Consumer Bankruptcy

Henry J. Sommer

Description

The most comprehensive and reliable guide for consumers--by the nation's preeminent bankruptcy attorney. This information-packed guide offers consumers all the help they will need to protect themselves through every step in the bankruptcy process.

Sujets

• Civil Procedure
• Droit et juridique
• Chapter 7, Title 11, United States Code
• Law

Informations

• Publié par: Turner Publishing Company
• Date de parution: 01 février 1994
• Nombre de lectures: 0
• EAN13: 9781620459560
• Langue: English

Extrait

CONSUMER BANKRUPTCY
ALSO BY HENRY J. SOMMER
Consumer Bankruptcy Law and Practice
Collier Family Law and the Bankruptcy Code
CONSUMER BANKRUPTCY

The Complete Guide to Chapter 7 and Chapter 13 Personal Bankruptcy
Henry J. Sommer

John Wiley Sons, Inc.
New York Chichester Brisbane Toronto Singapore
This text is printed on acid-free paper.
Copyright 1994 by Henry J. Sommer.
Published by John Wiley Sons, Inc.
All rights reserved. Published simultaneously in Canada.
Reproduction or translation of any part of this work beyond that permitted by Section 107 or 108 of the 1976 United States Copyright Act without the permission of the copyright owner is unlawful. Requests for permission or further information should be addressed to the Permissions Department, John Wiley Sons, Inc.
This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers.
Library of Congress Cataloging-in-Publication Data:
Sommer, Henry J.
Consumer bankruptcy : the complete guide to chapter 7 and chapter 13 personal bankruptcy / Henry J. Sommer.
p. cm.
Includes index.
ISBN 0-471-58528-9 (acid-free paper) - ISBN 0-471-58527-0 (paper, acid-free paper)
1. Debtor and creditor-United States-Popular works. 2. Bankruptcy-United States-Popular works. I. Title. KF1539.Z9S66 1994 346.73 078-dc20 [347.30678] 93-19661
10 9 8 7 6
This book is dedicated to my parents, Moses and Ruth Sommer
PREFACE

This guide provides a detailed explanation of the tools that bankruptcy provides to consumer debtors. Most of what follows is also applicable to debtors who have had small businesses; many consumer debtors are, after all, simply businesspeople who have fallen on hard times and no longer operate their businesses. However, although this guide may be of some use to debtors who seek to continue operating their businesses, they will have to look elsewhere for assistance in handling the more complex problems that can arise.
The guide was written for consumers who are considering bankruptcy for the first time and are not yet ready to consult an attorney. Many consumers are understandably nervous about the prospect of bankruptcy and want to know more before they contact an attorney. Others may not even know how to find a competent attorney.
This book provides the information necessary to make the important decision about whether to file a bankruptcy case, when to file, and whether to file under chapter 7 or chapter 13 . It describes what is likely to happen in a bankruptcy case to help those who are thinking about filing, those who have already filed, and those who are caught up in a bankruptcy case filed by someone else. And it does so in much greater detail than would be available in a consultation with an attorney, explaining all of the steps involved and how the law would be applied in a wide variety of situations.
Although no book is guaranteed to answer every question, this guide s detailed discussion of bankruptcy law and practice addresses most of the issues that arise in consumer bankruptcy. The text is based on a legal practice manual written by the same author for bankruptcy attorneys, Consumer Bankruptcy Law and Practice, published by the National Consumer Law Center in Boston, Massachusetts. That manual, now in its fourth edition, has probably been used by more attorneys who practice under the Bankruptcy Code than any other book of its type. Because it was written primarily for lawyers, Consumer Bankruptcy Law and Practice contains extensive citations to the law and court decisions as well as other materials that have been omitted from this guide. (It is also considerably more expensive!) Readers who seek even greater detail than that provided here should consider ordering a copy from the National Consumer Law Center.
Although this guide is primarily oriented toward cases filed by consumer debtors, the final chapter provides a basic explanation of the rights of consumers as creditors when a merchant, landlord, or other provider of goods or services files a bankruptcy case. The treatment of this topic in Chapter 15 is far from exhaustive, and anyone who seeks a full explanation of corporate bankruptcy is encouraged to use other resources as well.
PURPOSE OF THE GUIDE
This guide is intended to provide information to nonlawyers about what happens in bankruptcy cases. It is meant to provide both a quick overview of bankruptcy for those who want to know only the basics and also a more detailed explanation for those who want to know what will happen in a particular situation, whether in their own possible bankruptcy case, that of a friend, or that of someone who owes them money. It also discusses the alternatives to bankruptcy and the likely consequences of those alternatives. Finally, it explains the effects of bankruptcy on credit and on other rights of people who have filed.
This guide is not intended to be a substitute for consulting with or retaining an attorney. Only a consultation can provide firm and definitive answers about how local laws and practices, possible changes in the law, and court decisions will affect a particular case. This guide can make a consultation with an attorney more productive and effective, however, by eliminating the need for much explanation and focusing the discussion on important issues and questions, some of which the attorney might otherwise overlook.
Although this guide would undoubtedly be useful to someone attempting to file a bankruptcy case without a lawyer, it is not meant to be a do-it-yourself book. Only those debtors who have no way of obtaining legal representation in a bankruptcy case should consider representing themselves. Although it is theoretically possible to file a bankruptcy case pro se (without a lawyer), it is almost never a good idea. There are numerous pitfalls along the way, and creditors frequently take advantage of those who are not represented. Consumers who represent themselves in bankruptcy sometimes wind up in far worse situations after their bankruptcies than before they filed.
Even more importantly, a person filing a bankruptcy case without an attorney might miss ways in which further benefits can be derived from the case. Often, the cost of mistakes or lost opportunities that a competent lawyer would point out far exceeds the money that would be saved by not paying an attorney s fee.
Going to a lawyer is a lot like going to a doctor. Both professionals have had specialized training that other people do not have. Although it is sometimes possible for patients to treat themselves successfully, the consequences of a mistake can be extremely serious and occasionally fatal. Complicated problems may call for major surgery that no layperson should attempt. Even if a patient does figure out how to cure an illness, there might well have been a quicker or better treatment. A lawyer, like a doctor, can recognize complicated situations that call for different treatment and can suggest the most effective solution.
Obtaining the services of a competent attorney cannot be too strongly recommended, if only for the peace of mind that comes from knowing that the case will be handled in the best possible way. Chapter 14 deals extensively with how to find a good bankruptcy attorney and how to get the most out of your relationship. It also describes how to avoid incompetent lawyers and debt- or bankruptcy-related rip-off schemes.
To facilitate its use, this guide is divided into three parts. Part I , consisting of the first three chapters, is intended to provide an introductory nuts-and-bolts understanding of how bankruptcy works. To keep these chapters relatively nontechnical, they contain many cross-references to in-depth discussions in later chapters.
The second part, Chapters 4 through 7, contains a step-by-step description of the papers and proceedings in a case, from the moment that bankruptcy is first considered to events that occur after the case is over. The first seven chapters should provide the reader with a basic knowledge of what happens in a typical consumer bankruptcy.
The reader may then consult Part III to deal with specific issues of interest. Chapters 8 through 13 contain a more detailed discussion of the legal issues that frequently arise in consumer bankruptcy cases. Many of these issues are fairly complicated, and courts do not always agree on their resolution. Also, the law may have changed since this book was written, especially if the edition you are reading was published more than a year or two ago. Therefore, even after reading these chapters, it is important to check with an attorney on points that are important in your case.
Chapter 14 explains how to find and work with a good bankruptcy lawyer. Chapter 15 addresses issues pertaining to the rights of consumers as creditors when a merchant, landlord, or other entity is in bankruptcy.
Appendix A contains a list of the major types of property that can be claimed as exempt in each state. The issues relating to exemptions, as well as the federal exemptions available in some cases, are discussed at length in Chapter 9 . Appendix B contains a set of the Official Forms federally mandated to be used in every consumer bankruptcy case. They are included to give you an idea of the type of paperwork that is involved in a bankruptcy case and the questions that are asked. These forms are discussed further in Chapter 6 .
ACKNOWLEDGMENTS

This book is adapted from Consumer Bankruptcy Law and Practice, fourth edition, a manual for attorneys published by the National Consumer Law