I am in the process of divorce and was left with a significant amount of debt. I plan to file for bankruptcy by the end of next month. However, today I was served to appear in court in December over one of the debts I plan to file on. Once I file, do I still have to go to court and can the creditor still sue me?
Filing stops MOST legal actions, not criminal or to obtain merely a divorce (as opposed to division of property or debts). But the most important thing for you to do is simple: see an experienced attorney near you now first. There are other facts and issues that can gravely affect your case so I will point those out next to indicate why you just need to see an attorney! And even though this is posted under ch 13 most persons file ch 7 but the attorney will explain why each difference is in your case too.
You need and want to enjoy your fresh start also. But the most important thing is to meet with an attorney as you asking this question means you have not. You care about 2 goals: keeping everything you have equity in and discharging all your debts. If you don't have any of the exceptions to discharge you will obtain that goal; most exceptions are set forth in 11 USC. 523 (Google it) like child support, some income taxes, traffic (in a ch 7) and criminal fines , and presumption of student loans. But some debts are dischargeable in a ch 13 but NOT in a ch 7 so you want to make sure and your attorney will discuss any such types with you also!
Your exemptions depend on what state you have lived in in the last 2 years and thus if in your state, then your states exemptions will apply. Most persons filing keep everything they own but your attorney will confirm that with you when they learn everything you own and the equity thereof!
Some secured debts like homes, vehicles, other secured debts an attorney will discuss your options on also as you must list any debts; but that does not mean you will lose them unless you have too much equity or are in default on paying for them! Discuss those options if they apply with your attorney too.
But other issues can arise that can greatly harm your case. Just one example: If you paid back a relative $3,000 11 months ago and now file bankruptcy next week, the trustee can SUE that relative to retrieve that $3,000 (under what is called a preference) for the benefit of the bankruptcy estate. As a result, most attorneys don't charge to meet with them the first meeting so meet with one no matter what.
Many great attorneys can be found right here on AVVO in your state so look, call, and meet one as soon as you can.
You should also want to know when to file: is there an advantage of waiting versus filing now and who should you pay between now and then! Good luck and enjoy your later fresh start.
Once you file for bankruptcy relief, an injunction goes into place which prohibits all collection efforts. This injunction is called the automatic stay. Anywhere in the collection process, the collections stop. My office is in Nashville and I would love to meet with you to discuss your bankruptcy options.
Once you file a bankruptcy all civil proceedings against you are stopped from going forward. If the Creditor feels as though they have a basis to bring a separate action against you, they will have to bring that action in the Bankruptcy Court. Now is the time to consult with a qualified Bankruptcy Attorney to evaluate all the options that are available to you AND to truly evaluate whether or not the Creditor is likely to proceed with a separate action against you. Don't delay, talk to an Attorney today.
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