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James M Nugent

James Nugent’s Answers

22 total

  • Can i convert from a chapter 13 bankruptcy to a chapter 7 bankruptcy

    i am no longer working and i am on social security now and my medical bills have drastically gone up and I am unable to make the payments on my chapter 13 bankruptcy so i was just wondering is if it is possible to convert to a chapter 7 bankruptcy

    James’s Answer

    The bankruptcy laws provide that you have the right to convert your case to a chap. 7 at any time unless you hve previously converted your case already, in which instance you need a court order to allow the conversion. Your income is low enough that the means test will not prevent you from doing so but a lawyer must analyze your assets to make sure they are not at risk or can be exempted in a chap. 7 case. The Trustee's role in a chap. 7 is much different than in a chap. 13 and the assets must be carefully reviewed.

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  • Bankruptcy Chapter 7 or 11? I have 12K in credit card bills

    my income has become less over the past year due to my age (61) not working as much. I make about 1200 per mo. Is there a low limit amount to file, as in is 12K too low to file against? Also I had recently about 3 weeks ago, I put $500 on the card...

    James’s Answer

    Chap. 7 is certainly the type of case you want to file. The other chapters are unnecessary for the situation you have described. There is no minimum threshold of debt so that is not an issue.
    The $500 charge could possibly be challenged by the card company so it is advisable to make some minimum payments on that account.

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  • My exhusband file bankruptcy in NJ. He was ordered to pay a debt that I cosigned for in our divorce degree. Am I liable?

    Can i be forced to pay the debt, eventhough i divorce papers say he alone is liable, if so do i have grounds to go back and sue him for recoupment

    James’s Answer

    The creditor can try to collect the debt from you if you agreed to pay it and they are not bound by the terms of your divorce judgment. However, no debtor can obtain a Chap. 7 bankruptcy discharge for a "domestic support obligation" or for an obligation incurred in a divorce decree or separation agreement. You should return to the divorce court and enforce your rights there.

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  • What happens if i convert to a ch.7 from 13 due to loss of income and i found a job a month later

    What happens if i convert to a ch.7 from 13 due to loss of income and i found a job a month later

    James’s Answer

    Technically, nothing happens except that you will obtain a chap. 7 discharge of your debts. However, if you needed to use a chap. 13 to save a valuable asset then chap. 7 is not going to help you. You could move to re-convert your case to chap. 13 based on this change in circumstances and the Judge will decide this since you no longer have the right to convert your case, having done so once already. Or, depending on the state of the law in your jurisdiction, you could file a chap. 13 case after your chap. 7 case has been closed.

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  • Can I go back and include landlord in a Chpt 7, since I opened a lease/contract w/them in the middle of my bankruptcy? Need Help

    I was in the middle of a bankruptcy when I applied for an apartment in June of 2010, The apartment managers did not run a proper background on me or they would have known. My discharge was final in the middle of July 2010. My landlord began h...

    James’s Answer

    it is certainly true that only pre-petition debts are discharged in your Chap. 7 case. Prior to your discharge entering there was an opportunity to move to dismiss your case and refile in order to include this particular debt, but that opportunity no longer exists. At this point, your recourse is to defend against this claim under your state's landlord-tenant law.

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  • Do I need to file a Complaint Objecting Discharge of the Debtor for Chapter 7

    My estranged husband has filed chapter 7. I received the notice of this bankruptcy and understand I am listed as a creditor and if he is granted this discharge, I may never try to collect from him. He does not currently owe me any money, however i...

    James’s Answer

    Since you are listed as a creditor , his liability to you, even if disputed or contingent , could be discharged in his case. However, as a result of amendments to the code, a "domestic support obligation" cannot be discharged in a chapter 7 case. That is a defined term in the Code and provides substantial protection to spouses. A chp. 13 case provides one exception to that rule.

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  • When does one convert from a 13 to a 7 verses let the 13 dismiss and refile as a 7?

    income has gone way down so now under median. do we convert or dismiss and refile? no eqity and havent filed before so not restricted in either of those situations

    James’s Answer

    A case can be converted to ch. 7 if a bona fide reason exists to do so and there is no great advantage to one way over the other. The automatic stay in a second case filed within one year will terminate in 30 days unless extended by a timely filed motion in the second case.
    Also, if a court determnes that the conversion of the case was done in bad faith, as those terms have been interpreted under case law, then any property in the estate as of the date of conversion ( as opposed to property owned as of the original date of filing ) will be included in the chapter 7 bankruptcy estate. You need ot consult a lawyer to confirm that there is no risk of that occuring if any valuable property was acquired during the chap. 13 case.

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  • Which one is better for us chapter 11 or chapter 13 for bankruptcy?

    We own a gas station/ car wash and our manager hasn't paid the loan payment for 9 months and we are now dealing with a foreclosure. The manager doesn't want to get off our property. We don't want to lose our property so which chapter is suitable ...

    James’s Answer

    A chapter 11 will provide much more flexibility to deal with the problem . Chap. 13 is less expensive but is not generally equipped to deal with litigation cases. If the manager is operating under a contract with the company, as opposed to an employer-employee relationship, then the contract can be rejected (terminted) after a hearing in the bankruptcy court.

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  • Is failure to reveal a chapter 11 bankruptcy filing a defense to enforcement of an advertising contract?

    An online / yellow pages company with whom I have dealt with in the past, failed to reveal to me that it had recently filed for chapter 11. The company is now being reorganized in US Bankruptcy Court. Is the company's failure to reveal the bankru...

    James’s Answer

    As a general rule, there is no specific law that requires a company in ch. 11 to reveal that it is operating in ch. 11 . However, in certain contexts, a court order is required in order for the debtor to enter into certain types of contracts, such as new financing , new leases etc. In those instances the debtor will have to notify numerous parties including the party with whom it will be transacting business . If the contract involved incurring credit then a court order was required.

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  • Proof in contesting a bankruptcy.

    If a creditor contests a Ch. 7 BK by claiming assets are being hidden, does the burden of proof lie with the debtor or creditor? For example, if a creditor suspects the debtor of owning an asset, how does the creditor proceed with contesting the...

    James’s Answer

    The burden of proof is certainly on the creditor who must file an advesary proceeding in the court within certain specific time limits set by court rules. As a general rule, the failure to file this proceeding within the time limit permanently bars the creditors right to do so. What you are describing sounds like an action to deny the debtor a discharge under §727 of the Code which the creditor must allege and prove. Concealing assets is potentially a very serious matter and this debtor should obtain proper advice asap; an amendment to the schedules might be in order.

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