When Can I File Bankruptcy Again?

Life is full of the unexpected, so it frequently happens that individuals need to file for bankruptcy relief more than once in their lifetime. There is no limit to the frequency of bankruptcy filings, but there are limits to how frequently a discharge of debts in bankruptcy is allowed.  Generally, the time frames are:

• 8 years between Chapter 7 filings
• 2 years between Chapter 13 filings
• 4 years between a Chapter 7 and a Chapter 13 filing
• 6 years between a Chapter 13 and a Chapter 7 filing (if the Chapter 13’s payment plan was less than 70%)

The time period is measured from filing date to filing date.  However, there may be circumstances where it would be beneficial to file for bankruptcy even if no discharge is available.  You should discuss your individual circumstances with a bankruptcy attorney to formulate a plan that is right for you.  Please contact our office for additional information or to schedule an appointment.

Do I Need an Attorney to File My Bankruptcy Petition?

If you are an individual (rather than a corporation), you are not required to have an attorney file your petition on your behalf – you can do it yourself (called pro se).  The court required documents are usually available on the bankruptcy court’s website.  However, you may be doing yourself a disservice by “going it alone”.  Filing for bankruptcy includes much more than just filing out forms.  It is a complex area of law and there can be significant consequences if the law is not followed – including dismissal without discharge and allegations of fraudulent behavior.  Although you may be looking to save the attorney fees up front, it could cost you even more in the long run if you file on your own, run into problems, and then have to pay even more to an attorney to help fix the situation.  Even if you don’t choose our firm to represent you, we strongly advise you to seek other competent counsel.  Your chances of a successful discharge increase greatly with representation.

Can I File for Bankruptcy Individually Even Though I’m Married?

Bankruptcy does allow for married couples to file for individual bankruptcy – the better question would be “SHOULD I file individually even though I’m married?”

The decision to file for bankruptcy individually while married should be made carefully after looking at your individual circumstances.   Many different factors can impact this decision, such as the number and amount of joint debt, how real estate property is held, and whether you and your spouse maintain separate residences.  In some situations, filing individually would be the most beneficial, but not in all cases.  Talk with your attorney to determine the pros and cons of filing individually, without your spouse.

Can I Keep Any Property When I File?

Bankruptcy law allows for individuals to keep property from being sold to pay creditors through “exemptions”.  In a Chapter 7 filing, any property which is not claimed as “exempt” is potentially available to be taken by the trustee for paying creditor claims.  Therefore, prior to a bankruptcy filing, individuals must list their assets as well as the value of the asset or the equity owned in the asset to determine whether the available exemptions are enough to protect all of the assets.

You should consult with an attorney to determine which exemptions are applicable to you and what is the best way to protect as many of your assets as possible during the bankruptcy.

Illinois Gestational Surrogacy Act

In 2005, the Illinois Gestational Surrogacy Act went into effect.  This Act made Illinois one of the most progressive states with regard to assisted reproductive law.

Some of the requirements of the Act include:

• a written contract between the surrogate and the intended parent(s)
• at least one of the gametes must be contributed by the intended parent(s)
• Intended parents must:
  • Provide an affidavit from a Illinois physician certifying that either one or both of the intended parents have a medical need for the surrogacy
  • Have undergone psychological evaluations
  • Have consulted with independent legal counsel
• In order for an individual to be a surrogate, she must:
  • Be at least 21 years of age,
  • Have given birth to at least 1 other child,
  • Have undergone both medical and psychological evaluations,
  • Have consulted with independent legal counsel, and
  • Have health insurance that covers pregnancy, hospitalizations, major medical treatments, and post-partum care

The Illinois Gestational Act does not apply if the surrogate is also the egg donor.  Therefore, to be covered under the law, the intended parent(s) must either contribute the egg or must use the egg of a third party (not the surrogate).

If the Illinois Gestational Act also provides that a parent child relationship between the child and the intended parent(s) may be legally established prior to the birth of the child.  In order to establish this relationship prior to the child’s birth, the attorneys for both parties to the agreement must certify that both parties to the agreement intended to comply with the Act and file the certification with the Illinois Department of Public Health.

If you are considering surrogacy as an option, it is vital to consult with an attorney to explore the legal requirements of gestational surrogacy in Illinois.  Please contact our office for more information or to speak with an attorney about your individual circumstances.

Beware of Mortgage Fraud

With the worsening economy, more and more people are having a difficult time meeting their mortgage payments.  Inevitably it seems, where there are people in trouble there are con artists looking to cash in on other people’s problems.  According to the Federal Bureau of Investigation (FBI) (http://www.fbi.gov/hq/mortgage_fraud.htm), there were a total of 62,494 mortgage fraud suspicious activity reports in Fiscal Year 2008 with $1.4 billion in losses.  Illinois is ranked #8 in the list of states with significant fraud problems.

The U.S. Department of Housing and Urban Development (HUD) has articles on some of the scams that are currently being used on homeowners, such as conning homeowners into signing over their home (see information at www.hud.gov).  Additionally,  the FBI released an article on how to avoid becoming a victim of mortgage fraud (http://www.fbi.gov/page2/august08/mortgagefraud_081408.html).  In response to the growing problem of mortgage fraud, Illinois has enacted The Mortgage Rescue Fraud Act, which governs mortgage modification companies.  Based on this law, there have been numerous investigations into these companies by the Attorney General for fraud and other misconduct (http://www.mortgagefraud.org/journal/2008/11/19/illinois-ag-announces-7-more-foreclosure-rescue-lawsuits.html).

Before working with any company to modify your mortgage or stop foreclosure on your home, be sure to investigate the company thoroughly.  Because there are so many scams out there, never sign a document with reading and understanding what you are signing.  If you need assistance understanding the document, talk to an attorney.

Avoid Unnecessary Disability Claim Delays

Generally, receiving a decision on your claim for social security disability or for supplemental security income takes about 4 months.  However, that timeframe presupposes that the application contains all the information that the examiner will need to make a determination.  If any of the information is missing, incomplete or unavailable upon request, the estimated 4 month decision timeframe could be extended for an almost indefinite amount of time.

Some of the most important information that you will need to provide includes: all sources of medical treatment including dates of treatment and your work history for the last 15 years.   In order to ensure that your application avoids as many delays as possible, you should ensure that you have supplied all of the information requested on the application. 

Additionally, you should be prepared to respond to any requests for additional information from the disability examiner immediately.  The approval process for disability claims is already woefully delayed.  Don’t let errors or delays on your part slow it down even further.

Please contact our office for more information or to speak with an attorney about your individual situation.

TN Visas Now Available for 3 Year Periods of Admission

TN visas are available to eligible Canadian and Mexican nationals to work in certain qualified fields (such as accountants, teachers and engineers) under the North American Free Trade Agreement (NAFTA).  Historically, TN visas were available for an initial 1 year period with the option of annually renewing the visa.

In October 2008, the U.S. Citizenship and Immigration Services (USCIS) released information stating that the initial period of admission for TN workers will be changed from 1 year to 3 years.  With this change, the initial period for TN visas are now equal to the initial period of admission for H-1B visas.  Additionally, eligible TN visaholders may be able to renew the visa in 3 year increments, rather than annually.

Please contact our office for more information or to speak with an attorney regarding your individual situation.

Options to Foreclosure

More and more people these days are struggling to continue making their mortgage payments for a variety of reasons including job loss, decreasing real estate values, and increasing mortgage payments due to an Adjustable Rate Mortgage (ARM).  However, foreclosure is not the only option available for people who are having problems meeting their mortgage payment.

The answer to whether you wish to stay in your home (and can afford to do so) or whether you wish to move presents differing options to consider.

Some of the options available if you wish to keep your home include:

• Filing Chapter 13 bankruptcy
• Attempting to modify the terms of your existing loan in a work out agreement with the lender
• Reinstating or redeeming the loan

Some of the options available if you wish to give up your home:

• Attempting to sell the home in a lender-approved short sale procedure
• Requesting to deed the house back to the lender via a Deed-in-lieu
• Filing Chapter 7 bankruptcy to escape personal liability for a foreclosure deficiency

Your individual situation will determine which option is the best path for you to follow.  You should work with an attorney to review your specific circumstances and needs in order to get the best possible outcome.  Please contact our office for more information or to speak with an attorney.

Tax Help for 2009 Federal Income Tax Return Filing

On January 6, 2009, the Internal Revenue Service (IRS) announced new programs to assist financially distressed taxpayers when filing their 2008 tax returns.  The IRS implemented new steps or enhanced existing programs due to the wide-spread economic hardship creating financial difficulties for taxpayers.

Some of the assistance offered includes:

• Additional flexibility in options for payment and/or deferral of back tax liability owed.
• The Recovery Rebate Credit which is calculated like the Economic Stimulus Payment most taxpayers received in 2007.  This Rebate would be available if the taxpayer did not get an Economic Stimulus Payment, had a child in 2008 or had a change in income level.
• An additional standard deduction for real estate taxes based on state or local real estate taxes paid in 2008.
• Exclusion of debt forgiveness for mortgage workouts and foreclosures for eligible homeowners.
• Improvements to the Free File program that is available to taxpayers with an adjusted gross income of up to $56,000.

Full details of the options available are available in IR-2009-002.

If you have questions on any of the information provided in the Internal Revenue bulletin or are having difficulties paying your taxes, please contact our office to discuss your situation with an attorney.