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Bankruptcy Overview of San Diego Bankruptcy Court
Bankruptcy laws help people who can no longer pay their creditors get a fresh start -- by liquidating assets to pay their debts or by creating a repayment plan. Bankruptcy laws also protect troubled businesses and provide for orderly distributions to business creditors through reorganization or liquidation. Most cases are filed under the three main chapters of the Bankruptcy Code -- Chapter 7, Chapter 11, and Chapter 13. Federal courts have exclusive jurisdiction over bankruptcy cases. This means that a bankruptcy case cannot be filed in a state court.
The Southern District of California Bankruptcy Court in San Diego recently issued a ruling that allowed a junior lien to be removed in a Chapter 13 case, even though the debtor was not eligible to obtain a discharge. Discharge was not available since the debtor previously filed a chapter 7 petition and the new bankruptcy laws prevented a subsequent discharge within 8 years of that filing in another chapter 7 or 4 years in a chapter 13. Nevertheless, repeat filings without discharge are possible and often referred to as "chapter 20″ cases. Despite NO DISCHARGE, liens can still be eliminated in these cases!
If you do not pay a debt that you owe, a creditor may sue you to collect the money. If the creditor wins the lawsuit they become known as a judgment creditor. The judgment creditor can request a writ of garnishment from the court. The writ of garnishment is a court order that is sent to your employer with instructions to withhold a certain amount of money from your paycheck until the judgment debt is paid. The money withheld from your paycheck is first sent to the county sheriff's office and then turned over to the creditor. A judgment creditor may be paid up to 25% of the judgment debtor's take home pay.
Filing for bankruptcy will immediately stop all garnishments except for family support payments. When you file for Chapter 7 or Chapter 13 bankruptcy the United States Bankruptcy Court automatically files an injunction known as the automatic stay. The automatic stay automatically stops lawsuits, foreclosures, garnishments, and all collection activity against the debtor the moment a bankruptcy petition is filed.
Bankruptcy law is designed to help people just like this, who need assistance in making a clean break -- a "fresh start" on life, rather than spend the rest of their lives being crushed by the burden of un-payable debt.
Even if you're facing un-payable debt, you still may not need bankruptcy to protect your assets. Under the Exemption Laws of California, you may already be "judgment-proof." If so, you need not fear credit card companies simply because you owe them. Unsecured creditors (like credit card companies) can't take your stuff if it's exempt. If there are harassing phone calls, you can stop them with a simple phone call or letter.
Finally, there are some kinds of debts that bankruptcy simply can't get rid of. These are called "no dischargeable" debts. This generally includes child support, most student loans, and most tax debts.
There's much more to be said about this topic than can be said on a Web page. Any decision to file for bankruptcy versus other alternatives requires a thorough, systematic review (by you or someone you hire) of your income, debts, and property.
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