Frequently Asked Questions About Bankruptcy-Part Two

25 Sep Frequently Asked Questions About Bankruptcy-Part Two

A friend and colleage says that you can correctly answer any question about bankruptcy with the phrase “it depends.” In this series I am trying to provide straightforward answers to some of the most frequently asked questions about bankruptcy, where that is possible. In Part One, I discussed some questions about the information that you have to provide to the bankruptcy court, and qualification for bankruptcy. In this post, I’ll try to deal with some of the more common questions about bankruptcy procedure.

1.Will I have to go to court? That one is simple–yes, you almost certainly will. Unless you are operating under such a disability that you can’t (i.e., you are serving in the military overseas, you are in jail, or you are in a persistent vegetative state) you will be required to attend at least one hearing, called the Meeting of Creditors. Everyone who files bankruptcy has to appear at such a hearing, which is usually a fairly brief administrative hearing. If you absolutely cannot attend (see examples above) someone who is familiar with your financial affairs (such as someone who holds your power of attorney) must appear in your stead, and be prepared to answer questions about your finances. I tell clients who are apprehensive about the Meeting of Creditors that no one is ever going to make a TV show about bankruptcy court–it’s too boring. If you are still concerned, you can watch a video of a Meeting of Creditors prepared by the Office of the U.S. Courts, and you can find some others on You Tube as well. There may be other hearings in your case, too, but often the Meeting of Creditors is the only one you will have to attend.

2.Do I have to do ALL THAT paperwork? Again, the answer to that is a resounding, unqualified YES. It may seem as if your bankruptcy attorney and the trustee in your case are making things up to annoy you, but there is a reason for every question I ask, and every document I collect. If you are having trouble locating a copy of something, I can work with you to obtain a copy or obtain the information in another way, but I can’t just ignore it or let it slide.

3.When will I go to court? When your case is filed with the bankruptcy court, the court will schedule a Meeting of Creditors and notify you, your attorney, and all your creditors of the date and time of that hearing. The Meeting of Creditors will be scheduled more than 15 days and less than 45 days from that time, usually about 30 days from the time the case is filed.

4.Will you, my attorney, be there with me? Absolutely. This is a good question to ask your attorney, though. Some law firms with more than one attorney will send one attorney to handle all the firms’ hearings on a given day. While there is nothing wrong with this, you should confirm whether that is the firm’s practice, and ask to meet the attorney who will be there with you. You have every right to expect that if the attorney who attends the Meeting of Creditors with you will be familiar with your file and any issues in your case. If you get to the hearing and you don’t feel that is the case, you can ask that the hearing be continued until the attorney who is familiar can attend with you. There are obviously times that I (or anyone else) can’t be there because of illness, family obligations, or even a vacation. In that case I offer many of my clients a choice. I can ask some other attorney to attend the hearing, making sure that attorney is familiar with the case, or I can ask that the hearing be continued. If the client wants to get it over with, they can; if they prefer that I be there, that’s their call, too. If you ask your attorney who will attend with you, and the answer is that they won’t, or they send a paralegal, run, do not walk, away. Run far, far away. Quickly. That’s a huge part of what you are paying for, and you have a right to expect your attorney will attend with you.

5. How long will my case take? It depends. Okay, I said I wouldn’t, but it does. It’s pretty simple, though. Once your Chapter 7 case is filed, it will generally take about five to six months for you to receive your discharge, if there are no problems which would cause the court to deny your discharge. For most consumer Chapter 7 debtors, that also ends the case. If the Chapter 7 case is what we call an asset case, meaning the trustee is administering assets, he will continue to do his job until he’s finished, but your part in things is generally over with your discharge. In Chapter 13 cases, you are in a payment plan for a period of three to five years. Once you have completed your payment plan, it takes three to six months to audit the case and close it.

I’ll continue with some procedural questions in Part Three, so stay tuned.

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Däna (pronounced "Donna") Wilkinson, has been a bankruptcy lawyer in South Carolina for 20 years. She is certified as a bankruptcy specialist by the South Carolina Supreme Court.
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