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David C. Hoskins, Attorney at Law

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Discusses what happens to property in Chapter 7 and Chapter 13 bankruptcy.

What Happens to My Property in Chapter 7?

Posted by jsantaga on March 25, 2014

Property of the Bankruptcy Estate

What you own is determined as of the day your bankruptcy is filed. Legally, your property becomes the property of the bankruptcy estate (the trustee controls the estate), as of the date of filing of your case in the bankruptcy court, subject to your claims of exemptions.  It is very important that you have the assistance of an experienced, Colorado bankruptcy attorney to make the proper claims of exemptions. Whatever you acquire or receive, after the filing of bankruptcy, is your property and not the property of the bankruptcy estate, except property received by inheritance, life insurance proceeds, or division of property in a divorce, within 6 months of the date of filing.

Exemptions

Chapter 7 bankruptcy is "liquidation bankruptcy" or sometimes called "straight bankruptcy." In Chapter 7 bankruptcy, you give up non-exempt property and you get a discharge of your debts.  Non-exempt property is property that is not protected from your creditors.  The law protects most property, because most of what you own is necessary for living: like a home, a car, food, household goods, tools of your trade, retirement funds, etc. What is not protected is a much shorter list.

  • Cash

In each case, we look for cash; cash in your pocket, in the bank, or under a mattress. The important question is, where did the cash come from?  If cash comes from wages, 75% is protected; the trustee may take the other 25%.. If cash comes from a gift or loan, it cannot be protected. We will work with you to file your case when cash is low; if necessary, we will guide you in the spending of excess cash, before filing your case.

  • Wages

We also discuss your wages.  We want to file your case at a time when your employer owes you the least, as we can protect only 75% of wages owed on the date of  filing. Your wages owed after filing are not in jeopardy.

  • Tax Refunds

Generally, tax refunds owed to you on the day of filing are non-exempt; the trustee takes 100%. However, any refunds that are Earned Income Credit or Additional Child Tax Credit are protected 100%.

  • Luxury Items

Beyond cash, wages, and tax refunds, non-exempt property will consist of luxury items, such as:  sporting goods, RVs, boats, trailers, airplanes, 2nd homes, timeshares, collectibles, investments that are not within a retirement fund, etc.  You will want to work with an experienced, Colorado bankruptcy attorney to plan for your bankruptcy, to sell non-exempt property, and use the proceeds of sale appropriately for your benefit and not for the benefit of your creditors.

The Process

All of your property will be disclosed in your bankruptcy documents, along with claims of exemptions.  The trustee will have an opportunity to ask you about your property, at the creditors' meeting, and will have 30 days to file an objection to your claims of exemptions.  The trustee will require that you turn over any non-exempt property or cash equal to the value (if you want to keep an item, you must pay for it).  If the trustee does not object to exemptions, once the case closes, property not turned over to the trustee will again be your property.  

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DISCLAIMER
The statements of law made here are general statements of law, effective at the time published and subject to change from time to time. These statements are not intended, nor may they be construed, to be applicable to any particular set of factual circumstances nor to any particular person. I recommend that all readers seek the assistance and advice of an experienced bankruptcy lawyer for guidance in their particular circumstances.

© Copyright 2013 David C. Hoskins, licensed Colorado lawyer