Duncan Law - North Carolina Law Firm

Why Do I Have to Take a Credit Counseling Course?

2010-03-07T21:59:00.000-05:00

The courts require that you take a credit counseling course from an approved agency prior to your bankruptcy being filed. This is not a requirement from just our law firm, this is a requirement by the Court.

When the bankruptcy laws were changed in 2005, one of the changes included two course requirements. The first is that you take a credit counseling course prior to filing bankruptcy. You must take the course within 6 months prior to your bankruptcy filing. Another court requirement is that you take the course at least 24 hours prior to your bankruptcy being filed. The course is simple, and there are even approved agencies that allow you to watch a video online to complete the course.

The second change in the 2005 bankruptcy laws was the requirement of a financial management course. This is a different course than the credit counseling. Financial management must be taken prior to the discharge of your bankruptcy. You can also take this course online from an approved agency.

At your free initial consultation, we will explain both of these course requirements in more detail.

To find out more about how Duncan Law can help you, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

Can Bankruptcy Help Me Save My Repossessed Vehicle?

2010-03-05T21:20:00.001-05:00

If your vehicle – car, truck, van, motorcycle, etc. – has been repossessed, you may be able to have it returned to you. If you file a Chapter 13 bankruptcy within 10 calendar days of the repossession, the finance company will usually return the vehicle to you and allow you to make payments within a Chapter 13 bankruptcy. Before the vehicle is returned to you, you will be required to pay the fees resulting from the repossession and provide proof of adequate insurance coverage. In rare cases, the finance company may not voluntarily return the vehicle to you, and you may be required to take additional legal action with the bankruptcy court in an attempt to have the vehicle returned. In these cases, the bankruptcy judge will decide whether the vehicle should be returned to you.

If you wait too late to have the vehicle returned to you or decide you do not want to save the repossessed vehicle, you may want to file a Chapter 7 or Chapter 13 bankruptcy to eliminate the debt from the repossession. Many people do not realize that they are financially responsible for the balance owed on a repossessed vehicle, whether voluntarily or involuntarily repossessed, after it is sold at auction. For example, if you owe $15,000 on your vehicle and it is sold at auction for $8,000, you would be financially responsible for the remaining $7,000. If you qualify for Chapter 7 bankruptcy, it would eliminate the entire $7,000 debt. If you do not qualify for Chapter 7 bankruptcy, you may file a Chapter 13 and eliminate most of the $7,000 debt.

To find out more about how Duncan Law can help you, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

What Happens If I Walk Away From My Home and Don't File Bankruptcy?

2010-03-05T21:12:00.002-05:00

When we have a consultation with a prospective client we do everything we can to explore every option that the client may have. Then, the client decides which direction they would like to head. One of the frequent questions we get is what happens if instead of filing bankruptcy they just give up the house and walk away. The answer to that question really depends upon whether or not you have any equity in your house. Equity is the difference between the value of the house and how much you owe.

Substantial Equity: If you have substantial equity in your house then you may be okay just walking away. Typically what happens is the bank will foreclose on the home after you walk away and sell. According to a MSN Money article, John T. Reed, the Editor of Real Estate Investor’s Monthly, a foreclosed home will sale about 5% below the market average but may be up to 30% or 40% below market value.

If the mortgage company is able to recover the full amount that you owe on the property then you are not likely to owe any more money for the foreclosed home. However, you will still have a foreclosure that appears on your credit report.

Little to No Equity: If you have little to no equity in your home and the bank is unable to recover the amount you owe then you will be responsible for the unpaid balance. In other words, if your foreclosed house sold for $100,000 but you owe $150,000 on the house then you would still owe the bank $50,000. It is unlikely that you will have $50,000 to pay out of pocket so the bank has the ability to file a lawsuit against you and obtain a judgment.

Typically speaking, foreclosed properties will not recover the full amount owed to the bank for the mortgage. Therefore, they will look to you to pay the balance. A bankruptcy has the ability to potentially wipe out this entire balance.

The bottom line: if you still owe money for the mortgage even after the foreclosure sale of your home then you will be liable for those costs. Bankruptcy can usually wipe out that left over balance. If you do nothing they will file suit against you and have a judgment that may attach to your property.

To find out more about how Duncan Law can help you, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

What If My Bankruptcy Has a Motion to Dismiss?

2010-01-30T15:46:00.002-05:00

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.

To find out more about how Duncan Law can help you, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

How Is My Property Protected in Bankruptcy?

2010-01-30T15:25:00.002-05:00

Many people wonder how they will be able to keep or protect their property in bankruptcy. In bankruptcy there are certain laws that can protect your property, and these laws are called exemptions. Exemptions allow you to protect most of your property up to a certain amount of value, or equity. To determine the amount of equity you have in an asset such as a house or a car, use this formula:

Equity = Value of property - Amount Owed

So, if the house or car is worth more than the amount you owe, then you have equity in the property. On the other hand, if you owe more than what the property is worth, then you do not have any equity in the property. It is important to protect any equity you have by using the bankruptcy exemption laws.

For example in regard to your home, there is an exemption that says you can protect up to a certain dollar amount for equity in that house. The same goes for different types of personal property, i.e. your car, household goods etc. There are different types of exemptions for different types of property, and each exemption has a different limit. In a majority of cases most of your property will be protected in the bankruptcy. This is a reason why it is important to fill out the bankruptcy thoroughly and in detail so the correct exemptions can be used to protect your property.

To find out more about how Duncan Law can help you, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

How Does a Bankruptcy Affect a Judgment Against Me?

2010-01-22T09:00:00.000-05:00

If a judgment has been filed against you, then you may want to consider filing bankruptcy. 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. A separate motion will need to be filed with the court to remove the attachment of the lien to your home.

To find out more about how Duncan Law can help you or to schedule a free consultation, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

Do I Have to Live in NC to File Bankruptcy Here?

2010-01-15T09:00:00.001-05:00

It depends. Normally, you must have resided in North Carolina for the greater part of 180 days before you can file 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.

To find out more about how Duncan Law can help you or to schedule a free consultation, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

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

2010-01-14T22:01:00.000-05:00

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.

To find out more about how Duncan Law can help you, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

Who Is A Medical Expert?

2010-01-11T09:00:00.000-05:00

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.

To find out more about how Duncan Law can help you or to schedule a free initial consultation, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

What Happens After the Creditor's Meeting?

2010-01-06T09:00:00.001-05:00

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.

*YOUR CASE CANNOT BE DISCHARGED WITHOUT HAVING THE FINANCIAL MANAGEMENT COURSE FILED 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 and receiving a discharge.

To find out more about how Duncan Law can help you, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

What is a Consent Order?

2010-01-04T10:57:00.000-05:00

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 your Duncan Law attorney for more information on what happens if you get behind on your mortgage payments while in bankruptcy.

To find out more about how Duncan Law can help you, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

Can I Wipe Out Student Loans in Bankruptcy?

2010-01-04T09:39:00.000-05:00

Many people wonder whether or not student loans can be discharged in a 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.

To find out more about how Duncan Law can help you or for a free consultation, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

How to Prevent Nursing Home Injury of a Loved One

2010-01-01T09:00:00.000-05:00

One of the best ways to protect your loved one from abuse or neglect in a nursing home is frequent and unplanned visits to the facility to see the patient. This will allow you to see how care is provided by a number of the staff members at various times of the day and night. And although it is often difficult, a physical exam of the family member can often reveal injuries that have been hidden by clothing or blankets. Unreported cuts, bruises and decubitus ulcers are often discovered by the family member during a physical exam. If the patient has gauze, patches or other coverings of the skin, you should ask why it is there and ask to be present the next time the covering is changed.

Help your loved one by being aware of these signs of abuse and neglect and being attentive to their care.

To find out more about how Duncan Law can help you or to schedule a free consultation, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

What is an ERISA Qualified Plan and Why Do I Need it for My Bankruptcy Case?

2009-12-31T09:00:00.000-05:00

The bankruptcy trustee, who represents your creditors, will probably require that you present him or her with evidence at the creditor’s meeting, showing that your retirement plan with your employer (if you have a retirement plan) is a ERISA qualified retirement plan. ERISA is the abbreviation for Employee Retirement Income Security Act of 1974. This law was enacted to protect your retirement accounts from risky speculation by your employer or plan administrator so that when you retire, your money will be in the account and not lost by risky investments.

Most employer retirement plans are ERISA qualified plans. If the plan is ERISA qualified, or an IRA, the bankruptcy trustee cannot normally seize your retirement money to pay off your creditors. However, a very small percentage of retirement plans are not ERISA qualified and/or are not legitimate IRAs, and therefore are not protected. In this event, if you file bankruptcy, the trustee can take your retirement money. Don’t panic, if you work for a legitimate company, it is very likely that the plan is ERISA qualified or protected from your creditors.

Before you sign the official bankruptcy petition (not the worksheets), it is your responsibility to contact your employer or former employer with which you have the 401K, IRA, retirement plan, and obtain verification from the employer that the plan is ERISA qualified. We suggest you contact the employers personnel/payroll or human resources department for this information. They may refer you to the plan administrator, such as Fidelity or Charles Schwab, etc. for the information. It may take several weeks for them to send you this information, so don’t wait until a few days before the creditors meeting to request this information. Start working on it now!

Usually, you will need for your employer to send you documentation, such as a plan summary. This is the booklet you probably received when you originally signed up for the plan, or a letter on company letterhead from the plan administrator, stating that the plan is ERISA qualified and the dollar amount in the plan.

Do not bring only your quarterly statement your employer sends you. This is unacceptable to the trustee. You may bring the quarterly statement, but you must have the statement, usually called a plan summary, stating the plan is ERISA qualified.

You must have this documentation with you at the creditor’s meeting which will be scheduled approximately 4-6 weeks after you file bankruptcy. If you do not have the documentation, the trustee will usually allow you an additional 10 days to provide this to him/her. If you do not provide this documentation to the Trustee, the Trustee could ask the Judge permission to seize your retirement account and pay your creditors with this money.

In conclusion, make sure your retirement account is ERISA qualified before you file the bankruptcy. If you have any questions contact us at 704-563-1224 if you live in the Charlotte area or 336-856-1234 if you live in the Triad/Greensboro area.

To find out more about how Duncan Law can help you or to schedule a free consultation, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

Signs of Nursing Home Abuse

2009-12-30T09:28:00.003-05:00

Too often nursing home abuse or neglect takes place in a nursing home but is never detected until it is too late.

One of the unfortunate realities about growing old is that your body and mind begin to deteriorate. That is a fact of life. However, the excuses that injuries and conditions are caused by old age are too common in nursing facilities. No matter what someone’s age is they should not suffer the consequences of a staff that fails to provide the care that they are being paid to give.

The best way to protect your loved one in a nursing facility is to stay engaged and active in their care. Don’t ever hesitate to ask questions or demand answers if you believe they are not receiving the appropriate care. However, below are some common examples of nursing home neglect and abuse:

• Rapid loss of weight without a change in medical treatment
• Untouched food on trays that are out of patient’s reach
• Extreme hunger when eating with or fed by family
• Extreme thirst when fluids are provided by family
• Overly medicated, despondent and generally not acting themselves (unless there is a medical reason)
• Suddenly fearful or easily spooked
• Excessive number of or frequent occurrence of cuts, bruises and other wounds
• Frequent hospitalizations
• Hesitancy of nursing home to send your loved one to the hospital
• Hesitancy of nursing home to seek physician opinion when requested by patient or family
• Rarely gets patient out of bed or rarely turns the patient (unless medical condition requires non-movement)
• Lack of safety restraints when sitting in a wheelchair
• Frequent or unexplained broken bones
• Smell or odor coming from the patient may be a sign of bed sores or decubitus ulcers

If you believe your loved one is suffering some form of nursing home neglect or abuse it is important that you contact a nursing home injury lawyer.

To find out more about how Duncan Law can help you or to set up a free consultation, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

What is a Durable Power of Attorney?

2009-12-14T13:21:00.002-05:00

Among the several important life and estate planning documents that most everyone should have is a Durable Power of Attorney document. This document is sometimes called a Continuing Power of Attorney. A Durable Power of Attorney document is one that goes into effect when it is filed and is not affected or rendered ineffective if you later become incapacitated, unconscious, or otherwise unable to communicate your decisions.

A Durable Power of Attorney document is important because it allows you to name a trusted loved one as the person who will make personal decisions on your behalf if you were to become unable to make such decisions on your own. These "powers" generally include personal property transactions, real property transactions, financial accounts, and other general personal situations. You can also add more specific powers if you expect that to be necessary in your future (bankruptcy, etc).

We would be happy to help you in the preparation of your Durable Power of Attorney and other simple estate planning documents. Contact us today to set up your free consultation.

To find out more about how Attorney Melissa Duncan at Duncan Law can help you, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

Can I Buy a Car While I'm in Chapter 13 Bankruptcy?

2009-12-14T13:20:00.000-05:00

Sometimes after a person files a Chapter 13 bankruptcy, unforeseen circumstances occur and your car may become totaled or broken beyond repair. At that point tin time, our clients ask, "Can I buy a car during my bankruptcy?"

The answer to this is generally yes. However, you must obtain approval from your Chapter 13 Trustee in order to finance a car while you’re bankruptcy. The Chapter 13 Trustee can generally approve a credit request for up to $15,000.00.

It’s important that you contact your attorney so he or she can advise you how to proceed. You will need to find a car you want to purchase and obtain the terms of the loan from the lender/dealership. It will be necessary for your attorney to update your monthly income and expenses prior to submitting the request for credit authorization to the Trustee. You need to be able to show the Trustee that you can afford your Chapter 13 plan payment and a new car payment.

Your attorney will submit a credit authorization request form to the Trustee, with the terms of the loan, including the amount of the loan, the interest rate and the monthly payment. It can take up to ten (10) days for the Trustee to approve the request. Once you have final approval from the Trustee, the car can be purchased.

To find out more about how Duncan Law can help you, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

What is the Standard of Care?

2009-12-07T20:29:00.002-05:00

What is the “standard of care” in a medical malpractice case in North Carolina? Many people have asked us this question at Duncan Law.

In North Carolina to be successful in a medical malpractice action, you must prove to a jury or judge that the defendant healthcare provider deviated from or violated the standard of care. This is usually done by testimony of an expert witness, usually another healthcare provider in the same specialty as the defendant healthcare provider. The North Carolina legislature has defined the standard of care in North Carolina General Statute 90-21.12. The law states:

“In any action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other healthcare, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such healthcare provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to this cause of action."

You are probably asking what does all of this legal jargon mean?

Basically, the law states that a doctor, dentist, nurse, etc. must act within the same standards as other persons in their profession within the same or similar community at the time of the alleged medical malpractice action. In other words, a heart surgeon should practice and use the same guidelines and procedures as other heart surgeons in similar communities. As an exaggerated example, all heart surgeons do not use chain saws to open a patient’s chest. If a heart surgeon were to use a chain saw and injure the patient, then that doctor would had violated the standard of care. He should have known the use of the chainsaw was not within the standards for heart surgeons.

I have had many clients express to me that if there was a bad outcome for a medical treatment then the doctor must had made a mistake and therefore violated the standard of care. Not necessarily!

An example- sometimes patients are put under anesthesia and they never wake up and die. Did the anesthesiologist violate the standard of care by allowing the patient to die? The key question will be did the anesthesiologist do anything different under the same conditions and circumstances as another different anesthesiologist would had done? Sometimes, under no fault of anyone, patients have a reaction to the anesthesia and die. This would not necessarily be a violation of the standard of care. However, if the anesthesiologist forgot to turn on the oxygen for the patient and the patient died from lack of oxygen, then the failure to turn on the oxygen for the patient is a violation of the standard of care and the anesthesiologist probably committed medical malpractice.

We hope this helps you in understanding the requirement of deviating or violating the standard of care in North Carolina that is required for a successful medical malpractice case.

To find out more about how Duncan Law can help you, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

Can I Wipe Out Alimony or Child Support in Bankruptcy?

2009-12-02T16:20:00.000-05:00

Unfortunately, alimony and child support cannot be wiped out in bankruptcy. Alimony and child support are considered "priority" debts that must be repaid. In other words, the bankruptcy laws view alimony and child support as very important debt that one cannot just wipe out with a bankruptcy.

However, if you are behind on your alimony or child support payments, bankruptcy can be helpful for you. If you are behind and have been threatened to go to jail, you could file a Chapter 13 Bankruptcy, which is a repayment plan. In a Chapter 13 bankruptcy, you repay a portion of your debts over a period of three to five years. At the end of your bankruptcy, you will no longer owe any unsecured debt (credit cards, medical bills) and will be caught up on any debts that you were behind on.

A Chapter 13 bankruptcy is helpful for a person who is behind on alimony or child support payments because it helps you get caught up on your payments and will avoid any potential jail time. Other than a Chapter 13 bankruptcy, however, you cannot wipe out alimony or child support in bankruptcy.

To find out more about how Duncan Law can help you, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

Example Timeline for a Nursing Home Abuse/Neglect Case

2009-11-20T09:30:00.000-05:00

Many people who are considering pursuing a lawsuit against a nursing home on behalf of a loved one are curious as to how long a lawsuit will last. Civil lawsuits can be complicated but the Attorney will be doing most of the work on your behalf. You will have to gather certain documents and appear at mediations and court. Here is an example of a possible timeline for a nursing home abuse case. Remember, though, that no two cases are ever the same.

• Day 1 – Patient and/or family meet with Attorney to discuss the case.

• Days 2 – 90 – Once the Attorney agrees to accept your case, an expert in the field of nursing home administration, nursing and/or a physician are usually hired to review the case and determine that the standard of care has been violated. An expert or experts must be retained to testify in a nursing home abuse and neglect case prior to filing a lawsuit in North Carolina.

• Days 91 – 120 – Lawsuit is prepared by the attorney.

• Day 121 – Lawsuit is filed with the Court.

• Days 122 – 240 – Discovery occurs in the case. This provides both the parties in the case an opportunity to question the other sides’ experts as well as any witnesses in the case.

• Day 241 – Mediation is scheduled. This brings the parties in the nursing home abuse and neglect case along with a third-party mediator together to review and attempt to settle the case. Often the case will not be settled at mediation.

• Day 280 – Case will be tried in front of a jury. The length of the trial may vary from 3 days to two weeks.

It is important to understand that no two nursing home abuse and neglect cases are the same. Some cases are more complicated and will take much longer to get to trial. In addition, the number of pending lawsuits in each county in North Carolina varies and will impact how long it takes to get a case to trial. As a result, the timeline associated with a nursing home abuse and neglect case varies from approximately 10 month to over two years.

To find out more about how Duncan Law can help you, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

What To Do If You Suspect Nursing Home Abuse or Injury

2009-11-18T14:15:00.000-05:00

Unfortunately, all too often, our loved ones are injured or neglected while in a nursing home or assisted living facility. Nursing Homes often times are understaffed and are unable to provide the resources necessary to protect our loved ones. These insufficiencies naturally lead to preventable injuries and even deaths.

Our firm has seen too many cases where elderly loved ones have suffered from fractured bones, dehydration, urinary tract infections, sepsis, sexual assault and other injuries due to the neglect or abuse of nursing home employees. The Department of Health and Human Services Centers for Disease Control and Prevention estimate that 1,800 people die every year in nursing homes due to fall-related injuries.

If you believe that a loved one is being neglected or abused while in the care of a nursing facility then there are certain steps that should be taken:

First, if appropriate, contact local law enforcement to notify them of the abuse and neglect.

Second, contact your local Department of Social Services and follow the process that they will lay out.

Third, after contacting the appropriate authorities, a nursing home abuse and neglect attorney may be able to help you pursue further courses of action against the nursing home.

In addition to taking these steps it is always a good idea to take good notes of what is occurring, who you have spoken to, their responses, and actions taken. Be sure to include dates and times of the day. Also, pictures of the injury caused by the neglect of the nursing facility are always helpful.

To find out more about how Duncan Law can help you or to schedule a free consultation, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

What is a Healthcare Power of Attorney?

2009-11-18T14:09:00.000-05:00

A Healthcare Power of Attorney is an important document for individuals and couples of all ages to have prepared. In the event you become ill or otherwise unable to make your own medical decisions, a Healthcare Power of Attorney is a document that names one or two of your trusted loved ones as the person (or people) you give authority to be able to make medical decisions on your behalf.

A Healthcare Power of Attorney can be a complicated document, so it is important to seek legal advice if you decide to have a Healthcare Power of Attorney prepared. The document allows you to decide who can make important medical decisions on your behalf, such as:

Choosing your hospital and/or doctor's office
Choosing your doctor(s)
Approving medications on your behalf
Approving procedures on your behalf
Providing your medical history to your healthcare providers

Individuals who become ill or get into serious accidents and are unable to make these decisions often cause bitter arguments among loved ones if a Healthcare Power of Attorney has not been prepared. By making sure that you have prepared a Healthcare Power of Attorney and other important documents, you can ensure peace of mind for both yourself and your loved ones should you ever become ill or otherwise incapacitated and are unable to speak to your doctors and/or make your own medical decisions.

To find out more about how Duncan Law can help you or to schedule a free consultation, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

Is Social Security Income Protected in Bankruptcy?

2009-11-18T13:57:00.000-05:00

Many of our clients are currently receiving social security payments on a monthly basis as their sole source of income. A concern for many people is whether those social security payments will be protected in the bankruptcy.

Luckily, social security payments are almost always protected in bankruptcy as long as you disclose those payments to us in the beginning.

You may have also heard about the Means Test. Fortunately, social security income does not count towards income for the Means Test calculations. However, your social security income will be included in the calculations regarding your projected future income.

To find out more about how Duncan Law can help you, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

Can I Sell My House During My Bankruptcy?

2009-11-12T10:35:00.000-05:00

Sometimes, especially during Chapter 13 bankruptcy, a person decides they would like to sell their house during their bankruptcy. The big question that they ask is: Am I allowed to sell my house during bankruptcy?

The answer to this question is yes, however, you must get Court approval before selling the house while in a Chapter 13.

Also, if you are considering selling property, other than your house, that is listed in your bankruptcy, it is very important that you discuss this with your attorney, as each case is different.

In order to sell your house, your attorney will need to file a Motion to Sell with the Court. The Motion to Sell lets the Court determine what happens to the proceeds from the sale of the property, makes sure that the terms, conditions and expenses of sale are reasonable.

Before your attorney can file the motion with the Court, you will need to put the house on the market. Once you have received and accepted an offer, you must contact your attorney's office and provide them with a copy of the contract between you and the buyer, so they can file a Motion to Sell with the Court. It typically takes about 30 days from the date the Motion is filed until permission is granted.

Contact your attorney for more specific advice on selling property during bankruptcy.

To find out more about how Duncan Law can help you, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234

Can Taxes Be Wiped Out in Bankruptcy?

2009-11-11T16:22:00.000-05:00

Many people considering filing bankruptcy have late or back taxes and want to know if these taxes can be discharged in the bankruptcy. The most important thing regarding taxes and bankruptcy is that you must have filed all of your taxes before you file your bankruptcy. Even if back tax payments can be discharged, they will not if you have not yet filed those taxes. There are certain rules as to which taxes can and cannot be wiped out in the bankruptcy.

First, with a Chapter 7 bankruptcy, where most unsecured debts are discharged, taxes that have been filed but not paid can be discharged if it has been at least three years since the tax return was due. It is key that all of your taxes for the last four years have at least been filed, even if you have not paid the government for back taxes.

Any unpaid taxes for the past 3 years cannot be discharged in a Chapter 7 bankruptcy.

In a Chapter 13 bankruptcy you cannot discharge back taxes. A Chapter 13 is a repayment plan for all of your debts including taxes. Any taxes that you owe to the government will be listed as a creditor in your Chapter 13 plan and you will pay back those taxes over the time that you are in the Chapter 13 bankruptcy. Once again you still must have filed all of your taxes for the last four years. If you complete your bankruptcy and continue to pay your current taxes, you should be caught up with all back taxes when you complete your plan.

To find out more about how Duncan Law can help you, visit our website.

Duncan Law, PLLC

Charlotte Office:
4801 E. Independence Blvd.
Suite 1100
Charlotte, NC 28212
704-563-1224

Greensboro Office:
628 Green Valley Road
Suite 304
Greensboro, NC 27408
336-856-1234