Can I Keep Multiple Vehicles in a Bankruptcy?

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Yes, most of the time.  The federal bankruptcy laws allow you to protect certain property by using state exemptions to protect the automobiles.  However, you can only protect up to a certain amount of equity in a vehicle.  For example, North Carolina allows you up to $3500 in a motor vehicle exemption to protect one vehicle per person filing bankruptcy.  Therefore you can have a vehicle that is bought and paid for to have a value up to $3500 using the motor vehicle exemption and protect the vehicle.  What if you have two vehicles titled in your name that are paid in full and have a total value of $6000?  Generally speaking you cannot protect, in full, both vehicles unless you have some “wildcard” exemption left over to use to help protect the second vehicle.  This wildcard exemption will be discussed on another topic, but it usually allows $5000 per person filing the bankruptcy to protect “other” property.  However there are exceptions, so check with an attorney at Duncan Law for specific advice.

Frequently Asked Bankruptcy Questions

Another unusual scenario is you hypothetically have ten brand new 2011 Mercedes each worth up to $100,000 each. However, you owe $100,000 on each vehicle.  Therefore you have no equity in the ten vehicles. With no equity in the vehicles, you can have ten new Mercedes worth one-million dollars and be able to keep all the vehicles, as long there is no equity and you continue to make you payments on the vehicles.  This is usually valid in a Chapter 7 bankruptcy, however most Chapter 13 bankruptcy Trustees will not allow you to keep excessive vehicles that you do not need.

What if you have an old run down 2000 Mazda that is paid off in full, worth only $4500.  Remember, without your wildcard exemption you can only protect $3500 in value.  Therefore you have $1000 in excess equity and the Chapter 7 could seize the vehicle and sell it.  You would get the first $3500, the Trustee would receive anything in excess of $3500.

In conclusion, it doesn’t seem fair, you could lose the one old car that is paid for, but keep the ten new Mercedes since there is no equity in the vehicles. That’s why you need help from Duncan Law.

Who is the Bankruptcy Administrator? | North Carolina

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In North Carolina, when you attend your creditors’ meeting you will see a number of different types of “court” officials. The creditors’ meeting isn’t really a court hearing but it is somewhat similar to court. The main types of representatives at the creditors meeting are the Debtor and Debtor’s attorney, any potential creditors, the Trustee and the Bankruptcy Administrator or someone from the Bankruptcy Administrator’s office.

North Carolina Flag

The Debtor is the person who owes money, the creditors are the people who money is owed to and the role of the Trustee has already been discussed. According to the Federal Courts, the Bankruptcy Administrator or their designated representatives’ job in North Carolina is to, “oversee the administration of bankruptcy cases, maintain a panel of private trustees, and monitor the transactions and conduct of parties in bankruptcy.”

In other words, the role of the Bankruptcy Administrator is to ensure creditors’ meetings run smoothly and any potential conflict between the Trustee (representing the creditors) and the Debtor and the Debtor’s attorney is kept to a minimum. This usually isn’t a problem since the creditors’ meetings tend to be non-adversarial meetings.

Also, the Bankruptcy Administrator has the ability to ask questions at the creditors’ meeting. Generally speaking, the Bankruptcy Administrator’s office will ask questions if your case is being converted from one type of bankruptcy to another or if they believe the Debtor(s) do not fall below the Means Test.

The Bottom Line: The Bankruptcy Administrator’s office handles administrative matters throughout the bankruptcy process.

Who Will Find Out That I Filed Bankruptcy?

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A lot of people are concerned with who will find out about their bankruptcy if they choose to file bankruptcy. That is a legitimate and understandable concern. Once a bankruptcy petition has been filed with the court it becomes public record.  If a person is determined enough, the information can be obtained.  However, to find out if someone has filed for bankruptcy the person would need to sign up for an account on PACER (Public Access to Court Electronic Records) and could be required to pay money to view the necessary information. For the most part, the only people that will be notified of the bankruptcy are the people that you are in debt with and/or owe money too.

Family Walking Holding Hands

Understandably, the main concern for people is family and friends finding out about their bankruptcy.  The only way that they will be notified of your bankruptcy is if you owe money to them.  They will have to be notified under federal law as creditor.  Also, if you are paying child support and/or alimony the recipient will have to be notified of your bankruptcy.  The reason for this is if you were to fall behind on a payment with child support and/or alimony then that could affect the outcome of your bankruptcy.

Another concern that clients have is if their employer will be notified.  They payroll department of your employer will likely be notified in a Chapter 13 bankruptcy because at least a portion of your monthly payment will be deducted from your paycheck. In a Chapter 7 bankruptcy there is no reason the employer would find out about the bankruptcy unless they pulled your credit report.

Again, it is rare that people would be able to find out if you have filed bankruptcy. Unless you choose to tell people about your bankruptcy, most people will never find out.

What if I Have a Lawsuit or Judgment Against Me, Can Bankruptcy Help?

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Will Filing Bankruptcy Wipe Out Payday Loans?

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There isn’t really a straight answer to that question. Generally speaking, yes, payday loans can be wiped out by filing bankruptcy.

A payday loan will be viewed very similarly to credit card debt. Therefore, it can be wiped out through a Chapter 7 bankruptcy or mostly wiped out in a Chapter 13 bankruptcy. The key thing to look at is when the payday loan was received.

North Carolina Bankruptcy Couple

Like credit card debt, or any other debt, if you received the loan within the last 90 days there will be a presumption of abuse, or fraud, by the courts. If a debt is incurred and viewed as fraudulent then the debtor is required to pay back that debt in full. Therefore, it is important to wait at least 90 days before filing a bankruptcy after receiving a payday loan. You may need to wait even longer depending upon the amount of the payday loan.

A common tactic that payday loan companies will use is to have the person seeking the loan write a post-dated check for a certain amount. They do this so that if a person doesn’t pay the loan back they can attempt to cash the check and there will be non-sufficient funds available. The payday loan company can then try to argue that you wrote them a bad check and they could attempt to press criminal charges against you. However, it is rare they will actually attempt to do that. One of the major reasons is because a check is only considered “bad” if the person writing the check gives the impression suitable funds are in the bank to cover the check. The fact that you are post dating a check and doing so to a payday loan company makes it pretty clear you aren’t communicating that you have sufficient funds.

Once the bankruptcy is filed an automatic stay is in place that protects the payday loan companies from trying to collect on any money owed to them. However, they could attempt to press criminal charges for writing bad checks. As explained above, the chances of that are slim to none but you will want to make sure to consult with your bankruptcy attorney.

The bottom line is, payday loans may be wiped out or lessened by filing for bankruptcy but consult with a Charlotte, NC bankruptcy attorney or Greensboro, NC bankruptcy attorney to make sure you file the bankruptcy at the right time.

Can I Have Too Much Debt to File Bankruptcy?

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In terms of a Chapter 7 bankruptcy you cannot have too much debt to qualify.  There is no minimum debt amount to be eligible to file for a Chapter 7.  However, since a person can only file a Chapter 7 bankruptcy once every 8 years, it is important to determine that the time that you file your bankruptcy that your debt is absolutely too much for you to pay back.

For a Chapter 13 bankruptcy there are some limits in regards to having too much debt.  A person can have no more than $360,475 of unsecured debt, which an example of unsecured debt would be credit cards and/or medical bills and no more than $1,081,400 in secured debt.  The best examples of secured debts would be a house or car.  The restrictions for a chapter 13 bankruptcy are based upon the time constraints that a person will actually be in bankruptcy.  A person is required to pay back a portion of their debts within 60 months while in a Chapter 13 bankruptcy and this time frame helps determine the amounts that you will be paying each month to the trustee.

Therefore, you cannot have too much debt to file a Chapter 7 bankruptcy but you may have too much debt to file a Chapter 13 bankruptcy. If you are unable to file a Chapter 13 bankruptcy then you could always file a Chapter 7 instead.

How Do I Pay for a Bankruptcy Lawyer if I’m Bankrupt?

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Understandably, this is one of the most common questions we get and it’s a good one! With the economy being in such a downturn, this is often one of the first questions asked, and for many, it’s the most important.  “If I can’t pay my bills, how can I afford to pay you?”  Simply put, many firms, along with ours, allow you to set up your own easy payment plan.  You choose the amount that you wish to pay and you pay at your own pace, making a difficult time less stressful and more convenient for you.  Also keep in mind, once you’ve met with an attorney and have made the decision to file bankruptcy, you may be able to stop making payments on most of your unsecured debt like credit cards, some personal loans and medical bills. By not making these payments it will free up some of your income which can then be used to help pay for your bankruptcy fees.

Family in Front of House

Depending on where you file, the Court may require that your attorney fees be paid in full before your bankruptcy can be filed. The reasoning makes some sense. The courts look at it as your attorney is the person who is supposed to help you wipe out your debts. However, if the attorney isn’t paid up front – then you will owe them as well. Their motivation to help you wipe out your debts is probably gone when it means the attorney wouldn’t be paid. Therefore, the courts have said that the attorneys fees in Chapter 7 bankruptcies must be paid before the case is filed.

On the other hand, if you are having to file a Chapter 13 bankruptcy the courts will allow the attorneys to collect only a portion of the fees and have the remainder of the attorneys fees paid in the Chapter 13 bankruptcy plan. This will help lower the initial burden of trying paying all of the fees up front.

It is important to remember that even though a payment plan may be available to you allowing you to pay at your own pace, some individuals may be facing other deadlines. Each individual bankruptcy is different. There may be certain circumstances that prevent you from taking your time to pay (and file). If you have a foreclosure sale date, a pending repossession, or a pending judgment/writ of execution, you most likely will not have the extra time to leisurely pay.  You may have no choice but to get your bankruptcy filed before a specific deadline, and in that case, you will have to pay in full in order to enact the bankruptcy stay so it protects you and your assets.

Does Filing for Bankruptcy Lower My House or Car Payment?

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Depending on which bankruptcy you file, bankruptcy may lower your monthly payments for a car but will not lower your payments for a house.  A Chapter 7 bankruptcy will not lower your monthly payments but you will be wiping out all of your other debts and will no longer be charged interest and late fees on those payments. Therefore, you free up more money each month which helps your ability to make your car or house payments each month.  If you still feel like there is no way that you would be able to afford to make the payment each month, then you can surrender your vehicle or house and wipe out any mortgage or car loan that is left over.

Young Couple

In a Chapter 7 bankruptcy, once you file, your secured creditors will want you to sign what’s known as a reaffirmation agreement.  A reaffirmation agreement tells that creditor that you will continue to make your payments as contracted.   In a Chapter 7 bankruptcy, you are not required to sign a reaffirmation agreement on your home, but you must sign one in order to retain your vehicle.  In either case, you must continue to make your monthly payments, and upon default, they have the right to foreclose or repossess the property.  Now, there are some cases in which you can redeem your car instead of reaffirming it, but you will need to discuss this with your attorney.

In a Chapter 13 bankruptcy, the trustee will be making your house and vehicle payment through the bankruptcy plan.  As with a Chapter 7 bankruptcy, your mortgage payment will be the same as it was before you filed the bankruptcy.  There is no way to “get around” this unless you refinance your home, in which you will need to obtain permission from the court to do so once you have filed the bankruptcy.  If your vehicle is over 910 days (2 ½ years) before the date that you filed the bankruptcy, you may be able to do what’s known as a “cramdown”.  If your loan balance is higher than what your vehicle is worth (the court will usually determine the value based upon NADA), then you can pay back the vehicle based upon what it is worth rather than the contracted loan balance.  This option is only available in a Chapter 13 bankruptcy though.  If it was purchased within the 2 ½ years before you filed, you will pay back the amount that is contracted in your Chapter 13 plan.

Therefore, bankruptcy may lower your car payment through a “cramdown”. However, it you will not be able to lower your monthly house payment through a bankruptcy. If you are behind on your house payment you could potentially file a Chapter 13 bankruptcy which will help you pay back the arrearages, or amount owed, but it will not actually lower your mortgage payment.