Wednesday, April 02, 2008

Seven Mistakes To Avoid Prior to Filing Bankruptcy

The actions an individual takes leading up to filing bankruptcy can drastically affect his ability to get a "fresh start." By avoiding these seven mistakes, one can travel successfully through the bankruptcy process without losing a pound of flesh.

1. THE CREDIT CARD RUN-UP MISTAKE: Don't use your credit cards once you have made your decision to file bankruptcy. Charges for luxury goods and services owed to a single creditor, totaling to more than $500.00 within 90 days of filing, are presumed nondischargeable and may be found to be due and owing. Cash advances totaling to more than $750.00 for all creditors within 70 days of filing are also presumed nondischargeable and may be found to be due and owing. Don't jeopardize your "fresh start" by running up your credit cards.

2. THE REPAY A FAMILY MEMBER MISTAKE: You cannot treat your family member any better than you would an ordinary creditor with regard to repaying debts. In fact, a bankruptcy trustee can reclaim any amount repaid to a family member within one year of filing bankruptcy, although amounts under $2,000 are generally too small to bother with.

3. THE LIQUIDATE YOUR RETIREMENT ACCOUNT MISTAKE: Retirement accounts are generally protected. You can eliminate your debt and usually keep whatever you have in a retirement account, free and clear. Many individuals drain their retirement accounts in a futile attempt to pay down credit card debt.

4. THE TRANSFER PROPERTY OUT OF YOUR NAME MISTAKE: A bankruptcy trustee can undo a transfer of property that previously belonged to you. This can occur if the transfer was made within four years of the filing of the bankruptcy with the intent to hinder, delay or defraud a creditor, or simply if a fair price was not received.

5. THE LINE OF CREDIT/SECOND MORTGAGE TO PAY DEBT MISTAKE: Don't take a loan against your real estate in an effort to reduce the equity. You can often file bankruptcy and not lose this valuable asset. If you take out a second mortgage to pay credit card debt, you may be putting your house at risk.

6. THE FAILURE TO APPEAR AT COURT PROCEEDINGS MISTAKE: Do not assume that you can avoid a lawsuit simply because you've decided to file bankruptcy. A collection case continues until your bankruptcy case is actually filed, which occurs only after all the fees are paid, you have met with us and provided all the necessary information for preparing the 40 pages of bankruptcy forms, you have reviewed, signed, and returned the forms to us for filing with the Bankruptcy Court, and you have completed the required debt counseling program (by telephone or Internet) which we coordinate for you.

7. THE FAILURE TO TELL YOUR ATTORNEY THE TRUTH, THE WHOLE TRUTH AND NOTHING BUT THE TRUTH MISTAKE: An attorney can only provide advice based upon information provided by the client. Failure to notify your attorney about your assets can lead to the loss of those assets, denial of your bankruptcy case, fines, imprisonment, or all of the above.

About the Author: Jed Berliner has been an attorney since 1976. He began focusing almost exclusively in bankruptcy law in 1982 to make sure his clients could obtain cost-effective bankruptcy advice and services of the highest quality. Mr. Berliner has served as the Chair of the Hampden County Bankruptcy Bench-Bar Committee and studied at Cornell University and the University of Kansas.


Anonymous said...

It is no secret that people are losing their houses to foreclosure in San Diego at this time due to buying with short term ARM loans that are now "blowing up". Some people decided to sell "short" to avoid having a foreclosure on their credit history. Sometimes that is not enough relief and bankruptcy and selling the house is the best strategy - but if they find a buyer then file BK, it stalls the sale, which could lose the buyer (they don't like to wait for the BK to clear). What is the best timing of doing a BK and the Short Sale? John in San Diego

Carl Starrett said...

While legislation passed in December 2007 reduced the risk of debt cancellation income resulting from short sales and foreclosures under certain circumstances, I am not a big fan of short sales in most cases. If a short sale won't prevent a bankruptcy, I really don't see the point of the debtor putting any energy short sale. Continuing to pay a mortgage that they cannot afford while draining resources that could be protected in bankruptcy makes no sense.

Unknown said...

All the things you have discussed here are really so important and should be noted. Nice points and benefits on bankruptcy shared.

Unknown said...

I really like your advice to not liquidate your retirement. It seems like a lot of people mistakenly do that. What they must realize is that it can be very beneficial to have that retirement down the road. You can, and you will, bounce back from the bankruptcy. You should not give up everything you have because you are going through a hard time right now. You must think about the future.