Tag: bankruptcy law

What You Should Know Before Filing for Bankruptcy

Posted on October 31, 2022 by - Bankruptcy

filing for bankruptcy

When debt piles up beyond what you can manage, it can feel like drowning. You receive a constant flood of letters and phone calls from collectors, and the compounding interest takes on a life of its own. For people in this situation, declaring bankruptcy can be an attractive option. It wipes out many, if not all, of your debts and allows you a fresh start. 

However, bankruptcy is not to be taken lightly and is a complicated process. Here is what you should know before filing for bankruptcy.

Two Types of Bankruptcy

The first thing to be aware of before filing for bankruptcy is that there are two primary types of bankruptcy for individuals: Chapter 7 and Chapter 13. Chapter 7, also called liquidation bankruptcy, is the more common type. The debtor’s “non-exempt” assets are sold off, and creditors receive the proceeds; after this, the debts are canceled. California, in particular, has generous exemptions regarding the types of property that must be sold, allowing people to keep more of their essential property. However, there is a means test for Chapter 7 bankruptcy, preventing it from being used by high-wage earners.

Under Chapter 13 bankruptcy, debt is reorganized, and the debtor must follow a pre-approved repayment plan over three to five years. After completing this plan, the debts are considered satisfied. Chapter 13 is more appropriate for people with a steady income.

Not All Debt Is Canceled by Bankruptcy

People may get the wrong idea that any debt is wiped out by filing for bankruptcy, but that is not the case. Bankruptcy can only eliminate “unsecured” debt, such as credit card debt and medical bills. A debt is secured when it is backed by collateral, as is the case with home and car loans. Creditors of secured debt may still seek to repossess the collateral assets. Also, student loans are not covered by bankruptcy.

Hiding Assets or Going on a Spending Spree Can Get You in Trouble

When people know they will file for bankruptcy, they sometimes convey their assets to others to keep them from being liquidated. They may also go on a big spending spree, thinking the new debt will be canceled, so it’s free money. Both behaviors are considered fraud and can get you in legal trouble. Creditors can also object to recent debt, which will keep you from getting the clean slate you need.

Bankruptcy Is Not Fast or Free

Don’t expect an overnight solution by filing for bankruptcy. Chapter 7 bankruptcy typically takes around four to six months to close, while Chapter 13 cases stay open for years. You should also be aware that both types of bankruptcy require hundreds of dollars in filing fees.

Long-Term Consequences

Declaring bankruptcy can provide you with the debt relief you need, but there are lasting consequences. For example, a bankruptcy stays on your credit report for ten years, making it harder to take out a loan or find a place to live.

A Bankruptcy Attorney Can Be a Big Help

It’s important to know what you should expect when filing for bankruptcy.  Hiring a bankruptcy attorney may not be the first thing that comes to mind, but doing so can help you avoid costly mistakes. Filing for bankruptcy is a complicated legal process, and the clerks and judges cannot give you legal advice. A lawyer can also help ensure that you are maximizing the amount of property you are allowed to keep from being sold off, so you’re not starting over from scratch. Schedule an appointment today to meet with an experienced bankruptcy attorney and discuss your options.

What You Need to Know About Filing a Personal Injury Lawsuit

Posted on July 18, 2022 by - Civil Litigation

bankruptcy attorney

If you’ve been injured through someone else’s fault and haven’t been able to recover fair compensation for your injuries, filing a personal injury lawsuit against the other party may be your only option. A lawsuit is a complex and adversarial process for determining the facts of a case and how the law applies to those facts. Here we’ll go over what you need to know about filing a personal injury lawsuit.

However, if you are considering filing a lawsuit, it’s important to consult with at least one attorney first. Because of its complexity, it is easy to make a mistake that can lead to you recover less in damages, have your case dismissed, or even a lawsuit against you.

Timing

There’s a strict time period to file a civil lawsuit established by the statute of limitations.  In California, the statute of limitations for most (but not all) personal injury claims is two years. That means a plaintiff must file their lawsuit within two years of the date of their injury. If the time limit is two years and you file a claim after two years and one day, the claim will be dismissed.  However, some claims are on “toll” or on pause. For example, if the plaintiff is in a coma for three years following their injury, the statute of limitations period begins running when they wake up.

Venue and Jurisdiction

It’s not always obvious where a lawsuit should be filed; a plaintiff may have multiple options. They must consider factors related to jurisdiction and venue. Jurisdiction refers to the power of any given court to hear a case. For instance, suppose a plaintiff is a California resident and gets into a car accident in Nevada with a Nevada resident. 

In that case, three separate court systems potentially have jurisdiction over the case: 

  • California state courts
  • Nevada state courts 
  • Federal courts (which have the power to hear cases between residents of different states)

Plaintiffs and defendants may prefer to be in one jurisdiction over another for various reasons, from the rules of procedure to the judges likely to hear the case. Venue is the choice of location within a court system. In the example above, if the plaintiff wants to file their lawsuit in a federal district court, they have a choice between the federal court in Las Vegas or one closer to their home in California.

Bear in mind that the issues of venue and jurisdiction are just about where the proceedings will take place; the question of what laws apply is a separate issue.

Filing the Lawsuit

To officially initiate a lawsuit, a plaintiff must draft a document called a “complaint.” The complaint contains:

  • A statement of facts that supports a cause of action.
  • A demand for judgment for relief.
  • The number of monetary damages sought.

The plaintiff must serve one copy on the defendant and another copy to the courthouse.

They must also file a proof of service of the defendant’s copy with the courthouse. The defendant then has a set amount of time (30 days in California) to respond to the complaint in the form of either a “demurrer” or an “answer.” A demurrer is an objection to the complaint, e.g., that it does not establish subject matter jurisdiction or fails to state facts sufficient to constitute a cause of action. An answer will likely deny some or all of the facts but does not challenge the complaint itself.

If a demurrer is successful, the judge will dismiss all or parts of the complaint. This dismissal can be with or without prejudice; a dismissal with prejudice means the plaintiff cannot try again.

Before Filing, Speak to an Attorney

Filing a lawsuit means stepping into a world full of complex legal rules that take years to learn. An innocent mistake can cost you your entire case and any hope of recovering damages. If you are even considering filing a lawsuit, consulting with an attorney is your best option. Contact us today to speak to an experienced personal injury claim attorney.