There is a process and procedure for serving defendants and initiating a lawsuit. Plaintiffs do have to follow the correct procedures for proper service. Some individuals are successfully sued and a judgment is awarded to the plaintiff without any knowledge by the defendant. The defendant only becomes aware of the judgment when the creditor begins to enforce the judgment through a bank levy or a garnishment. The question I receive from debtors is: how can they vacate or remove the judgment because they were not properly served with the lawsuit.

Carefully considering when to file your bankruptcy can maximize the benefit you achieve from the filing. There are many factors that may speed-up or delay the need to file. 

If a debtor is being represented in a bankruptcy they should allow their bankruptcy attorney to work for them, and the only way their attorney is able to provide adequate representation is if they know all the details about the debtor’s case. If a debtor chooses to omit certain transactions or details then the attorney will not be able to advise appropriately regarding those transactions which could be problematic in the case. 

When a creditor has failed to obtain payments from the debtor, the creditor may sell the debt to a debt collector. If the debt collector or creditor is still unable to collect on the debt they may employ a law firm to pursue the debt through a lawsuit. The initial start of the lawsuit begins with notice to the debtor that they are being sued.  

Pursuant to 11 U.S.C. § 548(a)(1)(B) the trustee can avoid certain transfers made within two years before the petition filing date.

When filing a personal bankruptcy, you have to choose the bankruptcy chapter that will work best for your situation. Your attorney can help advise you on selecting the appropriate chapter. Although, some debtors are not eligible for filing a chapter 7, and will have to select a chapter 13 filing, others will voluntarily select to file a chapter 13. There are several reasons a debtor may choose a chapter 13 filing over a chapter 7, but once you have decided a chapter 13 is the right choice for you-you will next consider the length of the commitment period.

Before filing bankruptcy many debtors try other means of dealing with their debt. Occasionally debtors will take out additional debt in hopes of consolidating the debt. But for the creditors to provide additional credit to a potentially risky lender they may ask that the debtor obtain a co-signer on the debt. This co-signer will remain liable on the unsecured debt even after the debtor has received a discharge in the bankruptcy.

When you file bankruptcy you are required to list all of your assets on your petition. This includes any real estate you currently have an interest in. What a debtor should also consider is any previous real estate transactions they may have been involved in. This is especially true for recent real estate transactions. A trustee will likely inquire about any recent sales or purchases of real estate. If the property was sold, there will likely be questions about proceeds from the sale and how the funds were spent. 

If you have recently sold your home or are planning to sell your home prior to filing bankruptcy there are things to consider and discuss with your bankruptcy attorney regarding any remaining home proceeds from the sale. After the sale of the home, the proceeds should be kept separate from general income: wages, bonuses, pension income, and funds from the sale of other assets. The proceeds from the home sale maybe exemptible, if you qualify to use Minnesota exemptions and the sale of the home was within one year of the bankruptcy filing. (Your attorney can help you determine if you are eligible for Minnesota exemptions). It is important to note that home proceeds are not exemptible infinitely. If the home was sold over a year from the filing of the bankruptcy petition and proceeds remain from the home sale, these funds are not exemptible using the Minnesota homestead exemption. 

IRAs are exempt assets in bankruptcy proceedings, and are thus beyond the reach of the debtor’s creditors. The exemption in the Bankruptcy Code is based on the tax-exempt status of the IRA. 11 USC §522(d)(12) provides an exemption to “[r]etirement funds to the extent that those funds are in a fund or account that is exempt from taxation under section 408 of the Internal Revenue Code.”

A chapter 7 bankruptcy is a liquidation bankruptcy, consequently non-exempt assets in a chapter 7 bankruptcy are liquidate or debtor may be able to purchase their non-exempt assets back from the bankruptcy estate. In a chapter 7 bankruptcy, the debtor has a limited amount of time to purchase back their non-exempt assets or relinquish the assets to the bankruptcy estate. If a debtor is unable to purchase back their assets from the estate or is unwilling to give up their non-exempts the debtor may consider filing a chapter 13. (Your attorney will let you know which assets in your case are non-exempt).

Occasionally debtors will find themselves in a situation where they are continuously being hounded by creditors. The debts have been sold and resold and many times debtors are not even sure who they owe funds to anymore. Unfortunately, this can make those debtors vulnerable to scams. If a debtor receives a call from an aggressive creditor demanding payment and the creditor is offering a substantial discount the debtor may be tempted to take the deal-even though the debtor does not know the exact source of the debt.

Getting behind on your mortgage payments is not uncommon, but when the amount of the arrears (the amount you owe from the missed payments) is substantial it can be hard to get caught back up with your mortgage payments. There are many reasons people get behind on their payments: temporary job loss, divorce, medical issues. And sometimes working with the mortgage company to make arrangements to repay the missed payments can be daunting and frustrating especially if the mortgage company has already started the foreclosure process.

When you file bankruptcy you are required to list all of your assets on your bankruptcy petition.  In fact, you will be required to testify under oath that you have listed all of your assets and any interest you may have in an asset.

Not everyone qualifies to file a chapter 7 bankruptcy. In order to curb perceived abuse, Congress modified the Bankruptcy Code. On April 20, 2005, President Bush signed the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the "Act"). The Act was intended to address certain abuses of the bankruptcy process. Among the abuses identified by Congress was the easy access to chapter 7 liquidation proceedings by consumer debtors who, if required to file under chapter 13, could afford to pay some dividend to their unsecured creditors. 

Not all debts are treated the same in bankruptcy. Unsecured debts are those debts that are not secured by collateral. Of course, secured debt remains secured to the collateral even in bankruptcy, but strictly speaking about unsecured debt-will it all be discharged in the bankruptcy?