Cash advances taken shortly before filing bankruptcy can be problematic for the debtor. Some creditors will file an adversary proceeding if they believe the cash advance is nondischargeable. This type of adversary proceeding is basically a lawsuit against you to determine the dischargeability of the cash advance. It must be defended like any other lawsuit or a default judgment will be taken against you. This type of action is by no means a slam-dunk for the creditor. However, some cash advances are presumed nondischargeable. This basically makes it easier for the creditor to make their case. Therefore, it would be wise to mention cash advances you have taken to your bankruptcy attorney before he of she files your bankruptcy case.
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Exempt Property
What is Exempt Property?
Exempt property is property that is protected by law from the claims of creditors. However, if exempt property has been pledged to secure a debt or is otherwise encumbered by a valid lien or mortgage, the lien or mortgage holder may claim the exempt property by foreclosing upon or otherwise enforcing the creditor’s lien or mortgage. In bankruptcy cases, property may be exempt under either state or federal law. However, NY has opted out of the federal law exemptions. Exempt property typically includes all or a portion of a person’s home equity, motor vehicle equity, household furniture and personal effects.
What Will Happen to My Non-Exempt Property If I File Bankruptcy?
Non exempt property is part of your bankruptcy estate and is subject to sale by the bankruptcy trustee (the debtor is entitled to receive any exempt portion of the sale proceeds). However, even if your property is not fully exempt, you may be able to keep it if you pay its non-exempt value to your creditors in a chapter 13 bankruptcy. Also, you could agree to pay the trustee an amount that would allow you to, in essence, buy back the non-exempt property. The money that you pay to the trustee will be distributed to your creditors. You may also be able to “trade” exempt property for non-exempt property. Essentially, you allow the trustee to take and sale exempt property to avoid losing non-exempt property. There are additional options available. A knowledgeable bankruptcy attorney will be able to assist you with “exemption planning .”
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Please visit our Bankruptcy category to learn more about filing bankruptcy.
When a person files a chapter 7 bankruptcy case, their non-exempt property (if any exists) is liquidated to pay as much money back to his/her creditors as possible. So, in a chapter 7 case the debtor could lose all or most of his/her non-exempt property.
A person filing a chapter 13 bankruptcy case usually retains his or her non-exempt property. However, he/she is required to pay the value of the non-exempt property to his/her creditors. The determined amount is usually paid by the debtor, through the chapter 13 plan, over 3-5 years.
Don’t be alarmed, many people contemplating bankruptcy have very little or no non-exempt property. However, you should consult with a knowledgeable bankruptcy lawyer if you are thinking about filing for bankruptcy.
Long Island Bankruptcy Attorneys
As always, the Law Firm of Vaughn, Weber & Prakope, PLLC at 516-858-2620 is here to assist you.
Please visit our Bankruptcy category to learn more about filing chapter 7 or 13 bankruptcy.
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