A common concern that debtors who file for bankruptcy have is whether they will lose their assets. Many people know that bankruptcy allows a debtor to eliminate much of their debt, but are unsure about exactly how bankruptcy will affect their house, car, retirement plan, or other important assets.
If you are thinking about declaring bankruptcy and wondering about whether you can protect your assets during the process, contact a San Francisco Bay Area Asset Protection Attorney to find out if bankruptcy is a good option for you.
The good news is that many of your assets can be protected throughout the bankruptcy process. Bankruptcy offers two primary forms of protection: property exemptions and the automatic stay. The automatic stay offers a debtor some immediate protection from creditors upon filing for bankruptcy, and California’s system of property exemptions allows a debtor to exempt many different kinds of assets from the reach of creditors during the bankruptcy process.
Both Chapter 7 Bankruptcy and Chapter 13 Bankruptcy have an automatic stay that protects the debtor’s assets while the bankruptcy process is underway. The automatic stay goes into effect upon filing for bankruptcy. After the stay is in effect, creditors are not allowed to take certain actions including:
Property exemptions are important for protecting assets in both Chapter 7 and in Chapter 13 Bankruptcy. However, to understand how property exemptions work, it is first necessary to understand the basic difference between these two types of bankruptcy.
In Chapter 7 Bankruptcy, a debtor’s nonexempt assets are liquidated and sold to benefit his unsecured creditors. The non-exempt assets are those assets that do not fit into one of California’s property exemptions.
In Chapter 13 Bankruptcy, a debtor enters into a payment plan for 3 or 5 years. If the plan is successfully completed, the debtor gets to keep his or her assets. However, one of the rules for Chapter 13 Bankruptcy is that the creditors must be no worse off than they would have been if the debtor had filed for Chapter 7 Bankruptcy. Because of this, the property exemptions still matter in Chapter 13 Bankruptcy because they set a minimum standard for how much the debtor must pay to his or her creditors through the payment plan.
California has developed two systems of property exemptions for bankruptcy, commonly referred to as “System 1” and “System 2.”
Debtors who are looking to protect their home generally choose system 1, because it has a generous homestead exemption. In system 1, a debtor is allowed to exempt up to $75,000 of the value in their home if they are single and up to $150,000 of the value in their home for families. This is raised to $175,000 if 65 or older, or physically or mentally disabled. System 1 can also be used for asset protection if the debtor has money saved in a retirement plan, such as an IRA or 401k, or a pension.
System 2 is a better option for debtors who are looking to protect other assets, such as a car. System 2 contains a generous wildcard exemption, which can be used for any asset, including a car. When the wildcard exemption is combined with the System 2 property exemption for cars, a debtor can exempt up to $32,025 of value in their vehicle.
If you are considering filing for bankruptcy but are worried about how to protect an asset like a house, car, or retirement plan, you should contact an experienced Asset Protection Lawyer by calling us at 510-255-4646 or contacting us online. We can advise you if you can protect your property in bankruptcy by using California’s automatic stay and property exemption protections. We are a debt relief agency.
The Law Offices of Melanie Tavare is a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.
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