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Should I file now while I am unemployed?

Rockville, MD |

I'm concerned that if I wait to file I might become employed and then a trustee might conclude that I am making too much money and force me into a chapter 13. Is that a realistic worry? Do they really do that even if you are able to pass the means test? Further info: I pass the means test easily right now. I'm currently living off of my IRA. I do expect to make better money again in the future, but this may not happen soon. I'm probably judgment proof now but probably won't be for too much longer. So I'm trying to decide if I should file now or wait. Thanks for the assistance.

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Attorney answers 4


Whether or not you should file for Bankruptcy chapter 7 or 13 depends not only on your income but also upon your assets, the kinds of assets you have, and the amount of, and the kinds of debts you have. This can be a complicated decision with many possible scenarios and alternatives. Check with a bankrutpcy attorney in your area, and get the legal advice you need, based on all the factors in your financial and legal situation. Your question is so broad-based that a consultation is really the only way to properly answer this kind of a question.

This answer is GENERAL INFORMATION ONLY and does NOT constitute Legal Advice and does NOT establish an Attorney/Client Relationship because you have not provided me with a COMPLETE set of the FACTS, and therefore my answer cannot address your specific situation. I am an attorney licensed in Maryland and California. A Consultation, Retainer and a fully signed and dated Legal Services Agreement (a contract) will be required if you would like to obtain my representation. Office: (410) 381-1656. David Mahood, Esq.



I appreciate your point. I understand it is a broad-based question. But just as a follow up, I have no assets at all - none! Thanks for your input!



I should qualify that. I do have a modest IRA. What I mean is, I have no non-exempt assets at all. Thanks


In doing the means test did you include the money you have been borrowing from your IRA? It is important in trying to make decisions like this that you get the assistant of counsel who can assess your situation and come up with a plan which will benefit you. It is difficult for us to be able to tell you whether to file now or later without knowing your assets and what exactly you are trying to achieve. You also cannot make a well thought out decision without the advise of competent counsel. You are never forced into a chapter 13, you are either a candidate for a chapter 7 or you are not. This all depends on having an experience attorney on your side.

Remember that on this forum attorneys try to answer your questions with limited facts available to them. My answer should in no way be considered legal advice. No attorney client relationship has been formed by any answer give here.


Mr. Mahood is correct, but I'd add a few points: first, not only do trustees care about the means test, but they are duty bound to enforce them. In terms of the income portion of your question, the analysis is not merely what you are (or are not) making today, but what your average income has been for the last six months, so keep that in mind when you are doing that analysis.

Finally, you definitely need to examine not only your assets but your entitlement to various exemptions as well. These can be complex issues and you should speak to someone faimilar with filing bankruptcy cases in Maryland. Most initial consultations are free, so speaking to someone competent should be a no-brainer.

Good luck!


By "judgment proof" do you mean that you have no other assets that can be attached? If you have no "net worth", than you should definitely file bankruptcy now before your circumstances change.

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