u/demyst

Can I file for bankruptcy through a refinanced student loan.

First thing is to reframe your understanding. You don't file bankruptcy on any particular debt. You just file for bankruptcy protection.

As part of that, you must list all of your assets and all of your debts. This includes things that are obviously dischargeable (think: credit cards), debts that are presumed nondischargeable (student loans), and things that are absolutely not dischargeable (criminal court fines).

The term "dischargeable" refers to no longer having a legal obligation to repay that debt. A successful bankruptcy case ends with an "Order of Discharge" from the court.

Loans obtained for an educational benefit are presumed not dischargeable, unless you can prove that repaying them would be an undue hardship. This is proven by filing an Adversary Proceeding - think of it as a mini lawsuit within the bankruptcy case.

So, to explicitly answer your question - yes you can file for bankruptcy while owing a refinanced student loan.

But to more properly answer your question - whether or not your refinanced student loan would be discharged depends on whether or not repaying it would pose an undue hardship to you, as interpreted by case law and current administration guidance.

Do I have to add my mortgage to my bankruptcy? Or can I leave it out? I have been making payments and am up to date on it.

You must list all of your debts and all of your assets - this includes your mortgage and the real estate that it secures.

With secured debts like a mortgage, you can give your intentions to the court - such as "reaffirming" your mortgage. This would allow the debt to survive the bankruptcy. You would still owe the debt.

However, there are considerations and decisions to be made before you even get to that question. Will you file Chapter 7 or Chapter 13? If you are filing Chapter 7, do you have enough protections to protect the equity in your home. Is there even equity to protect? You can want to reaffirm your mortgage all day long, but if you have $200,000 in unexempt equity in your home, then the trustee is taking it.

Does filing mean you lose your car and it’s taken?

Not necessarily. In fact, I'd say very rarely.

The person filing for bankruptcy has a lot of decisions to make. One of them is their intentions (what they want to do) with some of their debt.

With a secured debt like a car loan, you fill out a form that says what you want to do with it. Many people want to "reaffirm" their car loan. This is an extra agreement between the car lender and the debtor agreeing that the debt related to the car survives the bankruptcy.

In some cases, the judge must review and approve it.

The debtor may also decide to "surrender" the car. Meaning, give the vehicle back to the lender and no longer owe the debt anymore.

They didn’t even provide a legal argument in their appeal.

Of course there’s “no legal argument” in the notice of appeal. It’s a notice of appeal, not an appellate brief. The arguments come later. Criticizing a notice of appeal for having “no legal argument” is either a basic misunderstanding of appellate procedure or an attempt to make a completely ordinary filing sound suspicious.

I know an attorney who really wants to write a paper on "Memphis 13s". No idea if Memphis area attorneys do more 13s on average than other locals. My only experience is very anecdotal.

"Get more money out of you" if you do a 13 is true, but it is also some money is better than no money. Some folks are so broke they can't afford the fees for a Chapter 7. They "get sold" on doing a Chapter 13 because the attorney can get paid out of the monthly payment. I wonder how many of these types of 13's make it beyond 6 months or past one month on strict compliance.

It can be. But also exhausting. Wouldn't do anything different, though!

I offer as much advice as I can. I have template handouts and instructions especially geared toward what creditors can and cannot do to try and collect on debts.

At my firm we also have a small dedicated team that focuses on pro bono engagement. If I have a case that I think is particularly meritorious, but I don't have capacity to take it, I'll send it over to them and they'll reach out to attorneys in the community to see if they'll take the case pro bono (without charging a fee). My state gives CLE credits to attorneys who take cases in this way.

We look for a particular factor from a list

1. Active wage garnishment
   
2. Foreclosure proceedings beginning on a home.
   
3. Imminent repossession of primary transportation.
   
4. Suspended drivers license due to an insurance subrogation debt.

2 + 3 also have a feasibility consideration to them, since they’re going to be chapter 13s.

But nearly every case I take is an active wage garnishment.

What was your deciding factor to pursue bankruptcy law?

Dumb reasons. The father of a girl I dated at the end of high school and throughout undergrad practiced bankruptcy law. We split before law school, but I was still interested in the subject.

I took all the bankruptcy courses offered and a bankruptcy practice clinic during law school.

Naturally, my first legal job out of law school had nothing to do with bankruptcy. But I circled back 4 years later.

Was it from experience, better hours, a generational thing?

My frame of reference was limited. But I just thought it was interesting. And, ultimately, in most situations, it is an "I win and nothing you can do about it" result to many client problems.

I am at a non-profit and we (independent from the bankruptcy system) means test our clients (by law / grant). Ultimately, we represent people who can't even afford to hire a bankruptcy attorney. We only take cases that have very specific circumstances, and the types of cases we accept have not changed . . . but the volume certainly has. When I started in 2021, I think I filed a total of five Chapter 7 cases. Maybe 12 filed among the entire organization.

I filed two this afternoon. Which will make fifty three for the year so far (mostly 7s, handful of 13s). Economy is bad, and bankruptcies seem to be rising drastically.

I guess I'm rambling far afield of your questions. Sorry about that. I like helping people (non profit, and all), and bankruptcy is a good way to do it.

If these are just your regular ongoing bills, then they may not be considered creditors that must be listed in Schedule E/F.

If, for example, you owe a past-due utility bill then they would be considered a creditor and should be listed in Schedule E/F. While your obligation to repay that utility would very likely be discharged, that utility may charge you a new deposit prior to offering you services going forward (more for water/electric/sewer-type utilities, but could also apply to communication types).

Documentation of the ATM withdraws by themselves are not evidence of an agreement to be repaid. You should look to see if you have text messages, emails, or any other sort of written agreement or acknowledgement of a debt owed.

$15,600 appears to be above the jurisdictional limit of small claims in California, but you may consider reducing the amount of your claim so that it can be heard in a setting that is more relaxed in the rules of procedure and evidence.

You should begin by making a clear written and well documented demand to your friend regarding the agreement. If no payment is forthcoming, contact your local court about filing a small claims case. If you would like to recover the full amount, you will likely need to speak with an attorney about proceeding in the regular civil docket, rather than small claims.

You should know that there is a deadline for the filing of certain types of lawsuits - this is called a "statue of limitations." Because you did not have one set agreement, but rather a seeming repeated series of agreements to repay, it may be that some of your requests for repayment are outside that statute of limitations. Under California law, there is a two year statute of limitations for breach of contract.

It must have been 10 years or less

It may "fall off" of a credit report, but bankruptcy filings are part of the court records in perpetuity.

In the vast majority of situations, you will file in the State (and District) in which you have lived the majority of the last 180 days.

The "two years" back thing you are referring to will determine which states' exemptions apply to your case.

The charges they are referencing is from an arrest of gym owners back in December.

Given that the video is from today, I doubt it is in related.

Arkansas is the only state without an implied warranty of habitability.

We have one now, but might as well not have one for how weak it is.

Act 1052 / SB 594 codified § 18-17-502

Arkansas has no habitability laws.

Arkansas has a warranty of habitability law which was passed in the 2021 Regular session. However, its so weak it might as well not exist. By far the weakest I'm aware of.

Act 1052 / SB 594 codified § 18-17-502

I earn roughly $98,000 annually as a salaried professional.

Even though I am married, I am filing alone. However, I still have to include my spouse's income in the household calculation

My half of the rent is $1,600

Does your wife have income as well? I assume so, because the Means Test for a household of two in your state is 109,818.

If she is part of your household, be sure the entire household's expenses are included on J. Are there any expenses/deductions that can be used considering the entire household's expenses?

Maybe. I still don't understand your situation.

If you've paid $5,000 to the Trustee pre-confirmation of your plan and your plan is never confirmed, then an amount will be refunded to you if your case is dismissed. Likely less any fees earned by the trustee.

If the $5,000 are fees paid to your attorney for services provided or unearned retainer, then your retainer agreement will determine.

A bankruptcy being "denied" does not make sense the way you have explained it. What you are saying is similar to explaining to us that apples grow wings and fly upside down to eat worms.

If you have a copy of that notice, including the title may be helpful for anyone reviewing your question to better understand it.

My best guess at what you are explaining is that you've filed a Chapter 13 plan and the trustee has objected to the proposed plan. Your attorneys are creating a modified plan hoping to fix the issues that drew the objection.

In that case, if you cannot afford to fund a Chapter 13 plan, you should discuss converting to a Chapter 7 or dismissing with your attorney.

Assuming the debt isn't of a kind related to fraud, theft, injury caused by DWI, or other of a small handful of types of debt . . . then the discharge will end your obligation to repay that debt.

Trust your attorney. You may consider asking your attorney if it would be benfitical to file a basic answer (even pro se) to prevent entry of a default judgment prior to the filing of the case. There are benefits to that course of action in the state I practice, but I am unfamiliar with Arizona.

What do you mean your case has been "denied?"

So does anyone know how this will possibly play out?

With the information provided, it is anyone's guess.

Technically, yes. Someone is not ineligible for relief from a Chapter 7 simply because they have no income or assets. However, every time I've seen someone have a Schedule I/J (income and expenses) of completely zero, the U.S. Trustee has a couple questions.

In situations where I've represented a client who relies on others for their income and expenses (like the person you mentioned presumably does), I include equivalent income and expenses. The income on line 11 of Schedule I.

Do you know which set of exemptions applies to OP?

I chose to keep my vehicle lease during the chapter 7

To confirm, is this a true lease? Or did you sign a retail installment contract to purchase the vehicle?

What did you do to "choose" to keep it? Did you sign a reaffirmation agreement if you signed a retail installment contract? Did you indicate you wanted to assume the lease on Statement of Intentions if it is a true lease?

Its been a while since I've reviewed the famous chart, but if I recall around 30 states have opted out. Which, is "most" as you indicate. But there is still a healthy amount of non-opt out states.

It is a fun analysis. Even if the debtor lives in state A, state B's exemptions may apply. However, state B may limit use of their exemptions to only residents of their state. If that state requires the use of state exemptions . . . the debtor would be without exemptions.

In such circumstances, the federal would apply.

so will they still keep my tax refund??

Here is what I mentioned in my first comment:

"You will choose either use the federal or the state rules regarding protecting your property. The federal rules allow you to use a "wildcard" exemption to protect cash or an asset like money expected. Some states may as well."

If you can exempt it, then you can protect it and keep it. This very likely will depend on your state and their exemptions /or if they allow you to use the federal exemptions.