How is a Property Tax Lien Handled in Bankruptcy?

House with a young family in front of itThere are two types of tax liens:  property tax lien and income tax lien.  Both liens have an impact on your bankruptcy, but the treatment may be different.  The treatment is also dependent upon the type of bankruptcy you file, Chapter 7 bankruptcy or Chapter 13 bankruptcy.  In this blog, we will discuss how a property tax lien is handled in your bankruptcy.

If you own real or personal property, the city or county in which you live will most often levy taxes based on the value of the property.

Real property includes houses, condominiums, townhouses, land, etc.  Taxes on real property is a lien and attaches to the property.  As a result, the taxes must be paid in full or the city or county taxing entity may foreclose on the real property.  In almost all jurisdictions, the city or county tax lien is in first position to be paid and even has priority over the first mortgage on the property.

Personal property includes automobiles, motorcycles, trailers, assets of businesses, etc.  Taxes on these items are a lien on the assets themselves, but in most jurisdictions, the lien can be attached to any real property you own as well.

Now that there is a general understanding of what is included in real and personal property, let’s understand the impact bankruptcy has on these taxes.  It is important to understand that property taxes cannot be discharged in bankruptcy and that you are legally responsible for the taxes until the asset is no longer in your name.

Chapter 7 Bankruptcy:

If you are filing a Chapter 7 bankruptcy, you will be held responsible for any taxes that have been assessed against you.  If you are surrendering a house in a Chapter 7 bankruptcy, the taxes will be assessed against you for as long as you are the legal owner of the property.  The property legally belongs to you until it is conveyed to a new owner by purchase, foreclosure, deed in lieu of foreclosure, quit claim deed, etc.   Although these taxes are assessed against you, often it is not necessary to pay them since the taxes are a lien on the property and will be paid at the time the property is conveyed to the new owner.  For example, if the house is surrendered in bankruptcy, the taxes will be paid by the mortgage company when the property is foreclosed on.  If you are surrendering a vehicle in a Chapter 7 bankruptcy, you will incur taxes until the taxing entity has noted you are no longer the owner of the property.  You should contact your local taxing authority to determine the proper procedure for notifying them that you are no longer the owner of the vehicle.  In some cases this means surrendering the license plates on the vehicle or it may means showing that the title of the vehicle has been legally transferred to another person or entity.

Chapter 13 Bankruptcy:

If you are filing a Chapter 13 bankruptcy, the taxes on real or personal property owed on the date of bankruptcy filing will be included in the Chapter 13 bankruptcy payment.  This would include any taxes due and payable as of the date you file bankruptcy.  For any taxes incurred after the date of bankruptcy filing, you will need to pay those taxes directly to the taxing entity; they will not be paid in your bankruptcy.  For example, if you have not paid last year’s $200 personal property tax assessed on your vehicle, it will be included in your monthly Chapter 13 bankruptcy payment.  However, any taxes assessed in the future will be your responsibility, and you should make a direct payment to the taxing entity.  The same would apply to taxes due on a house or land if the taxes are not escrowed into your monthly mortgage payment.

You should speak with your attorney to clarify any questions regarding tax liens and tax payments on real or personal property.

What is the Impact of Bankruptcy On Getting Financial Aid For School?

I’ve filed for bankruptcy and now I want to go back to school. I need a loan to be able to do this. Can I still get a student loan?

Filing for bankruptcy should not affect your ability to get students loans that are federally funded.  As long as any other student loans that you may have are not in default and are being paid back, a student typically should not have any trouble getting any new federal student loans because of the bankruptcy.

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Privately backed student loans are a different story. Private student loans typically take your credit into consideration so that may make them more difficult to obtain after having filed for bankruptcy. But it is still possible to obtain private student loans after filing. They do look at your previous credit, but having a bankruptcy on your credit is not the only determining factor. The lenders will typically looks at more than just that. If a parent has gone through bankruptcy and the child is applying for a private student loan, then it is only the child’s credit history that is being looked at. One way that there might be a problem with getting this loan is if the parent is required to co-sign for it and they have filed bankruptcy before.

We understand that after filing bankruptcy you, or your children, may want to go to school to further their education. Most student loans are “need based”. This means they are based on your income each month. Filing bankruptcy obviously does not increase your income (although it may increase your disposable income). Therefore, you would still be eligible for students loans despite your bankruptcy filing.

Must I Disclose Gambling Income and Losses in Bankruptcy?

If you file bankruptcy, gambling income for the current year and the two previous calendar years must be disclosed on your bankruptcy filing.  Gambling losses incurred in the past twelve months must also be disclosed on your bankruptcy.

The Internal Revenue Service (IRS) considers earnings from gambling as income and they are taxable.  Per the IRS, earnings from gambling includes winnings from lotteries, raffles, horse races, and casinos.  It also defines income not only as cash winnings but also the fair market value of prizes such as cars and trips.  Similarly, the bankruptcy code requires you to disclose the earnings on your bankruptcy.

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Losses from gambling must also be disclosed on your bankruptcy filing.  These losses are often scrutinized by the bankruptcy Trustee assigned to your bankruptcy case.  If large sums of money have been withdrawn from your bank account and you indicate it was lost gambling, you may be asked to provide the receipts from the casino, track or other venue where you gambled the money.  If it is in a location away from your home, you may even be requested to provide the hotel receipt or voucher.  With today’s technology, it is easy to determine the exact date and time you were at the venue and how much you won or loss while gambling.

If you took cash advances on a credit card, especially in the months leading up to your bankruptcy filing, and used those funds to gamble, the credit card company may question whether those charges on the credit card can be discharged or eliminated in bankruptcy.  In other words, the credit card company may argue the money was not spent on necessities but a frivolous activity.  They may also argue that you knew in advance you would be filing bankruptcy, so you decided to take your chances and gamble with “their money”.  And if you lost, you planned to eliminate the debt through bankruptcy.  As a result, they may object to the discharge of these debts in bankruptcy and you may be required to pay the money back to the credit card company.

As a result, it is important to speak openly and honestly with your bankruptcy attorney about any gambling income and losses you may have incurred in the past year.  Otherwise, you may find yourself owing money you otherwise thought could be eliminated in bankruptcy.

Should I Tell My Creditors I’m Planning on Filing Bankruptcy?

Blue Credit CardThis is a personal decision and will depend on your comfort level and how quickly you plan on filing for bankruptcy.

There is no predicting what a creditor’s action will be when you notify them of your intentions of filing.  They may try to work with you to create a different pay schedule or even offer a settlement. However, beware – forgiven debt is considered income and you will receive a 1099 that will need to be claimed on your taxes.  Worst case scenario, they send your account to their lawyer to begin legal proceedings. If you plan on filing bankruptcy soon then that will not be a problem.

If you are going to tell a creditor you are filing, please make sure you do plan to file.  Also, do not give out attorney information unless you are absolutely positive you are filing and will be using that attorney.  Once you provide an attorney’s name to a creditor they will usually stop contacting you; once you actually file the bankruptcy they are required to stop contacting you due to the automatic stay that goes into affect.  If you are still interested in a settlement, be sure to check with your attorney and see if they will plan to participate in negotiating a settlement.

Typically, we encourage people to tell creditors they are filing bankruptcy if they are expecting to file the bankruptcy within 60 days. This will help stop the creditor phone calls and harassment.

Can I Take Out A 401(k) Loan After Filing Chapter 13 Bankruptcy?

Bankruptcy QuestionsAs long as your 401(k) is ERISA qualified and was exempted (protected) in your bankruptcy petition, you can most likely take a loan against the account while in an active Chapter 13 bankruptcy. However, you MUST get the court’s permission!

When you are filing for bankruptcy, one of the top concerns is to protect your assets.  There are federal and state exemptions available to protect any equity or funds in your possessions.  A 401(k) plan is a common account that should be protected from the bankruptcy creditors.  Through the case of Patterson vs. Shumate, there is no limit to the amount that may be protected under this exemption as long as the plan or account is ERISA qualified (Employee Retirement Income Security Act of 1974).  You will need to provide documentation proving the plan is ERISA qualified, such as a copy of the plan summary that includes the ERISA statement.

To obtain a loan from your 401(k) while in a Chapter 13 bankruptcy you must get the court’s permission. Your bankruptcy lawyer can do so by filing a Motion to Incur Debt. You would have to appear in front of the judge to get the judge’s permission. The judge will usually grant permission to pull from your 401(k) loan if you can provide a good reason for why you need the money. This, typically, needs to be something that is a necessity, not just a “want”. An example of this may be if you need money to purchase a vehicle after another one has broken down or if you need money to pay medical expenses that were incurred after the filing of the bankruptcy. Discuss this with your bankruptcy lawyer before starting the loan withdrawal process.

What If I Move During My Bankruptcy?

Your mailing address is very important while you are in an active bankruptcy.  Your attorney as well as the Trustee and/or Bankruptcy Court, send you important documents during your bankruptcy for a number of reasons, such as updating you on the status of your case or sending you your final decree which lets you know your case is closed.

Young Family in their New Home

In a Chapter 7 bankruptcy, from your filing date, you will receive your Final Decree within 4 to 6 months.  As long as you have a mailing address that will remain the same during that time period, there should not be an issue.  However, in a Chapter 13 bankruptcy, it will be 3 to 5 years before you receive your final decree.  Therefore, it may be more likely for you to switch residences.  You should notify your attorney of your updated address, so they may file a notice of address change with the bankruptcy court. This is important because it will ensure that you receive important and time sensitive information from the bankruptcy court.

Also, please be aware that if you are selling your home, you must request permission from the Bankruptcy Court to transfer that property while in an active bankruptcy, regardless of which chapter you file.

Can I Purchase a Vehicle in a Chapter 13 Bankruptcy?

The short answer is yes.  However, there is a bit of a process behind purchasing a vehicle in a Chapter 13.  First, your budget needs to be reviewed.  This requires your bankruptcy attorney to review your income and your expenses to make sure you can afford to have an extra payment in your budget.  Once it has been established that you are able to make a new car payment, a request to purchase a car must be made to the Bankruptcy Court.  This is done through a process called a Motion to Incur Debt.

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After your bankruptcy lawyer files the Motion to Incur Debt the bankruptcy judge will evaluate your situation to make sure that you can make the monthly payments without any problems. If there are problems, they will deny your ability to get financing for the vehicle. It is the judge’s job to make sure that you do not incur new debt and end up in the same situation that caused you to file bankruptcy in the first place.

What if you plan to buy a car without financing?  You will still need to obtain permission; additionally, you will need to explain where the lump sum of money came from.  It is always best to discuss this possibility with your attorney first to remove any possible issues that may arise from the access of extra money.

What is the Necessities Doctrine?

Do you remember your wedding day?  Think back to your vows you made to one another, especially “through sickness and in health.”  When you promise to spend your lives together, you are also promising to provide and support the other person, making sure all their needs are met and expenses paid. These needs are recognized under state law as necessaries, which include, but are not limited to, medical bills.  Under North Carolina law, medical bills incurred during a marriage are considered the responsibility of both spouses.  If you find that the majority of your debts are medical bills and the expenses were applied during your marriage, both spouses should consider filing bankruptcy to avoid any further responsibility to the debt and creditor.

Elderly Couple Happy Together

What if you are separated?  As long as you can prove that you were legally separated from your spouse at the time services were rendered, then the necessities doctrine should not apply.  To avoid confusion or personal responsibility of an ex-spouse, it is wise to provide the legal paperwork proving you are separated from each other before services and expenses were occurred.

The necessities doctrine is important in the world of bankruptcy because even if one spouse files bankruptcy, if there are significant medical bills, a creditor can still come after the other spouse to pay those medical bills. We always encourage a married couple where one, or both, of the spouses have significant medical bills to both file bankruptcy. This ensures the debts are completely wiped out and cannot be collected by a creditor.