Practice Areas and Legal Definitions

Every year, more than 1,000,000 Americans file for protection under Federal bankruptcy laws. Although some bankruptcy claimants are deemed as credit abusers and/or considered financially irresponsible, many hardworking individuals and businesses can succumb to financial difficulty, and face irreparable economic crisis. Bankruptcy is designed as a legal option to help resolve such a crisis, and act as a financial life preserver for those drowning in debt. To discuss your bankruptcy options, or other areas of recourse that might be available to you, contact a qualified bankruptcy attorney who can advise you of your legal rights as stated under Bankruptcy Law and federal Bankruptcy courts.

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 debtor files to eliminate debt through the bankruptcy court. Under a reorganization bankruptcy (Chapter 13), a debtor files a plan with the bankruptcy court proposing how to repay creditors.

In 2005, the requirements under which a debtor could 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 within six months of 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 may 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.

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 San Clemente, California bankruptcy attorney, contact Attorney today at 949-287-8701, or use the contact form provided on this site to arrange for your free initial consultation.

If you or someone you know needs the assistance of an experienced San Clemente, CA Bankruptcy lawyer, call The Gibbs Law Firm today at 949-287-8701, or complete the contact form provided on this site to schedule your free consultation.

ADDRESS OF THE FIRM:
The Gibbs Law Firm
110 Avenida Palizada Suite 201
San Clemente, CA 92672
Phone: 949-287-8701
Hours: M-F, 8:00AM-5:00PM

MEMBERS OF THE FIRM:

Attorney Gerald R. Gibbs, Senior Partner

Gerald R. Gibbs has an extensive background in business and real estate. His clients have ranged from start-up businesses to mature business entities with extensive assets and liabilities. In addition to representing for profit business entities, Mr. Gibbs has extensive experience with non-profit entities which own and operate multi-million dollar properties. As counsel for both profit and non-profit entities, he has extensive experience in the financing, purchase and sale of multi-million dollar properties.

Mr. Gibbs has a comprehensive engineering and business background. He was the Director of Contracts for McDonnell Douglas Aerospace division prior to entering into private practice in 1974. Mr. Gibbs, in addition to his trial practice, has significant experience in municipal law relative to real property matters. Mr. Gibbs regularly appears before planning commissions, city councils, county board of supervisors and the California Coastal Commission.

Mr. Gibbs is the President and Chief Executive Officer of The Associates Group for Affordable Housing, Inc., (“TAG”) a non-profit corporation dedicated to the continued availability of affordable housing. In addition, he has appeared before a number of legislative bodies to testify regarding California housing and in particular, low-cost housing for the low and moderate income households of this State. Mr. Gibbs also works with national and local real estate and management organizations to provide information to their members regarding housing needs and related real estate matters. Mr. Gibbs is a past president of the San Clemente Chamber of Commerce, and a past president of the Board of Directors of Laura’s House, a not-for-profit domestic violence shelter and advocacy program. Mr. Gibbs has also acted as a director of numerous other non-profit organizations in the local community.

Attorney David L. Gibbs, Senior Associate Attorney

Mr. Gibbs has served as a Senior Bankruptcy, Business and Real Estate Associate at The Gibbs Law Firm, APC since 1993. In his bankruptcy and business practice, Mr. Gibbs represents individuals, small and medium size businesses in insolvency proceedings in the United States Bankruptcy Court. Mr. Gibbs also works regularly with individuals and businesses in out-of-court resolution of their debts. In his real estate practice, Mr. Gibbs represents buyers and sellers of commercial and residential income real estate. In this role, he is often responsible for financial feasibility analysis, negotiations, contract preparation, due diligence, pre- and post-acquisition disputes, and a wide range of real estate-related litigation. Mr. Gibbs has structured innovative solutions for clients including successfully representing clients in diverse business and real estate litigation, including creditor representation in bankruptcy proceedings, as well as matters relating to the Fair Debt Collection Practices Act and Truth in Lending laws. Mr. Gibbs has applied solid relationship management skills in his position with The Gibbs Law Firm, APC. As such, he works collaboratively with clients, banks, brokers, and other constituents, demonstrating strong influencing and negotiating capability to reach agreements and build consensus among parties with often disparate or conflicting positions.

Mr. Gibbs has, in addition to his role as a senior associate at The Gibbs Law Firm, APC, founded and operated several small businesses. As the CEO of Homes of the West, LLC, a company Mr. Gibbs founded, Mr. Gibbs occupied a leadership role involved in establishing, launching, and operating a start-up Manufactured and Modular Home Sales and Development Company. Mr. Gibbs oversaw all aspects of manufactured/modular home sales, real estate brokerage, and general contracting; including legal issues, financial analysis, contract negotiations, construction management, marketing, human resources, and customer service. As the CEO, Mr. Gibbs represented nonprofit developers in new home development with factory-constructed housing, including single-lot developments as well as community development. Mr. Gibbs provides ongoing leadership and direction to a team of employees/agents and external sub-contractors and vendors. In the course of operating this business, Mr. Gibbs maintained a class “B” general contractor’s license and a manufactured home dealer’s license (both licenses have been retired). Mr. Gibbs still maintains his California Real Estate Broker’s license, and is an active member in the Pacific West Association of Realtors.^®

Prior to starting Home of the West, L.L.C., Mr. Gibbs started his first entrepreneurial venture – Pacific Housing Group, Inc. – in 1998. Pacific Housing Group, Inc. was started and operated as an independent Real Estate Brokerage and Consulting Firm. In his leadership role, Mr. Gibbs represented buyers, sellers, and developers in all aspects of real estate acquisition and development including title issues; hands-on management of all aspects of real estate brokerage, including direct responsibility for 75-100% annual growth for three years straight, balancing rapidly changing day-to-day needs of a small business, including operations, marketing, contract negotiations and enforcement, and management of 10 employees/agents; representation of nonprofit developers in subdivision and sales of subdivided units; representation of community associations in both management and consultative roles; ensuring compliance with DRE and other regulatory agency regulations and standards.

In his work as a Bankruptcy, Business and Real Estate attorney, Mr. Gibbs’ experience with the start-up, management and sale of multiple businesses gives him unique insight into the workings of small businesses and real estate transactions. Unlike many attorneys with no “real world” experience, Mr. Gibbs is uniquely qualified to represent clients in a wide range of bankruptcy, business and real estate matters.