Answer: Yes! Bankruptcy is NOT an estate planning tool. It is a
powerful and very effective federal legal answer to many debt problems
but it should be used only when all else fails. First, try to work with
your creditors. If they will agree to reduce your payments temporarily
to allow you to get caught up, that might be all you need. Second, if
that doesn’t work, you might consult Consumer Credit Counseling Service
of Northern Idaho, Inc. This is a non-profit independent agency
dedicated to assisting consumers (people not in business for themselves)
with financial problems with a view toward preventing bankruptcy. They
are at 1113 Main Street, Lewiston. Call 746-0127 for an appointment or
see their webpage at
http://www.cccsnid.org.
In general, here are some tips based upon my experience: (1) Most
credit unions and local collection bureaus (Credit Bureau of
Lewiston-Clarkston, for example), and some local banks are more likely
to work with you than bill collectors but don’t give up on any creditor
until you see what you can do. In dealing with your creditors, be honest
and straightforward about your circumstances. Don’t promise more than
you are reasonably sure you can deliver. Otherwise, you ruin your
credibility and the creditor becomes less inclined to work with you.
Unfortunately, there are many collectors and creditors (mainly those who
work by telephone from far away) who don’t care about trying to work
with you. Their instructions are to get all the money in now and they
don’t want to listen to anything else. Some become rude and abusive. You
will probably not be able to work with such people so don’t punish
yourself by trying. Just hang up the phone. You don’t have to talk to
anybody you don’t want to. (2) CCCS can sometimes obtain cooperation
from stubborn creditors where your own efforts have failed. If you have
any money to work with after the current month’s living expenses are
paid, give them a call.
Answer: No. There is a lot of misinformation going around about
bankruptcy. Some of it is from well-meaning but ignorant friends and
relatives and some of it is knowingly misleading information given by
unscrupulous bill collectors and creditors. Take your legal advice from
your lawyer, not from your creditors!
One client recently insisted some misinformation was correct even
though I assured him it was nonsense. Turns out his source was his
bartender. He knew because he filed bankruptcy himself twenty years ago
in Nevada. Ken made a deal with the bartenders’ union. Ken doesn’t serve
drinks and the bartenders don’t give out accurate legal advice.
Chapter 7
or Chapter 13.
There may or may not be fees to be paid beyond the retainer, again
depending. You also need to pay the court’s filing fees of $274 for
Chapter 13 or $299
for Chapter 7.
Chapter 11 retainers
and court filing fees are much higher and the exact amount may depend
upon the facts of the case.
Answer: Price-shopping is great for deciding where to buy a
standard item from competing suppliers but it’s no way to find an
attorney, doctor, or other provider of personal professional services. A
can of any popular brand of soft drink will be the same regardless of
where you buy it ---the price will be the only difference. However,
different law offices operate under different basic philosophies. The
service they render varies widely according to those philosophies. Some
offices “find ‘em, file ‘em, and forget ‘em” while others stay with a
proceeding from filing to closure.
So far as I know, we are the only office (in the region, at least)
offering a serious, in-depth analysis of your circumstances before
filing. We don’t merely screen you for eligibility with a short phone or
office conference and then encourage you to file. As evidenced by our
support of this website and our thorough Initial Conference, we go to
great lengths to educate our prospective clients about the legal
proceeding they contemplate. We follow through with protective and
informative measures during the proceeding. We begin with an Initial
Conference with each prospective new client that may take anywhere from
an hour to an hour and a half. This puts you in the best possible
position to make an informed choice as to whether or not to file and
whether or not you want to file with us. We do not hesitate to recommend
a non-bankruptcy alternative (Consumer Credit Counseling of Northern
Idaho, Inc., being the main one in this area) should that appear to be
viable in any particular case.
Bradee and Tracy are experienced paralegals, trained and supervised
by Ken. Bradee has been here ten years and Tracy more than six. So long
as things go along routinely and as planned, they handle the day-to-day
administration of the case. The paralegals do everything within reason
to make sure your case goes through as smoothly as possible, including
reminders of important deadlines by mail and telephone. However, If
anything develops that may require the attention of an attorney, the
case lands on Ken’s desk.
My basic advice is to insist on a person-to-person in-office
conference with the attorney whom you are considering hiring for
bankruptcy or any legal matter. (A ten-minute telephone or other initial
conference just isn’t the same. No attorney can adequately analyze your
affairs and advise you as to your options in such a short and impersonal
conference.) Get your questions answered, understand how the proposed
filing will work in your case, and make sure you are comfortable with
that attorney and that you feel you can trust and cooperate with him or
her.
However, if you would like to just ask a question or two of Ken
before committing the time and money for our Initial Conference, give us
a call and we will try to accommodate you if time permits.
Finally, consider the old adage: you get what you pay for.
Answer: In an emergency (such as to stop a pending foreclosure or
garnishment), if you have your pre-filing counseling Certificate of
Completion, we can file within an hour or two of the Forms Conference if
necessary. However, we much prefer to complete all paperwork before
filing and that usually takes anywhere from one to two weeks, depending
on how promptly you can get everything we need to us. Your real
protection doesn’t go into effect until the moment the case is filed but
most creditors will back off and give you time to complete the filing
after you have had the Forms Conference with your attorney. Your court
date will be about four to six weeks after that. Your Discharge Order
(the document which releases you from personal liability on most of your
debts) should arrive in your mailbox about two months after the court
date. Your case is not closed until the trustee files his final report
and the court enters its order closing the estate. In a simple
Chapter 7
proceeding, that might be at the same time as the entry of your
Discharge Order. In some cases, it may be longer. Cases under
Chapter 13 are not
closed until the payments to the trustee are completed.
The ‘court date’ mentioned above is the so-called Meeting of
Creditors required by Section 341(a) of the Bankruptcy Code. It isn’t
nearly as ominous as it sounds. This is really more a meeting with the
trustee assigned to your case (Ford Elsaesser of Sandpoint for
Chapter 7 and Barry
Zimmerman of Coeur d’Alene for
Chapter 13). The
trustee has certain duties to perform and this is his opportunity to ask
you any questions he has to complete his understanding of the case so
that he can go about his job. In most cases, this takes about two to
five minutes per case for Chapter 7 's and perhaps five to ten minutes
or so for Chapter 13's.
If a creditor appears and wants some information, it can take longer, of
course. No harassment of any kind is permitted at this 341(a) Meeting,
needless to say; it is strictly for information as to debts and
property.
Few creditors bother to appear at 341(a) Meetings because there is
really little they can do there. When creditors do have questions they
usually just call my office.
Answer: Attorney-client confidentiality is not only a very long
tradition in the legal profession ---it is the law. Unfortunately, the
Lewiston Tribune thinks people’s personal financial problems are
newsworthy and publishes a list of filers each month in our local
five-county area.
On the other hand, it is well to remember that in this democracy,
most court records and proceedings are public. This means any one can go
to the court clerk’s office in Boise or work the court’s webpage to see
the documents filed in any particular case
Answer: Most creditors would certainly like for you to think so!
But it cannot be immoral to be unable to do something. If you can pay
your debts, you must , and you are not even eligible for bankruptcy in
the first place. But if you cannot pay all your debts as they come due,
you are eligible. (It is difficult to see immorality in being unable to
pay $50,000 in debts on a monthly income of $1500 when all of that
income is needed for basic living costs.)
Even the Bible contains a provision for periodic debt forgiveness:
see Leviticus 25:39-41 about forgiveness of debt every seven years. Also
see Deuteronomy 15:1-2 instructing every creditor to release debts every
seven years. This agrees closely with bankruptcy law: you cannot file
Chapter 7 if you
have filed a bankruptcy within the past eight years or a
Chapter 13 if you
filed in the past two years. So much for the moral issue.
Speaking of morality, what about creditors who demand possession of
your family picture album as collateral, as well as title to the
vehicle, when they make an auto loan? That gives them a possessory
security interest in those photos and even if you discharge the debt in
bankruptcy and return the vehicle to the creditor, you still can’t get
your family album back unless and until you play their claim, complete
with high interest. (A lender in Western Montana does this.)
And what about the ‘Payday Loan’ lenders which make loans for about
two weeks on your postdated check...charging as much as 500% interest?!
(They are right here in the Lewiston-Clarkston valley.)
And there is the local office of a nationally-known finance company
who got an elderly lady to take out a mortgage on her paid-off home
---at 21% interest. That was a fully-secured real estate loan that
probably would have been made at less than 10% by any bank or credit
union. (By the way, compute that interest on about $60,000 balance owned
and then ask yourself why that lady came in to see me.)
Answer: The Initial Conference is your first visit to our office.
Ken reviews and analyzes the facts of your case with you. He makes
recommendations as to which program or programs (called ‘chapters’) of
the Bankruptcy Code might be appropriate for your circumstances and
explains in some detail how it would work in your case. This usually
takes about an hour to and hour-and-a-half and you leave with a copy of
our analysis, recommendation, a fee quotation, and your questions
answered. If you are interested in going further, you are given a
Checklist of information and documents to bring with you to the next
meeting. You will also be given a three-part inventory form to fill out.
Part A is detailed information on the chapter or program which is
appropriate to your circumstances; Part B is an inventory of your
personal property (furniture, appliances, etc.); and Part C is a list of
any property belonging to others which is in your possession. We need
the Part B information to place protective ‘exemptions’ on property. We
use the Part C information to protect property of other people which is
in your possession. (This will be explained in more detail at the
Initial Conference.) When you have all the needed materials together,
you can then call the office and schedule the Forms Conference. That is
when we go over the court’s Official Forms and process the material you
have brought with you.
We strongly prefer that in the case of a married couple, both husband
and wife come in for the Initial Conference if at all possible. We have
found that when only the husband or the wife comes in we are usually
asked to go through it all again with the other person and we end up
spending twice the time it should take. We will repeat the session but
there will be a charge of $60 made for this. Only the first Initial
Conference is free. In any event, I must meet and speak with both
husband and wife at some point before I can file a case.
Answer: No. There is no such thing as a ‘medical’ bankruptcy or a
partial bankruptcy of any kind. You file a personal petition and you
must list all claims against you and all property. However, the
flexibility you want can usually be obtained by selecting the right
chapter (program) of the Bankruptcy Code and in the careful
classification of property and claims in your petition and schedules.
Answer: Yes. You can pay or not pay, in whole or in part, as you
wish, any debt after the filing of a
Chapter 7. If your
proceeding was any other chapter (that is, a reorganization under
Chapter 11,
12, or
13 of the
Bankruptcy Code) though, the answer is more complicated. You can still
pay any particular debt but may have to wait until the closure of your
case.
Answer: No. In over a quarter-century of practice before the
United States Bankruptcy Court for the District of Idaho, I have yet to
find one client who really wanted to file. This is not something you do
lightly. It’s serious business but it does have its place. Think of it
as surgical operation. Nobody looks forward to that but if done
correctly, at the right time, and in the right circumstances, it can
give you a new lease on life --- a “fresh start” as Congress calls it.
Answer: Maybe. We practice only in the United States Bankruptcy
Court for the District of Idaho, and mainly only in that court’s Moscow
Division. Occasionally I take a case in the Coeur d’Alene Division but
not very often. If you reside in the county of Idaho, Lewis, Nez Perce,
Latah, or Clearwater, you probably qualify.
Idaho residents south of Idaho County (i.e., Valley County and points
south) are best served by local counsel in other cities such as Boise or
Pocatello. Eastern Washington residents ordinarily must file in Spokane
but we can represent them in limited circumstances (such as if their
major assets are in this state, or, if they are in business, their
principal place of business is in Idaho),