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	<title>Rochester Bankruptcy and Debt Relief &#187; Post-Bankruptcy</title>
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	<link>http://www.rochesterdebtrelief.com</link>
	<description>A Rochester, New York, blog addressing issues of bankruptcy and debt relief.</description>
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		<title>Repaying Debts After the Bankruptcy</title>
		<link>http://www.rochesterdebtrelief.com/2010/08/09/repaying-debts-after-the-bankruptcy/</link>
		<comments>http://www.rochesterdebtrelief.com/2010/08/09/repaying-debts-after-the-bankruptcy/#comments</comments>
		<pubDate>Tue, 10 Aug 2010 02:21:27 +0000</pubDate>
		<dc:creator>alexkorotkin</dc:creator>
				<category><![CDATA[Bankruptcy Basics]]></category>
		<category><![CDATA[Chapter 13]]></category>
		<category><![CDATA[Chapter 7]]></category>
		<category><![CDATA[Dischargeability]]></category>
		<category><![CDATA[Post-Bankruptcy]]></category>
		<category><![CDATA[Procedure]]></category>
		<category><![CDATA[automatic stay]]></category>
		<category><![CDATA[credit]]></category>
		<category><![CDATA[attorney]]></category>
		<category><![CDATA[bankruptcy]]></category>
		<category><![CDATA[county]]></category>
		<category><![CDATA[debt]]></category>
		<category><![CDATA[discharge]]></category>
		<category><![CDATA[livingston]]></category>
		<category><![CDATA[monroe]]></category>
		<category><![CDATA[ontario]]></category>
		<category><![CDATA[orleans]]></category>
		<category><![CDATA[repayment]]></category>
		<category><![CDATA[Rochester]]></category>
		<category><![CDATA[rochester bankruptcy lawyer]]></category>
		<category><![CDATA[wayne]]></category>

		<guid isPermaLink="false">http://www.rochesterdebtrelief.com/?p=707</guid>
		<description><![CDATA[Sometimes I am asked by debtors if  they can pay their creditors after they received a bankruptcy discharge. My answer to them is that there is nothing in the bankruptcy law that prohibits debtors from voluntarily paying their creditors, either those creditors that are important to you, or all of them.  However, for me [...]]]></description>
			<content:encoded><![CDATA[<p>Sometimes I am asked by debtors if  they can pay their creditors after they received a <a href="http://www.rochesterdebtrelief.com/2009/03/28/bankruptcy-basics-a-brief-summary/" target="_blank">bankruptcy discharge</a>. My answer to them is that there is nothing in the bankruptcy law that prohibits debtors from voluntarily paying their creditors, either those creditors that are important to you, or all of them.  However, for me as a bankruptcy lawyer, it can be a bit difficult to understand since debtors typically file for bankruptcy protection because they cannot afford to pay their creditors.  At the same time, I understand that under some circumstances debtors make a deliberate decision to repay someone.</p>
<p>In many different situations, debtors have creditors that are important to them.  Those creditors may be family member who have loaned debtors money.  Typically, debtors do not want to discharge the debt owed to close relatives.  In those situations, my advice is to list the debt but, once the case is over, repay it voluntarily.</p>
<p>Another usual situation is where the debtor may have credit at a small, local store.  Since it may be important for the debtor to have that access to such credit, the debtor may choose to pay that debt even after the bankruptcy case is over and the debt is discharged.</p>
<p>From the creditor&#8217;s side, once the bankruptcy is filed, the creditor may not contact the debtor to attempt to “persuade” him to “voluntarily” pay the debt.  TIf any creditors does this, it would be viewed by the bankruptcy court as an attempt to collect a discharged debt in violation of the discharge injunction.</p>
<p>If the debtor decides to repay a debt after filing for either <a href="http://www.rochesterdebtrelief.com/2009/03/31/bankruptcy-basics-the-process-of-filing-and-completing-chapter-7-bankruptcy/" target="_blank">Chapter 7 Bankruptcy</a> or <a href="http://www.rochesterdebtrelief.com/2009/04/05/bankruptcy-basics-the-process-of-filing-and-completing-chapter-13-bankruptcy/" target="_blank">Chapter 13 Bankruptcy</a>, he should be very careful about making payments on a discharged debt.  If a creditor were to sue the debtor on a discharged debt in state court, the debtor could raise the fact that the debt was discharged in bankruptcy by raising it as an affirmative defense in state court litigation or he could remove the action to bankruptcy court and allow the bankruptcy court to enforce its discharge injunction.  By making payments on a discharged debt, the debtor could create a “waiver” of the bankruptcy discharge on that particular debt.</p>
<p>If you are contemplating filing Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, or are dealing with debt problems in Western New York, including Rochester, New York, Canandaigua, Brighton, Pittsford, Penfield, Perinton, Fairport, Webster, Victor, Farmington, Greece, Gates, Hilton, Parma, Brockport, Spencerport, LeRoy, Chili, Churchville, Monroe County, Ontario County, Wayne County, Orleans County, Livingston County, and being harassed by bill collectors, and would like to know more about how bankruptcy may be able to help you, contact me today by phone or email to schedule a FREE initial consultation with a <a href="http://www.korotkinlaw.com/bankruptcy">Rochester, NY, bankruptcy lawyer</a>.</p>
]]></content:encoded>
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		</item>
		<item>
		<title>Can You Be Fired For Filing Bankruptcy?</title>
		<link>http://www.rochesterdebtrelief.com/2010/07/03/can-you-be-fired-for-filing-bankruptcy/</link>
		<comments>http://www.rochesterdebtrelief.com/2010/07/03/can-you-be-fired-for-filing-bankruptcy/#comments</comments>
		<pubDate>Sun, 04 Jul 2010 02:41:10 +0000</pubDate>
		<dc:creator>alexkorotkin</dc:creator>
				<category><![CDATA[BAPCPA]]></category>
		<category><![CDATA[Bankruptcy Basics]]></category>
		<category><![CDATA[Bankruptcy Planning]]></category>
		<category><![CDATA[Chapter 13]]></category>
		<category><![CDATA[Chapter 7]]></category>
		<category><![CDATA[Post-Bankruptcy]]></category>
		<category><![CDATA[Procedure]]></category>
		<category><![CDATA[attorney]]></category>
		<category><![CDATA[bankruptcy]]></category>
		<category><![CDATA[county]]></category>
		<category><![CDATA[employment]]></category>
		<category><![CDATA[firing]]></category>
		<category><![CDATA[job]]></category>
		<category><![CDATA[lawyer]]></category>
		<category><![CDATA[loss]]></category>
		<category><![CDATA[monroe]]></category>
		<category><![CDATA[New York]]></category>
		<category><![CDATA[Rochester]]></category>
		<category><![CDATA[termination]]></category>

		<guid isPermaLink="false">http://www.rochesterdebtrelief.com/?p=659</guid>
		<description><![CDATA[Many people who file for bankruptcy in New York have fears about their relatives, friends, neighbors and employers discovering that they have filed for bankruptcy. They try to hide this fact from everyone. Many people who would greatly benefit from filing for bankruptcy under either Chapter 7 or Chapter 13 are reluctant to do so [...]]]></description>
			<content:encoded><![CDATA[<p>Many people who file for bankruptcy in New York have fears about their relatives, friends, neighbors and employers discovering that they have filed for bankruptcy. They try to hide this fact from everyone. Many people who would greatly benefit from filing for bankruptcy under either <a href="http://www.rochesterdebtrelief.com/2009/03/31/bankruptcy-basics-the-process-of-filing-and-completing-chapter-7-bankruptcy/" target="_blank">Chapter 7</a> or <a href="http://www.rochesterdebtrelief.com/2009/04/05/bankruptcy-basics-the-process-of-filing-and-completing-chapter-13-bankruptcy/" target="_blank">Chapter 13</a> are reluctant to do so is because the perception among some people is that it is shameful to file for bankruptcy.  I spend a considerable amount of time explaining to my clients that there is nothing shameful about filing for bankruptcy.</p>
<p>A lot of people are scared that their employers would find out that they filed for bankruptcy. They are afraid that their employers might fire them from their jobs if employers find out about their bankruptcy filing. They try as much as possible to hide their filing for bankruptcy because of this sense of insecurity.</p>
<p>The debtors should not be concerned since federal law prohibits employers from discriminating against them or from terminating their employment solely because of the debtor&#8217;s bankruptcy filing. Specifically, the bankruptcy code’s non-discrimination provision, 11 U.S.C. section 525(b), states as follows:</p>
<p style="padding-left: 60px;">No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title … solely because such debtor … is or has been a debtor under this title&#8230;.  11 U.S.C. sec. 525(b).</p>
<p>One caveat to the above provision is that the Bankruptcy Code prohibits discrimination solely on the basis of the bankruptcy filing. It will not protect an employee who is having other employment-related problems.</p>
<p>The reality now is that a great number of people in Rochester, New York, or elsewhere in Western New York, have filed or are filing for bankruptcy. For a business having employees who file for bankruptcy is simply a fact of life.  In many respects, it is better for the employer to have an employee file for bankruptcy, so that the employee is not spending time answering phone calls from the debt collectors, or that employer does not have to waste time garnishing employer&#8217;s wages. In today&#8217;s economy, bankruptcy is a reality that everyone is facing, and so companies would rather not do anything that would appear to be a form of discrimination against their employees.</p>
<p>If you contemplating filing Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, or are dealing with debt problems in Western New York, including Rochester, New York, Canandaigua, Brighton, Pittsford, Penfield, Perinton, Fairport, Webster, Victor, Farmington, Greece, Gates, Hilton, Parma, Brockport, Spencerport, LeRoy, Chili, Churchville, Monroe County, Ontario County, Wayne County, Orleans County, Livingston County, and being harassed by bill collectors, and would like to know more about how bankruptcy may be able to help you, contact me today by phone or email to schedule a FREE initial consultation with a <a href="http://www.korotkinlaw.com/bankruptcy">Rochester, NY, bankruptcy lawyer</a>.</p>
]]></content:encoded>
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		</item>
		<item>
		<title>Another Remedy For A Failing Chapter 13 Bankruptcy- Amending Bankruptcy Plan</title>
		<link>http://www.rochesterdebtrelief.com/2010/05/23/another-remedy-for-a-failing-chapter-13-bankruptcy-amending-bankruptcy-plan/</link>
		<comments>http://www.rochesterdebtrelief.com/2010/05/23/another-remedy-for-a-failing-chapter-13-bankruptcy-amending-bankruptcy-plan/#comments</comments>
		<pubDate>Sun, 23 May 2010 16:16:53 +0000</pubDate>
		<dc:creator>alexkorotkin</dc:creator>
				<category><![CDATA[Bankruptcy Basics]]></category>
		<category><![CDATA[Chapter 13]]></category>
		<category><![CDATA[Post-Bankruptcy]]></category>
		<category><![CDATA[Procedure]]></category>
		<category><![CDATA[bankruptcy]]></category>
		<category><![CDATA[debtor]]></category>
		<category><![CDATA[Modification]]></category>
		<category><![CDATA[modify]]></category>
		<category><![CDATA[Monroe County]]></category>
		<category><![CDATA[New York]]></category>
		<category><![CDATA[Rochester]]></category>

		<guid isPermaLink="false">http://www.rochesterdebtrelief.com/?p=592</guid>
		<description><![CDATA[I have recently written about a situation where the debtor&#8217;s Chapter 13 Bankruptcy plan is failing for the reasons beyond the debtor&#8217;s control.  One potential way to resolve this problem was to seek a hardship discharge.  Today, I will describe another way of addressing this problem.
In a typical Chapter 13 Bankruptcy case, the debtor has [...]]]></description>
			<content:encoded><![CDATA[<p>I have recently written about a situation where the debtor&#8217;s Chapter 13 Bankruptcy plan is failing for the reasons beyond the debtor&#8217;s control.  One potential way to resolve this problem was to seek a <a href="http://www.rochesterdebtrelief.com/2010/05/09/debtor-who-cant-make-his-chapter-13-bankruptcy-payments-and-hardship-discharge/" target="_blank">hardship discharge</a>.  Today, I will describe another way of addressing this problem.</p>
<p>In a typical <a href="http://www.rochesterdebtrelief.com/2009/04/05/bankruptcy-basics-the-process-of-filing-and-completing-chapter-13-bankruptcy/" target="_blank">Chapter 13 Bankruptcy</a> case, the debtor has to propose a monthly payment to repay his/her creditors over either 36 or 60 months.  The length of the plan in either situation is substantial and carries with it some risks for the debtor.  The primary risk is a substantial change in the debtor&#8217;s income, leaving him/her unable to make monthly payments approved by the bankruptcy court.</p>
<p>When a confirmed Chapter 13 bankruptcy plan is failing, the debtor should start thinking about having the plan modified in order to remain in Chapter 13 Bankruptcy.  Under the applicable provisions of the Bankruptcy Code,  the plan can be modified and the debtor can seek a change in the amount of the monthly payment or the length of the plan to fit the current circumstances.</p>
<p>Section 1329 of the Bankruptcy Code provides that the plan can be modified to:</p>
<p style="padding-left: 60px;">(1) increase or reduce the amount of payments on claims of a particular class provided for by the plan;</p>
<p style="padding-left: 60px;">(2) extend or reduce the time for such payments;</p>
<p style="padding-left: 60px;">(3) alter the amount of the distribution to a creditor whose claim is provided for by the plan to the extent necessary to take account of any payment of such claim other than under the plan; or</p>
<p style="padding-left: 60px;">(4) reduce amounts to be paid under the plan by the actual amount expended by the debtor to purchase health insurance for the debtor.</p>
<p>If you are unable to make a payment on the plan on time, you should immediately contact your bankruptcy lawyer to determine if the plan can be modified.  In order to modify the plan, the debtor must make a motion for modification. Such motion must show to the bankruptcy court new payments using documentation of the new income figures.</p>
<p>The advantages in keeping your Chapter 13 Bankruptcy include keeping the automatic stay in place;  getting a discharge, and not incurring additional attorneys fees for converting to a Chapter 7 Bankruptcy.  If the bankruptcy remains in place, your creditors will not be able to sue you or begin collections activities.</p>
<p>If you contemplating filing Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, or are dealing with debt problems in Western New York, including Rochester, Canandaigua, Brighton, Pittsford, Penfield, Perinton, Fairport, Webster, Victor, Farmington, Greece, Gates, Hilton, Parma, Brockport, Spencerport, LeRoy, Chili, Churchville, Monroe County, Ontario County, Wayne County, Orleans County, Livingston County, and being harassed by bill collectors, and would like to know more about how bankruptcy may be able to help you, contact me today by phone or email to schedule a FREE initial consultation with a <a href="http://www.korotkinlaw.com/bankruptcy" target="_blank">Rochester, NY, bankruptcy lawyer</a>.</p>
]]></content:encoded>
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		</item>
		<item>
		<title>What Happens If a Creditor Is Omitted In Chapter 7 Bankruptcy</title>
		<link>http://www.rochesterdebtrelief.com/2010/04/26/what-happens-if-a-creditor-is-omitted-in-chapter-7-bankruptcy/</link>
		<comments>http://www.rochesterdebtrelief.com/2010/04/26/what-happens-if-a-creditor-is-omitted-in-chapter-7-bankruptcy/#comments</comments>
		<pubDate>Tue, 27 Apr 2010 01:31:18 +0000</pubDate>
		<dc:creator>alexkorotkin</dc:creator>
				<category><![CDATA[Bankruptcy Basics]]></category>
		<category><![CDATA[Chapter 7]]></category>
		<category><![CDATA[Post-Bankruptcy]]></category>
		<category><![CDATA[Procedure]]></category>
		<category><![CDATA[attorney]]></category>
		<category><![CDATA[bankruptcy]]></category>
		<category><![CDATA[BAPCPA]]></category>
		<category><![CDATA[county]]></category>
		<category><![CDATA[creditor]]></category>
		<category><![CDATA[New York]]></category>
		<category><![CDATA[omitted]]></category>
		<category><![CDATA[petition]]></category>

		<guid isPermaLink="false">http://www.rochesterdebtrelief.com/?p=559</guid>
		<description><![CDATA[When I prepare a bankruptcy petition in either Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, I do everything possible to make sure that every creditor is included and given a proper notice of the filing. However, once in a while, a Chapter 7 debtor realizes that he or she forgot to include a creditor after [...]]]></description>
			<content:encoded><![CDATA[<p>When I prepare a <a href="http://www.rochesterdebtrelief.com/2009/11/29/reviewing-your-chapter-7-and-chapter-13-bankruptcy-petition-a-critical-part-of-your-bankruptcy-process/" target="_blank">bankruptcy petition</a> in either <a href="http://www.rochesterdebtrelief.com/2009/03/31/bankruptcy-basics-the-process-of-filing-and-completing-chapter-7-bankruptcy/" target="_blank">Chapter 7 Bankruptcy</a> or <a href="http://www.rochesterdebtrelief.com/2009/04/05/bankruptcy-basics-the-process-of-filing-and-completing-chapter-13-bankruptcy/" target="_blank">Chapter 13 Bankruptcy</a>, I do everything possible to make sure that every creditor is included and given a proper notice of the filing. However, once in a while, a Chapter 7 debtor realizes that he or she forgot to include a creditor after the case has closed.</p>
<p>If you are a bankruptcy lawyer, this occurs periodically.  I file a routine Chapter 7 bankruptcy petition, the case goes proceeds normally, the debtor gets a discharge, and, subsequently, the case is closed.  Then, sometime later, the debtor contacts me to say that a creditor was inadvertently omitted.  The debtor explains that that he simply forgot and that it was an innocent mistake.  A bankruptcy lawyer may think that this should not be a big problem since the case can be reopened by motion, and an application can be brought to amend the schedule of creditors to include the omitted one.</p>
<p>However, there have been a great number of cases on this issue, with divergent theories and conclusions. Some have held that the case can be reopened, and some have held that it can’t.  Some bankruptcy courts routinely grant debtors’ motions to amend schedules to list previously omitted creditors.  Some cases focus on whether there is prejudice to creditors or whether there was fraud.</p>
<p>Some courts will refuse to permit the case to be reopened, because they believe omitted debts are non-dischargeable.  Yet other courts will refuse to permit the case to be reopened because they believe that omitted debts are automatically discharged even if they are not listed, and therefore reopening the case serves no purpose.</p>
<p>There are two possible approaches that courts can take in addressing this issue.  Under the “mechanical approach” courts have denied motions to reopen no-asset cases, finding that the debt owed to an omitted creditor is discharged “as a matter of law.”  Under this approach, there is no reason to reopen a bankruptcy case, provided that it is a no-asset case and the debt is not otherwise excepted from discharge.</p>
<p>Under the “equitable approach,” courts consider whether the debtor’s omission was the result of fraud, recklessness or intentional design, or if it would prejudice the creditor’s rights.  Good faith is an important element.  Courts adopting this approach have held that motions to reopen no-asset cases to list omitted creditors should be liberally granted.</p>
<p>For most garden variety situations where the debtor omits a typical credit card debt and advises the attorney within a few years, the courts will probably be unwilling to permit counsel to reopen the case to add the creditor, asserting that, under the mechanical approach, the debt is dischargeable.  In such cases, the bankruptcy attorney should consider sending a certified letter to the creditor stating that the debt has been discharged, together with copies of the notice of commencement and order of discharge.</p>
<p>However, in situations where the creditor raises objections to this approach, the bankruptcy lawyer should be prepared to file a motion to reopen, in which case the court will probably consider the various factors in the equitable approach.</p>
<p>If you contemplating filing Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, or are dealing with debt problems in Western New York, including Rochester, Canandaigua, Brighton, Pittsford, Penfield, Perinton, Fairport, Webster, Victor, Farmington, Greece, Gates, Hilton, Parma, Brockport, Spencerport, LeRoy, Chili, Churchville, Monroe County, Ontario County, Wayne County, Orleans County, Livingston County, and being harassed by bill collectors, and would like to know more about how bankruptcy may be able to help you, contact me today by phone or email to schedule a FREE initial consultation with a <a href="http://www.korotkinlaw.com/bankruptcy" target="_blank">Rochester, NY, bankruptcy lawyer</a>.</p>
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		</item>
		<item>
		<title>Chapter 7 Bankruptcy, Chapter 13 Bankruptcy and Debtor&#8217;s Credit Report</title>
		<link>http://www.rochesterdebtrelief.com/2010/02/27/chapter-7-bankruptcy-chapter-13-bankruptcy-and-debtors-credit-report/</link>
		<comments>http://www.rochesterdebtrelief.com/2010/02/27/chapter-7-bankruptcy-chapter-13-bankruptcy-and-debtors-credit-report/#comments</comments>
		<pubDate>Sun, 28 Feb 2010 04:05:32 +0000</pubDate>
		<dc:creator>alexkorotkin</dc:creator>
				<category><![CDATA[Chapter 13]]></category>
		<category><![CDATA[Chapter 7]]></category>
		<category><![CDATA[Post-Bankruptcy]]></category>
		<category><![CDATA[credit]]></category>
		<category><![CDATA[attorney]]></category>
		<category><![CDATA[county]]></category>
		<category><![CDATA[credit report]]></category>
		<category><![CDATA[credit score]]></category>
		<category><![CDATA[Fair Credit Reporting Act]]></category>
		<category><![CDATA[FCRA]]></category>
		<category><![CDATA[livingston]]></category>
		<category><![CDATA[monroe]]></category>
		<category><![CDATA[ontario]]></category>
		<category><![CDATA[orleans]]></category>
		<category><![CDATA[Rochester]]></category>
		<category><![CDATA[wayne]]></category>

		<guid isPermaLink="false">http://www.rochesterdebtrelief.com/?p=466</guid>
		<description><![CDATA[I am frequently asked by the debtors how long their bankruptcy filing will remain on their credit report and whether they would be able to obtain credit after the filing.  There is a substantial amount of confusion with respect to when a bankruptcy can no longer be reported on the debtor&#8217;s credit report and whether [...]]]></description>
			<content:encoded><![CDATA[<p>I am frequently asked by the debtors how long their bankruptcy filing will remain on their credit report and whether they would be able to obtain credit after the filing.  There is a substantial amount of confusion with respect to when a bankruptcy can no longer be reported on the debtor&#8217;s credit report and whether credit becomes available to those who file for bankruptcy relief.</p>
<p>The length of time a bankruptcy can be reported on the debtor&#8217;s credit report is governed by the Fair Credit Reporting Act (&#8220;FCRA&#8221;).  The FCRA orders credit reporting agencies to remove bankruptcy case information from all consumer reports ten years after “the date of entry of the order for relief.”  It does not differentiate between <a href="http://www.rochesterdebtrelief.com/2009/03/31/bankruptcy-basics-the-process-of-filing-and-completing-chapter-7-bankruptcy/" target="_blank">Chapter 7 Bankruptcy</a> and <a href="http://www.rochesterdebtrelief.com/2009/04/05/bankruptcy-basics-the-process-of-filing-and-completing-chapter-13-bankruptcy/" target="_blank">Chapter 13 Bankruptcy</a>.  The order for relief according to §301 of the Bankruptcy Code is entered on the filing date, so the ten year period is measured from the bankruptcy filing date, not the discharge date.</p>
<p>It is usually a good idea to order your credit report after the bankruptcy to make sure that the bankruptcy discharge also shows on the credit report so that potential new creditors understand that the creditors whose claims were discharged in bankruptcy have no remaining legal claims.</p>
<p>In my opinion, bankruptcy is no more harmful to the debtor&#8217;s credit score than the financial circumstances that lead to the bankruptcy filing.  In today&#8217;s lending environment, credit is available to the recently bankrupt.  It may be more expensive than prior to the bankruptcy filing, and available with lower limits, but it is likely to be offered.  Similarly, according to the credit industry&#8217;s studies, 18-24 months after a bankruptcy discharge, bankruptcy debtors can qualify for a mortgage loan on the same terms as if they had not filed bankruptcy.  The anecdotal experience of my clients has been that they were able to obtain mortgages within two years of filing Chapter 7 Bankruptcy.  While it takes some effort to <a href="http://www.rochesterdebtrelief.com/2009/04/05/rebuilding-your-credit-after-bankruptcy/" target="_blank">rebuild credit after bankruptcy</a>, it is possible to do so.</p>
<p>If you contemplating filing Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, or are dealing with debt problems in Western New York, including Rochester, Canandaigua, Brighton, Pittsford, Penfield, Perinton, Fairport, Webster, Victor, Farmington, Greece, Gates, Hilton, Parma, Brockport, Spencerport, LeRoy, Chili, Churchville, Monroe County, Ontario County, Wayne County, Orleans County, Livingston County, and being harassed by bill collectors, and would like to know more about how bankruptcy may be able to help you, contact me today by phone or email to schedule a FREE initial consultation with a <a href="http://www.korotkinlaw.com/bankruptcy" target="_blank">Rochester, NY, bankruptcy lawyer</a>.</p>
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		</item>
		<item>
		<title>Eviction, Chapter 7 Bankruptcy and Chapter 13 Bankruptcy</title>
		<link>http://www.rochesterdebtrelief.com/2010/01/02/eviction-chapter-7-bankruptcy-and-chapter-13-bankruptcy/</link>
		<comments>http://www.rochesterdebtrelief.com/2010/01/02/eviction-chapter-7-bankruptcy-and-chapter-13-bankruptcy/#comments</comments>
		<pubDate>Sun, 03 Jan 2010 02:58:26 +0000</pubDate>
		<dc:creator>alexkorotkin</dc:creator>
				<category><![CDATA[Bankruptcy Basics]]></category>
		<category><![CDATA[Chapter 13]]></category>
		<category><![CDATA[Chapter 7]]></category>
		<category><![CDATA[Post-Bankruptcy]]></category>
		<category><![CDATA[Procedure]]></category>
		<category><![CDATA[automatic stay]]></category>
		<category><![CDATA[attorney]]></category>
		<category><![CDATA[bankruptcy]]></category>
		<category><![CDATA[county]]></category>
		<category><![CDATA[eviction]]></category>
		<category><![CDATA[lawyer]]></category>
		<category><![CDATA[lease]]></category>
		<category><![CDATA[livingston]]></category>
		<category><![CDATA[monroe]]></category>
		<category><![CDATA[New York]]></category>
		<category><![CDATA[ontario]]></category>
		<category><![CDATA[orleans]]></category>
		<category><![CDATA[Rochester]]></category>
		<category><![CDATA[tenant]]></category>
		<category><![CDATA[wayne]]></category>

		<guid isPermaLink="false">http://www.rochesterdebtrelief.com/?p=391</guid>
		<description><![CDATA[I often receive phone calls from people in Rochester and elsewhere in Western New York who are facing a potential eviction involving a commercial or residential lease.  Usually the debtors do not know what their bankruptcy options are and are seeking advice how to proceed.
A bankruptcy filing by the tenant, either residential or commercial, immediately [...]]]></description>
			<content:encoded><![CDATA[<p>I often receive phone calls from people in Rochester and elsewhere in Western New York who are facing a potential eviction involving a commercial or residential lease.  Usually the debtors do not know what their bankruptcy options are and are seeking advice how to proceed.</p>
<p>A bankruptcy filing by the tenant, either residential or commercial, immediately stops any pending eviction proceedings as a result of an “automatic stay.”  <a href="http://www.rochesterdebtrelief.com/2009/03/31/bankruptcy-basics-the-process-of-filing-and-completing-chapter-7-bankruptcy/" target="_blank">Automatic stay</a>, as I have written previously, is a mandatory injunction that arises by operation of law without the need for a hearing or order of the Bankruptcy Court.  The automatic stay stops all of creditor’s efforts to pursue collections, litigation or judgment enforcement.  The automatic stay protect the debtor and the property of the debtor’s bankruptcy estate.  However, with respect to leases, it is critical to know at what stage the eviction proceedings are.</p>
<p>In the case of a lease, whether commercial or residential, the critical issue is whether a writ of eviction has already been issued from the landlord-tenant court. There is a significant body of case law holding that once a writ of eviction has issued from the landlord-tenant court the interest of the tenant in the lease has terminated.  As result, if the lease is considered to be terminated by the bankruptcy court, the tenant can be evicted and the automatic stay will not stop the eviction.  Thus, if a bankruptcy is being considered to prevent to postpone the eviction, it is critical for the debtor to contact a bankruptcy lawyer as soon as the eviction petition is served.</p>
<p>For a tenant who files for bankruptcy, the available options depend upon what chapter (type) of bankruptcy the debtor may be filing.</p>
<p>If the debtor is filing Chapter 7 bankruptcy, it may provide a delay in being evicted, and discharge the tenant from any liability under the lease.  At the same time, the filing will not allow the debtor to either cure the default or give extra time to make payments under the lease.</p>
<p>For an individual debtor who has a lease, and has not kept up with the payments, Chapter 13 bankruptcy can provide the opportunity to cure the arrears (past due rent) over time.  In a Chapter 13 bankruptcy, the arrears can be paid over a 5 year period, depending on the terms of the plan.  If the tenant doesn’t stay current with post-bankruptcy rent, the landlord can seek “relief from the automatic stay” from the Bankruptcy Court to permit the landlord to move forward to evict the tenant in state court.</p>
<p>If you contemplating filing Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, or are dealing with debt problems in Western New York, including Rochester, Canandaigua, Brighton, Pittsford, Penfield, Perinton, Fairport, Webster, Victor, Farmington, Greece, Gates, Hilton, Parma, Brockport, Spencerport, LeRoy, Chili, Churchville, Monroe County, Ontario County, Wayne County, Orleans County, Livingston County, and being harassed by bill collectors, and would like to know more about how bankruptcy may be able to help you, contact me today by phone or email to schedule a FREE initial consultation with a Rochester, New York, bankruptcy lawyer.</p>
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		<item>
		<title>Chapter 7 and 13 Bankruptcy and Inheritances</title>
		<link>http://www.rochesterdebtrelief.com/2009/10/11/chapter-7-and-13-bankruptcy-and-inheritances/</link>
		<comments>http://www.rochesterdebtrelief.com/2009/10/11/chapter-7-and-13-bankruptcy-and-inheritances/#comments</comments>
		<pubDate>Mon, 12 Oct 2009 02:16:57 +0000</pubDate>
		<dc:creator>alexkorotkin</dc:creator>
				<category><![CDATA[Bankruptcy Basics]]></category>
		<category><![CDATA[Bankruptcy Planning]]></category>
		<category><![CDATA[Chapter 13]]></category>
		<category><![CDATA[Chapter 7]]></category>
		<category><![CDATA[Exemptions]]></category>
		<category><![CDATA[Post-Bankruptcy]]></category>
		<category><![CDATA[Procedure]]></category>
		<category><![CDATA[automatic stay]]></category>
		<category><![CDATA[attorney]]></category>
		<category><![CDATA[bankruptcy]]></category>
		<category><![CDATA[bequest]]></category>
		<category><![CDATA[county]]></category>
		<category><![CDATA[debtor]]></category>
		<category><![CDATA[exemption]]></category>
		<category><![CDATA[inheritance]]></category>
		<category><![CDATA[lawyer]]></category>
		<category><![CDATA[livingston]]></category>
		<category><![CDATA[monroe]]></category>
		<category><![CDATA[ontario]]></category>
		<category><![CDATA[orleans]]></category>
		<category><![CDATA[Rochester]]></category>
		<category><![CDATA[trustee]]></category>
		<category><![CDATA[wayne]]></category>

		<guid isPermaLink="false">http://www.rochesterdebtrelief.com/?p=289</guid>
		<description><![CDATA[When a debtor files for bankruptcy under Chapter 7 or Chapter 13, all of the debtor&#8217;s assets pass under control of the bankruptcy trustee.   The reason for this transfer of control is so the debtor will be able to discharge their debts and receive the benefit of automatic stay.  As I discussed previously, once [...]]]></description>
			<content:encoded><![CDATA[<p>When a debtor files for bankruptcy under Chapter 7 or Chapter 13, all of the debtor&#8217;s assets pass under control of the bankruptcy trustee.   The reason for this transfer of control is so the debtor will be able to discharge their debts and receive the benefit of <a href="http://www.rochesterdebtrelief.com/2009/06/23/creditor-cant-contact-debtor-after-the-bankruptcy-is-filed/" target="_blank">automatic stay</a>.  As I discussed previously, once a bankruptcy is filed, a <a href="http://www.rochesterdebtrelief.com/2009/03/28/bankruptcy-basics-a-brief-summary/" target="_blank">bankruptcy estate</a> is created by operation of the Bankruptcy Code which states that the bankruptcy estate is “comprised of all the following property, wherever located and by whomever held: (1) Except as provided in subsections (b) and (c)(2) of this section, all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1) (2008).  Under the definition of the property of the estate, it also includes any interest in property that would have been property of the estate if such interest had been an interest of the debtor on the date of the filing of the petition, and that the debtor acquires or becomes entitled to acquire within 180 days after such date. This particular provision dealing with assets acquired within 180 days addresses inheritances and bequests.  Therefore, if the debtor receives an  inheritance, or a bequest, within 180 days of the filing for bankruptcy, that inheritance or bequest, become property of the bankruptcy estate.</p>
<p>Since a typical Chapter 7 or Chapter 13 bankruptcy runs its course within less than 180 days, a bequest or an inheritance may come within 180 days of the filing, but after the debtor receives his or her discharge or a confirmed plan.  Under those circumstances, the debtor has an absolute obligation to notify the bankruptcy trustee of the bequest or inheritance.  Once the money is actually received, the debtor must turn over the funds to the trustee.  Here in Rochester, Chapter 7 and 13 trustee specifically tell debtors during 341 meetings that any inheritance or bequest received within 180 days of the filing must be disclosed to the bankruptcy trustee.  While most of the time, debtors can protect their personal or real property through the use of exemptions and pre-filing planning, inheritances or bequests do not provide this opportunity.</p>
<p>If you are dealing with debt problems in Western New York, including Rochester, Canandaigua, Brighton, Pittsford, Penfield, Perinton, Fairport, Webster, Victor, Farmington, Greece, Gates, Hilton, Parma, Brockport, Spencerport, LeRoy, Chili, Churchville, Monroe County, Ontario County, Wayne County, Orleans County, Livingston County, and being harassed by bill collectors, and would like to know more about how bankruptcy may be able to help you, contact me today by phone or email to schedule a FREE initial consultation with a bankruptcy lawyer.</p>
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		</item>
		<item>
		<title>Creditor Can&#8217;t Contact Debtor After the Bankruptcy Is Filed</title>
		<link>http://www.rochesterdebtrelief.com/2009/06/23/creditor-cant-contact-debtor-after-the-bankruptcy-is-filed/</link>
		<comments>http://www.rochesterdebtrelief.com/2009/06/23/creditor-cant-contact-debtor-after-the-bankruptcy-is-filed/#comments</comments>
		<pubDate>Tue, 23 Jun 2009 21:47:50 +0000</pubDate>
		<dc:creator>alexkorotkin</dc:creator>
				<category><![CDATA[Bankruptcy Basics]]></category>
		<category><![CDATA[Exemptions]]></category>
		<category><![CDATA[Post-Bankruptcy]]></category>
		<category><![CDATA[Procedure]]></category>
		<category><![CDATA[attorney]]></category>
		<category><![CDATA[automatic stay]]></category>
		<category><![CDATA[bankruptcy]]></category>
		<category><![CDATA[BAPCPA]]></category>
		<category><![CDATA[collections]]></category>
		<category><![CDATA[creditor]]></category>
		<category><![CDATA[debtor]]></category>
		<category><![CDATA[lawyer]]></category>
		<category><![CDATA[livingston]]></category>
		<category><![CDATA[monroe]]></category>
		<category><![CDATA[New York]]></category>
		<category><![CDATA[ontario]]></category>
		<category><![CDATA[orleans]]></category>
		<category><![CDATA[Rochester]]></category>
		<category><![CDATA[violation]]></category>
		<category><![CDATA[wayne]]></category>

		<guid isPermaLink="false">http://www.rochesterdebtrelief.com/?p=192</guid>
		<description><![CDATA[When you file your bankruptcy case,the creditors must stop calling you.  They can&#8217;t continue garnishing your wages.  They must stop all collection activities because every bankruptcy case protects the debtor with the “automatic stay.”   The automatic stay prohibits creditors from taking  actions against you, unless they obtain a permission from the bankruptcy court.
While there [...]]]></description>
			<content:encoded><![CDATA[<p>When you file your bankruptcy case,the creditors must stop calling you.  They can&#8217;t continue garnishing your wages.  They must stop all collection activities because every bankruptcy case protects the debtor with the “automatic stay.”   The automatic stay prohibits creditors from taking  actions against you, unless they obtain a permission from the bankruptcy court.</p>
<p>While there are some exceptions, primarily for matters involving marital obligations, otherwise known as “domestic support obligations”, for most people and most debts, bankruptcy provides real relief.</p>
<p>If creditors keep calling you, mailing you, garnishing your wages or taking other actions against you, call your lawyer immediately.  Regardless of whether the creditors acted with or without the knowledge of your filing, a bankruptcy lawyer make them stop.  Also, regardless of whether the creditors acted with or without the knowledge of your filing, the creditors may be liable for actual and even punitive damages as well as attorneys fees.</p>
<p>Section 362 of the US Bankruptcy Code states that § 362. Automatic stay states that the filing of a petition in bankruptcy operates as a stay &#8220;applicable to all entities, of the commencement or continuation, of any action against the debtor.&#8221; Section 362(k) states that an individual injured by any willful violation of a stay shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.</p>
<p>So what’s a willful violation of a stay? The creditor needs to know that you have filed for bankruptcy. It must take an action to collect against the debtor after that stay is in effect. The creditor doesn’t need to willfully violate the stay, it needs to willfully take the action. That means the creditor needs to send out the collection letter after that creditor knows of the stay.</p>
<p>Here in Rochester, Judge Ninfo addressed the issue of willful violation of automatic stay in <a href="http://www.nywb.uscourts.gov/files/2450/196_In_re_ENGEL.pdf" target="_blank"><em>In re Engel</em></a>, holding that mailing of a billing statement after the bankruptcy was filed was a willful violation of automatic stay.  In <em>Engel</em>, the creditor was listed in bankruptcy schedules and was also contacted by the debtor&#8217;s attorney who demanded that the creditor stop any and all contact with the debtor. Even after the debtor&#8217;s attorney notified the creditor, the creditor mailed two additional billing statements.  While the creditor claimed that the contact with the debtor was an unintentional mistake, the court found that the creditor&#8217;s actions were intentional and ordered a hearing on damages.    <span> </span></p>
<p>If you are dealing with debt problems in Western New York, including Rochester, Canandaigua, Brighton, Pittsford, Penfield, Perinton, Fairport, Webster, Victor, Farmington, Greece, Gates, Hilton, Parma, Brockport, Spencerport, LeRoy, Chili, Churchville, Monroe County, Ontario County, Wayne County, Orleans County, Livingston County, and being harassed by bill collectors, and would like to know more about how bankruptcy may be able to help you, contact me today by phone or email to schedule a FREE initial consultation with a bankruptcy attorney.</p>
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		<item>
		<title>Failure to Disclose Assets in Bankruptcy, Confirmation of Chapter 13 Plan and Revocation of Confirmation Order</title>
		<link>http://www.rochesterdebtrelief.com/2009/06/07/failure-to-disclose-assets-in-bankruptcy-and-confirmation-of-chapter-13-plan/</link>
		<comments>http://www.rochesterdebtrelief.com/2009/06/07/failure-to-disclose-assets-in-bankruptcy-and-confirmation-of-chapter-13-plan/#comments</comments>
		<pubDate>Sun, 07 Jun 2009 17:00:25 +0000</pubDate>
		<dc:creator>alexkorotkin</dc:creator>
				<category><![CDATA[BAPCPA]]></category>
		<category><![CDATA[Best Interests Test]]></category>
		<category><![CDATA[Chapter 13]]></category>
		<category><![CDATA[Dischargeability]]></category>
		<category><![CDATA[Post-Bankruptcy]]></category>
		<category><![CDATA[Procedure]]></category>
		<category><![CDATA[attorney]]></category>
		<category><![CDATA[bankruptcy]]></category>
		<category><![CDATA[best interest test]]></category>
		<category><![CDATA[confirmation]]></category>
		<category><![CDATA[county]]></category>
		<category><![CDATA[court]]></category>
		<category><![CDATA[debtor]]></category>
		<category><![CDATA[discharge]]></category>
		<category><![CDATA[failure to disclose]]></category>
		<category><![CDATA[lawyer]]></category>
		<category><![CDATA[livingston]]></category>
		<category><![CDATA[monroe]]></category>
		<category><![CDATA[New York]]></category>
		<category><![CDATA[ontario]]></category>
		<category><![CDATA[orleans]]></category>
		<category><![CDATA[revoke]]></category>
		<category><![CDATA[Rochester]]></category>
		<category><![CDATA[trustee]]></category>
		<category><![CDATA[wayne]]></category>

		<guid isPermaLink="false">http://www.rochesterdebtrelief.com/?p=174</guid>
		<description><![CDATA[What happens if the debtors fail to disclose certain assets in their Chapter 13 bankruptcy and those assets come to light after the confirmation of their Chapter 13 plan?  This situation was recently addressed by Judge Ninfo of the United States Bankruptcy Court for the Western District of New York in In re Cram.
On March [...]]]></description>
			<content:encoded><![CDATA[<p>What happens if the debtors fail to disclose certain assets in their <a href="http://www.rochesterdebtrelief.com/2009/04/05/bankruptcy-basics-the-process-of-filing-and-completing-chapter-13-bankruptcy/" target="_blank">Chapter 13 bankruptcy</a> and those assets come to light after the confirmation of their Chapter 13 plan?  This situation was recently addressed by Judge Ninfo of the United States Bankruptcy Court for the Western District of New York in <a href="http://www.nywb.uscourts.gov/files/15480/Cram_Decision.pdf" target="_blank"><em>In re Cram</em></a>.</p>
<p>On March 24, 2004, Richard and Pamela S. Cram filed a petition in Rochester, in the United States Bankruptcy Court for the Western District of New York, initiating a <a href="http://www.rochesterdebtrelief.com/2009/03/28/bankruptcy-basics-a-brief-summary/" target="_blank">Chapter 13 case</a>.  A Chapter 13 trustee was appointed.  On their Schedule B of Personal Property, the debtors stated that they had no “[o]ther contingent and unliquidated claims of [any] nature&#8230;.”.  On April 30, 2004, the court orally confirmed their Chapter 13 Plan, and on October 5, 2004 an order confirming the plan was entered.</p>
<p>At the time the bankruptcy was filed, the debtors had a pending medical malpractice claim which resulted a subsequent lawsuit. On June 14, 2005, the debtors’ lawyer filed an amendment to their Schedule B of Personal  Property, which amended the answer to question No. 20 regarding contingent and unliquidated claims, but did not amend their Schedule C to claim any proceeds that might be received from the malpractice claim as exempt.</p>
<p>Between June  14,  2005  and  April  7,  2008  the  debtors  or  their attorneys did not notify the court of the existence of the pre-petition medical malpractice claim set forth in the amendment, which was a Section 541 asset of the estate at the time the court confirmed their plan, even though in confirming their plan pursuant to Section 1325(a), the court believed that the requirement of  Section 1325(a)(4),  that the creditors would receive at least as much under the plan that they would in a Chapter 7 liquidation.</p>
<p>Section 1325(a)(4) provides that:</p>
<p style="padding-left: 30px;">(a)  Except as provided in subsection (b), the court shall confirm a plan if—<br />
(4) the value, as of the effective date of the plan, of property to be distributed under  the plan on account of each allowed unsecured claim is not less than the amount that  would be paid on such claim if the estate of the debtor were liquidated under chapter 7 of this title on such date[.] 11 U.S.C. § 1325 (2009).</p>
<p>This section is known as “the best interests test”.</p>
<p>Once the trustee learned of the settlement, he moved to revoke the discharge, as well as for other relief.  He asserted that on April 28, 2008, after the discharge order had been entered on April 7, 2008, the trustee learned that the claim had been settled on or about February 20, 2008 for $125,000 and that neither the debtors, their bankruptcy attorneys nor their personal injury attorney ever notified the trustee of the settlement or any prior settlement offers. The trustee argued, <em>inter alia</em>, that in view of the settlement, the debtors’ confirmed plan did not meet the best interests test.</p>
<p>Unlike in Chapter 7 cases, the court, in confirming a plan in a Chapter 13 case, makes an affirmative determination, as required by Section 1325(a), that, among other things, the plan meets the best interests test. Judge Ninfo held that because of the debtors’ failure to disclose the malpractice claim, which was a  Section 541 pre-petition asset of the estate, either at the time of the oral confirmation of their plan or when the confirmation order was entered, the plan did not meet the best interests test, and neither the debtors, nor the trustee, ever corrected that failure by taking the necessary steps to insure that the plan was amended to include the proceeds of any recovery on the malpractice claim, either before or after the settlement. Thus, the confirmation order had to be vacated, and with no confirmed plan completed, the debtors would not be entitled to a Section 1328 discharge and the court vacated the confirmation order pursuant to Section 105(a).</p>
<p>Judge Ninfo further held that when the debtors filed the amendment to include the malpractice claim, they, as debtors, and their bankruptcy attorneys, as officers of the court, had an affirmative obligation to advise the court, not simply the trustee or their creditors, of the undisclosed asset, so that the court would be aware that its confirmation of the plan was improper and its confirmation order incorrectly entered, and could insure that the confirmation order was vacated or a proper modification to the plan filed to include any recovery.</p>
<p>The court further granted trustee’s motion to dismiss the bankruptcy, unless prior to July 6, 2009, the debtors:  (a) pay to the trustee the amount necessary for the trustee to make a distribution to their unsecured creditors of 100% plus 9%; or (b) otherwise make arrangements with the trustee for the payment of the necessary amount within a reasonable period of time that is acceptable to the trustee and the trustee files with the court the details of such an acceptable arrangement.</p>
<p>The lesson of this case is that the debtors and their bankruptcy lawyers have an affirmative obligation to disclose any and all assets of the debtors, including any contingent or unliquidated claims.  In this case, the consequences to the debtors could have been much more severe.</p>
<p>If you are dealing with debt problems in Western New York, including Rochester, Canandaigua, Brighton, Pittsford, Penfield, Perinton, Fairport, Webster, Victor, Farmington, Greece, Gates, Hilton, Parma, Brockport, Spencerport, LeRoy, Chili, Churchville, Monroe County, Ontario County, Wayne County, Orleans County, Livingston County, and being harassed by bill collectors, and would like to know more about how bankruptcy may be able to help you, contact me today by phone or email to schedule a FREE initial consultation with a bankruptcy attorney.</p>
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		<item>
		<title>Removing Judgments After the Bankruptcy</title>
		<link>http://www.rochesterdebtrelief.com/2009/05/12/removing-judgments-after-the-bankruptcy/</link>
		<comments>http://www.rochesterdebtrelief.com/2009/05/12/removing-judgments-after-the-bankruptcy/#comments</comments>
		<pubDate>Wed, 13 May 2009 03:02:04 +0000</pubDate>
		<dc:creator>alexkorotkin</dc:creator>
				<category><![CDATA[BAPCPA]]></category>
		<category><![CDATA[Chapter 7]]></category>
		<category><![CDATA[Dischargeability]]></category>
		<category><![CDATA[Exemptions]]></category>
		<category><![CDATA[Post-Bankruptcy]]></category>
		<category><![CDATA[Procedure]]></category>
		<category><![CDATA[522(f)]]></category>
		<category><![CDATA[attorney]]></category>
		<category><![CDATA[bankruptcy]]></category>
		<category><![CDATA[creditors]]></category>
		<category><![CDATA[debt]]></category>
		<category><![CDATA[debtor]]></category>
		<category><![CDATA[discharge]]></category>
		<category><![CDATA[exemption]]></category>
		<category><![CDATA[impair]]></category>
		<category><![CDATA[judgment]]></category>
		<category><![CDATA[lawyer]]></category>
		<category><![CDATA[livingston]]></category>
		<category><![CDATA[monroe]]></category>
		<category><![CDATA[motion]]></category>
		<category><![CDATA[New York]]></category>
		<category><![CDATA[ontario]]></category>
		<category><![CDATA[orleans]]></category>
		<category><![CDATA[Rochester]]></category>
		<category><![CDATA[wayne]]></category>

		<guid isPermaLink="false">http://www.rochesterdebtrelief.com/?p=141</guid>
		<description><![CDATA[If a creditor obtains a judgment against a debtor, that judgment, if filed, becomes a lien against any real property owned by the debtor.  Any such judgment lien against real property can be removed from the property, if the lien impairs an exemption you claim in your bankruptcy.  In New York State, you can only [...]]]></description>
			<content:encoded><![CDATA[<p>If a creditor obtains a judgment against a debtor, that judgment, if filed, becomes a lien against any real property owned by the debtor.  Any such judgment lien against real property can be removed from the property, if the lien impairs an exemption you claim in your bankruptcy.  In New York State, you can only remove a judgment lien against your personal residence.  Debtor&#8217;s bankruptcy attorney usually files a motion pursuant to section 522(f) of the Bankruptcy Code.  A typical motion includes a number of attachments such as a copy of the deed, mortgage, current mortgage statement, a recent appraisal of the property, and copies of the judgment filed in the local County Clerk’s office.</p>
<p>Typically,  the debtor is faced with the following situation.  The debtor owns a home with the total equity of less that New York&#8217;s homestead exemption, which is currently $50,000 for a single debtor and $100,000 for a married couple filing jointly.   What a $50,000 homestead exemption means is that the debtor can have up to $50,000 of equity in the residence ($100,000 for a married couple) and your home will not be taken or threatened by the bankruptcy trustee or other creditors.   If there are judgments against the debtor, they are viewed as impairing debtor&#8217;s exemption in the property and gives the debtor the right to remove them.</p>
<p>If you do not own a residence when you file your bankruptcy, you cannot set aside the judgment in the County Clerk’s office, but the underlying debts are discharged.  This may become a a problem if you purchase (or inherit) real property after your bankruptcy.  In that situation, even though there is no actual lien against the newly acquired property, it may appear that there is to someone searching the Clerk’s office.  This is because they will see a judgment against you, and they will see that you own the property.  Without knowing about the intervening bankruptcy and the discharge of the debt that underlies the judgment, they could draw the conclusion that the judgment was in fact a lien against the property.</p>
<p>The problem often surfaces if there comes a time that you want to borrow against, or refinance the property.  Most lenders are sophisticated enough to recognize that any pre-bankruptcy judgments are usually discharged and a typical judgment search, or a title search, in Monroe County will include a check of the Bankruptcy Court&#8217;s records.  It is also the reason to keep a copy of your discharge after the bankruptcy so that the lender can have easy verification that the bankruptcy resulted in a discharge.</p>
<p>If you are dealing with debt problems in Rochester, New York; Canandaigua, Brighton, Pittsford, Penfield, Perinton, Fairport, Webster, Victor, Farmington, Greece, Gates, Hilton, Parma, Brockport, Spencerport, LeRoy, Chili, Churchville, Monroe County, Ontario County, Wayne County, Orleans County, Livingston County, and being harassed by bill collectors, and would like to know more about how bankruptcy may be able to help you, contact me today by phone or email to schedule a FREE initial consultation with a bankruptcy attorney.</p>
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