Is Bankruptcy Really the Last Alternative?

bankruptcy is one option in ColumbiaWritten by Lexington/Columbia bankruptcy lawyer, Lex A. Rogerson, Jr.

Last weekend I heard a Columbia radio advertisement for a debt adjustment service.  Aiming his message at those with out-of-control debt, the announcer said, “Don’t file bankruptcy – that should be your last choice!”

Is that good advice?  Well, as with most oversimplifications, the answer is yes – and no, depending on the circumstances.

For sure, bankruptcy should not be your first choice.  There are substantial disadvantages–the cost in attorney’s fees and filing fees, the damage to your credit, and the effort it takes to make all the required disclosures.  For these reasons, I never suggest someone take the decision to file bankruptcy lightly.

The best alternative is to pay your debts as promptly as possible.  If successful, this strategy preserves your credit standing, which can be tremendously important even if you never again intend to rely on debt.

Another alternative is to try adjusting your debts by yourself, directly with your creditors.  This approach can limit somewhat the damage to your credit.  But creditors often won’t compromise their accounts unless you are seriously in default, and by then your credit may already be badly damaged anyway.  And if a creditor writes off a part of the debt, this amount can represent taxable income.  You will get a 1099 the following January, and the IRS will be looking for that income on your tax return.

What about working with a debt adjustment service?  Many credit adjustment bureaus charge large fees and can deliver only modest help in the amounts and terms of your debts.  And frankly, some of these services, especially some for-profit agencies, are simply rip-offs.  Overall, I have rarely seen non-bankruptcy debt workouts succeed.

What if you just can’t pay your debts and a workout does not seem feasible?  At this point, you might want to get some competent advice from a bankruptcy professional – before letting some things happen that can damage you in the long run.  It’s possible to wait too long before considering bankruptcy.

A prime case in point: Ed and Sally from Aiken* consulted me last year.  Several months earlier, in an attempt to avoid bankruptcy, they had taken out a home equity loan and drawn heavily against it to pay some credit cards.  This approach worked for a while, but now the debts were again too much to handle.  Sadly, I had to tell them they had exchanged dischargeable credit card for mortgage debt we could not wipe out.  Given their numbers, we could have protected all the equity in their home from the credit card issuers, but now that equity was irretrievably lost to the home equity lender.  In short, they waited too long to see me.

Another example: Will from Newberry came to see me a couple of months after his Visa card issuer sued him and obtained a judgment.  In South Carolina, a judgment is automatically a lien against any real estate the debtor owns in the county where it is entered.  Because Will owned no real estate other than his home, and because the equity was within the state homestead exemption, we could file a fairly simple motion to make sure the judgment creditor could never actually have the home sold.  But this motion doesn’t automatically remove the judgment from the public record.  If someone searched the county land records, the judgment would appear a valid lien on his home.  State law provides a procedure for canceling the judgment, but that procedure requires a year’s wait, separate civil action, and additional fees and expenses.  Again, Will waited a little longer than he should have, and things happened that were not easy to fix.

So while one should certainly not file bankruptcy without a serious evaluation of the alternatives, it is possible to wait too long.  A bankruptcy consultation is usually not expensive–we usually charge $50 to $150–and sometimes it may be better to look at those alternatives sooner rather than later.

*           To preserve confidentiality, all identifying information on clients, including their residences, is fictionalized.  However, the fact situations are based on actual cases.

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What Happens to Judgments in Bankruptcy?

judgments in columbia--bankruptcyWritten by Lexington/Columbia bankruptcy lawyer, Lex A. Rogerson, Jr.

What happens to judgments in bankruptcy?

I spoke with a client from Columbia last week who had three judgments on record against her. As I told her, one of the best reasons for considering bankruptcy is a special option the Bankruptcy Code gives us for dealing with judgments.

To begin with, let’s define our terms.

A judgment is the end product of a lawsuit.  If someone sues me and wins the lawsuit, the court will enter a final order declaring that I owe a specific amount of money.  That order is called a judgment.

There are other kinds of judgments as well – a court might dismiss a lawsuit, issue an injunction, or require someone to turn over property.  But when we talk about judgments, we are usually referring to cases where the court decides the loser (called the judgment debtor) owes money. The reason may be that the debtor has borrowed money or taken someone else’s property or injured someone in an auto accident, but the result is a money judgment.

A money judgment has several legal effects.  First, unless it is appealed or rescinded (and the grounds for these are very narrow), it is a final, binding declaration that the debtor owes the dollar amount stated.

Second, the judgment is automatically a lien on any real estate owned by the debtor in the county where it is recorded.

Third, the judgment can give the creditor the right to seize property of the debtor, including items other than real estate, for up to ten years.  Certain property is exempt from seizure, including in South Carolina up to $53,375 in value in a home, $5,350 in a car, and $4,275 in household goods.

This is where the special bankruptcy option for judgments comes in.  If you own a home in, say, Lexington or Aiken and file bankruptcy after someone has obtained a judgment there against you, you can “avoid” (cancel) the lien that judgment has created on your home, as long as your equity does not exceed the $53,375 homestead exemption.  In most situations, this means the judgment can never be enforced against your home or anything else you may ever own.  So even if someone has obtained a judgment against you, it may not be too late to wipe out that debt.

If you’re going to file bankruptcy, it’s still better to do that before a creditor gets a judgment.  While a lien avoidance can make a judgment unenforceable, the bankruptcy court does not remove the judgment from the county court records.  So unless you take an additional step after your bankruptcy is over, a title search on your home would make it appear that the judgment is still a valid lien.  This could, for example, complicate selling or refinancing your home.

You almost always have 30 days after you are served with lawsuit papers before the creditor can get a judgment.  If you are considering bankruptcy and are sued, you should make your decision quickly and get your lawyer the information necessary to file before the judgment is entered.  But if you can’t, the situation isn’t necessarily hopeless.

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Taxes and Bankruptcy (Part Two)

propety taxes and income taxesWritten by Lexington/Columbia bankruptcy lawyer, Lex A. Rogerson, Jr.

In “Taxes and Bankruptcy (Part One)”, I discussed the 3/2/240 rule for discharging income taxes in bankruptcy.

Here in part two, I’ll give you some examples of how this rule works.

Tax liens and some specific examples of how these rules work

If the IRS or the state department of revenue files a tax lien, that lien attaches to all property owned by the debtor without regard to exemptions he might claim to protect property from a commercial creditor.  Even if the underlying tax is dischargeable, the tax lien passes through bankruptcy and remains enforceable unless the tax is paid.

So how does all this affect bankruptcy strategy? 

Let’s look at an example.

Say a couple from Irmo owe $20,000 in federal income taxes, evenly divided between the 2007 and 2008 tax years.  For each year, they filed their returns in February of the following year, and the IRS has never assessed any additional taxes beyond what was shown on the returns.

If bankruptcy is otherwise advisable, we might wait until April 2012 and then file a Chapter 7 case for these folks so that the 2008 taxes would be dischargeable in addition to the 2007 taxes, which already are.

By contrast, let’s say a woman from Orangeburg owes the same $20,000 in federal income tax for 2007 and 2008, but she did not file these returns until about a year ago.  Under Rule #3, neither year’s tax is dischargeable.  We may advise the client to consider filing a Chapter 13 case and paying the taxes, along with some portion of her other debts, over a period of three to five years.

The Chapter 13 case would prevent the IRS from levying on her wages or filing a lien that could cloud the title to her home.  Interest and penalties would stop adding up, and the repayment terms may be more favorable than under an installment agreement with the IRS.

In most cases, the debtor can pay the tax debt in full, and thereby prevent any of the tax debt from following her after her case is over, even if she pays her general unsecured creditors a few cents on the dollar.

If you’ve got tax debt you can’t pay, discussing your options with a bankruptcy lawyer is a wise move.  He can help you understand what you can and can’t do with tax debt through the bankruptcy system.

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Taxes and Bankruptcy (Part One)

taxes and bankruptcy--discharge taxesWritten by Lexington/Columbia Bankruptcy Lawyer, Lex A. Rogerson, Jr.

Congress has set out a list of 19 different kinds of special debts that people cannot cancel in bankruptcy.

Among our Columbia area clients, one of the exceptions we encounter most often is past due taxes. With these folks, a major strategy issue is whether the client’s tax liabilities can be discharged and, if not, how to deal with them.

It’s an oversimplification, and quite wrong, to say taxes are never dischargeable. Some kinds never are, including “trust fund” taxes the debtor is responsible from collecting from others.

For example, if the debtor manages a business, his responsibility for sales or employee withholding taxes can never be discharged.

More often, though, we deal with income taxes, for which there is a series of rules that depend on timing. Rule #1 is that income taxes cannot be discharged if the return was due less than three years before the debtor files his bankruptcy case. Usually the due date is the April 15 following the end of the tax year, but if the debtor obtains an extension, the three years is counted from the due date as extended (usually October 15). So if I file bankruptcy on April 16, 2012, my 2008 income taxes may be dischargeable, because the return was due in April 2009, but my 2009 taxes would not. And if I received an extension to file my 2008 return, I would have to file after October 15, 2012, to discharge this liability.

Rule #2 is that taxes are not dischargeable if they are assessed less than 240 days (about eight months) before the debtor files bankruptcy. Assessment is a procedure in which the taxing authority reviews a return and calculates the amount due. Notices and tax liens will often specify the date of assessment. The eight month period is extended if the debtor has filed an offer in compromise or a prior bankruptcy case.

Rule #3 is that if the debtor filed a late return, the tax is not dischargeable unless he filed the return over two years before filing bankruptcy. To start the two years running, the debtor or his representative must file the return. A substitute return filed by the IRS is not sufficient.

Special rules also provide that income taxes are not dischargeable if the debtor files a fraudulent return or attempts to evade the tax laws.

In “Taxes and Bankruptcy (Part Two),” we’ll discuss some specific examples about how these rules work.

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Bankruptcy and Your Personal Injury Case

columbia sc bankruptcy lawyerWritten by Lexington/Columbia Bankruptcy Lawyer, Lex A. Rogerson, Jr.

If you have any kind of claim that could produce money or property for you, it’s critical that you tell your bankruptcy attorney all about it.  Here’s why.

Everyone who files bankruptcy is required to file a set of schedules that list all their debts and all their property.  These schedules are filed under penalties of perjury.  Most people try to give accurate information because they want to be honest but also because failure to do so is a federal crime.  Rich and powerful people have gone to federal prison for hiding assets.

The Bankruptcy Code defines “property” very broadly.  It includes much more than obvious things like real estate, cars, jewelry, and bank accounts.  It also includes intangible assets like tax refunds, potential lawsuits, and claims for personal injury, workers compensation, social security, or child support.  So the simple reason you should disclose such property is to be honest and to comply with the law.

But there is also a more complicated but equally powerful reason.  Courts have developed a doctrine called judicial estoppel that can kill your personal injury case if you do not disclose it.

Judicial estoppel is based on every court’s desire to maintain its own integrity.  Judges believe people should not be able to assert one set of facts in one court and completely opposite facts in another.  Because people who file bankruptcy swear that their schedules accurately disclose all their assets, failure to list a claim in effect tells the bankruptcy court that you do not have a claim.  Then, when you try to prosecute the claim in another court, or before an administrative agency, you are saying that you do have a claim – the exact opposite.

With every case, there is someone on the opposite side – a defendant, an insurance company, or an employer – who has every reason to see the claim fail.  Defense lawyers regularly check to see whether claimants have filed bankruptcy and, if so, whether they disclosed their claim.  The defense lawyer will usually succeed in having any undisclosed claim dismissed.  It doesn’t matter how badly the claimant was hurt, how much money or work he has lost, or how deserving he is.  His claim is finished.

One final thing.  Many states have exemptions that protect most if not all of the proceeds of injury claims and other property.  This means that you, and not your creditors, get the benefit of these funds.  But many bankruptcy courts will disallow an exemption if the debtor does not promptly disclose the corresponding asset.  So this is one more way that failing to disclose a claim can lead to a bad outcome.

Don’t let this happen to you.  If you have a claim of any kind at all, discuss it fully with your bankruptcy lawyer before you decide to file, whether or not you are asked about it.  And if you do file, make sure it is listed on your schedules.

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Five Things Your Bankruptcy Lawyer May Not Tell You

five bankruptcy thingsWritten by Lexington/Columbia Bankruptcy Lawyer, Lex A. Rogerson, Jr.

When reviewing your financial information, advising you about your options, and preparing to file a bankruptcy case, even the most careful bankruptcy attorney may not discuss everything that might be important for you.  There is just too much information that has to be covered in every case to concentrate on things that may not apply in your particular situation.  But some of these things may have an important impact on how your case comes out.

Here are the top five pieces of information that even good attorneys may leave out.

1.         Not everyone who files Chapter 7 gets a discharge.

If you decide to file Chapter 7, there are a few special situations that can prevent you from discharging any of your debts:

  • If you lie on your schedules;
  • If you have transferred or hidden something you own in order to prevent creditors from taking it;
  • If you refuse to cooperate with the trustee’s inquiries about your assets;
  • If you don’t have the basic information about your financial matters;
  • If property mysteriously comes up missing and you can’t explain what happened to it; or
  • If you have filed Chapter 7 within the preceding 8 years.

Fortunately, these situations are quite rare.  In over 25 years practicing bankruptcy law in Lexington, no Chapter 7 client of mine has been denied a discharge.

2.         You may be able to get rid of debts even if you forget to list them.

If you file bankruptcy, you must list all your debts.  You will be asked under oath whether you have done so, and that is a serious matter.  But if you inadvertently omit someone, you may still be OK.

In Chapter 7, a debt is not discharged if the creditor doesn’t get notice about your case in time to file a claim.  However, in “no-asset” cases, where the trustee cannot locate any property to sell off for the benefit of creditors, no claim deadline is ever set.  Most bankruptcy courts, including the one in Columbia, hold that in such cases, even unlisted debts are discharged.

Of course, it’s best not to rely on that rule.  Make sure you tell your lawyer about everyone to whom you owe any money.

3.         Putting property in your spouse’s name (or parent’s or child’s) is a bad idea.

When I first started practicing law, a lawyer in Batesburg or Newberry might advise people facing debt problems to transfer a car or house to someone else for protection.  That not only is unethical but can cause huge problems for the client.

The people who wrote the Bankruptcy Code were not stupid.  They knew about tricks like this.  So they inserted a provision allowing bankruptcy trustees to reverse fraudulent transfers and recover the property for the benefit of creditors.  This provision includes transfers actually intended to keep property away from creditors and those for which the debtor did not receive a reasonable value in return, even if not intended to defraud.

To make matters worse, once the trustee recovers the property, you can’t protect the property with exemptions that otherwise would apply.  It’s just gone.  And the real kicker is that (as discussed above), such a transfer can actually prevent you from receiving a discharge.  So not only is such a maneuver unlikely to succeed; it can also hurt you badly.

Most bankruptcy attorneys will ask you whether you have transferred anything in the years leading up to your filing.  It is vital to disclose any such transfers fully and honestly.  Sometimes it is possible to fix such a problem if you act before you file, but if your lawyer learns about it later, that generally means bad news for you.

4.         It’s also a bad idea to increase your debts shortly before you file.

The Bankruptcy Code says you cannot discharge 19 different special categories of debt.  These include most taxes, student loans, marital obligations, fines, etc.  One important category is debts that are incurred fraudulently.  This includes debts you incurred never intending to repay.

The Code actually sets out certain bright-line situations where it is presumed you incurred a debt fraudulently.  If you charge luxury goods or services worth more than $600 from any one creditor in the three months before filing, or if you take cash advances totaling over $875 within 70 days before (including the use of courtesy checks on credit card accounts), the court must assume you did this with no intention to repay.  And even if you don’t violate any of those benchmarks, if you incur a debt after you began considering bankruptcy, it may not be dischargeable.

5.         If something comes up that you have not discussed with your lawyer, the fees may go up.

Your attorney is required to quote you a fee within five days after he begins advising you.  But this fee is based on the information you have given him at that point.  If something new comes up later, the retainer agreement you sign will typically allow the attorney to charge more.

In Chapter 7, for example, a creditor may file what is called an adversary proceeding asking the court to declare your debt to it cannot be discharged.  While we usually try to look out for such issues before we file, it is never certain that a creditor will take this step until well after you file.  Understandably, our court considers this a separate service for which the lawyer may charge an additional fee.

Because Chapter 13 cases go on for much longer than Chapter 7s, such additional developments arise more frequently.  We commonly see motions for relief from the automatic stay, motions to dismiss, motions to incur debt or to substitute collateral, and the court generally permits additional fees for these steps.  However, your Chapter 13 plan will usually include a little “cushion” of additional payments to cover such routine additional services.

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Filing Bankruptcy: Your Mortgage and Car Loan in Chapter 7

Lexington bankrutpcy--car loansWritten by Lexington/Columbia Bankruptcy Lawyer, Lex A. Rogerson, Jr.

Many of my Lexington bankruptcy clients have serious debt problems but have managed to keep the payments current on their mortgages and car loans.  Setting these debts as a first priority for payment is smart and often makes it easier to keep their homes and cars.  But the rules for dealing with these kinds of loans have become a little more complicated in recent years.

As we discussed in a previous post, Chapter 7 generally does not wipe out mortgages or car loans.  The lender continues to have a lien on the home or car, so you must continue to pay the debt in order to retain the collateral.

With real estate mortgages, which are secured by land and structures permanently affixed to land, you may keep the property simply by continuing to pay the mortgage as the loan terms require.  You must be current with the payments, or at least close enough that you can catch up very quickly.  But you do not have to take any additional step to assure the creditor you will continue paying.  We say the mortgage “rides through” the bankruptcy.

For most of the 25-plus years I have been filing cases, debtors in Columbia and Lexington could treat car loans the same way.  Our South Carolina bankruptcy court has  expressly allowed the retain-and-maintain option.  This meant that the debtor could keep the car simply by maintaining the payments.  However, in 2005, when Congress passed the sweeping bankruptcy law changes known as BAPCPA (“Bankruptcy Abuse Prevention and Consumer Protection Act“), this changed.

Under current law, in order to retain cars or other personal (moveable) property that is under lien, you must reaffirm the loan.  If you fail to reaffirm, the creditor can hold you in default simply because you filed bankruptcy.  Your car could be repossessed even if you are current with the payments.

Reaffirming means signing a written agreement to remain personally responsible for the debt.  If the car is later repossessed, or if it is destroyed and the insurance fails to cover the loan, the creditor may pursue you for the unpaid portion of the debt.  Although you will have discharged other debts, the car loan remains the same as if you had never filed bankruptcy.

The bankruptcy court reviews each reaffirmation agreement to determine whether the debtor can afford the payments.  If your budget indicates you cannot make the payments and you cannot explain how you will pay them, the court may reject the reaffirmation.  This does not mean the creditor can automatically repossess.  If you have done everything you can to reaffirm, but the court says no, the creditor cannot declare a default as long as you remain current with the payments.

The advice of a skilled bankruptcy lawyer is the key to making the right choices on ride-through and reaffirmation.  With that assistance, most Chapter 7 debtors who can afford to pay for their cars and homes when they do not have to pay other debts are able to do keep them.

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Filing Bankruptcy: Your Mortgage and Car Loan

mortgages, car loans, and bankruptcyWritten by Lexington/Columbia Bankruptcy Lawyer, Lex A. Rogerson, Jr.

Recently a couple from Lexington consulted with me about bankruptcy and said they didn’t want to include their mortgage or car loan.  When I asked what they meant, they said they wanted to keep the home and car and could afford to keep paying the loans.  As I told these clients, more often than not, this is possible in a Chapter 7 bankruptcy.

If you file bankruptcy, you must disclose all your debts.  This does not mean you will quit paying every debt or that you will lose anything you own.  In fact, by discharging other debts, bankruptcy can sometimes make it easier to retain such essential property.

To explain how this works, let’s look at what happens to secured debts in Chapter 7.

First of all, what is a secured debt?  It is simply a debt in which the creditor, in addition to a legally enforceable promise of payment, has a lien on some item of property (called collateral) to secure the payment.  In principle, the collateral could be almost anything you own.

A debt can become secured in a number of ways.  The most common is when a lender, as a part of the documents financing a purchase, takes a security interest in the item purchased.  Most mortgages and car loans arise this way.  We refer to them as purchase money mortgages or purchase money security interests.

Other lenders, including store-front consumer finance companies like Citifinancial and American General, frequently take liens on items the borrower already owns.  We call these non-purchase money security interests.

Secured debts can also arise by operation of law.  For example, if someone sues you and wins the lawsuit, the resulting judgment becomes a lien on any real estate you own in that county.  Other examples are tax liens, mechanics’ liens, and hospital liens.

However they arise, secured debts have one thing in common: the debt attaches to the collateral as a kind of property right and usually gives the creditor the right to have the collateral sold if the borrower does not pay the debt.

As a general rule, Chapter 7 does not cancel the liens held by secured creditors.  Liens pass through the bankruptcy.  When the case is done, the creditor still holds the lien.  But there are a few exceptions.

The basic options in dealing with secured debts in Chapter 7 are:

(1)               Avoid the lien.  If a debt is secured only because the creditor has obtained a judgment or has taken a non-purchase money security interest in household goods, you may be able to cancel (“avoid”) the lien in bankruptcy and discharge the debt the same as any unsecured debt.  These are the exceptions we were talking about.

(2)               Retain and maintain.  With mortgages on real estate, if you are current or can become current soon, you can continue making the payments and retain the home without taking any other step during your bankruptcy case.

(3)               Reaffirm.  With car loans and other loans secured by personal (moveable) property, you must reaffirm the debt in order to retain the collateral.

(4)               Redeem.  If the collateral is valued much less than the loan balance, you may be able to pay the creditor the value in satisfaction of the loan.

(5)               Surrender.  You may turn in the collateral, and at that point the creditor may not pursue you for any part of the debt.

When people file Chapter 7, they must indicate which of these options they will carry out.  In upcoming posts, we’ll look at each of these options in more detail.

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Columbia Bankruptcy Hearings: “What Do I Wear?”

columbia, sc bankruptcy hearingWritten by Lexington/Columbia Bankruptcy Lawyer, Lex A. Rogerson, Jr.

Your bankruptcy hearing is important.  Whether it’s in Columbia, South Carolina or anywhere else, what you wear can have an impact on your case.  If you keep a few important things in mind, you can dress appropriately for your bankruptcy hearing.

When there are two outs in the bottom of the 9th inning, you want to make the big hit.  And when you are the featured speaker at a banquet, you want to bowl the audience over–leave them in stitches.  Say things they’ll be talking about for years.

But when you need to get through security at the airport, you want to pass unnoticed.  Be completely forgettable.  Don’t do anything that will give the nice officers a reason to pull you aside and delay you while your plane flies away.

Think of your bankruptcy hearing as a trip to the airport.

Like at the airport, you’ll have to clear security to get into the federal building.  More importantly, like at the airport, you don’t want to draw unnecessary attention.

Aside from you and your bankruptcy lawyer, the most important people attending this meeting will be your case trustee and possibly a representative from the United States Trustee.  They will ask a lot of questions, but they are ultimately trying to find out a few basic things: Do you own assets that could be sold in order to pay your creditors?  Do you have sufficient income to pay toward your debt?  Are you honest?  Are you acting in good faith?

These people don’t know you, but their impression of you matters.  They will be sizing you up, starting with the appearance you make.

For this reason, you should try not to look flashy.  Avoid fancy or highly stylized clothes.  Leave the spike heels and three-piece suits at home.  And avoid clothing that is provocative or revealing–no low-cut tops or short-short skirts.

The ideal way to dress is business casual.  Men might wear dress or khaki pants with a woven sport or dress shirt open at the collar.  Suits and ties are not required nor particularly helpful.  Jeans are tolerated but not ideal, and shorts should be avoided.  Women should wear a plain skirt or slacks with a conservative blouse or top, or a simple dress.  Flat shoes are generally preferable.

Jewelry is fine in moderation.  You don’t have to leave your watch at home, and if you always wear your wedding ring, don’t take it off for this occasion.  But don’t go overboard.  And bear in mind you trustee is going to notice if you appear wearing jewelry that you have not listed in your schedules.  So if you haven’t listed it, tell your bankruptcy lawyer and have him list it for you.

We all know stories about this happening, and it can be more than embarrassing.  You have a moral and legal obligation to disclose everything you own, and failing to do so can result in dismissal of your bankruptcy case or even criminal charges.  So make sure you fully tell your lawyer before you file about all jewelry you own.

In short, you will find your Columbia bankruptcy hearing goes much smoother if you fly below the radar and follow these tips.

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