The Gooding Law Firm

Chapter 7

The purpose of a Chapter 7 bankruptcy is to give you a fresh start by wiping out most or all of your unsecured debt, such as credit card payments and medical bills. Contrary to common misunderstanding, you may be allowed to keep all of your possessions. At Gooding Law Firm, can explain your options and guide you in filing Chapter 7 bankruptcy.

Chapter 7 bankruptcy is liquidation. That means that a bankruptcy trustee will sell ("liquidate") certain property that you own at the time you file the bankruptcy case. The trustee uses the proceeds of the sale to pay creditors. In most cases, you will not have any assets that the trustee can sell because of state and federal laws that may allow you to keep necessities. These laws are called "Exemption Laws" and the property that the trustee may sell is known as "non-exempt" property. If all of your property is Exempt, the trustee will not sell any of your property.

About 90 days after you file Chapter 7, most of your debts will be discharged, if yours is the typical case. This means you are no longer liable to pay the debt. Some debts are not discharged, however, and you still must pay them. Examples include past-due child support payments, some taxes, and student loans. Debts for which you have pledged Collateral (such as cars, homes and household goods) also do not go away entirely in a bankruptcy.

Filing for bankruptcy allows you to discharge only the debts you list at the time of the bankruptcy case (your "pre-petition" debts). You must pay debts you incur after the filing the bankruptcy case as usual. You may keep the money that you earn after filing a Chapter 7 bankruptcy cases, as well as most other property that you obtain after the filing.

Who Can Declare Chapter 7 Bankruptcy?

Chapter 7 can be a fast, simple and effective way to deal with unmanageable debt-but it isn't a solution for everyone. Gooding Law Firm can help you decide if Chapter 7 is right for you, although in general, you're a good candidate if:

• You have no other recent bankruptcy.
  If your debts have been discharged in a Chapter 7 bankruptcy within the past eight years or in a Chapter 13 bankruptcy within the past six years, you cannot file Chapter 7 bankruptcy.
• You meet low-income standards.
  In this case, "low income" means that your current monthly income is less than or equal to the median income for a Florida family of your size. If your income is greater than the median, you must meet a bankruptcy means test to qualify for Chapter 7 bankruptcy. The means test helps to determine if your disposable income is sufficient to repay at least some of your unsecured debt.
• You have received credit-counseling services.
  To qualify for relief under Chapter 7, you must have participated in a credit-counseling program with an approved agency within 180 days prior to filing. If you've had a previous bankruptcy case dismissed within the past 180 days, you cannot file Chapter 7 bankruptcy. In addition, if bankruptcy court rules that you've concealed property or assets, lied about your income on a credit application, or engaged in other dishonest activities, your case may be dismissed. Truthfulness is absolutely essential when filing bankruptcy.

What Does Filing Chapter 7 Bankruptcy Involve?

Gooding Law Firm can assist you in completing the paperwork necessary to file Chapter 7 bankruptcy and answer any questions you may have regarding Chapter 7 bankruptcy rules.

• First, you must prepare a voluntary bankruptcy petition and in-depth schedules of your assets, liabilities, income, and expenses. You must also furnish proof of income, copies of your most recent tax returns, and confirmation that you've participated in credit counseling prior to filing, as required by law.
• When your bankruptcy petition has been filed electronically with the help of your bankruptcy lawyer, an automatic stay will go into effect. This temporary order protects you from further collection attempts and the threat of repossession or foreclosure on your home or other property.
• Between 20 and 40 days, after you file your petition, the case trustee will call a meeting of creditors, which you'll attend with your bankruptcy lawyer. You'll answer questions to demonstrate that you understand the potential consequences of filing Chapter 7 bankruptcy. You may also be asked for additional information about your financial situation.
• If there are no objections to your petition or schedules, you should receive your discharge from debt within 90 days following the meeting of creditors. A Chapter 7 discharge is a release from any personal liability for most of your debts, and it prevents the creditors associated with these debts from taking any further collection action against you.

How Much Property Do I Keep?

Only Exempt property, which usually means necessities. A Trustee appointed by the court will sell the rest of your property to pay people you owe (your Creditors).

How Much Time Does it Take?

Two to three months.

What Happens to My Credit Report?

Stays on your credit report for 10 years.

What Happens to my Retirement Account or Pension if I File Bankruptcy?

You will be allowed to keep it.

Chapter 13

When you file Chapter 13 bankruptcy, you agree on a plan to catch up on delinquent payments and repay your creditors over time. Chapter 13 provides a way to prevent foreclosure on your home or repossession of your car or other collateral. An experienced bankruptcy lawyer can help you determine if filing Chapter 13 bankruptcy is the right choice for you.

Why Chapter 13 May Be Right for You

Many people choose not to file Chapter 13 bankruptcy because it requires repayment of at least some debt. A local bankruptcy lawyer can explain the advantages and drawbacks of Chapter 13. Filing Chapter 13 may be a good choice for you if:

• You have substantial unsecured debt.
  In a Chapter 13 bankruptcy, you'll pay off tax obligations, student loans, and other debts that can't be discharged when filing Chapter 7.
• You have non-exempt property that you wish to keep.
  Filing Chapter 13 bankruptcy allows you to keep your personal property-even your non-exempt possessions.
• Your home is in danger of foreclosure.
  Under Chapter 13, you can stop foreclosure or repossession proceedings as you catch up with late payments over time.
• You wish to protect a friend or relative who is your co-debtor. 
  As long as you follow the Chapter 13 payment plan established by the court, your creditors will not seek payment from the co-signer on your credit card or loan.

Who Can File Chapter 13 Bankruptcy?

Chapter 13 bankruptcy is available to individuals only. If you are a business owner who wishes to file Chapter 13, you must file as an individual, but you may include any business-related debts for which you are personally responsible. A local bankruptcy lawyer can determine your eligibility to file Chapter 13 bankruptcy, but in general:

• You must be current on filing your tax returns.
  In order to declare Chapter 13 bankruptcy, you must be able to prove that you've filed your federal and state income tax returns for the past four years.
• Your debts can't exceed certain limits. You cannot file Chapter 13 bankruptcy if your unsecured debts are greater than $360,475 or if your secured debts are more than $1,081,400.
• You must have sufficient disposable income. To file Chapter 13, you must provide proof of enough steady income (after certain allowed expenses) to repay your creditors. Wages, commissions, unemployment benefits and payments from a pension plan are just some of the sources you can use to fund your repayment plan. If you're married, your working spouse's income also qualifies as a source of income.

Like Chapter 7, Chapter 13 bankruptcy requires proof that you've received credit counseling from an approved agency within 180 days prior to filing bankruptcy. Additionally, you cannot file under Chapter 13 if you've had a bankruptcy case dismissed or failed to comply with bankruptcy court orders within the past 180 days.

What's Involved With Filing Chapter 13 Bankruptcy?

Below is an overview of the process of filing Chapter 13 bankruptcy.

• Your bankruptcy lawyer will begin by helping you prepare a voluntary bankruptcy petition and detailed schedules of your assets, liabilities, income, and expenses. You'll be required to provide proof of income, copies of your tax returns for the last four years, and confirmation that you've participated in the mandatory credit counseling. In addition, you must develop a reasonable payment plan that outlines how you will pay off your debts. This plan must be filed with the court and is subject to court approval.
• After your bankruptcy lawyer assists you in electronically filing your bankruptcy petition, an automatic stay will take effect. This temporary order will protect you from harassment by creditors and your home and other property from foreclosure or repossession.
• Within 30 days of filing bankruptcy under Chapter 13, you must begin to make monthly payments to the court-appointed trustee based on the terms of your proposed payment plan-even if the plan has not yet been confirmed by the court.
• After the meeting of creditors, your proposed repayment plan will be reviewed at a confirmation hearing. When your plan is approved, you'll begin to make the scheduled payments to the trustee; these payment amounts may or may not be the same as those you originally proposed. The trustee will, in turn, pay your creditors, some of whom will receive 100% of what you owe, while others receive a greatly reduced amount. High-priority debts-such as child support and tax obligations-are usually paid in full.

What Property Do I Keep?

All of your property. You pay your debts out of future income.

How Much Time Does it Take?

Three to five years. During this time, you will be paying people you owe a portion of what you owe them.

What Happens to my Credit Report?

Stays on your credit report for 7 years.

What Happens to my Retirement Account or Pension if I File for Bankruptcy?

You will be allowed to keep it.

Chapter 11

A Chapter 11 filing is usually done by a business looking for debt relief. Below you’ll find information regarding how a Chapter 11 bankruptcy case gets started, how it progresses through the hearings and documentation-heavy phases, how a disposition is reached and ultimately how you should proceed if your business needs to find a way out from under mounting financial pressure.

Businesses and Companies filing Chapter 11 Bankruptcy in Oklahoma

There are two points that need to be made in regards to filings under Chapter 11 of the United States Bankruptcy Code:

• A Chapter 11 case can either be voluntarily filed by the debtor or involuntary by creditors under certain conditions.
• Although it’s rare, individuals can file for protection under Chapter 11 of the Bankruptcy Code.

If an entity files a Chapter 11 reorganization case, the petitioner will need to provide the Bankruptcy Court with the following documents:

• Schedules of assets and liabilities
• A schedule of current income and expenditures
• A schedule of executory contracts and unexpired leases
• A statement of financial affairs

If the petitioner is an individual, he or she must also file:

• A certificate of credit counseling and a copy of any debt repayment plan developed through credit counseling
• Evidence of payment from employers, if any, received 60 days before filing
• A statement of monthly net income and any anticipated increase in income or expenses after filing
• A record of any interest the debtor has in federal or state qualified education or tuition accounts

In addition to the documentation required above, the company filing bankruptcy must pay a $1,000.00 filing fee along with a $39 miscellaneous fee. However, individual debtors can pay the fee in up to four installments.

Progression of the OK Chapter 11 Bankruptcy Case

When the petitioner files the appropriate documentation, the case progresses to the next phase. This phase can include several complicated steps. The most critical step that’s taken at this point is the filing of the Plan of Reorganization.

The Plan of Reorganization is basically a proposal for how the business filing bankruptcy protection will operate for the foreseeable future based on its income, its assets and its liabilities. Since the majority of filings under this chapter are done by businesses and it’s difficult to predict the specific amount of revenue that will be generated, the petitioner basically becomes what’s known as the Debtor in Possession of the estate. When a valid petition and plan are filed, the court will generally issue an Automatic Stay, which prevents creditors from continuing their collection efforts.

The Debtor in Possession is charged with making day-day decisions regarding how to proceed given the current circumstances, but that party does not have unfettered discretion in terms of those decisions. The court also generally names members to a Creditor’s Committee, and that committee helps to oversee the bankruptcy estate with the Debtor in Possession.

After a plan is presented, it is offered to creditors to either approve it or to make motions against it. These motions usually concern parties who seek relief from the Automatic Stay, the desire to obtain credit for the operation or questions regarding how to deal with cash or even loan collateral.

If a creditor wants a say in how the bankruptcy estate will be managed, that creditor must also file a claim with the court. This claim states in general that the debt tied to that creditor is in dispute in some way. In essence, the filing of a claim preserves the right to file an adversarial proceeding at some point during the case whether the creditor is listed on the schedule of creditors or not.

Disposition of the Chapter 11 Case in Oklahoma

Ultimately, after the bankruptcy plan has been presented but before it’s voted on for approval, the debtor must file a written disclosure statement with the court that basically provides all parties with enough information about the affairs of the debtor to allow the creditors to make an informed judgment about the plan at issue. If the disclosure statement is approved, the debtor must file the following documents with the court, according to the United States Code:

• The plan, or a court approved summary of the plan
• The disclosure statement approved by the court
• Notice of the time within which acceptances and rejections of the plan may be filed
• Other information as the court may direct, including any opinion of the court approving the disclosure statement or a court-approved summary of the opinion

If no problems arise during the last few steps of the process, the plan is accepted, the debts are discharged and the entity follows the tenets of the plan. If all payments are made and no additional issues arise during the plan’s existence, then the court will issue a final decree when the plan is complete.

Filing Chapter 11 Bankruptcy with an Oklahoma City Attorney

If you need a reorganization of your assets, debts, and liabilities and need the time and peace of mind to do so without creditors hounding you, contact The Gooding Law Firm today to schedule an initial consultation.

Foreclosure

Foreclosure is the legal process by which a lender forces the sale of real property in order to be repaid the money it has loaned the buyer of the real property.

The process of foreclosure is regulated by state law and therefore the procedural aspects of foreclosure will vary from state-to-state. Some states require “judicial foreclosure” while other states allow “non-judicial foreclosure” and there are even states that allow both methods of foreclosure.

Here in Oklahoma, both judicial and non-judicial foreclosures are allowed.

Non-Judicial Foreclosure

If a mortgage or deed of trust contains a “power-of-sale clause,” the lender may foreclose without having to file a lawsuit. A power-of-sale clause is a clause in a deed of trust or mortgage, in which the borrower pre-authorizes the sale of the property to pay off the balance on a loan in the event of their default.

In deeds of trust or mortgages where a power-of-sale exists, the power given to the lender to sell the property may be executed by the lender or their representative, typically referred to as the trustee. Regulations for this type of foreclosure process are outlined below in the “Power-of-Sale Foreclosure Guidelines”.

Judicial Foreclosure

The judicial process of foreclosure, which involves filing a lawsuit to obtain a court order to foreclose, is used when no “power-of-sale” clause is present in the mortgage or deed of trust. Generally, after the court declares a foreclosure, your home will be auctioned off to the highest bidder.

However, unless the borrower waives the right to an appraisal in the mortgage, the property must be appraised before it can be sold at foreclosure. At the foreclosure sale, the property may not be sold for less than two-thirds of the appraised value.

A lender may sue to obtain a deficiency judgment, but the action must be taken within ninety (90) days after the date of sale. There can be no redemption once the court confirms the foreclosure sale.

Power-of-Sale Foreclosure Guidelines

If the deed of trust or mortgage contains a power of sale clause and specifies the time, place and terms of sale, then the specified procedure must be followed. Otherwise, the non-judicial power of sale foreclosure is carried out as follows:

A written notice of intention to foreclose by power of sale must be sent by certified mail to the borrower at the borrower’s last known address. The notice must describe the defaults of the borrower under the loan, and give the borrower thirty-five (35) days from the date the notice is sent to cure the problem. If the borrower cures the default within the thirty-five (35) days, then the foreclosure can be stopped. However, if there have been three (3) defaults, then the lender need not send another notice of intent to foreclose, and if the borrower has been in default four (4) times in the past twenty-four (24) months, and has been notified as above, then no further notice will be required.

1. The notice must be recorded in the county where the property is located within ten (10) days after the borrower has gone through the thirty-five (35) day notice period.

The notice must appear in a newspaper in the county where the property is located once a week for four (4) consecutive weeks, with the first publishing being not less than thirty (30) days before the sale.

Said notice must state the names of the borrower and lender, describe the property (including the street address) and state the time and place of sale.

The property must be sold at public auction to the highest bidder at the time and on the date specified in the notice. If the highest bidder at the sale is anyone other than the borrower, they must post cash or certified funds equal to ten (10) percent of the bid amount. If the highest bidder is unable to do so, then the lender may proceed with the sale and accept the next highest bid.

If you’re facing home foreclosure in Oklahoma and would like to know more, contact The Gooding Law Firm. We will respond immediately and will show you why we are the best in the business. Call us today!

Taxes

You may hear commercials offering the hope of eliminating income tax debts in bankruptcy. But it’s not as simple as it sounds.

For example, if the income taxes you owe are for one of the last three tax years, then they can’t be wiped out (discharged) in bankruptcy — you’ll continue to owe them at the end of a Chapter 7 bankruptcy case, or you’ll have to repay them in full in a Chapter 13 bankruptcy repayment plan.

If you need to discharge tax debts, Chapter 7 bankruptcy will probably be the better option — but only if your debts qualify for discharge (see below) and you are eligible for Chapter 7 bankruptcy.

You can discharge (wipe out) debts for federal and state income taxes in Chapter 7 bankruptcy only if all of the following conditions are true:

• You did not commit fraud or willful evasion. If you filed a fraudulent tax return or otherwise willfully attempted to evade paying taxes, such as using a false Social Security number on your tax return, bankruptcy can’t help.
• The debt is at least three years old. To eliminate a tax debt, the tax return must have been originally due at least three years before you filed for bankruptcy.
• You filed a tax return. You must have filed a tax return for the debt you wish to discharge at least two years before filing for bankruptcy.
• You pass the “240-day rule.” The income tax debt must have been assessed by the IRS at least 240 days before you file your bankruptcy petition, or must not have been assessed yet. (This time limit may be extended if the IRS suspended collection activity because of an offer in compromise or a previous bankruptcy filing.)

If your taxes qualify for discharge in a Chapter 7 bankruptcy case, your victory may be bittersweet. This is because bankruptcy will not wipe out prior recorded tax liens. A Chapter 7 bankruptcy will wipe out your personal obligation to pay the debt and prevent the IRS from going after your bank account or wages, but if the IRS recorded a tax lien on your property before you file for bankruptcy, the lien will remain on the property. In effect, this means you’ll have to pay off the tax lien in order to sell the property.

If you would like to speak with a knowledgeable attorney regarding the discharge of taxes in bankruptcy, contact us today to schedule a FREE initial consultation.

Medical Bills

In 2005, the federal government enacted new bankruptcy laws making it more difficult for individuals to qualify for a Chapter 7 liquidation proceeding. The petitioner must be able to pass the Chapter 7 “means test” before they can be eligible. Their income over the past six months must be below the average median income for their family size in the state where they file. If they are approved for Chapter 7, all of their unsecured debts can be discharged, including medical bills, credit card debt and personal bank loans.

If the individual or couple is unable to qualify for Chapter 7, they can file for Chapter 13. This requires them to submit a repayment plan to the court outlining how they intend to pay back their creditors over a 3 to 5-year period. Once the bankruptcy court approves the plan, a Trustee will be appointed to collect a monthly payment from the debtor. The Trustee will use these monies to pay each creditor a portion of what is currently owed on the debt. Once the repayment plan is concluded, any remaining unsecured debt will be discharged.

The bankruptcy laws in Oklahoma are some of the most generous in the nation when it comes to protecting their home, cars, pension plan, tools of their trade and even provides a $3,000 exemption for wedding and anniversary rings. When you are facing bankruptcy due to mounting debts that are unsecured by collateral, it may be beneficial to discharge your debts and start with a clean slate.

Contact us today for a FREE initial consultation to find out how we can help get you back on your feet.

Repossession

Are you threatened with repossession?

When you buy or lease an item on credit, you are obligated to make consistent payments for that item. If you fail to meet these payments, a creditor can seek legal action to repossess the item. Repossessions often happen with cars and other motor vehicles, but any item can be repossessed if payments are not made. Repossessions often come with little warning and seizure can take place at almost any time. If are under the threat of repossession, or had an item repossessed, you need to discuss your options with an Oklahoma repossession attorney.

Options for Repossessions

The most common form of repossession relief is the filing of bankruptcy. Depending on your financial situation you may file for either chapter 13 or chapter 7 bankruptcy. When an individual files for bankruptcy, the court orders all repossessions and debt collection s to halt. This is called an "order of relief". Individuals are given a specific period of time to reorganize their debt and establish a new payment plan for all of their debts. We can also pursue negotiation with your creditors or bank. A new payment plan can be negotiated for certain individuals so consistent payments can once again be made. Our law firm can help you fight any repossession. We can review your case to determine whether bankruptcy, negotiations or other options are available to you. Regardless of choice, our law firm will fight aggressively for your rights and best interests.

We are prepared to take legal action on your behalf. Fighting repossession requires a skilled law firm with years of experience. Call us today for a FREE consultation to see how we can help you.