Duncan Law Blog

What Types of Debts Cannot Be Wiped Out in Bankruptcy?

Oct 22, 2010 No Comments by

.

Whether filing for a Chapter 7 bankruptcy or Chapter 13 bankruptcy, there are certain debts that you may not discharge when filing your petition.  These debts include the following:

Federal taxes and state taxes are typically not wiped out in bankruptcy. Any type of lien issued by the government is not eligible to be discharged through the bankruptcy.  We will include your debt in the bankruptcy petition so that the State of Federal authority will be notified of your filing.  It is your responsibility to contact the IRS or State to make payment arrangement.  If you fail to pay your current tax bill or repay your back taxes, the State or IRS would likely put a lien on your home or another asset that you own.  However, there are certain times where taxes may be wiped out. However, it is very rare that you will be able to have taxes wiped out.

.

Government loans such as federal student loans cannot be discharged through bankruptcy and must be paid back, in full, to the agency that issued the loan.

.

Bills in Mailbox

Court ordered domestic support obligations may supersede the Bankruptcy filing.  For instance, if you have a court ordered child support or alimony payment already in place with the Court, this payment is not a viable debt to be discharged in bankruptcy.  If you fail to make these payments, the Court may garnish your wages in order to collect the debt.

Any debts incurred AFTER you have filed your bankruptcy petition may not be wiped out. You may not incur additional debt and then contact your attorney requesting that the debt be added to your bankruptcy filing.  This is fraud and could result in further legal action.

Debts incurred within ninety (90) days of filing your petition are closely scrutinized by the Bankruptcy court and may not be eligible for discharge with your Bankruptcy filing if they are deemed to be fraudulent. If you go out and purchase items on a credit card, knowing that you were then going to file bankruptcy, the debts will not be wiped out.

Bankruptcy, Bankruptcy Video Vault, Chapter 13, Chapter 7, Duncan Law Blog, Video Read more

Can My Employer Fire Me If I Can’t Work After Being Injured?

Oct 15, 2010 No Comments by

Your employer must attempt to find alternate work for you if you are injured on the job.  In the event your injury is to an extent you cannot perform a job position offered by your employer, you are usually sent home with restrictions and you will receive a weekly workers’ compensation benefit check from your employer’s insurance company until your employer can find a job in which you can perform within the restrictions set by your doctor.

StethoscopeYour employer cannot terminate or fire you from the job due to your inability to perform the job due to your injury.  However, be aware that some employers will try to force you to resign from a job.  For example, your doctor may have ordered that you cannot stand on your feet for over ten minutes at any given time.  Your employer, in an attempt to get you to quit, may place you sitting on a stool all day long and have you count the number of people that walk through the office door.  Eventually you will become so bored with sitting on the stool every day for many days you will get up and walk out the door and quit the job.  Don’t do this because it could affect your benefits. Many employers may try to play these psychological “games” with you.

Despite that, an employer can terminate your job position.  For example, business is bad and the employer cannot support your job position – they may eliminate that position if done so for the benefit of the business. However, they would likely need to get rid of all similar positions as well. In other words, if you are an assistant manager, they would likely need to dissolve all assistant manager positions – not just yours.

Again, your employer cannot fire you simply because they do not have a job for you to perform due to your injury. Instead, they would need to find suitable job tasks that fall within the medical recommendations of your doctor.

Duncan Law Blog, Workers Compensation Video, Workers' Compensation, Workers' Compensation Read more

Do Workers’ Comp Laws Protect Independent Contractors in North Carolina?

Oct 13, 2010 No Comments by

The short answer is no, an independent contractor is not covered by Workers’ Compensation laws in North Carolina.  However, the answer really depends on the situation.  If the independent contractor is:

performing the functions of an employee,

taking guidance and direction from the employer,

has his or her hours set by the employer,

working for no other employer, and

basically acting as an employee

then the North Carolina Industrial Commission may view this person as an employee rather than an independent contractor.  As a result, this person may be covered by the Workers’ Compensation Act in North Carolina.

North Carolina Flag

An independent contractor who has multiple “employers” or clients, sets his/her own hours for work, and performs the job independent of the client employer will most likely not be covered by the Workers’ Compensation Act in North Carolina.

Examples are often the most helpful.

Probably “employee” – A person is hired as an independent contractor to enter data.  This person is given specific hours to work, takes direction from a supervisor within the company, and attends training classes for the company.  This person will most likely be considered an employee by the North Carolina Industrial Commission.

Independent Contractor – A person is hired to enter data.  The person decides the hours of the day they work.  The person provides the services from their home and/or the employer’s office.   The person takes limited or no direction from the employer as long as the job gets completed.  This person will most likely be considered an independent contractor by the North Carolina Industrial Commission.

Independent contractors are not specifically defined by the North Carolina Industrial Commission, however, employees are defined by North Carolina General Statute, Section 97-2 of the Workers’ Compensation Act.   The term “employee” means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also minors, whether lawfully or unlawfully employed, but excluding persons whose employment is both casual and not in the course of the trade, business, profession, or occupation of his employer.”

Obviously each case must be reviewed carefully to determine if the employer-employee relationship exists for purposes of determining whether there is a Workers’ Compensation claim.

Duncan Law Blog, Workers' Compensation Read more

Can My Chapter 13 Bankruptcy Payment Change?

Oct 11, 2010 No Comments by


The bankruptcy law allows Chapter 13 bankruptcies to last anywhere from three to five years. If you are required to file a Chapter 13 bankruptcy because you do not pass the Means Test, then your Chapter 13 repayment plan is required to be for 60 months, unless you can afford to repay 100% of your unsecured debt in less than 60 months.

Often, Chapter 13 bankruptcy debtors are apprehensive of their Chapter 13 payment for fear that over the course of three to five years, their job situation may change. It is common for people to ask, “Will my Chapter 13 payment change during my bankruptcy?”

There are two ways to answer this question:

1) Whether your Chapter 13 payment will increase during your bankruptcy, and

2) Whether your Chapter 13 payment will decrease during your bankruptcy.

Bankruptcy Questions

First, let’s discuss whether your Chapter 13 payment will increase during your bankruptcy. The bankruptcy Trustee has the ability to examine your pay stubs, bank statements, and tax returns at any time during your bankruptcy. Usually, the Trustee will do a review of your case annually. If, for example, you receive a major pay increase during your bankruptcy, the Trustee may increase your plan payments to reflect your new income. Sometimes, your Chapter 13 payment is arbitrarily increased by the Trustee to ensure that enough money is being paid for the Trustee to pay all of your secured debts (house, car, furniture, etc).
Now let’s discuss whether your Chapter 13 payment will decrease during your bankruptcy. If your pay decreases significantly, it is sometimes possible to file a motion with the court to modify your plan payments. Your attorney will be able to discuss your options with you if you suffer a job loss or a major pay decrease. Whether a plan payment can be decreased depends on the specific facts of the case – for example, how much debt is owed, how much is owed to secured creditors, how much is owed in taxes, etc.

The bottom line is that you are usually not locked into your Chapter 13 payment – if your income significantly increases or decreases, there is a chance that your Chapter 13 payment can or will be modified to reflect the change in income. However, you will need to speak with your bankruptcy attorney about the specifics of your case.

Bankruptcy, Bankruptcy Video Vault, Chapter 13, Duncan Law Blog, Video Read more

Do All Employers Need to Provide Workers’ Compensation Insurance?

Oct 08, 2010 3 Comments by

In short, it depends. According to North Carolina General Statute §§ 97-2(1)97-2(3)97-93 an employer must carry workers’ compensation insurance if:

Three or more employees regularly employed in the same business or establishment, or

One or more employees employed in activities which involve the use or presence of radiation, or

If providing agriculture or domestic services, 10 or more full?time nonseasonal agricultural workers regularly employed by the employer

Laptop Computer

This is to ensure that if an employee were to be injured on the job then the insurance company could handle the cost, therefore limiting the risk of the employer being insolvent and not being able to pay for treatment.  This also ensures that the employee will receive compensation for their treatment sooner.

However, there are some exceptions to this rule.  One of these exceptions is when there is an independent contractor working for an employer.

Since an independent contractor is not an employee, the employer does not have to provide workers’ compensation insurance for them.  Since, technically, they are not an employee, the North Carolina Industrial Commission does not have jurisdiction over this relationship.  The definition for employee is defined by North Carolina statute §97-2, but there are some easy ways to determine if you are an employee or an independent contractor.  The first of these would be to look at the kind of tax form you receive.  If you are receiving a W2 then you are most likely an employee, if you are receiving a 1099 then you are probably an independent contractor.  Also do you get paid overtime or certain hourly wages? Do you wear a uniform that the owner of the business has required you to wear? These are all helpful ways to determine if your “employer” must have workers’ compensation insurance  in case you are injured on the job.

Duncan Law Blog, Workers' Compensation Read more

How Are Workers’ Compensation Benefits Determined?

Oct 07, 2010 No Comments by

.

Workers’s compensation benefits are determined by a variety of factors.  One of the first questions is whether the injured worker is able to return to their job?  When a worker is injured on the job they are sent to a physician to determine the extent of their injury.  The physician may allow the worker to return to work and they will receive their regular salary as they perform their regular work duties.

On the other hand, the physician may determine the employee cannot work their regular job and may allow the worker to work, for example, only 20 hours per week.  If they are seriously injured, the physician may not allow them to return to the job until they reach what is known as “maximum medical improvement” or “M.M.I.”.  If the worker is unable to work their full schedule or a partial schedule, the employer’s workers’ compensation insurance company must compensate the injured worker’s benefits, such as salary, the worker would had received if they had not been injured.

Normally, the injured worker receives two-thirds of their average weekly wages lost due to the injury. The worker usually receives a weekly paycheck from their employer’s workers’ compensation insurance company to compensate the worker due to the lost time because of the injury.

Doctor Examining an X-Ray | Workers' Compensation

You may ask why only two thirds of the average weekly wages?  The general consensus is if the worker is receiving “full” benefits or 100% of their usual income, the worker would have no “incentive” to return to work.  Also the worker does not have to pay transportation cost or wear and tear on a vehicle if they are at home injured. Therefore, the North Carolina Industrial Commission has ruled that two-thirds of the worker’s salary is fair compensation.

The worker should receive these benefits until they are allowed, by the physician, to return to work or until a settlement is reached with the insurance company of the employer.

If you have been injured while at work it is important to contact a North Carolina workers’ compensation lawyer immediately.

Duncan Law Blog, Video, Workers Compensation Video, Workers' Compensation Read more

What Should I Wear to My Bankruptcy Creditors’ Meeting?

Sep 29, 2010 No Comments by


After filing for bankruptcy you will need to attend a creditors’ meeting. The creditor’s meeting, or 341 meeting (because it’s under Section 341 of the Bankruptcy Code) is a meeting with the Bankruptcy Trustee. The Bankruptcy Trustee is the representative for your creditors. However, creditors also have the right to attend this meeting as well. Despite this, creditors will rarely show up. The Trustee will ask you some different questions about your bankruptcy case. Don’t stress over the creditors’ meeting – your bankruptcy lawyer should help prepare you.

One of the frequent questions we get from our clients when discussing what happens at the creditors’ meeting is what type of clothing to wear. Do you need to “dress up” for your creditors’ meeting? No!

Bankruptcy Questions | Duncan Law, PLLC

We always tell our clients to wear whatever they would wear on a typical day. There is no need to wear a suit to the creditors’ meeting just for the sake of getting dressed up. However, if you wear a suit to work every day then wearing a suit to your creditors’ meeting isn’t a problem either. Usually the creditors’ meetings only last a couple hours or so. Therefore, most people will go back to work after their creditors’ meeting. So just wear whatever you would typically wear to your place of employment.

With that said, we do encourage clients to obviously dress respectfully and appropriately. Men should make sure that they wear their pants around their waste, have sleeves on their shirts and they shouldn’t wear a hat or anything on their head unless they do so for spiritual purposes. Women will want to make sure that they don’t wear low cut blouses or especially short skirts or dresses. It really comes down to using common sense. If you wouldn’t wear it to church or around family – don’t wear it to court or your creditors’ meeting.

Finally, we always encourage our bankruptcy clients to dress in layers. Anytime you have a large group of people in one place, the temperature will never be just right for everyone. If you dress in layers you can easily add clothing if the room is cold or you can remove some of those layers if the room is warmer than your preference.

Again, there is no need to get dressed up for your creditors meeting. However, make sure you use common sense and dress in layers. Best of luck at your creditors’ meeting!

Bankruptcy, Bankruptcy Video Vault, Creditors Meeting, Duncan Law Blog, Video Read more

What Injuries are NOT Covered by Workers’ Compensation Laws?

Sep 27, 2010 No Comments by

North Carolina Workers' Compensation Lawyers | Duncan Law, PLLCThe first question to ask is whether your employer falls under the Workers’ Compensation Act.  Generally speaking, an employer with three or more employees is required to carry workers’ compensation insurance.  As a result, if your employer has only two employees, they are most likely not required to carry workers’ compensation insurance and any injury you sustain would not be covered under workers’ compensation.  However, it will depend on the structure of the legal entity of the business and they type of business, so this number may be more or less.

You must also be an employee to receive workers’ compensation benefits.  Contract “employees” or independent contractors are not covered by the workers’ compensation act, so an injury incurred while working as a contract “employee” may not be covered by workers’ compensation

Next, is the injury sustained by an accident while performing your assigned job functions?  This question can best be answered by comparing what injuries can and cannot be covered by workers’ compensation.  Injuries you incur while on the job and while performing your job duties are generally included in a workers’ compensation claim.

Examples of Injuries Included in Workers’ Compensation:

If you work in a warehouse and a crate falls and breaks your foot as you are attempting to remove it from a shelf, the injury would be considered a workers’ compensation claim.

You are a sales person and while at a customer’s location you are accidentally hit by a forklift, this would most likely be a workers’ compensation claim.

Examples of Injuries NOT Included in Workers’ Compensation:

You are chasing a fellow employee in the parking lot after work, and you trip, fall and break your foot.  This would most likely not be considered a workers’ compensation claim.  You are obviously at work, but you are not performing your job duties when the accident occurred.

You are a sales person and you stopped to buy gas.  When you went into the store to purchase a cup of coffee, you slip and fall and you break your leg.  You may have a claim against the store where you fell, but you would most likely not have a workers’ compensation claim.

As you can tell by these examples, a workers’ compensation claim requires the accident occurred while you were an employee performing your job functions. Like most areas of the law, workers’ compensation claims can become pretty complex. To learn more, contact our Charlotte, NC workers’ compensation lawyers or our Greensboro, NC workers’ compensation lawyers.

Duncan Law Blog, Workers' Compensation Read more

What If I Stop Receiving Mortgage or Car Statements After Filing for Bankruptcy?

Sep 24, 2010 No Comments by

 

Once you file a bankruptcy, an automatic stay goes into effect.  This automatic stay states that no creditor can try to collect any debt from you; according to statute 11 U.S.C § 362 (6), “any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title”.   If a creditor does contact you with payment demands, a Charlotte bankruptcy lawyer or Greensboro bankruptcy lawyer can file what’s known as a “motion for sanctions” which reprimands the creditors attempting to collect the debt.

Bills in Mailbox

Even though you are current, and are going to keep your house or car; many creditors will still not send you a bill once you have filed the bankruptcy.  Ever heard the phrase, “better safe than sorry”?  Well, this is exactly why you are not receiving your statements now; they do not in any way want to violate the automatic stay.  If you had set up automatic bill pay, this will likely stop as well.  You just have to remember regardless of whether you receive a bill, you must continue to make your house or car payment!  If not, the creditors have the legal right to foreclose on your home or repossess your vehicle.

What can you do?  Simply call them and request that they still continue to send you your statements.  They may send something to your bankruptcy attorney asking for he/she to sign off to give permission for you to resume receiving statements for their records, but in most cases, it is as simple as that.  Again, the main reason a creditor stops sending you statements is because they do not want those statements to be viewed as an effort to collect a debt which would violate the automatic stay that goes into effect when your bankruptcy is filed.

After You File, Automatic Stay, Bankruptcy, Chapter 13, Chapter 7, Duncan Law Blog Read more

Do I Have to Pay Taxes on Debts Wiped Out in Bankruptcy?

Sep 22, 2010 No Comments by

 

The short answer is no, you do not have to pay taxes on debts that are wiped out in bankruptcy. Quite often those trying to decide between bankruptcy and some type of debt consolidation will look to see which option will be most advantageous for them when it comes to tax implications. Usually, filing bankruptcy will be most beneficial when it comes to taxes.

Bankruptcy Information | Charlotte, NC & Greensboro, NC

Unlike debts that are consolidated or forgiven by a creditor, debts that are discharged in a bankruptcy are not subject to being taxed. Section 108 of the Internal Revenue Code explains that Title 11 (bankruptcy) cases are not subject to the traditional taxes on forgiven debt. This is important because other debts that are forgiven or wiped out outside of bankruptcy will be viewed as your gross income, which is taxable. Therefore, you could pay quite a bit of taxes on debts that were otherwise forgiven.

After wiping out your debt in a bankruptcy you may receive a Form 1099(c) from the IRS. If this were to happen, it is important that you fill out a Form 982 to tell the IRS that the debt was discharged in a bankruptcy and is, therefore, non-taxable.

This section of the Internal Revenue Code can be a big money saver for those trying to decide between bankruptcy and some other form of debt negotiation. When money is already tight it is almost impossible to pay the thousands of dollars that you may be required to pay on your forgiven debt outside of bankruptcy. Instead, liquidating your debts in a Chapter 7 bankruptcy or paying them back through a Chapter 13 bankruptcy will allow you to get rid of debt and avoid any tax implications.

Learn more about how bankruptcy can wipe out debt and save you money by contacting a Charlotte bankruptcy lawyer or Greensboro bankruptcy lawyer.

Bankruptcy, Bankruptcy Video Vault, Chapter 13, Chapter 7, Duncan Law Blog, Taxes, Video Read more