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BRIAN M. DELAURENTIS
Attorney at Law
36 West 44th Street, Suite 610 |
New York, New York 10036 |
tel 212.354.6300 fax 212.954.5081 |
Brian@DeLaurentisLaw.com
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Bankruptcy
I have represented creditors and debtors both in and out of bankruptcy since 1995. I am fully familiar with the bankruptcy process. My goal, whether you owe or are owed money is to look for your best economic result. Bankruptcy is just one option to achieve that goal, there is more than one way to approach the problem.
Debtors
There is no doubt that the 2005 changes to the bankruptcy laws made it far more difficult for those behind on their debts to get a fresh start. Filings had dropped to 1/3 of what they previously were, and that was not because of better economic conditions from 2005-08.
Unfortunately, we are currently at a point where the law permits credit card companies, but not ordinary individual creditors, to charge 30% per month interest plus several fees simply for one late payment. Even with average credit card debt, these interest rates make it mathematically impossible to satisfy the debt with realistic payments.
Fortunately, bankruptcy is not the only option. Creditors become far more reasonable when you have an attorney representing you. A debt collector simply will not be intimidating me as your counsel. The law, properly asserted, keeps these aggressive debt collectors at bay, and I will employ that law for your benefit.
If you are having trouble paying the bills, please do not wait and hope it will work out. Call me now, because as the problems worsen so do the options to get things back on the right track.
Creditors
In representing creditors, I understand that your paramount concern is collecting the debt without legal fees that will swallow the debtor's payments. I have found that candor backed with action works best with honest debtors. With dishonest debtors, swift and sure steps to collect without bothering to negotiate is best because there is no need to talk with a liar.
Even when a debtor files for bankruptcy, you can recover money owed you. Creditors can and do receive payment from bankrupts. I have represented several creditors that successfully recovered at least part of the debt owed them. Please call or email me to see what I can do to assist you.
Bankruptcy Procedures
The theory of bankruptcy is that honest people make mistakes and get in over their heads. As a society, we have decided that someone unable to pay their debts should have an opportunity to move on in their life without spending the rest of their days in debt and with bad credit. Thus, bankruptcy is the legal vehicle that allows honest debtors to be relieved of paying most debts so that they can go on with their lives.
Currently, the law permits three (3) options in bankruptcy that are commonly referred to as "chapters." These Chapters are 7, 11 and 13. Chapter 7, liquidation, used to be the most common until the 2005 changes in the law. There is also Chapter 11 for reorganization of business matters and Chapter 13 for repaying a portion of the debts owed with available income. Each chapter has unique qualities that help debtors in different ways. Clients should make a well thought out choice before deciding on whether bankruptcy is appropriate and if so, whether Chapter 7, 11, or 13 is the proper route.
Chapter 7, liquidation, is now reserved for individuals with below average incomes and/or minimal disposable income. As with all bankruptcy filings, the debtor through his/her attorney prepares schedules that set out the debtor's assets, liabilities, income, expenses and financial history. The debtor then also "exempts" property from being lost in bankruptcy. What property is exempt varies greatly between the states, even between New York and New Jersey.
Once the debtor submits these schedules to the court with the proper filing fee (Ch. 7 filing fee is now $299), the court protects the debtor through the "bankruptcy stay." The stay requires all of your creditors to immediately stop attempting to collect any debts from you. Without express court permission, creditors can be liable to you if they continue to collect from you after the effective date of the bankruptcy stay.
The court schedules a "Meeting of Creditors" after the case is commenced and the bankruptcy stay is in place. The meeting is presided over by a Trustee. The Trustee's job is to maximize the value of your assets for the benefit of your creditors (not you!) and to question you to verify that your petition is correct and that you qualify for bankruptcy protection. The Trustee is your adversary, not your friend in this process.
Following the Meeting of Creditors, the creditors and the Trustee are provided time to make objections to your bankruptcy petition or other claims on your estate. With counsel representing you, creditor claims are relatively rare. The bankruptcy court confirms that your discharge of your debts existed on the date you filed the bankruptcy petition if there are no objections. Please recall that certain debts excepted from discharge, which are listed above.
In Chapter 13, the procedure is similar to Chapter 7. The difference between the two is in the result. In Chapter 13, the court evaluates your financial situation and determines what you can afford to pay your creditors over the next few years. The Trustee then acts as a clearinghouse for you and your creditors. You pay what the court believes you can afford, and the Trustee distributes it among your creditors. Once your plan payments are completed, you will be released from the balance of the debts owed to your creditors. Keep in mind that you will not be determining what you can afford; the Trustee and the court will be making that determination.
Chapter 11 is expensive but allows many debtors more flexibility, particularly those who are sole proprietors of small businesses.
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