The information contained in this website is
not intended to be legal advice. Do not rely on anything in this website without
reviewing it with an attorney. Every case is different; One size does not fit
all; This material is based on my observations as a Georgia attorney. This
material may not be helpful if you reside in another state. I do not recommend
that you attempt to file a bankruptcy without legal
representation.
My name is David Holbrook. I am an
attorney in North Georgia. I take bankruptcy cases for individuals and
businesses located in the counties in Georgia shown below next to the map. This
web site is intended to give a brief and concise summary of how bankruptcy
works, based on my 28 years in law practice. This site is a work in progress, so
other material, information, forms, etc., will be added as time permits.
Call me at (770) 717-8707 for a free consultation.
I handle cases in the following counties:
Northern District of Georgia:
The Northern District comprises the counties of Banks, Barrow, Bartow, Carroll, Catoosa, Chattooga, Cherokee, Clayton, Cobb, Coweta, Dade, Dawson, De Kalb, Douglas, Fannin, Fayette, Floyd, Forsyth, Fulton, Gilmer, Gordon, Gwinnett, Habersham, Hall, Haralson, Heard, Henry, Jackson, Lumpkin, Meriwether, Murray, Newton, Paulding, Pickens, Pike, Polk, Rabun, Rockdale, Spalding, Stephens, Towns, Troup, Union, Walker, White and Whitfield. Northern District cases are held in Atlanta, Gainesville, Newnan and Rome.
Middle District of Georgia:
The counties of Clarke, Elbert, Franklin, Greene, Hart, Madison, Morgan, Oconee, Oglethorpe, and Walton have their cases held in Athens.
The first thing you need to know is that the bankruptcy
preparation process is sometimes a tedious and very detail oriented process.
Please follow the instructions given to you by your attorney very carefully. If
the attorney asks many questions, it means he is trying to make sure all the
required information is provided to the court. If the information is left out of
the case, it means he didn't ask or that you didn't answer the question.
Incomplete paperwork can cause at minimum a lot of corrective work after the
case is filed, can cause your case to be thrown out, or even worse can result in
you being charged with intentional misrepresentation or fraud. Very serious
stuff! If you think any information is important, volunteer it even if the
attorney doesn't ask.
Most bankruptcies have three major sections: A listing of all property owned by the debtor, a listing of all the debts owed by the debtor, and information regarding the debtor's personal and business activity, going back as long as eight years. You should describe this information as clearly and thoroughly as possible. All of the information will be sworn to, that is, affirmed to be truthful.
Your attorney will also ask you questions that qualify you for a
bankruptcy, and questions that determine what kind
of bankruptcy
is appropriate.
A Chapter13 bankruptcy is a payroll deducted payment plan based on "disposable income". This term means generally that you have some money left over after you pay your basic living expenses, so the court divides that surplus money between your creditors. When you finish your payment plan, even if it didn't pay off all your debt, you will receive a "discharge", meaning the debt is forgiven legally. Unfortunately, some people cannot afford a Chapter 13, because they simply don't make enough money to have "disposable income". Others will not qualify because the liquidation value of their property (for instance, home equity) exceeds the amount they could offer in a payment plan. Chapter 13 payment plans generally run from 36 months to 60 months. A Chapter 13 bankruptcy is most common to give a debtor a chance to avoid foreclosure.
A Chapter 7 bankruptcy, also commonly called a "straight" bankruptcy, or a "liquidation" bankruptcy, is more common, is generally much quicker and less expensive. These cases are usually over in 135 days, with one brief appearance in front of an attorney working for the bankruptcy court called a "trustee". A trustee's job is to make sure that the information you have supplied is thorough and complete, and that you have no excess property that might be sold to pay creditors. Bankruptcy law allows debtors to protect a pretty extensive list of property, so liquidations are rare. Provided that you don't have substantial equity, you can keep your home and vehicles. You would usually be required to be up to date with the home and car payments to keep them, and to demonstrate to the court that you have the income available to make payments as they come due.
A major concern many debtors have when making the decision to file bankruptcy is how to deal with creditors who are attempting to collect a debt. The basic rule is that a creditor cannot harm you with a letter, and they cannot harm you with a phone call. They will try to make your life miserable if you react to either one in a way that doesn't involve a substantial payment. If you don't have a substantial payment, the contact does you no good, and only gives the creditor an opportunity to upset you. In my experience, even when you are trying to avoid bankruptcy with all your might, you will receive no solutions communicating with a creditor. There may be exceptions, but this is my experience. On the other hand, when a creditor hires an attorney, and you have been served by a sheriff or other process server (any document that involves a court of law, usually identified with a case number), then it is time to make some immediate decisions. Further, none of these decisions should be made without legal assistance. If you disregard the papers, or the case is resolved in the creditor's favor, it can have a major impact on your finances, namely, a garnishment of your wages or your bank account. A good number of my clients are familiar with a wage garnishment, but to my surprise, many are not aware of the potential bank account seizure. Beware!
Also, making a substantial payment to one creditor when you have many creditors is usually a mistake, unless you are convinced that it is a part of a overall plan of action with a realistic chance of success. Before you make that payment, you might check with Consumer Credit Counseling to see if they can work up a plan to spread the money around, rather than to one creditor. The bottom line is that you should get some professional advice before you attempt a payment solution under pressure.
The bankruptcy court also discourages substantial payments to any creditor when it would be more equitable to share the money between all creditors. The court could ask that the money be given to the court if it was transferred recently. Recent transfers of property will also be examined to see if full value was given and to determine if the motive was to keep the property out of the hands of creditors.
Once all your paperwork is ready, you will be asked to return to the attorney's office to review the documents. Please allow plenty of time for this task, because there are often over 40 pages of small type that has to be checked for accuracy. You will be directed to sign various pages, and if corrections need to be made, you will need to wait while the corrections are made before signing. Once you are done, the papers are electronically transmitted to the court, and a case number assigned. Usually within 10 days, your hearing date and time will be assigned. This hearing, about 30 days after filing, is called a "Meeting of Creditors". Notwithstanding this description, creditors rarely attend the meeting. You will be place under oath, and the trustee will ask you a few basic questions, and then perhaps a few more based on the particulars of your case. It is important that you arrive on time, listen carefully to instructions and questions, and answer all questions fully and completely. If you do not understand a question, let your attorney know right then. The trustee may ask you to supply additional information or documents at a later date.
In addition to the "Creditors Meeting", Chapter 13 cases have an additional hearing called a "Confirmation Hearing". This hearing is presided over by the judge assigned to your case, and the judge resolves any objections to your case by the trustee or creditors. Your attorney will advise whether you will be actively involved in this hearing.
From this point, the fundamental difference in Chapter 7 and Chapter 13 is that the Chapter 7 ends with a discharge of your debt in just a few months, but a Chapter 13 will continue for the full number of months specified by your payment plan. A Chapter 13 case usually pays some money to the "unsecured creditor" (credit cards, medical bills, etc.) also. On the other hand, a Chapter 7 case does not provide any payment to these creditors. In many cases, a debtor is allowed to keep a house and cars, provided that payments are up to date and equity in the property is fairly small.
A very important feature of any bankruptcy is called the"Automatic Stay". It is called automatic stay because it goes into effect the instant you file your case. You should picture it as an instant "Court Order" of the Federal Government directed at your creditors to cease and desist any activity aimed at you and your property. This automatic court order protects your property from foreclosure and repossession until the court can sort out the proper procedure to take, balancing the rights you have with the rights the creditor might have by law or contract. Most creditors are well aware of the meaning of the automatic stay, and will honor and respect the power of the bankruptcy court. If you receive any contact by a creditor after filing, let your attorney know immediately. Violators of the stay can be punished by the bankruptcy court.
In the Chapter 13 context, the stay gives you time to propose a plan to get the amount you are behind caught up again. In a Chapter 7 case, the court protects you long enough so you can find another place to live, or get alternate transportation. More commonly, the automatic stay stops the angry letters and phone calls, and freezes legal action taken against you to collect a debt.
A common client question is how does the bankruptcy affect a credit report and the ability to get new credit. In the past, restoring credit was predictable to a degree, involving time, a steady income and a particular need for credit. With today's credit/mortgage turmoil, it is anyone's guess. (To be continued....)
This website is newly created, and will be updated and
supplemented as time permits. Stay tuned for more information.
Call me to
discuss your situation at (770) 717-8707 Or you can send me an email
at:
"DLHolbrook(at)bellsouth.net"
--just remove the (at) in
the middle
and insert an @.
You will find that I am easy to talk to, and easy to reach when
you need me. My fees are reasonable, and I even have a payment plan for Chapter
7 cases. It pays to compare.
Thanks,
Dave
The links below are to forms that will be useful in preparing your case. Click, print and fill out. You can fax them to me at 717-8530 (Area Code 770).