Chapter 13 Plan Disturbed for Want of Service

In a Chapter 13 bankruptcy, the bankruptcy court granted a debtor's unopposed motion ordering the IRS to release a levy and return the debtor's funds. The IRS was also ordered to pay the debtor's attorney fees, costs and actual damages. The United States sought to vacate the order and allow the IRS to retain the levy and debtor's funds based on the court's lack of jurisdiction over the United States and its agencies. The United States argument was grounded in the debtor's failure to provide proper notice of the debtor's motion to the clerk for the U.S. attorney for the district of New Jersey or the attorney general in Washington, D.C. Under Federal Rule of Bankruptcy Procedure 7004. Bankr. R. 7004(4) includes, in pertinent part, that service "upon the United States is effected by mailing a copy of the summons and complaint to the civil process clerk at the office of the United States attorney for the district in which the action is brought and by mailing a copy of the summons and complaint to the Attorney General of the United States at Washington, District of Columbia…" Although the premise behind bankruptcy discharges and confirmation of plans is the provision of a clean slate and a fresh start for the debtor without the need to worry about prior creditors returning, debts may not discharged if the debtor was not properly noticed of the bankruptcy. Under Federal Rule of Bankruptcy Procedure 9024, Federal Rule of Civil Procedure 60(b)(4) operates to allow relief from a judgment or order for failure to properly notice the creditor in a Chapter 13 bankruptcy. If you are considering bankruptcy you should consult with an experienced bankruptcy attorney immediately in order to protect your rights. For more information regarding foreclosure, bankruptcy or other consumer debt matters in New Jersey visit TheNJBankruptcyAttorney.com. This blog is for information purposes only and in no way is intended to replace the advice of an attorney regarding your specific matter. Our law firm is a debt relief agency and helps people file for bankruptcy relief.

Abandonment Not Automatically Revoked by Reopening Case

In the event an asset is abandoned by a Chapter 7 trustee, the abandonment is not automatically revoked by the Trustee's reopening of the bankruptcy action. In the case of In re Reilly, the bankruptcy trustee appealed the abandonment of a Tevis claim by the trustee during a prior bankruptcy proceeding. The bankruptcy court ruled that a technical abandonment is irrevocable, in the same manner as if a notice of abandonment was filed. The practice of reopening bankruptcy when closed would have the opposite effect of the intent of bankruptcy which is to close all matters and give the debtor a fresh start following the most equitable distribution possible to the creditors. On appeal, the Appellate Court ruled that there is no automatic revocation of abandonment in the event a bankruptcy is reopened. The Appellate Court decided that Federal Rule of Civil Procedure 60(b) must be applied to determine whether to revoke a technical abandonment and remanded the case for consideration of the rule. Under F.R.C.P.60(b), grounds for relief from a judgment, order or proceeding may stem from: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. It is critical that the bankruptcy trustee consider all matters in order to ensure that the debtor receives a final discharge and obtains the true value of the fresh start they seek. If you are considering bankruptcy you should consult with an experienced bankruptcy attorney immediately in order to protect your rights. For more information regarding foreclosure, bankruptcy or other consumer debt matters in New Jersey visit TheNJBankruptcyAttorney.com. This blog is for information purposes only and in no way is intended to replace the advice of an attorney regarding your specific matter. Our law firm is a debt relief agency and helps people file for bankruptcy relief.

Avoiding A Foreclosure Sale With Bankruptcy

Bankruptcy offers an automatic stay which can assist a home owner in advance of a foreclosure and sheriff's sale. The Chapter 13 filer and the Chapter 7 filer can both obtain foreclosure relief in this manner. The debtor must be aware of when a filing will help and should not wait until the sheriff's sale to take advantage of this protection. When the debtor in US Bank National Association v. Rodriguez attempted to utilize bankruptcy after the fact to avoid a sheriff's sale the judge ruled that the time for Defendant to act had long expired and debtor's lack of action until the 11th hour would not be permitted to work and injustice against the bank. The debtor failed to enter the foreclosure action, in spite of proper notice from the bank, and a default judgment in foreclosure was entered in 2009. Only upon learning the sheriff's sale was looming did the debtor act but the only action taken was to utilize all adjournments of the sheriff's sale available by law and attempt to induce the bank to modify the loan. Finally, after the sheriff's sale took place, the debtor filed bankruptcy in an effort to vacate the sheriff's sale. An automatic stay will not permit you to stay in your home forever or strip the mortgage from a primary residence but it will give you the breathing room you need to review the different options available to you as a bankruptcy filer. If you are facing foreclosure you should consult with an experienced consumer debt protection attorney immediately in order to protect your rights. For more information regarding foreclosure, bankruptcy or other consumer debt matters in New Jersey visit TheNJBankruptcyAttorney.com. This blog is for information purposes only and in no way is intended to replace the advice of an attorney regarding your specific matter. Our law firm is a debt relief agency and helps people file for bankruptcy relief.

You Occupation Can Be Used Against You in Foreclosure

In the matter of Salierno v. Kosky, the debtor was penalized in a foreclosure action as a result of knowledge he was assumed to have from an external source. In the above foreclosure matter, a loan was made to the debtors which was secured by mortgages properties in Mahwah, NJ. One on a property which Barbara Kosky owned and resided in and another on a property on which Daniel Kosky owned and resided in. When the debtors defaulted, plaintiff filed a complaint in foreclosure. The debtors filed a motion to dismiss the complaint because the properties secured by the mortgages are residential and, therefore, protected under the Fair Foreclosure Act (FFA). The FFA requires strict notice requirements for mortgages on properties used as the debtor's primary residence. The court held that, although the required notice of intent to foreclose was not sent to the debtors prior to the filing of the foreclosure action, the foreclosure action need not be dismissed because Daniel Kosky was formerly employed as a bank executive and should have known the rights of lenders and borrowers in a foreclosure action. If you are facing foreclosure, considering bankruptcy or trying to deal with overwhelming debt, you should seek experienced legal counsel immediately in order to protect your rights. For more information on foreclosure, bankruptcy or other consumer debt related matters in New Jersey visit TheNJBankruptcyAttorney.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

NJ Offers Choice of State or Federal Exemptions

Under the bankruptcy laws of New Jersey, a debtor may elect using either New Jersey or Federal bankruptcy exemptions. When you file Chapter 7 bankruptcies, non-exempt property you own will usually be used by Trustee to pay off your creditors. Under Chapter 13 bankruptcy, a Trustee will usually require you to pay any amount owed to creditors on the value of your property that is not exempt. Properties qualifying for exemption vary between State and Federal law, which has its own set of exemptions. Although New Jersey allows you to choose between Federal and New Jersey State exemptions,you cannot mix and match between the two. Deciding whether State or Federal exemptions are more beneficial to you largely depends on your situation. For instance, if you want to try and save your home, federal exemptions may be better for you as you are allowed to exempt over $20,000 of equity in your home (over $40,000 for a married couple filing jointly). Both State and Federal exemptions include specific values you may exclude in your automobiles, clothing, pensions and insurance, to name a few If you are considering filing for bankruptcy you will be addressing many issues concerning which set of exemptions to choose from and should consult with an experienced bankruptcy attorney immediately in order to protect your rights. For more information regarding which set of bankruptcy exemptions to choose from, foreclosure, consumer debt or other bankruptcy law matters in New Jersey visit TheNJBankruptcyAttorney.com. This blog is for information purposes only and in no way is intended to replace the advice of an attorney regarding your specific matter. We are a Debt Relief Agency. We help people file for bankruptcy relief.