Author Archives 
Executory contracts and unexpired leases.
by Richard Stokan on 8/31/10 | 0 Comment(s)
The bankruptcy petition includes a section for executory contracts and unexpired leases. I have been asked by several debtors what is an executory contract and unexpired lease? The simple answer is that an executory contract is an agreement between two parties where neither party has fulfilled its obligations under the contract. An unexpired lease is [...]
What if I forgot to list a creditor?
by Richard Stokan on 8/17/10 | 0 Comment(s)
It is common for debtors with numerous creditors to forget to list a creditor on a bankruptcy petition. This could happen with an old account that has remained open but unused for several years or a forgotten joint account from a former spouse. Just because a debt was not listed on the petition does not [...]
When is a Bankruptcy Case Over?
by Richard Stokan on 8/09/10 | 0 Comment(s)
Receiving a discharge of debts does not close the bankruptcy case Once a bankruptcy trustee’s duties are complete, preference and fraudulent transfers recovered and all nonexempt assets liquidated and distributed to creditors, the bankruptcy estate is fully administered and can be closed by the Bankruptcy Court. If a trustee gives notice of no dividends under [...]
Conversion to Chapter 13 to Avoid Dismissal on Presumption of Abuse
by Richard Stokan on 8/03/10 | 0 Comment(s)
I recently discussed involuntary dismissals of Chapter 7 petitions under 11 U.S.C. § 707(b) where the Court determines that a presumption of abuse exists. If faced with an inevitable dismissal under 11 U.S.C.§ 707(b), a debtor can convert to a Chapter 13 bankruptcy. See 11 U.S.C.§ 706. This requires the debtor to file a petition [...]
Presumption of Abuse Dismissal – Failing the Means Test
by Richard Stokan on 7/26/10 | 0 Comment(s)
The quickest way to have your Chapter 7 bankruptcy petition dismissed is to fail the means test. A debtor who fails the means test raises a rebuttable presumption of abuse. In the event a presumption of abuse exists, 11 U.S.C. § 707(b)(2) authorizes the court, US trustee or any part in interest to file a motion [...]
Bankruptcy and Taxes
by Richard Stokan on 7/19/10 | 0 Comment(s)
As a general rule, you cannot discharge back taxes in bankruptcy. Certain income taxes, however, can be discharged under limited circumstances. When filing for Chapter 7 bankruptcy protection, taxes can be discharged under the following circumstances: (1) the taxes are limited to taxes on income. Taxes levied for fraud, payroll taxes or sales taxes do [...]
Bankruptcy Can Be Involuntary
by Richard Stokan on 7/12/10 | 0 Comment(s)
Although most people are familiar with voluntary bankruptcy, a debtor can be forced into an involuntary bankruptcy. Under certain circumstances, creditors can initiate a Chapter 7 or Chapter 11 bankruptcy case by filing an involuntary petition against the debtor. Before creditors can initiate an involuntary bankruptcy, a debtor must have 12 or more creditors, three [...]
Student Loans, Co-signers and Undue Hardship
by Richard Stokan on 7/09/10 | Comments Off Comment(s)
As a general rule, student loans are “non-dischargeable” debt, which means the debt will remain after a Chapter 7 or Chapter 13 bankruptcy. This applies to both the original debtor and any co-signor. If you cosign on a student loan, filing for bankruptcy protection will not eliminate the debt. As with any debt involving a [...]
What Constitutes a Fraudulent Conveyance
by Richard Stokan on 6/21/10 | 0 Comment(s)
Once a bankruptcy case is filed, a trustee is selected to administer the debtor’s estate. One of the options available to a bankruptcy trustee is the authority to set aside or “avoid” transfers of a debtor’s assets that the trustee determines unfairly placed the asset beyond the reach of creditors. Transferring an asset to a [...]
No Quick Fixes to Protect Assets
by Richard Stokan on 6/14/10 | 0 Comment(s)
One of the most common questions asked of a bankruptcy attorney is “what if I [fill in the blank] with this asset? Will I be able to keep it then?” As a general rule, when preparing to file for bankruptcy protection or initiating any legal proceeding for that matter, if it does not pass the [...]
