Why Do I Have to Take a Credit Counseling Course?

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?

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?

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?

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?

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?

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?

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