mile to ensure everything is handled properly and that all of your questions are answered. The system they use makes it easy for the client to follow the entire process from start to finish. They are always there to answer questions and help you maintain a positive attitude during a difficult time. We will be forever grateful for their service to us. We highly recommend them to anyone who wants the BEST ATTORNEYS to handle their case.”