Can I Get A Cash Advance Before I File Bankruptcy?

Jun 26, 2010 No Comments by

What Is A Cash Advance?

Father and Daughter on ComputerLet us begin by giving a brief over view of the term cash advance. Many of us have heard the term but don’t know exactly what it means.  A cash advance is often referred to as a payday loan.  A cash advance can be obtained through a credit card or charge card issuer.  It is seemingly a loan taken out against a credit card that you already have.  Those with a credit card and cash advance service are able to receive cash from an ATM, bank, or some other financial institution.  This really depends on the type of credit card and whether their cash advance services are available.  Many people often confuse the advance as free money, but it is certainly not.  This has to be paid back to the creditor and one of the biggest challenges is the high interest.  The interest on a cash advance tends to be much higher when obtaining it through a credit card.  You are not able to take out a cash advance for the full available balance on the credit card.  However, this doesn’t mean that you aren’t going to be charged high amounts of interest on the loan.  This will cause the monthly payments on the credit card to eventually increase.

Generally speaking, cash advances made within 90 days of filing bankruptcy are not going to be wiped out.  Cash advances within 90 days of filing not only pose a problem with court, but also the creditor, who could potentially seek an adversary proceeding.

 Cash Advances and Chapter 13 Bankruptcy

Keep in mind, the Chapter 13 bankruptcy is also recognized as a repayment plan.  In a Chapter 13 bankruptcy it isn’t likely that a creditor will file an adversary proceeding against you because of a cash advance.  However, this doesn’t mean that a creditor can’t file an adversary proceeding if they choose to. The creditor may also have the option of objecting to confirmation of your Chapter 13 Plan, if your Plan does not to propose to repay the amount of the advance back to the creditor with whom you took the cash advance. This is obviously up to the creditor who the cash advance was taken out with.  The most important thing to remember is generally speaking, cash advances within 90 days of filing may pose a problem with the bankruptcy court.  For example, if you decide to file a Chapter 13 bankruptcy and have taken out a cash advance within 90 days preceding the filing, the court is going to look for any fraudulent behavior.  If you took out a cash advance knowing that you were going to file bankruptcy, then you are going to have a tough time arguing that it was not fraudulent behavior.  If it’s possible to wait, then the longer you wait after having taken out a cash advance to file, the better.  Many people facing tough financial situations are already feeling stressed, there is no need to add something else to the mix.

Cash Advances and Chapter 7 Bankruptcy

Since a Chapter 7 bankruptcy is different than a Chapter 13, and not a repayment plan, we will focus on a couple of different points.  If the cash advance was made within 90 days of filing, the debt is most likely not going to be wiped out in a Chapter 7 bankruptcy.  First of all, it looks suspicious to the courts when a recent cash advance was made before the filing.  This may also pose a problem with the creditor who may decide to pursue an adversary proceeding for a cash advance that was made around the same time as the filing of the bankruptcy.  An adversary proceeding is also known as a lawsuit in bankruptcy court.  If the cash advance was made well past the 90 days, then there is a possibility of the debt being wiped out.  This would depend on a couple of things, timing and amount.  A large cash advance taken out shortly before filing bankruptcy is obviously going to look suspicious.  The courts are not only going to look at the amount, but also the timing between the actual withdrawal and filing of the bankruptcy.  As mentioned above, the longer you are able to wait to file the bankruptcy, the better.

If you have any questions about any cash advances you have taken out in the last year, you should speak with your bankruptcy attorney. If you are contemplating filing bankruptcy, it is best not to take out any cash advances.

Bankruptcy, Bankruptcy Video Vault, Chapter 13, Chapter 7, Credit, Duncan Law Blog, Video
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At Duncan Law, PLLC our goal is pretty simple. We try to make people's lives better. And in doing so we try to treat people the way we would want to be treated. It's just that simple.

We practice primarily in the areas of bankruptcy and workers' compensation. We have offices in Charlotte, Greensboro and Winston-Salem, NC.

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