Practice Areas and Legal Definitions

New Bankruptcy Laws:
Bankruptcy is a federal court process designed to help individuals and businesses eliminate their debts or repay them under the protection of the bankruptcy court. Bankruptcies can generally be described as liquidation or reorganization. Under a liquidation bankruptcy (Chapter 7), a claimant files to eliminate debt through the bankruptcy court. Under a reorganization bankruptcy (Chapter 13), a claimant files a plan with the bankruptcy court proposing how to repay creditors.

As of October 17, 2005, the requirements under which a debtor may file Chapter 7 bankruptcy changed with the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act.  Debtors are now required to seek budget and credit counseling six months prior to filing, financial “testing” is required to determine the debtor’s capacity for debt repayment, Chapter 7 cannot be filed if the household income is greater than the median household income as deemed by the state, and state exemptions cannot be applied unless the debtor has resided at current residence for over two years.

Due to the imposed requirements for Chapter 7 bankruptcy as set forth by the new laws, debtors who were eligible to file under Chapter 7 will now have to file under Chapter 13 bankruptcy instead, in which individuals and creditors agree to a court-imposed plan that requires some or all debts be repaid over five years, with an appointed trustee assigned to monitor the repayment process. Bankruptcy filings will continue to be recorded on an individual’s credit report for seven years in the case of Chapter 13, and up to ten years for Chapter 7.

Chapter 7:
Chapter 7 cases are commonly referred to as straight bankruptcy or liquidation cases, and may be filed by an individual, corporation or a partnership. A Chapter 7 bankruptcy case does not involve the filing of a plan of repayment as in Chapter 13. Instead, the bankruptcy trustee gathers and sells the debtor's nonexempt assets and uses the proceeds of such assets to pay holders of claims (creditors) in accordance with the provisions of the Bankruptcy Code. Part of the debtor's property may be subject to liens and mortgages that pledge the property to other creditors. In addition, the Bankruptcy Code will allow the debtor to keep certain "exempt" property; but a trustee will liquidate the debtor's remaining assets. Accordingly, potential debtors should realize that the filing of a petition under Chapter 7 may result in the loss of property.

Chapter 13:
A Chapter 13 bankruptcy is also called a wage earner's plan. It enables individuals with regular income to develop a plan to repay all or part of their debts. Under this chapter, debtors propose a repayment plan to make installments to creditors over three to five years. Chapter 13 permits individuals to keep their property by repaying creditors out of their future income.  It is not available to corporations or partnerships.  After completion of payments under the plan, Chapter 13 debtors receive a discharge of most debts.

Foreclosure:
Foreclosure is the legal proceeding in which a bank or other secured creditor sells or repossesses a parcel of real property (immovable property) due to the owner's failure to comply with an agreement between the lender and borrower called a "mortgage" or "deed of trust". Commonly, the violation of the mortgage is a default in payment of a promissory note, secured by a lien on the property. When the process is complete, it is typically said that "the lender has foreclosed its mortgage or lien".

A Foreclosure by Sale ends in the posting of a sign advertising the auction of your home on the sale date. The only ways to stop a foreclosure are full payment of the arrearage, or the filing of a Chapter 13 bankruptcy. Full Payment: If you are able to obtain and tender the full amount of your arrearage, including fees and costs, you can stop the foreclosure of a standard residential mortgage. Most people lack the money to make full payment. This process stops the foreclosure and allows you to repay your arrearage over a three-to-five year period. The arrearage is paid through a court-appointed official, while you resume your regular monthly payments to the bank in order to keep your home. A Chapter 13 can be filed at any time prior to the law day or sale date, and it is often the only avenue to save your home.

Bankruptcy Fraud:
Bankruptcy fraud is a business crime of filing for bankruptcy with criminal intent, that is with the intention of evading payment for goods even though the buyer has funds that could be used to pay for them, or accepting payment for goods or services but not supplying them. Common types of bankruptcy fraud include petition mills, false oath, concealment of assets, and fraudulent conveyance. Multiple filings are not per se fraudulent; as with all things in the law, it depends on the circumstances. Bankruptcy fraud should be distinguished from strategic bankruptcy, which is not a criminal act (but may prejudice a judge against the filer if there is evidence that bankruptcy is being used strategically).

Debt Consolidation:
Contrary to popular belief, debt consolidation is not a loan. Debt consolidation is a process in which debt is restructured into one low monthly payment. It further enables a consumer to reduce the amount owed and thereby eliminate interest. Very often a consumer can detect warning signs of being in too much debt long before any collection notices are received. If more than two of the following signs apply to you, you are probably in too much debt:

• You have begun charging to your credit card essential expenses like food and daily expenditures
• You are making only the minimum payments on your credit cards each month
• You are near the limit of your credit cards
• You have too many credit cards
• You are unsure how much money you owe creditors

Chapter 11:
Chapter 11 is typically used for business bankruptcies and restructuring. It is not commonly used by individual consumers since it is far more complex and expensive to pursue. It allows businesses to reorganize themselves, giving them an opportunity to restructure debt and get out from under certain burdensome leases and contracts. Typically a business is allowed to continue to operate while it is in Chapter 11, although it does so under the supervision of the Bankruptcy Court and its appointees.

If you or someone you know needs debt consolidation legal counsel or the assistance of an experienced Brooklyn, New York bankruptcy attorney, call Attorney Gregory Messer today at 866-738-5087, or use the contact form provided on this site to arrange for your free consultation. 

Frequently Asked Questions

The following information includes frequently asked bankruptcy questions. The answers stated are general in nature and are not intended to apply to every situation. Each case is different and carries its own set of circumstances which must be taken into consideration by competent legal counsel.  For more specific information about your case, please contact Gregory Messer today at 866-738-5087.

Will bankruptcy stop a lawsuit against me?
A bankruptcy filing will stop a lawsuit immediately and prevent your creditors from placing a lien against your house or garnishing your wages.

Will I lose my house, car and other personal property?
Not necessarily, each state has laws that determine which items or property are exempt from being taken away. For example, many states exempt personal items such as furniture and clothing. In addition, other kinds of property are exempt up to a limit. These exemption limits mean that any equity that you have in the property above the limit is not exempt. The Bankruptcy Court can take the property and sell it, pay off any creditors, give to you the exemption amount, and keep the rest for other creditors.

Can I file for bankruptcy every few years?
No. Once a discharge is granted, a debtor who filed under chapter 7 or 11 is prohibited from filing for another 6 years.

What should I do if I cannot make my Chapter 13 payments?
If the debtor cannot make a Chapter 13 payment on time according to the terms of the confirmed plan, the debtor should contact the trustee by phone and by letter advising the trustee of the problem and whether it is temporary or permanent. If it is a temporary problem and the payments can be made up, the debtor should advise the trustee of the time and manner in which the debtor will make up the payments. Significant changes in the debtor`s circumstances may require that the plan be formally modified. If the problem is permanent and the debtor is no longer able to make payments to the plan, the trustee will request that the case be dismissed or converted to another chapter. The determination of whether to modify, dismiss or convert a case requires the same kind of analysis as is needed for the initial decision whether to file bankruptcy and under what chapter.  If the debtor delays making a voluntary decision and cannot make the plan payments, the court may dismiss the case.

What are exemptions?
11 U.S.C. §522(b) allows an individual debtor to exempt real, personal or intangible property from the property of the estate. State law protects exempt assets from distribution to your creditors. Typically, exempt assets include vehicles up to a certain dollar amount, the equity in your home up to a certain amount, and tools of the trade. Exemptions are claimed on Schedule C. As with all schedules, it is important to fully complete and provide all the information requested. If no one objects to the exemptions you have listed within the time frame specified by the bankruptcy court, these assets will not be a part of your bankruptcy estate and will not be used to pay creditors through your bankruptcy case. Deciding which assets are exempt and how and if you can protect these assets from your creditors can be one of the more important and difficult aspects of your bankruptcy case.

I`ve filed for bankruptcy, now what?
As soon as your case is officially filed with the court you are granted an automatic stay. Creditors are legally prevented from attempting to collect on any debt owed to them by you. This means that creditors must stop all collection activity, including telephone calls, harassing letters, repossessions, foreclosures, lawsuits and wage garnishments. Although the stay is automatic, creditors need to be advised of the stay. The court issues a notice to all creditors advising them of the filing of the bankruptcy. The creditors are informed of the following: the case number; the automatic stay; the date set for the creditor meeting; the deadlines for filing objections to the discharge of the debtor and the deadlines for filing objections to the discharge of specific debts. The exact information that is required in the notice differs depending on the chapter under which the case is filed.

What is an Objection to the Claim?
You are entitled to object to any claim filed in your bankruptcy case if you believe the debt is not owed or if you believe the claim misrepresents the amount or kind of debt (e.g. secured or priority), which you owe. In some circumstances, an objection to claim can be initiated by filing a motion in the bankruptcy court; in other circumstances it must be initiated by filing an adversary proceeding (like a lawsuit in your bankruptcy case).

Professional Profile

Since 1980, Attorney Gregory Messer has dedicated his practice exclusively to helping consumers and businesses in bankruptcy matters. He is Board Certified in Consumer Bankruptcy by the Bankruptcy Board of Certification since 1995.

If you or someone you know needs debt consolidation legal counsel or the assistance of an experienced Brooklyn, New York bankruptcy lawyer, call Attorney Gregory Messer today at 866-738-5087, or use the contact form provided on this site to schedule your free consultation.

FIRM ADDRESS:
Gregory Messer
Law Office Of Gregory Messer, PLLC
26 Court St Suite 2400
Brooklyn, NY 11242
Phone: 866-738-5087
Hours: M-F, 8:00AM-5:00PM

MEMBERS OF THE FIRM:
Gregory Messer

EDUCATION:
Albany Law School, J.D., 1977
Drew University, B.A. 1974

COURTS ADMITTED:
New York, 1978
U.S. District Court, Eastern District of New York, 1979
U.S. District Court, Southern District of New York, 1979
U.S. District Court, Northern District of New York, 1979

PROFESSIONAL AFFILIATIONS:
Panel Member, Chapter 7 Trustee Panel, Eastern and Southern District of New York, 1980-Present
Board Certified in Consumer Bankruptcy Law, 1995-Present
Fellow, American Bar Foundation
New York State Bar Association, 1978-Present
Brooklyn Bar Association, 1981-Present
Nassau County Bar Association, 1995-Present
American Bar Association, Member
Frequent Lecturer in Bankruptcy Law: New York Bar Association, Practicing Law Institute and New York City Bar Association

AWARDS:
Elected a Fellow in the American Bar Foundation, 1991 
Pro Bono Award, Volunteer Lawyers Project, Inc., 1999
Gold Club Certificate of Appreciation, Brooklyn Bar Association, Volunteer Lawyers Project, Inc., 1998
Silver Club Certificate of Appreciation, Brooklyn Bar Association, Volunteer Lawyers Project, Inc., 2000
Brooklyn Bar Association Frieda S. Nisnewitz Award for Service to the Brooklyn Community, 2003

PRACTICE AREAS:
Chapter 7 Bankrutpcy
Chapter 11 Bankruptcy
Chapter 13 Bankruptcy
Debt Workouts
Discharging Debts
Stopping Foreclosure
Preventing Repossession
Stopping Wage Garnishment
Stopping Debt Collection Harassment