Should I file a Chapter 7 or a Chapter 13 bankruptcy?

_1130795 copyIn the Eastern District of Louisiana, half of the cases filed are Chapter 7s and half are Chapter 13s. Whether you file a Chapter 7 or a Chapter 13 case will depend on your goals for the bankruptcy and whether the law allows you to file a Chapter 7. Under the Bankruptcy Reform Act of 2005, Congress felt that too many debtors who had the means to pay their creditors were taking advantage of the Chapter 7 liquidation. Under the current law there are income limitations, the “Means Test”, which force certain higher income families to file a Chapter 13, when they would rather file a Chapter 7 bankruptcy.

I generally recommend looking at a Chapter 7 first. A Chapter 7 is cheaper, faster and imposes less restrictions on the debtors. A typical Chapter 7 will be over in four to five months, whereas a Chapter 13 lasts from 36 to 60 months. During that time the Chapter 13 debtors will not be able to use credit cards, will have to turn over each year’s income tax rebates and to make payments each month to the bankruptcy trustee.

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Do I need an attorney to file bankruptcy? Can I do it myself?


The short answer is you don’t absolutely need an attorney: There are forms for filing bankruptcy on the internet. You can file your own bankruptcy case with the clerk’s office. You can legally represent yourself at meeting and hearings. But you shouldn’t file without an attorney. Why? Because almost everyone who files their own bankruptcy case gets bad results. Without exception, I have seen unrepresented cases get into trouble with the clerk’s office or the trustee’s office which results in deficiency notices, re-scheduled meetings and ultimately results in either their cases being dismissed or else their trying to bring in an attorney later. It may be tempting to think that one can save the cost of hiring an attorney by doing it yourself, it is not.

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Luxury items you cannot afford to keep. Can filing bankruptcy help?

We can’t afford to keep our RV, our third car and our condo.  How can filing bankruptcy help us?

When times are good it is a common to load up on debts that later becomes unaffordable and then paying for the  luxury items may imperil a person’s ability to afford necessities.  The good news is that filing bankruptcy may help solve these problem..  You may already know that unsecured debts like credit cards, payday loans, and bills are dischargeable by filing Chapter 7 and Chapter 13 bankruptcies.  What about secured debts like automobiles and houses?

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I’m self-employed and want to file bankruptcy. What do I need to know?


Whether you file a Chapter 7 or a Chapter 13 bankruptcy you will be required to produce your “payment advices” for the six month period prior to the month you file your bankruptcy. Payment advices is the bankruptcy court’s term of art for documents that show your income. For those who receive a paycheck it means the check stub that shows their gross and net income. But you are self-employed, you don’t receive a check stub.

You will be required to produce Profit and Loss Statements (P&L) for each of the six months prior to the month your bankruptcy case is filed. If you use Quick books you can easily generate P&L statements for the court.

But what if you do not use Quickbooks. For example, say you are a self-employed gardener, you get paid in cash, and your profit is what you have left over after you pay your helpers, your gas and your tools. You can still file bankruptcy. You are going to have to reconstruct the financial picture of each month to the best of your ability. Hopefully, you kept good notes about the addresses you worked and how much you were paid. And you kept receipts.

You will be asked to produce bank statements, usually for the three months prior to and including the month in which you file bankruptcy.

In a Chapter 7 bankruptcy you will be required to produce your last year’s tax return. In a Chapter 13 bankruptcy you will also be required to attest to the fact that you filed the prior four years of tax returns.

The bankruptcy trustee may look at the P&L statements, the tax return and the bank statements to see that they are consistent. The bankruptcy trustee can also request more information.

When you file bankruptcy you will be signing a sworn statement that the information you provide is true and correct subject to the penalty of perjury. So it is important that you give your attorney accurate and complete information. In this way you case will progress smoothly through the court system. Your attorney is there to help you work through them if problems arise.




John C. Menszer

If you need help with local New Orleans bankruptcy filing, a visit to the office of John C. Menszer, LLC is all it takes to get your life back on track. Everyone experiences difficult times in life; if you’re struggling under the weight of unmanageable debt, you may feel as if there are few solutions and even fewer people on your side. Our goal is to help you have a clear understanding of your situation, as well as all the options that are available to you, so that you’re able to choose the course of action that’s the best for your situation. We offer a free initial consultation, a free case evaluation and flat-rate fees for our services.

Most bankruptcies are filed quickly and easily once it’s been established that a person has no reasonable means by which to satisfy his debts. The purpose of filing a petition with the court is to have the court appoint a trustee, who will then manage your estate, take a look at your assets and income, and negotiate a settlement with your creditors. While the process may require years on a strict payment plan, as with Chapter 13, or the liquidation of your assets with Chapter 7, a skilled attorney will help you negotiate the process so it is less painful and allows you to keep possession of your home or business.

Don’t leave your New Orleans bankruptcy case up to chance. When you trust the experienced and knowledgeable legal team at the office of John C. Menszer, LLC, you have a comprehensive understanding of the law working in your corner. Call today for a free consultation and learn more about your options. Bankruptcy is more than your last resort in a difficult situation; it’s a second chance at a brighter future.

Learn about the repercussions of filing for bankruptcy with All About Bankruptcy Debts and Tax Refunds.

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