If you are considering filing for bankruptcy, it is important to find a competent and experienced bankruptcy attorney that will help guide you through the entire process (from start to finish) as smoothly as possible. Here are some things to look for when choosing a bankruptcy attorney and where to find this information:

1. Experience: Look for an attorney who has experience in handling bankruptcy cases. It may seem obvious, but a bankruptcy attorney who has handled many cases will be more familiar with the bankruptcy process and more likely the specific requirements of your case. To check the experience of a Nevada-licensed bankruptcy attorney, you can visit the State Bar of Nevada website and see when that attorney was licensed in the State of Nevada. You can also see if that attorney has any disciplinary actions.

Here is Charlie Luh’s State Bar of Nevada profile:

2. Knowledge: Choose an attorney who is knowledgeable about the bankruptcy laws in your state. They should also be able to explain the process to you and answer any questions (even the hard ones) you may have. Check out the Luh & Associates bankruptcy blog for common questions and answers.
3. Communication: Choose an attorney who is responsive and communicates clearly. They should be able to explain legal concepts in plain language and keep you updated on the status of your case. At Luh & Associates, we strive to return all client calls and emails within 24-48 hours.
4. Fees: Look for an attorney who charges reasonable fees and offers a payment plan if necessary. Be wary of attorneys who charge very low fees, as they may not be experienced or may not provide quality representation.
5. Reputation: Choose an attorney with a good reputation in the legal community. You can research an attorney’s reputation by checking online reviews and asking for referrals from friends and family. There are many sources that you can use to check the “reputation” of an attorney. One source is Martindale Hubbell, which is a legal directory and rating service that has been in operation since the late 1800s. It is one of the most widely recognized and respected resources for lawyers and legal professionals. Martindale Hubbell offers a range of services, including lawyer ratings and peer reviews. Charlie Luh has attained an AV rating (5.0 out of 5.0), which is the highest rating bestowed by Martindale Hubbell

6. Comfort level: It is important to feel comfortable with your attorney and confident in their ability to represent you. Schedule a consultation with potential attorneys to get a sense of their communication style and approach to your case.

In summary, when choosing a bankruptcy attorney, look for experience, knowledge, communication skills, reasonable fees, a good reputation, and a comfortable working relationship. We believe that you will find all those qualities at Luh & Associates.

What is a Reaffirmation Agreement?

Most people file a Chapter 7 bankruptcy to get rid of their debts. However, even if a debt can be discharged, you may have special reasons why you want to promise to pay it. See The Bankruptcy Information Sheet produced by the United States Department of Justice U.S. Trustee Program. The most common reason is because the debt is secured by some sort of collateral (like a car) and you may be behind on your payments. For example, in order to keep your car, you may be required to file a reaffirmation agreement with the bankruptcy court. A reaffirmation agreement can be thought of as a new contract between you and your creditor that takes the debt outside of your bankruptcy. Reaffirmations agreements are not required by bankruptcy law or by any other law.  Reaffirmation agreements:

1. must be voluntary;
2. must not place too heavy a burden on you or your family;
3. must be in your best interest; and
4. can be canceled any time before the court issues your discharge or within 60 days after the agreement is filed with the court, whichever gives you the most time.

If you are an individual and you are not represented by an attorney, the court must hold a hearing to decide whether to approve the reaffirmation agreement. The agreement will not be legally binding until the court approves it.

It is very important to understand that if you reaffirm a debt and then fail to pay it, you owe the debt the same as though there was no bankruptcy. This includes possibly facing repossession and a deficiency judgment.

But Happens if I am Current on my Payments?

A common misconception is that you will be required to enter into a reaffirmation agreement when you are current on your payments. This misconception is likely based on a “default” provision in your purchase agreement, which may state that the mere act of filing bankruptcy is considered to be a default. This scenario was addressed by a Nevada Bankruptcy Court in 2013 in a case known as In re Henderson. bam-12-23954-henderson-kennedy-green-perez-greene In In re Henderson, the bankruptcy judge recognized that there is a common factual scenario: debtors who wish to reaffirm a car loan that exceeds the value of the car that serves as collateral. The debtors each wish to reaffirm the loan because a car is, among other things, essential to keeping their employment. Even though all debtors are current on their payments, they fear repossession because their purchase contracts make a bankruptcy filing an event of default that allows repossession. Controlling Nevada law, however, has recently changed to preclude repossession unless the default significantly impairs the prospect of payment, performance, or realization of the lender’s collateral. The question thus resolves itself into whether the simple act of filing bankruptcy, without more, constitutes such an impairment. This court says no.  See In re Henderson, 492 B.R. at 539. The Court ultimately did not approve the reaffirmation agreements and concluded that so long as the debtors maintain their payments and do not endanger the collateral, they can maintain possession and use of their vehicles. In short, there is no upside for the debtors in the reaffirmation agreements. There is only the downside of excluding unsecured debt from discharge. See In re Henderson, 492 B.R. at 545.

Since 2003, the Las Vegas bankruptcy attorneys of Luh & Associates has been helping Nevadans navigate the bankruptcy process. Please contact the Las Vegas bankruptcy attorneys at Luh & Associates if you have any additional questions or concerns. We look forward to answering your questions!

Bankruptcy Fraud: What It Is and How to Avoid It

When it comes to filing bankruptcy, a lot of emotions can rise to the surface. Relief is usually the most prevalent of these emotions; the erasure of anxiety-laden debt often provides a sense of liberation. Clients can also experience anger toward their harassing creditors or fear that their bankruptcy process will be hindered by several possible hurdles and landmines. Another common emotion for clients is embarrassment. It’s not easy for clients to come face to face with their debt.

Sometimes, these emotions can lead to rash and risky behaviors. A client might wish to conceal certain facts from an attorney or the bankruptcy trustee. They might consider hiding property, like jewelry or a second vehicle, or give property to someone else before filing. They might conceal being a Plaintiff in a lawsuit, credit card purchases or omit a small or infrequent source of income.

None of these moves are wise. Bankruptcy trustees are vigilant and unforgiving when it comes to fraud. Anyone caught filing a fraudulent petition can have that petition revoked. The filer may even face charges of perjury and can endure jail time as a result.

For these reasons, we advise that any clients considering bankruptcy be as honest and up front as possible about their property and finances. While bankruptcy fraud is not a common occurrence, being straightforward and candid about one’s financial situation means a smooth and stress-free bankruptcy process. The attorney has likely seen similar circumstances before and will best know how to handle any issues, no matter how uncommon they may seem at first.

It’s also important to understand that fraud is not the same as an error in one’s petition. Mistakes can happen and, as long as a client is honest with their attorney and the bankruptcy trustee, most errors can be fixed. However, an error in one’s petition can allow for a creditor to claim a debtor’s bankruptcy petition is fraudulent, which would then lead to extra time and money being spent on an adversary proceeding. Fraud charges can also lead to other civil actions against the client outside of bankruptcy court, which could also become costly.

With that in mind, a client might wonder what actions or omissions fall under the umbrella of bankruptcy fraud. We’ve outlined several possibilities below. This is by no means a complete list of all types of bankruptcy fraud, and a client should consult with their attorney if they have concerns about their past or current financial activity.

Before the Bankruptcy:

There are certain actions that a person may have taken before they fell into debt that could fall under the umbrella of fraud. Deceptive business practices, such as over- or underreporting one’s wealth or income, can be considered fraudulent activity that would prohibit the discharge of debt. Related to this, obtaining credit under false pretenses (like falsifying income on a loan application) or purchasing items on credit with no intention to repay (sometimes labeled as “Bust-out Schemes”) could also hinder one’s ability to have their debt discharged. Even the act of writing a bad check can summon a creditor’s suspicion of fraud.

Lenders and credit card companies are often on the lookout for these practices and will object to their debt being wiped away if they suspect this has happened. For that reason, it is often recommended that clients stop using their credit cards ninety days prior to considering a bankruptcy.

The ninety days before a bankruptcy petition is filed is called the “fraud presumption window.” If a fraudulent activity happens during this time frame, then the trustee will assume that the debtor intended to defraud the court and their creditors with that action and will respond accordingly. If the same activity happened over ninety days before filing the petition, then the debtor’s intent is more difficult to prove. This does not mean that such a determination is impossible, however.

Bankruptcy Assets

Concealing assets from the bankruptcy trustee is one of the most common forms of bankruptcy fraud. Sometimes, an inheritance or future source of income is not reported. Other times, a car is sold to a neighbor or friend at a very low value with the intention of getting the item back after a bankruptcy is discharged. Some debtors might even make valuable gifts to a charity instead of listing the asset or its transfer on their bankruptcy petition. In some cases, a large asset is never mentioned, with the hope that the trustee will never know it exists.

Hiding property in this fashion is considered fraud. When one declares bankruptcy, they are expected to list all of their assets (and any assets they had recently transferred or sold) within their bankruptcy petition. Those assets are, upon filing the bankruptcy petition, converted into the bankruptcy estate.

Once the exemptions to keep a person’s home and basic necessities are set aside, a person’s creditors are entitled to the rest of that estate for repayment. The client is giving up their property in exchange for debt relief (or, in the case of Chapter 13 bankruptcies, is agreeing to pay the value of their non-exempt property to their creditors over three-to-five years). Creditors would not agree to a bankruptcy otherwise.

If the creditors or the bankruptcy trustee suspect that property has been kept out of the estate, they will likely hold up the bankruptcy’s discharge, or have the debtor’s case dismissed altogether. If a client’s case is dismissed, filing a second bankruptcy will be more difficult.

It is also possible to commit fraud by undervaluing an asset, like a home or a fluctuating retirement account, in order to keep it as part of a bankruptcy exemption. Since the value of these items can range widely (especially in an uncertain market), it might be tempting to assume the lowest recent value is correct. This assumption could lead to questions by the bankruptcy trustee, and possibly the dismissal of one’s case and charges of perjury. For this reason, we recommend discussing the values of these items with a bankruptcy attorney to make sure they’re represented accurately on one’s bankruptcy petition. The attorney can then tell the client if their assets make them a better candidate for a Chapter 13 instead of a Chapter 7 bankruptcy.

Creditor Preference

Creditor Preference, on its surface, can seem like a harmless practice when one first hears about it. A client with a sudden windfall of cash (like a tax return or a lucky lottery winning) knows that money won’t be exempt when they file bankruptcy. So, instead of that money going to the bankruptcy estate upon filing, the client decides to pay back one of their creditors. Often, they’ll pay down the debt on a car loan or catch up on mortgage payments, because they’ll still be in their house or car after filing bankruptcy and those debts are the most logical ones to pay off.

A bankruptcy trustee would see this very differently. All creditors must be treated equally when a debtor files for bankruptcy. Paying back only one creditor and leaving the rest to suffer the full discharge of the client’s debt, especially within the ninety day “fraud presumption” window, can be considered fraud. One of the left-out creditors could bring this treatment up with the trustee, causing a delay in a client’s discharge or a revocation of their petition.

False Filings and Incomplete Records

A false filing happens when an individual files a petition with false or incomplete information or files with real information in multiple courts. This can cover a wide range of activities, from a debtor excluding a credit card from their bankruptcy (often because they wished to keep the card) to filing a second bankruptcy in a new state with a stolen identity.

While excluding information is often similar to concealing an asset, it can cover all parts of a bankruptcy petition. Leaving off a source of income in order to qualify for a Chapter 7 bankruptcy is fraud, as is not reporting accurate expenditures or past bankruptcies. Destroying or withholding documents, such as a tax return or loan paperwork, may also be considered a fraudulent act. Even leaving a creditor off a petition can be seen as creditor preference, as discussed above. Submitting false or incomplete information on a petition can result in perjury charges on top of having one’s bankruptcy dismissed.

A false filing can result when an individual files for bankruptcy in multiple places, or jurisdictions, in order to get around the eight-year limit on filing Chapter 7 bankruptcies. They might do this with the same name and information as their previous filing, or use an alias in order to get new debts discharged. Some debtors have even turned to identity theft in order to complete a fraudulent filing in a new state.

These types of filings can clog a bankruptcy court’s docket, drawing out the time before the petition is found fraudulent and dismissed. However, in our interconnected world, these types of fraudulent filings are easier for a trustee to find and, thus, are less common than they were previously. They also draw the stiffest penalties. False information on a petition always falls within the fraud presumption window and the intent to commit fraud is often much clearer to the trustee.

Bribery

Though rare, especially where Chapter 7 bankruptcies are concerned, bribery has been known to happen from time to time. This can happen, not just by bribing the court-appointed trustee for preferential treatment, but also by bribing someone to help hide one’s assets from the court. And the exchange need not be strictly in cash. Giving a court official gifts, such as lunch after the creditor meeting, can be considered a bribe. Campaign contributions also fall into this fraud category. Accepting these gifts would create a conflict of interest for the trustee, and most trustees would avoid this situation for the sake of their own appointments. Also, attempting to bribe a trustee could mean that there’s a cash asset that’s being hidden from the bankruptcy estate, which creditors would be interested in discovering.

Consequences

If fraud is suspected, federal prosecutors can bring criminal charges against the debtor. If an individual is found guilty of knowingly and fraudulently representing the facts in their petition, they can face up to twenty years in prison, or a fine of up to $250,000.00, or possibly both. Even if the debtor’s fraud was not successful, even the attempt or intent to commit fraud can be punished.

And those would just be the criminal elements to the fraud matter. The automatic stay could be revoked and the bankruptcy case itself could be dismissed. The debts would then remain intact and the creditors could still go after the debtor, only now they’d know about the attempted bankruptcy. Credit cards can be cancelled without debt relief. Loans may need to be reaffirmed at a higher interest rate. Foreclosures and evictions could continue as before. And, on top of all this, any debts listed with the first fraudulent petition cannot be discharged in subsequent bankruptcy filings.

For these reasons, most attorneys take fraud very seriously, as having their clients suffer these penalties are in no one’s best interest. A good attorney will often ask many questions while they are assembling their client’s petition, just to make sure that information isn’t inadvertently left out. It’s also important for the client to review their petition before filing, just to make certain there’s no reason for the trustee to suspect fraudulent information.

Even so, sometimes mistakes happen and a client will forget to report a source of income or an asset they’d long since forgotten about. As soon as the client realizes this, they should inform their attorney as soon as possible. Their attorney can then file an amendment to the bankruptcy petition. This might cost an additional fee, but it is better than facing the consequences of bankruptcy fraud. As long as the client didn’t intend to hinder, delay, or defraud their creditors by filing the amendment, the case can often continue as planned. Of course, catching the mistake before a creditor or the trustee notices it always helps the client’s case.

For additional information on bankruptcy fraud or determining whether you qualify for a Chapter 7 bankruptcy, please contact the bankruptcy attorneys at Luh & Associates. We look forward to answering your questions!

The COVID-19 pandemic has changed (hopefully temporarily) many things we once considered normal here at Luh & Associates. However, we remain committed to providing the most cost effective bankruptcy experience. While we loved having our clients come in to our office and get to know us, it is best for all parties to abide by social distancing practices for the time being. While this may mean doing interviews via videoconferencing and sending documents through fax and email, it doesn’t mean your bankruptcy has to slow down.

To this effect, bankruptcy trustees across the country are working to implement secure videoconferencing systems so that anyone filing for bankruptcy can have their case administered in a quick and efficient manner. As they’ve been working with these systems, many trustees have found minor issues that have delayed their progress in running these hearings. In order to smooth out the process, here are a few tips for our clients to know before their own Trustee Hearing. Please take a moment and review them so that your hearing can go as smoothly as possible.

Make sure your attorney has all the requested documents – The trustee often asks for tax returns, bank statements, paystubs, and other materials be delivered to their office over two weeks before the hearing date. The sooner your attorney has these documents, the sooner they can be delivered to the trustee’s office and prepared for your hearing.

If an interpreter might be needed, make sure the attorney knows this in advance – Attorneys will need to alert the trustee to have an interpreter available in the videoconference.

Review your list of trustee questions – Your attorney will have a list of common questions that a trustee will ask during the hearing. Reviewing and answering these questions can help calm the nervousness many people feel before meeting the bankruptcy trustee, whether that meeting is in person or over a videoconference.

Do a test run the night before (if not sooner) – Download the requested application (not all bankruptcy trustees use Zoom) and double-check your audio and video settings. If possible, set up a videoconference with your attorney prior to the hearing to check for any problems. The sooner your attorney knows of any issues, the better they’ll be able to fix or find a workaround so you can have a smooth hearing with the trustee.

Dress as if you were going to court – While a suit or dress is not necessary, it is important to attire yourself in a presentable manner for the trustee. A button-down or collared shirt or blouse will serve well for the occasion. One should also wear a good pair of pants, like slacks or dress pants. A professional skirt or dress is also an option. Clothes should be clean, without holes, and tactful for the hearing.

Arrive at the videoconference fifteen minutes early – Sometimes technology works against us and it takes a little longer than usual to log in to a video conference. Arriving early means those problems are taken care of and no one risks missing their trustee hearing. If everyone is early, the trustee can organize their virtual rooms and start their sessions promptly, rather than waiting to clear up technical issues.

Make sure your name on the videoconference matches the name on your petition – While names like Superman and Wonder Woman are fun to use in family and friend settings, they aren’t helpful for the trustee when they need to bring you in to your 341 hearing. Nicknames can have this same problem, especially if it’s not a common nickname for the name on the petition. Take a moment to double-check that your name is accurate so the trustee knows you’re present for the hearing and doesn’t skip over you.

Be patient – A trustee will hold several hearings at your designated time. It may take a while, but they will get to your case. Be ready to go when they call for you.

Have your Driver’s License and Social Security card ready to present to the Trustee – A bankruptcy trustee often conducts multiple hearings a day, and will have you and your attorney in a virtual waiting room before you enter. When it’s your turn, the trustee will pull you into the virtual hearing room first and, off the record, verify your identity. If you have your Driver’s License and your Social Security card ready, this step only needs to take a few seconds. The trustee can then bring in your attorney and any creditors that show up and the hearing can proceed.

Have a copy of your petition on hand – Having this beside you at your videoconference, as well as any other materials the attorney suggests, will help you and the trustee stay on the same page as questions are asked.

Choose a good room for holding your videoconference – A good environment will keep the focus on you during your hearing, and not on your surroundings. Make sure your room isn’t prone to echoing, has good internet reception (or that your device is plugged in via ethernet), has good lighting aimed towards your face so the trustee can see you and your identifying cards, and is overall quiet and clean. Avoid overly intrusive locations like a bedroom or a bathroom. If your location does not have a decent internet connection, let your attorney know beforehand so that they can arrange a new location for you.

Keep the camera or device stationary – A moving background can, at best, be a distraction to your trustee hearing. Other times, a moving background can disorient viewers and make them feel nauseous during the proceedings. If needed, prop your camera or device on top of a table, a counter, or a bookshelf instead of holding it in your hand.

Eliminate possible distractions – Sometimes, distractions happen. The bankruptcy trustees know that everyday life often interrupts at the worst possible time. While it’s not possible to remove every possible distraction, a few easy steps can help your hearing run smoothly. Let your family know what day you’re meeting with the bankruptcy trustee and take care of meals and activities beforehand. Close the door to the room you’re using for a meeting space and place a sign outside. If possible, keep pets in a separate room. Turning off your notifications and closing out of other apps will also help keep you focused and engaged.

Mute your microphone – Microphones are more sensitive to background noise than most people realize. Fans, air conditioners, outside traffic, and even static can contribute to a deluge of background sounds, which can amplify and drown out what you or the trustee have to say. This problem increases when there are multiple active microphones at your hearing. If possible, mute your microphone while you are not speaking so your background noise doesn’t contribute. When it’s your turn to speak, remember to turn your microphone back on. If you are at an audio-only conference, learn how to mute the microphone when calling on your smartphone or other device.

Don’t be afraid to ask questions – Sometimes the internet skips while the trustee is talking. Sometimes the trustee will say a phrase or ask a question that may not make sense. Sometimes, there will be a noise outside that distracts you from the hearing. Don’t be afraid to say, “Please repeat the question” or to ask for clarity if you don’t understand something. If needed, your attorney is also there to assist you through the hearing.

Try not to interrupt or talk over anyone – Multiple people talking at once is a common problem in videoconferences. A trustee can only actively hear one party at a time. Don’t worry if you wish to explain something before a creditor or the trustee finishes. The trustee will give you your chance to speak. If you fear you’ll forget to say something, write it down and address that issue when it’s your turn.

Try to look at the camera more often than at your own image – Everyone feels that urge to use their phone or tablet as a mirror when they’re in a video chat of any kind. People sit straighter, fix their hair, and tug their clothes until the image is near perfect. This isn’t a bad thing, but people can feel disconnected if a speaker continues to watch themselves while they talk. Good eye contact, while not required in a videoconference, is helpful for appearing focused and attentive when answering the trustee’s questions. If it helps, place a little removable sticker beside your camera as a reminder and situate your device so it rests at eye level.

Eat before or after the videoconference, not during – Chewing sounds on a microphone are not ideal for a trustee hearing or any videoconferencing setting. Eating on camera is also a distraction. Avoid eating during your hearing. If necessary, have an easy-to-sip cup nearby for water.

Remember that you are on live video and stay focused – We’ve all heard horror stories of someone using the bathroom or picking their nose while in a videoconference. I’ve been in a videoconference where someone, thinking they were muted, started playing their guitar over a presentation. It can be easy to lose focus, especially if you have a long delay in the virtual waiting room. Try to keep your attention on the hearing by keeping your distractions, like a phone or a computer, in another room. Avoid running other programs in the background. If necessary, write yourself a note to keep your attention from drifting away and forgetting you’re still on camera. If something embarrassing does happen, apologize quickly and move on.

While this may seem like an extensive list, trustees are finding success with videoconference hearings. They understand that taking a day to go to court, find parking, and wait in a large room for a hearing was not ideal even before our current pandemic. Videoconferences have increased creditor participation, taking away the need to have hearings rescheduled and discharges delayed. This new method for Trustee hearings may become a fixture for our future, and the need for videoconferencing skills is likely here to stay.

For additional information on determining whether you qualify for a Chapter 7 bankruptcy, please contact the bankruptcy attorneys at Luh & Associates. We look forward to answering your questions!

Unfortunately, the coronavirus pandemic has sent several industries into a tailspin, especially in Nevada.  According to RENO ABC NEWS, as of May 19, 2020, 434,388 unemployment insurance claims have been filed since the week ending March 21, 2020.

Many individuals are either facing unemployment or a significant change in work life that they did not anticipate. Debts that were once manageable have ballooned into uncontrollable burdens. Even with stays on evictions and calls to creditors for relief, it’s possible to find oneself falling deeper and deeper into debt.

In these situations, many find themselves looking to bankruptcy for relief.  Luh & Associates hopes to answer the common questions everyone has, including how Bankruptcy may have changed in this new pandemic environment.

Am I able to file bankruptcy during the quarantine?

Clients are able to proceed with their bankruptcy during this time. The biggest change we’ve seen is in the 341 Meeting with Creditors, which happens approximately thirty days after a client files their petition with the court. Instead of meeting in person, all hearings with the Bankruptcy Trustee (including creditor meeting) are being conducted via videoconference. If a client requires assistance with attending a videoconference meeting, our office is more than happy to facilitate that need. Any trials or evidentiary hearings that must be held in person are currently being continued until after June 30^th, 2020. This date is subject to change.

Our office is also committed to client safety and has transitioned to contactless interactions for most of our bankruptcy process. Our initial consultations and bankruptcy intake interviews can now be handled over the phone or via videoconference, and clients can fax or email our office the documents necessary to create petition. We can also utilize a file-sharing service, like Dropbox, for larger documents which may have been delivered through traditional mail. For documents that need to be hand-delivered to our office, we are supplied with masks and hand sanitizer to limit risk and to make our clients feel secure in our environment.

The United States Bankruptcy Court for the District of Nevada has also temporarily suspended the need for an original signature on bankruptcy petitions, meaning fewer necessary visits to our office (Administrative Order 2020-07). This order is subject to change.

How do unemployment benefits affect my ability to file bankruptcy?

Unemployment insurance benefits, with the exception of federal money from the CARES Act and the Federal Pandemic Unemployment Compensation, are treated like income for a Chapter 7 bankruptcy.

A client’s income is based on the six months before the filing date of their petition. This is referred to as the Means Test. We take the total income earned over those six months and divide it by six in order to get the client’s monthly income. This number must be less than the median income figures for a person’s household in order for them to qualify for a Chapter 7 bankruptcy.

In some cases, this may mean a client will have to wait until their monthly median income is low enough to qualify before filing their bankruptcy petition. Please click here to see the median income figures dated May 1, 2020. These figures are subject to change.

Will money from the Federal Pandemic Unemployment Compensation or the nationwide stimulus affect my ability to file bankruptcy?

The CARES (Coronavirus Aid, Relief, and Economic Security) Act has generated many changes in the Bankruptcy code with regards to Chapter 7 and Chapter 13 cases (§1113). Most important is that the income generated from coronavirus-related payments from the federal government is not included when calculating a debtor’s income. This means that, even if a client received both the CARES Act’s federal stimulus and money from the Federal Pandemic Unemployment Compensation, neither of these will push a debtor’s income over the income limit for filing a Chapter 7 bankruptcy.

With regards to a Chapter 13 bankruptcies, federal payments are also not included when calculating a debtor’s disposable income into their repayment plan. The CARES Act also allows a debtor to modify their repayment plan if the debtor has experienced financial hardship due to the pandemic. A debtor may also extend their plan payments for up to seven years after the initial plan payment was due. These new rules only apply to cases that had repayment plans in effect before the enactment of the CARES Act.

These changes are temporary and only applicable for one year after the effective date of the CARES Act. These changes are also applicable to all pending Chapter 7 and Chapter 13 bankruptcy cases.

Can a creditor take my stimulus money or unemployment benefits?

While unemployment benefits are used to determine income, they are exempted from being used to repay debts in Nevada, except in cases where the debt occurred during the period of unemployment. This does not apply to funds from the FPUC or the CARES Act, which includes the nationwide stimulus package.

Once stimulus funds are in a bank account, they can be subject to seizure. Some banks take money from a client’s checking or savings account and apply it towards a debt, such as a loan or a credit card, at that same institution. This is known as a setoff, and a bank can perform this before or after a client files a bankruptcy case.

Sometimes, it is in a client’s best interest to remove funds from their bank account before a setoff can take place. For more information as to whether this step is right for you, please contact our attorneys for a consultation.

Will the bankruptcy trustee ask me to give up money from the CARES Act to my creditors?

When the CARES Act was passed, the federal law had no protections in place to prevent its seizure from creditors. There is currently no Nevada law protecting these specific funds.

There are, however, many bankruptcy exemptions that a Nevada resident (who has lived in the state for more than two years) may utilize during their bankruptcy. One that might help in this case is Nevada’s “wildcard” exemption, that states the following property is exempt from execution: “Any personal property not otherwise exempt from execution pursuant to this subsection belonging to the judgment debtor, including, without limitation, the judgment debtor’s equity in any property, money, stocks, bonds or other funds on deposit with a financial institution, not to exceed $10,000 in total value, to be selected by the judgment debtor.” (NRS §21.090(z))

For additional information on determining whether you qualify for a Chapter 7 bankruptcy, please contact the bankruptcy attorneys at Luh & Associates.  We look forward to answering your questions!