Business owner thats met with a lawyer for a consultation but he couldn't provide all answers

Discussion in 'Bankruptcy' started by anon, Sep 1, 2005.

  1. anon

    anon Guest

    Hi all,

    Please help.

    I am a business owner. In the process of starting my business - which
    I own 100% as a sole prop., I have amassed quite a bit of debt. The
    business is more of a labor of love than a profitable business
    unfortunately. I've been at it for 5 years, and I currently
    profit-after-expenses about $500/month. My only expenses are VERY real
    expenses. The basics of a house payment, and food, really. Giving up
    my business or cutting expenses is not an option. I provide the
    community where I live with a valuable free service that many people

    I can not file a Chapter 7 bankruptcy according to the lawyer that I
    made an appointment with as I could risk losing my business. There are
    specifics in my case that he could not answer in the initial
    consulation, however, as my situation is complicated that still left
    me with many questions.

    But the straw that broke the camels back is that I'm now facing a
    lawsuit where I could receive a $45,000 judgement against me.
    Paperwork for the lawsuit has been filed.

    This is in addition to:

    + A judgement already received against me for $4,000. A lien has been
    placed against my business property.
    + $20,000 in personal unsecured credit card debt; all accounts have
    been closed for about a year. I have no credit cards now.
    + I haven't filed taxes since 1999. I'm unsure what amount I owe the
    IRS. I do have a number of records that show my expenses have been
    essentially 100%+ of my income. I have been living hand-to-mouth for
    the past few years starting this business; my reason for being unable
    to afford an accountant.
    + A $20,000 fine from a branch of the US federal government that I've
    received. I'm not sure if this is excusable via bankruptcy and I
    probably shouldn't discuss this publicly. If someone replies here via
    an email that knows more about how bankruptcy affects various
    government owed monies, I'd LOVE to reply back via email to ask about
    + About $1,000 in hospital bills/emergency room. This is about a year

    So I might have close to $100,000 in debt if all of these are proven
    legitimate debts. But none are secured (unless the judgement debt is
    considered secured).

    Here's why I can't file a chapter 7:

    + The business I own is 100% paid for after making 5 years of very
    aggressive payments. Approx. value now of $70,000. I paid $58k.
    + My house was $55,000. I've paid it down to only owing the bank
    $37,000; house payments are current

    Is Chapter 13 a good option for me? If it wasn't for the pending
    lawsuit, I wouldn't even consider it, but I am extremely concerned
    about my home/business and future. I don't want to have worked nonstop
    for 5 years - very hard sacrificing work - and lose everything.

    How much of the $500 or so I make in profit per month would go to the
    court system? Or is that even too little to quality for Ch 13?

    Would I even have to go to court for this pending lawsuit? How much of
    a percentage would the person suing me recover?

    At this time, I am negative in my bank account. I do not even have the
    lawyers $500 down payment to proceed but I can probably get this.
    Please provide me with some good advice to go on so I can keep what
    I've been working for, and hopefully keep it growing into a profitable
    and successful business.
    anon, Sep 1, 2005
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  2. anon

    anon Guest

    Er, since this sounds confusing since I'm posting with an invalid
    email and you can't email me, what I meant to say is that if someone
    replies back here with a valid email address, and if I could email
    them privately with this specific question and provide my valid email
    address, I would appreciate that.

    anon, Sep 1, 2005
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  3. anon

    Brett Weiss Guest

    The only problem with a Chapter 13 is the Chapter 7 liquidation test. This
    means that a creditor in a Chapter 13 would have to be treated at least as
    well as it would be treated in a Chapter 7. Since the Chapter 7 Trustee
    would receive about $70-80K from the liquidation of your business and house,
    generally speaking, this sum would have to be paid to creditors over 5 years
    to allow you to keep both.

    The fact that you can't afford to pay the $1,300+ per month (including
    Trustee's commissions) that would be required is irrelevant.


    * Personal Injury/Malpractice Bankruptcy *
    * *
    * BRETT WEISS, P.C. *
    * Attorneys at Law *
    * Maryland, D.C. and Federal Bars *
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    * Small Business Estates & Estate Planning *

    The Small Print: This response is for discussion purposes only. It isn't
    meant to be legal advice and you shouldn't treat it as such. If you want
    legal advice, speak with a local lawyer familiar with your state's laws who
    can review *all* of the facts and the law applicable to your situation.
    Brett Weiss, Sep 1, 2005
  4. anon

    anon Guest

    Brett (or anyone),

    But to Brett, thanks for your reply. I've read this group for a long
    time without ever posting and notice that you seem to be very helpful.

    The business in question is worth more possibly than the sum of its
    parts. The lawyer said that the value of the land/building would be
    about $20k in our smalltown and seemed to act as if this is the number
    that mattered.

    It is true that a similar business, maybe even a better than mine, is
    selling on eBay right now in our state for less than the price I paid.

    This is a VERY smalltown lawyer, so I'm also thinking that the entire
    scope of this case might be too much for him to handle too, but again,
    I'm not sure.

    I was disappointed with the initial consultation, unfortunately, not
    just because things didn't go as I had planned but because I left
    still feeling unsure about my possibilities for the future. Thanks
    again for any advice/assistance.
    anon, Sep 1, 2005
  5. anon

    Traction Guest

    It wouldn't hurt to talk with one or two additional attorneys who specialize
    in bankruptcy. Then you'll know more about your options and whether the
    attorney you saw missed anythng.

    It could be that you are about to lose your house and your business, whether
    you file or not, because you owe some nondischargeable debts to the IRS and
    possibly to other governmental entities. If your secret debt is related to
    a crime, that may also be a nondischargeable debt. One thing a bankruptcy
    attorney might suggest is to sell your house and your business and use that
    money to settle your nondischargeable debts with the IRS, etc. That's
    because if you pay your other creditors forst, you will still owe the IRS
    etc. afterward and won't be able to discharge those debts through
    bankruptcy. But if you pay the IRS etc. first, then you probably will be
    eligible to discharge the remaining debts through bankruptcy.

    Another option might be to sell your business and sell your house and use
    the cash to live on while these creditors try to track you down and collect
    the debts you owe them. The problem then might be where to keep the money
    because your creditors can seize your bank accounts after they get a
    judgment against you.

    The thought of having to sell your house and your business may sound awful,
    but those are both things that your creditors probably can and will take
    from you anyway.

    But definitely talk with one or more additional bankrupty attorneys first.

    Good luck.
    Traction, Sep 1, 2005
  6. anon

    anon Guest

    Thank you for your reply to my situation.

    I'm interesting in this above statement...

    How possible is the above? I thought as long as you were current with
    home payments, and it's your only home, that was pretty safe.

    I've had the credit card debt for a while, and it's never been a
    threat on my home/business.

    The current judgement I have against me for the $4k range hasn't been
    a threat on my home/business. I didn't even really know that I had it
    against me (I didn't go to court so they won by default) until I
    recently ordered my credit card. I'm aware that they could try to take
    something out of my bank account, but there is never much there

    So what could be a threat that could force me out of my home or

    I believe I can settle with the IRS, as again, I really haven't made
    anything, obviously. I can't imagine owing them much of anything after
    filing tax returns.

    I will take your advice and schedule another first meeting with
    another attorney.
    anon, Sep 1, 2005
  7. anon

    JoblessDave Guest

    It depends on the law of the state in which you reside. In California, a
    creditor can force a sale of a homestead property if the proceeds will be
    enough to pay off creditors with security interests in the property plus the
    available homestead exemption (which varies with age, marrage status and
    income). After the secured creditor(s), homestead exemption, and judgment
    lien and costs of collection are paidi, if there is anything left that would
    also go to the judgment debtor.
    The property that can be exemted from judgment creditor liquidation is a
    matter of state law. In California, a person with significant home equity
    could not exempt a business interest (except a relatively small amount for
    tools of trade).
    JoblessDave, Sep 1, 2005
  8. anon

    anon Guest

    Okay, thank you again! This is helping.

    What makes someone a secured creditor?

    I had never signed/stated that the person suing me is a secured
    creditor or has any kind of security interest in anything other than
    his own property. This is someone that I had a business agreement
    with. I was leasing-to-own a business from him and the deal fell
    through as I ran out of money. He has recovered his business and all
    his business assets (he did it without the law; just came in and took
    it when I wasn't present, and I made no objection), and is suing me
    for past-due payments. Is he secured/unsecured?

    Thank you again to all.
    anon, Sep 1, 2005
  9. anon

    anon Guest

    Oops, nevermind, I reread this paragraph again. Forget my questions
    about secured creditors/unsecured. You are saying that in some states
    ANY creditor can force the sale of a homestead property if the above
    conditions are met??

    Wow. That's amazing and frightening. I'm in Mississippi. Can you
    provide more information now?

    I actually share my home with another elder family member. While I am
    a cosigner on the loan, I am NOT actually the person that is taxed
    each year for property tax. The home is registered in the county under
    one family members name who is the other cosigner with the bank (not a
    wife; extended family). When my home was in jeopardy for back property
    taxes, they sent all notices directly to her (we've since taken care
    of this).

    Again I realize my situation is complicated, but as a result, I might
    not actually own any equity in the home, and might only have my
    business to worry about. Is that exempt in any way? It's my only
    source of income.
    anon, Sep 1, 2005
  10. anon

    JoblessDave Guest

    No, sorry. I'm unfamiliar with MS law.
    The best thing to do now is discuss this with an experienced local
    bankruptcy attorney.
    JoblessDave, Sep 1, 2005
  11. anon

    Traction Guest

    Here's a link regarding bankruptcy exemptions for Mississippi.

    You also wrote:

    "I actually share my home with another elder family member. While I am
    a cosigner on the loan, I am NOT actually the person that is taxed
    each year for property tax. The home is registered in the county under
    one family members name who is the other cosigner with the bank (not a
    wife; extended family)."

    Sounds like you don't own the home you live in. If it is owned by another
    person, even if you are a co-signer on the mortgage, I don't think any of
    your creditors can take the property from the real owner (who is not you).
    There may be an exception if you have a lease/purchase agreement or other
    arrangement that gives you control over the property. But, that's another
    story and is much more complicated.

    So, all of the homestead information probably doesn't mean anything and
    isn't necessary since they can't take the property from someone else to pay
    your debts. If you file bankruptcy, your personal liabilty for the mortgage
    could be discharged because you are a co-signer on the mortgage.

    I'm glad you will be talking with some attorneys who specialize in
    bankruptcy law. It could be that the first attorney didn't realize that you
    do not own the home you are in and that you are just a co-signer on the

    I know you said your business could be worth 50, 60, 70 thousand dollars,
    but depending on the type of business it is, it may be worth far less than
    you think. For example, if your business is primarily a service business
    and you are the only person who provides the service, the business may not
    be worth anything to a potential buyer. That's because without you there
    would be no business. You mentioned something about the business only
    earning you about $500/month right now, which is the compensation you get
    for all the work you do. Unless the business has a lot of assets, or some
    really valuable repeat customer list (customers who will stay on even if you
    leave), no one is going to pay much for any business that they have to work
    at just to get $500/month. That's only $6,000/year. I can't magine how a
    business like that could be worth 50, 60, or 70 thousand dollars to an
    outside party. But again, it depends on the type of business it is, the
    assets of the business, and on a lot of other factors.

    If you owe very little to the IRS, that's no big deal. I thought you were
    implying that you owed a lot in back taxes, penaltes, etc.

    So see those attorneys ASAP. The clock is ticking because the new
    bankruptcy law goes into full effect on October 17, 2005.

    Good luck.
    Traction, Sep 2, 2005
  12. anon

    Guest Guest

    Thanks to everyone for their past advice about a month or so back if
    you remember my thread here. Here's my recap:

    I am a business owner that received a judgement against me for way
    more than I could ever pay. My bills are all maxed and I make hardly

    I live in the business that I own.

    I was asking for advice if I could file Chapter 7 and include my
    business as a homestead exemption.

    I did file in time to file under the old law. I filed Wednesday.

    Now here is the problem: I filed for Homestead Exemption back in 1999
    for my business. I know for a fact that it was under HE back in 1999
    and 2000.

    I went down to the courthouse today to verify that I was under HE. It
    turns out that I am NOT.

    HE was the only way that I could see the possibility of keeping my
    business under a chapter 7. It IS the place that I live. It's the only
    property that I have/own. All of my assets are exempt because I have
    so little. I don't even have a vehicle.

    The person that has the judgement against me is going to be VERY
    aggressive. If he finds out that I do not have HE, he is going to
    proceed very swiftly. He has an unlimited amount of money and lawyers.

    What should/can I do?

    The courthouse says that I can't do anything to file homestead
    exemption on my property until January 1st despite the fact that I've
    lived there more than 50% of the time. I will have a courtdate in
    November for my Chapter 7.

    Some thoughts:

    Is there a way that I could get an extension to push the bankruptcy
    court date to after January 1st? (Or does it even matter? Would I have
    had to have had HE *when* I filed as I thought I did?)

    Will they even check to see if I really/legally have HE this year on
    this property?

    Will I have to cancel my bankruptcy under old law and attempt to
    proceed under new law? Then again, with the person having a judgement
    against me receiving his notice, he might attempt to aggressively
    proceed legally if I did this...

    Is there anything my lawyer can do to get HE faster?

    How should I possibly proceed? Any advice/thoughts welcome. I just
    don't know what to do now. I don't want to discuss this with my lawyer
    yet in case I say the wrong thing that makes him HAVE to do something
    that would be against my best interests (like inform the court
    immediately that I do not have HE in my property) :(

    Thank you again if you can help me with anything that will ease my
    mind. I'm realizing this is a huge possible omission that could cause
    me much grief and blows up the very basic fundamentals of my plan to
    work things out.
    Guest, Oct 14, 2005
  13. anon


    Jun 27, 2011
    Likes Received:
    Your case is very sensitive to be very honest. You seem to be caught from everyside unfortyunately. I have some recomendations for you in the future:

    Whenever you business come up again, use online selling tools like ebay amazon ect.

    keep in mindn hiring an accountant is not difficult today you can use freelancer com to hire online accountants. They are cheap and lots of companies in your world use them. I also beloing to that community.And i am a qualified Chartered Certified Accountant (ACCA).

    Now your business: Considering the situation you mentioned, dont look at the accountant at the moment instead i would recommend you to take services of a well repurted atorney to save lots of expense that you may incur in future as panelties..Its better to spend a bit more on lawyer instead of paying thousands of dollars against the lawsuit. Dont get panic, keep in mind these lawyers have solution for every problem so use them. Hope this helps.
    Nabeel, Jul 2, 2011
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