If I filed bankruptcy before, can I file again?
If you filed a Chapter 7 more than 8 years ago, you can refile without any concern about the prior case.
If you filed a Chapter 7 more than 4 years ago, you can file a Chapter 13 and get a discharge.
If I file bankruptcy, does my spouse have to file with me?
No. However, if one spouse files bankruptcy, all community property is an asset of the bankruptcy. Your spouse’s income “counts” for the Means Test.
Do I need to list all my creditors?
Yes. You can continue to pay those creditors you want to pay, but you have to list all of them.
Are there any debts that are not discharged (wiped out) in a bankruptcy?
Yes. Student loans, money borrowed to pay taxes, debts incurred using fraud, certain purchases and cash advances in the 90 days prior to bankruptcy, and acts caused by a willful and malicious injury are not discharged.
Also non-dischargeable are debts relating to death or personal injury involving a vehicle where the driver was intoxicated (drugs or alcohol).
Most debts incurred pursuant to a divorce or separation agreement are not dischargeable in a Chapter 7. Child and spousal support are not dischargeable although they may be paid in a Chapter 13.
There are special rules for taxes which are discussed in the next question.
Can I discharge taxes?
Sometimes. Income taxes (Form 1040) can be discharged if…
- the tax return was due more than 3 years ago
- the tax return was filed more than 2 years ago
- the tax was assessed more than 240 days ago
- the return was not fraudulent
- the debtor did not willfully attempt to evade or defeat the tax
What happens if I forget to list something on my bankruptcy?
There are a number of possibilities, none of them good, but some a lot worse than others.
- Amendment: It is necessary to file an amendment to add the asset. This does require a fee.
- Loss of Credibility: If a trustee doesn’t believe you, he looks harder. Even if there is nothing to find, it still involves time, effort and stress that could be avoided.
- Loss of the Asset: If you recklessly or intentionally fail to list an asset, you may lose your right to exempt (keep) the asset.
- Denial of Discharge: If you conceal an asset from the trustee, your discharge can be denied. A denial of discharge means your debts are not wiped out and the creditors can still collect their debts. It also means the trustee still gets to sell your non-exempt assets.
- Federal Prison: Concealment of an asset is a federal crime. Prosecution is rare, but it does happen.
Obviously, if you file bankruptcy in January and don’t think you are going to get a tax refund and amend your bankruptcy to show a tax refund, no one is going to think it is fraudulent. If you “forgot” you gave a Porsche to your brother, there is a reason to worry.
Do I have to go to the Meeting of Creditors?
Yes. You need to appear at the scheduled meeting of creditors and answer questions that the trustee asks you.
If there are extraordinary circumstances (you are in the hospital, your spouse is in the hospital, if you live in Lake Isabella and the Canyon is closed) it is possible to get a contingence. Failure to appear without an extraordinary circumstance might mean your case is dismissed.
Who goes to the Meeting of Creditors with me?
Patrick Kavanagh. I do not use appearance attorneys. In the last ten years, there was one occasion in which I had to be out of Bakersfield. Other than that, I have appeared at all of the meetings of creditors on the cases that I filed.
My house was foreclosed. Do I have to file bankruptcy?
It depends. If the only deed of trust on the property was a first deed of trust, then you have no liability. If the second deed of trust was purchase money, that is, used to buy the house and not refinance it, then you have no personal liability in an ordinary foreclosure.
Keep in mind that if you damage the house (i.e. remove copper wire) you have liability for that.
