Should I file bankruptcy in Wisconsin?
The following questions represent items of primaryf concern to most of our bankruptcy clients. We understand that every client and every case is unique. Therefore, in order to address your specific concerns, we encourage you to take advantage of our free initial consultation.
Commonly Asked Questions/Frequently Asked Questions (FAQs):
What is a bankruptcy and how can it help me?
What are the most common forms of consumer bankruptcy?
Will I lose everything if I file bankruptcy?
How will filing bankruptcy affect my credit?
Will bankruptcy stop my utilities from being disconnected?
Can I discharge student loans in bankruptcy?
Will bankruptcy allow me to get my driver's license back if I have an accident judgment
against me?
Should my spouse and I file a joint bankruptcy?
How much does bankruptcy cost?
How do I make an appointment for my free initial consultation?
What is a bankruptcy and how can it help me?
A bankruptcy is a legal proceeding in federal court. Its function is to relieve people with debt of their obligation to pay certain debts and to distribute assets, if any, to their creditors. The paperwork involved in filing a bankruptcy consists of a petition and schedules. The petition notifies the court and your creditors of your intention to seek court ordered protection and relief from your financial obligations by filing bankruptcy. The accompanying schedules provide the court with an itemized list of your assets and your debts. Upon the filing of a petition, the court grants an automatic stay. The automatic stay acts as an injunction or a restraining order to prevent your creditors from bothering you. Once the case is filed, your creditors cannot call you, sue you, garnish your wages, disconnect your utilities, or harass you in any way. If your driver’s license was suspended or revoked due to an uninsured automobile accident you will, in most cases, be able to get your license back immediately upon the bankruptcy filing. If your utilities have been disconnected, we will make sure that your electric, telephone, and/or gas service is immediately reconnected.
What are the most common forms of consumer bankruptcy?
There are four types of bankruptcy that are available to individuals, depending upon their specific circumstances. The most common forms of consumer bankruptcy are Chapter 7 Bankruptcy and Chapter 13 Bankruptcy. A Chapter 7 Bankruptcy is a discharge of debts and a Chapter 13 Bankruptcy is a payment plan. A Chapter 11 Bankruptcy is a business reorganization and a Chapter 12 Bankruptcy is a bankruptcy specifically for family farmers.
Chapter 7 Bankruptcy:
Chapter 7 Bankruptcy operates as a straight discharge of certain types of debt. In certain circumstances, a person with debt may have the option of keeping certain debts, if they so choose. Typically, people with debt in a Chapter 7 Bankruptcy are looking to discharge unsecured credit card debt, utility bills, back rent, medical bills, uninsured car accident judgments, deficiency amounts owed on repossessed or surrendered vehicles, and other similar debts. Generally, Chapter 7 Bankruptcy will not serve to eliminate debts derived from certain types of tax liability, government fines, forfeitures, restitution, criminal or fraudulent conduct, child and spousal support, drunk driving, most student loans, and debts resulting from intentional and malicious injuries.
A Chapter 7 Bankruptcy is available to people with secured debt as well. In thecase of a debtor with a mortgage or a car note, the person with debt may have the option of keeping the collateral and keeping the debt. The person with debt in a Chapter 7 Bankruptcy may also choose to surrender the collateral and seek a discharge of the debt.
Whether or not a debtor is eligible to file a Chapter 7 is determined by a number of factors which can be discussed personally with an attorney.
On average, a Chapter 7 Bankruptcy takes approximately 90 days from start to finish. As earlier stated, once the petition is filed with the court, the person with debt is granted immediate relief pending the outcome of the case. Within 30 to 40 days of filing the petition, a hearing is held before a United States Trustee. Provided that there are no complications, a Notice of Discharge is usually sent to the person with debt approximately 60 days after the hearing. Creditors are given notice of the hearing and may attend. A person with debt may only file a Chapter 7 Bankruptcy once every eight (8) years.
Chapter 13 Bankruptcy
A Chapter 13 Bankruptcy is a form of debt consolidation. Like Chapter 7 Bankruptcy, it is a procedure in federal court that begins with the filing of a bankruptcy petition and schedules. A Chapter 13 Bankruptcy is different from a Chapter 7 Bankruptcy in that, rather than providing for an outright discharge of the liabilities of the person with debt, it allows them to repay some or all of the debt over an extended period of time. Chapter 13 Bankruptcy is typically chosen by people with debt who own a house or a car and are behind on their payments. In such situations, the Chapter 13 Bankruptcy will prevent a foreclosure or repossession, and allow the person with debt to pay back the amount they are behind over a period of up to sixty (60) months. Unsecured debt is also repaid, although it is often at substantially less than 100% of what is owed. If the person with debt completes the plan, they will receive a discharge as to the remaining balance on any unsecured debt. In order for the court to approve a Chapter 13 Bankruptcy plan, person with debt must be employed or have some other source of reliable income. The Chapter 13 Bankruptcy plan is typically funded by wage assignment.
Will I lose everything if I file bankruptcy?
No. Clients are often worried that by filing bankruptcy they will lose whatever assets they may have. This is not true. The law is very generous and allows for the person with debt to keep certain property deemed “exempt” in the bankruptcy. Any assets over and above the allowed exemptions could be seized by the trustee and distributed to creditors. Most situations are such that the assets of the person with debt fit within the allowed exemptions and the bankruptcy is deemed a “no-asset” case. In such cases, the person with debt is allowed to keep all of their property acquired prior to filing bankruptcy and is allowed to keep post-petition assets as well.
How will filing bankruptcy affect my credit?
A bankruptcy can stay on your credit report for up to ten years. However, this does not mean that a person with debt is not eligible for credit for ten years. People with debt who have filed bankruptcy are often excellent credit risks. They have few, if any, debts after the bankruptcy is filed and they are not eligible for another Chapter 7 Bankruptcy for eight (8) years. It is important for all people with debt to remember that bankruptcy addresses only those debts that were incurred prior to filing. Once the case is filed, any subsequent debt incurred by the person with debt is not dischargeable in Chapter 7 Bankruptcy. A person with debt who gets back into financial trouble within the eight-year period after filing a Chapter 7 Bankruptcy, may seek relief by filing a Chapter 13 Bankruptcy consolidation.
It is important to note that a bankruptcy will not wipe a credit report clean. A bankruptcy will relieve a person with debt of their obligation to repay certain debts. Often people with debt are mistaken in believing that if they file a bankruptcy they will automatically have perfect credit. As we tell people every day, bankruptcy serves to provide a fresh start, not a clean slate.
Will bankruptcy stop my utilities from being disconnected?
Yes. With respect to utilities, the filing of a bankruptcy will generally prevent disconnection. While a person with debt will be obligated to pay their regular monthly bill in order to retain service, the back amounts owed may be discharged in bankruptcy. In cases where a utility has already been disconnected, the filing of a bankruptcy will allow for the immediate reinstatement of such service.
Can I discharge student loans in bankruptcy?
No. As a general rule, government backed student loans are no longer dischargeable in bankruptcy. The Higher Education Reauthorization Act, (10-7-98), repealed the seven year standard for dischargeability of student loans. Therefore, government backed student loans are only dischargeable in cases of undue hardship.
Will bankruptcy allow me to get my driver's license back if I have an accident judgment against me?
Yes. Upon the filing of your bankruptcy petition, our office will fax your bankruptcy petition to the Department of Motor Vehicles to help you get your license back.
Should my spouse and I file a joint bankruptcy?
Although spouses are not required to join in the filing of a bankruptcy, in most situations it is advisable for a married couple to file a joint bankruptcy petition. Wisconsin's marital property laws make a married couple’s assets and debts their joint property. Therefore, in cases where one spouse files for bankruptcy and one spouse chooses not to participate, a creditor of the filing spouse may look to assets of the non-filing spouse for payment. Additionally, in many cases courts have refused to grant a discharge to a spouse who files a bankruptcy separately from a spouse who has already filed within the eight-year period. Therefore, we generally advise that the best protection for married people with debt is to file jointly.
How much does bankruptcy cost?
We are happy to give you an estimate of the fees and costs involved over the telephone. After we have an opportunity to meet with you, we will be able to evaluate your case completely and quote you an accurate fee.
How do I make an appointment for my free initial consultation?
Making an appointment is easy. You can call (414)-277-7742 today, fill out an online form, or send an e-mail to make arrangements for your free initial consultation. We offer evening and Saturday hours, hours by appointment, and conference call hours for out-state clients. We are generally able to see you within one or two days of your call. If your situation requires immediate attention, we will make every effort to see you the same day that you contact our office.
At Miller & Miller, Attorneys-at-Law, in Milwaukee, Wisconsin, we are chapter 7, chapter 13 and chapter 128 bankruptcy lawyers who represent and counsel clients throughout Wisconsin, including Waukesha, Kenosha, Racine, Ozaukee, and West Bend.
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Miller & Miller, Attorneys-at-Law
633 West Wisconsin Avenue, Suite #1500
Milwaukee, Wisconsin 53202-1918
Phone: (414)-277-7742
Fax: (414)-277-1303
