May 14, 2020
The general rule states that student loans will typically not be erased after filing for bankruptcy. There are two exceptions to this generalization. In order for the exceptions to apply, the court must decide that the particular facts in the case are worthy of such exception. The first exception states that student loans may be erased after filing bankruptcy if the loans are not insured or guaranteed by a government unit nor made under any program funded in whole or in part by a government agency or non-profit institution. The second exception states that student loans may be erased if paying the loan will impose undue hardship on the person that has to pay the loan back or any of their dependents.
At one point, the law used to allow for student loans more than 7 years old to be erased but this law is no longer applicable. When one of the exceptions apply to a particular case, the individual filing for a bankruptcy may still need to file a separate petition in the court for the court to erase the student loans because it is not always something that is done automatically.
Overall, being faced with making a decision as to whether you want to file for bankruptcy can be emotional and a bit overwhelming to deal with. If you are currently trying to decide whether to file a bankruptcy petition in Illinois and have questions or concerns with the process, it is essential that you contact an attorney that can better assist you with any dilemmas that may occur. To discuss your situation with an experienced bankruptcy attorney, please contact Hamilton & Antonsen at 815.729.9220.
May 14, 2020
If you are an Illinois resident living in Joliet or Will County, Illinois and are currently having, or expect to have your wages garnished, filing for chapter 7 bankruptcy may stop the garnishment. Wage garnishment happens when a creditor gets a money judgment against a debtor in court. The judgment will then be sent to the sheriff who will contact the employer who will withhold a portion of the paycheck.
When an Illinois resident files for chapter 7 bankruptcy, they are immediately protected from creditors. After filing chapter 7, there is an automatic stay imposed. This stay stops creditors from taking any collection action against the Joliet or Will County resident who has filed for chapter 7, including wage garnishment. There are a few exceptions to this stay.
Child support actions will not be prohibited or stayed during a chapter 7 bankruptcy proceeding. A creditor can also go to court and ask a judge to lift the stay, but that rarely, if ever, happens. After a person in Illinois has filed chapter 7, the court will send a letter to all creditors notifying them of the bankruptcy. The creditors then have a duty to contact the employer and suspend the wage garnishment.
The wage garnishment can and will continue after the bankruptcy proceeding unless the debt is discharged, which most of the time it will be. The stay ends when the bankruptcy is over. However, if a Joliet or Will County resident has filed for chapter 7 bankruptcy and it was dismissed within one year of the current filing, the stay will only last 30 days. If you have filed for bankruptcy twice within the last year the automatic stay will not kick in. In this situation a person can ask the court to impose the stay.
If you are an Illinois resident living in Will County or Joliet and are having your wages garnished, filing chapter 7 could prove beneficial. To determine what is best for you contact Hamilton & Antonsen at 815.729.9220 to set up a complimentary consultation with an experience bankruptcy attorney.
May 14, 2020
If you are a resident of Joliet or Will County, Illinois and are thinking or declaring chapter 13 bankruptcy, an important question that will weigh heavily on your decision is; do you repay your creditors in a chapter 13 bankruptcy? The answer unfortunately is, maybe. There are several factors that determine how much debt must be repaid when someone files a chapter 13 bankruptcy. The first determination to make when considering how much debt will be re-paid is whether the debt is secured or unsecured.
Secured debts include all property and vehicles. If a person filing for chapter 13 wishes to keep the property or vehicle the secured debt must be paid in full. Tax liens also fall into the category of secured debts and must be re-paid 100% by any person who files for a chapter 13 bankruptcy. Determining how much unsecured debt an Illinois resident in Joliet or Will County will have to re-pay is more difficult to determine. The factors that will decide how much unsecured debt a person must re-pay are: 1.) The total value of your nonexempt property 2.) The amount of disposable income you have each month to put toward your debts and 3.) How long your plan lasts.
Any disposable income of a person filing for chapter 13 bankruptcy in Joliet or Will County must go to the payment of unsecured debt (i.e. credit cards). Disposable income is a person’s income less certain allowed expenses and payments on secured loans. ( i.e a mortgage or car loan). The length of the payment plan is dependent on a person’s average household income. If the income is above the average median income for the average household of the same size it will be a 5 year plan, if it is below, it will be a three year plan. A person below the average median income for a household of the same size is allowed to propose the three year plan even if they will not repay all creditors within that time frame.
Because of these factors it makes it difficult to determine how much debt a person who has filed for chapter 13 must repay. Generally the amount of debt an Illinois resident who files for chapter 13 bankruptcy will have to re-pay will equal the value of that person’s property that isn’t exempt under the bankruptcy exemption laws. If you are considering filing for chapter 13 bankruptcy in Will County, Illinois and need legal advice contact Hamilton & Antonsen at 815.729.9220 and we can set up a complimentary consultation to review your situation.
May 14, 2020
A deficiency balance in a Will County or Illinois foreclosure is a remaining balance that is left over when the property is sold and the amount received for the property during the sale is not enough to pay off the mortgage loan. For example, if the total mortgage loan debt is $100,000 and the house being foreclosed on is sold for $50,000, the deficiency balance would be the remaining $50,000.
In Illinois, the loan lender files a complaint against the borrower in court to receive the balance. In Illinois, there are two types of judgments that a lender can obtain in order to receive the deficiency balance. One type of judgment that a lender can obtain from a borrower is an in personam deficiency judgment. An in personam judgment allows the lender to collect the deficiency balance from the borrower directly. This can be done by garnishing the borrowers wages, taking money from a bank account forcibly (also knows as levying), and taking assets, just to name a few. The lender must serve the complaint to the borrower or the borrower must file an appearance in the case in order for the lender to obtain an in personam deficiency judgment.
The second type of judgment that a lender can obtain from a borrower is an in rem deficiency judgment. This type of judgment is against the property and not the person. This only occurs if the borrower reclaims the property in question by paying the entire amount owed on the property. If the borrower is able to reclaim the property, the lender, through the in rem judgment can place a lien on the property for the deficiency balance owed.
In sum, if you have a current balance owed on a mortgage loan after a foreclosure, you are still liable for that amount and the lender has the right to collect what is owed to them, through some of the outlets mentioned above.
Dealing with a foreclosure in Will County or any where in Illinois can be emotional and a bit confusing to deal with on your own. If you are currently going through a foreclosure in Illinois and have questions or concerns with the process, it is essential that you contact an attorney that can better assist you with any dilemmas that may occur. To discuss your situation with an experienced attorney, please contact us at 815.729.9220.
May 14, 2020
Before delving into this question, we must first address a matter of semantics: When using the word ‘file’ in the literal sense of delivering a bankruptcy petition to the court clerk, there is technically no limit to the frequency with which you can file for bankruptcy. But the mere act of delivering a bankruptcy petition to the court will not accomplish any discharge of debt.
Since relief from one’s debts is generally the goal behind initiating a bankruptcy proceeding, perhaps a more apropos question is how long a Will County resident must wait to receive another discharge of debt. The answer to this question depends on which bankruptcy chapter you previously received a discharge under, and which chapter you hope to receive a discharge under next.
If you have previously discharged debt under Chapter 7, you must wait at least eight years to receive another discharge under Chapter 7. If you have previously received a discharge under Chapter 13, you must wait at least two years to receive another discharge under Chapter 13.
Note that there is also a waiting period between discharges under different bankruptcy chapters. You must wait four years to discharge debt under Chapter 13 if your previous bankruptcy proceeding was under Chapter 7. Conversely, if your previous case was under Chapter 7 and you now want to pursue relief under Chapter 13, the typical waiting period is six years (there are exceptions to this six-year waiting period, however).
As mentioned above, there is technically no waiting period for filing successive bankruptcy petitions, only for receiving successive discharges. While this distinction is essentially irrelevant if your goal is to discharge debt, there are some instances in which it is strategic to file for bankruptcy before you are eligible for another discharge. These cases are commonly referred to as “Chapter 20” bankruptcy proceedings. (This is an informal term, as there is no Chapter 20 in the U.S. Bankruptcy Code.) A Joliet or Will County bankruptcy attorney can help you determine whether a “Chapter 20” filing would be helpful for you.
In sum, if you have previously availed yourself of bankruptcy relief and are again seeking to discharge eligible debts, keep in mind the various waiting periods described in this article. Filing too soon after your previous bankruptcy will be a waste of your time and money, so be sure to consult a Will County bankruptcy lawyer if you are considering filing again. To discuss your situation with an experienced attorney, contact Hamilton & Antonsen at 815.729.9220 to set up a free consultation.
May 14, 2020
When a person has too many unpaid debts, their driver’s license may be suspended until the debts are paid off. It is even possible for one’s license to be suspended for debts unrelated to traffic matters (unpaid child support, alimony, personal injury claims, etc.).
Depending on the nature of your debts, it is possible that filing for bankruptcy in Will County, Illinois will result in a reinstatement of your license. Since a bankruptcy proceeding is designed to help you discharge your debts, it follows that a debt-related suspension of your license will be lifted once these debts are taken care of. However not all debts are dischargeable, so bankruptcy is not a surefire way of getting your license reinstated.
Debts for which your license may be suspended include unpaid judgments for personal-injury or property-damage lawsuits, overdue maintenance or child-support payments, outstanding parking tickets, and other unpaid fines. In general, monetary damages owed for things like car accidents are usually dischargeable under Chapter 7. Many other types of debts that are serious enough to warrant a license suspension, however, are not.
For instance, unpaid damages arising out of DUI-related accidents are not dischargeable, nor are damages for willful or malicious or injury to persons or property. Furthermore, whenever drugs or alcohol are involved in a cause of action against you, the resulting judgment is generally not dischargeable via bankruptcy. Overdue child support payments, parking tickets, or other fines owed to the government for ticketable or criminal offenses also cannot be discharged under Chapter 7.
If filing for Chapter 7 bankruptcy will not help you get your license reinstated due to the fact that your debts are not dischargeable, there is still another option. Chapter 13 of the Bankruptcy Code offers solutions for those whose debts are of the non-dischargeable variety: A Chapter 13 bankruptcy allows you to set up a payment plan to pay off your non-dischargeable debts. Filing for bankruptcy under Chapter 13 in Will County can secure an automatic stay on your driver’s license suspension, allowing you to initiate reinstatement of your license even before your debts are all paid off. However, if your Chapter 13 case is dismissed at any point—for instance, if you fail to follow the repayment plan—the DMV can re-suspend your license since your debts remain unpaid.
Note that not even a Chapter 13 bankruptcy filing in Will County will help you get your driver privileges back if your license was suspended for serious criminal traffic offenses, such as a DUI or reckless driving conviction. If your driver’s license has been suspended for any reason, consult an attorney in Will County or Joliet who is experienced in both bankruptcy and traffic-related matters to discuss your options.
To discuss your individual situation with an experienced attorney, contact Hamilton & Antonsen at 815.729.9220.
Written by Sarah Hanneken