History

Divorce

Wed, 31 Jan 2024 15:06:29 GMT

Divorce wasn't always as straightforward as it is today. In the 16th century in England, a marriage could only be ended by the infrequent and expensive process of annulment by an Act of Parliament.

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Attending Court

Fri, 06 Oct 2023 20:19:39 GMT

There’s a misconception that filing for bankruptcy means constantly having to appear in bankruptcy court. While there may be times at the beginning when your presence is necessary, we’ll typically be able to handle the appearances on your behalf.

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Inheriting Money During Bankruptcy

Wed, 02 Nov 2022 19:16:34 GMT

Inheriting money is a helpful windfall. Although it is given in an unfortunate context, individuals facing financial challenges – especially challenges that would compel bankruptcy – can benefit a great deal from an unexpected sum of money. However, if you are enmeshed in a bankruptcy proceeding, or about to be, there are a few important things to be aware of when it comes to receiving an inheritance.

When you file for bankruptcy in South Dakota, most of your assets become part of the bankruptcy estate. While there are a few limited exceptions for certain property, most of what you have will be adjudicated during the proceeding. Non-exempt property may be sold to satisfy debts and pay off creditors, and any exemptions will remain in your possession.

That begs the question: Is your inheritance part of the bankruptcy estate and therefore something that will be used to satisfy your debts? The answer depends on when you became entitled to the inheritance.

The laws surrounding bankruptcy and inheritance were created to prevent people from rushing to file for bankruptcy before receiving an inheritance, so as to protect that inheritance from their creditors. While there should be a time limit based on when your inheritance was obtained, compared to when your case is filed, it was decided that there should also be some flexibility to avoid fraud on creditors. In this context, Congress created the 180-Day Rule.

The 180-Day Rule Determines if an Inheritance Is Part of Your Bankruptcy Case

To analyze whether your inheritance will become a bankruptcy asset, use the 180-Day Rule . The rule states that if you file within 180 days of inheriting, you must disclose the assets by amending your filing. It’s important to note that “inheriting” refers to the date the individual passed away. It does not matter if you actually received that money – only that you became entitled to it on that date.

Of course, if you did actually receive the inheritance sum 180 days or more before bankruptcy, that money becomes part of your personal property. Exempting an asset (especially one that is liquid like a sum of money) requires looking to specific state law exemptions . There may or may not be an applicable exemption to protect that inheritance.

Is It Different in Chapter 7 and Chapter 13 Bankruptcy?

Because these proceedings have fundamental differences, what happens to your inheritance in Chapter 7 bankruptcy will be different than what happens to it in Chapter 13. In Chapter 7, after 180 days, generally your inheritance is off the table. However, in a Chapter 13 bankruptcy, your inheritance could affect what you must pay in your reorganization plan later on in the process.

While this information provides a helpful general overview of the law surrounding inheritance and bankruptcy, there are many specifics which affect a case. That’s why there is no substitute for an experienced bankruptcy attorney. Please contact us today at the Thomas A. Blake Law Office to learn more and let us understand your specific circumstances. We can help you navigate the bankruptcy process and all it entails.

Consult Your South Dakota Attorney Before Selling Any Assets During Bankruptcy

Wed, 12 Oct 2022 19:13:48 GMT

The bankruptcy process in South Dakota can be a morass of complications. Most people who file for bankruptcy will not understand all the red tape, nor should they. Before you continue reading this article, we want to reaffirm the importance of having a seasoned bankruptcy lawyer on your side. When it comes to selling assets before, during, or even after bankruptcy, it is highly important you consult your attorney to determine how it may affect your bankruptcy case and financial future.

Can You Sell Assets Before You File for Bankruptcy?

Because bankruptcy is centered around the valuation of your assets – in contrast to your outstanding debts – every action involving an asset is, to some degree, scrutinized. You might have guessed as much, but if you’ve yet to file then you might wonder why selling property could have an impact on your case.

The simple answer is courts aren’t stupid. They know people may attempt to thwart certain aspects of bankruptcy, save themselves some money, and avoid creditors’ efforts to secure what is owed to them. That is why in certain circumstances bankruptcy courts will look back a period of time to determine if a filer has engaged in pre-bankruptcy planning.

What Is Pre-bankruptcy Planning?

Pre-bankruptcy planning is a term generally used to describe selling certain assets that you may have to give up in bankruptcy, then putting that money into assets that are protected or “exempt.” In certain contexts, such actions are considered fraudulent and may delay your filing.

How Do South Dakota Courts Decide if Pre-bankruptcy Planning Has Taken Place?

The first consideration is whether the property is exempt in bankruptcy. What is or isn’t exempt can vary by state, which is another reason why it’s important to hire the right attorney. You can generally assume, for example, that equity in your home is exempt. If you sell exempt property, the court should not take issue since it would be off limits in bankruptcy anyway. However, if the property is non-exempt, which typically includes luxury items, the court may continue to analyze the issue.

If the court finds you sold non-exempt property, it will then look at when the sale occurred. Timelines vary, but the lookback period for most property will fall into the category of a year or two. However, with certain types of transfers, the court may look back longer.

Another factor in the court’s analysis is value received. If the value you received for your property is below fair market, the court may become suspicious. Lower than average value could be an indication of rushing to get rid of something. Additionally, what you did with the sale proceeds will also come into play. If you procured exempt property, added to the value of your existing exempt property, or purchased frivolous items or services, that may also suggest fraud to the court.

While these guidelines are helpful, they are not dispositive. Every case is different. You may be able to persuade a judge your transfers have not been fraudulent, or you may have a difficult time. That’s why it’s critical to have an experienced bankruptcy attorney on your side. Please contact us today at Thomas A. Blake Law Office to learn more and let us understand your specific circumstances. We can help you navigate the bankruptcy process and all it entails.

Why Social Media Can Cause Problems for Bankruptcy Petitioners

Thu, 18 Aug 2022 19:09:24 GMT

Over the past decade, social media has become intertwined with many aspects of our lives. Although social media began in a simpler and arguably more private format, the myriad social media services currently available create numerous opportunities to share information publicly.

While some people are more likely to share personal information on social media than others, it’s important for anyone involved in a bankruptcy proceeding to remain mindful of what they say and show to the world. Social media can be used against you in your bankruptcy case.

Will My Social Media Account Be Monitored When I File for Bankruptcy?

A bankruptcy proceeding in South Dakota officially begins when you file in South Dakota federal court. After you file, the court begins an analysis of your income, expenses, debts and assets to determine how best to remedy your financial challenges.

You are also assigned a bankruptcy trustee, who will guide and analyze your bankruptcy case to assure the best result for the other parties in interest. The bankruptcy trustee is there to search for assets to distribute amongst your creditors. The trustee will not take kindly to any inconsistencies between what you say and what they see from other evidence – including social media.

The trustee may search for inaccuracies in your filing. It is more likely that one of your creditors will search for them in an effort to secure everything they are owed. If they find anything that indicates you’re perpetuating fraud in your case, they will certainly alert the trustee.

What Types of Social Media Content Could Pose a Problem?

When you file for bankruptcy, you are essentially telling the court and your creditors that you do not have the money you need to pay your debts. This is a representation which is assumed to be truthful – at first. But because perfect honesty is not a feature of the human condition, the bankruptcy trustee or a creditor may perform some investigations.

They will most likely use the simplest methods at their disposal – Googling your name, and searching for your accounts on social media sites like Instagram, Facebook, LinkedIn and YouTube. If they happen to see you on vacation or talking about your new car, clothes, or any other luxury, they’ll take this to mean you may not be telling the truth about your financial situation.

You may also encounter an issue if you claim to the bankruptcy court that you are not working or only make a certain amount of money. If you happen to post or share something which indicates you are working off-the-books, the trustee can take that information and consider it in your proceeding – and they will probably not be happy about it. Similarly, if you post and sell something on Facebook Marketplace or a similar exchange, and then fail to disclose the sale in your bankruptcy paperwork, that too can become an issue.

How to Avoid Problems from Your Social Media During Bankruptcy

As a rule, when going through a bankruptcy proceeding, you should avoid publicizing personal information. Personal information includes your whereabouts or housing situation, employment or lack thereof, and purchases you’ve made or gifts you’ve received. The less information you make public, the less chance you have of creating incongruency between your social media and your bankruptcy filing. You should always avoid making public statements or comments about the proceeding.

While this article is intended to simplify common questions about the bankruptcy process and social media usage, bankruptcy has serious legal and financial consequences . There is no substitute for a conversation with an expert. Please contact us today at Thomas A. Blake Law Office to learn more and let us understand your specific circumstances. We can help you navigate the bankruptcy process and all it entails.

How to Rebuild Credit After Filing for Bankruptcy

Wed, 20 Jul 2022 19:02:33 GMT

Filing for bankruptcy can be difficult for many South Dakotans. There are plenty of challenges that come with it – even more than the obvious ones. For instance, an individual who files for bankruptcy in South Dakota will likely have some damage to their credit and thus find it difficult thereafter to obtain credit cards, loans, and the like. Fortunately, this damage is temporary, as there are effective ways in which to rebuild credit after filing for bankruptcy.

Know Your Credit Status

Checking your credit report and understanding what is within it, as well as knowing your credit score, is integral to rebuilding credit. Only after you know where you stand can you know what you need to do to rebuild your credit.

You want to check your credit report infrequently, but certainly at the start of building back. A bankruptcy filing will appear on your credit report, although it will eventually be removed: after seven years for a Chapter 13 bankruptcy, and after 10 years for Chapter 7. While it will stick with you for a period of time, bankruptcy is not a permanent ball and chain.

Pay Any Remaining Debts on Time

Bankruptcy proceedings in South Dakota eliminate many types and amounts of debt, but there still may be some debt which remains after the conclusion of the bankruptcy process. If you have debts which must be paid post-bankruptcy, it is critical that you pay them on time and on schedule to ensure your credit improves.

Stay Ahead of Bills and Payments Going Forward

Simple household bills do not remain simple if they go unpaid. If you do not make payments on utilities, they will go to collection agencies which will also affect your credit. That is why it’s important to remain in good standing with any payments you are required to make

Get a Secured Credit Card

It’s not easy to obtain anything on credit post-bankruptcy. However, secured credit cards will likely remain available to you since “you qualify by making a deposit that the creditor can keep if you stop making payments on the account,” as Experian explains.

Ideally, the card you do get will report to one of the major credit services and allow you to convert it to being “unsecured” in time, if it’s paid properly. While fees and interest may be higher with this card, the most important thing is that you pay on time to rebuild your credit, which will also help you avoid said fees and interest.

There is certainly no magic cure for your credit after going through the South Dakota bankruptcy process. Rebuilding does take time. But with the appropriate strategy and consistent effort, you can rebuild your credit and look forward to a more secure financial future.

While this article is intended to simplify common questions about the South Dakota bankruptcy process and rebuilding credit thereafter, bankruptcy has serious legal and financial consequences . There is no substitute for a conversation with an expert. Please contact us today at Thomas A. Blake Law to learn more and let us understand your specific circumstances. We can help you navigate the bankruptcy process and all it entails.

Amendments to Bankruptcy Filings in South Dakota

Mon, 04 Jul 2022 18:55:11 GMT

Filing for bankruptcy can be a daunting proposition. There are several things to remember and account for, which can be overwhelming for many. This is one of the main reasons why it’s recommended anyone filing for bankruptcy in South Dakota contact an attorney who specializes in bankruptcy. There is no substitute for the breadth of knowledge and experience gained from having a South Dakota bankruptcy lawyer on your side.

In addition to hiring a qualified bankruptcy attorney, understanding amendments can be helpful. Having a basic knowledge of amendments can alleviate some of the concerns related to how much information is required to effectively file for bankruptcy. While courts do follow strict rules, they are not entirely unyielding. This includes the bankruptcy courts of South Dakota. There is, of course, an understanding of human error. Plus, an understanding that circumstances change, and additional information is needed. That is where amendments come into play.

Amending a Bankruptcy Petition in Accordance with South Dakota Rules

Bankruptcy begins with a petition. A petition is a legal document which includes important information like a debtor’s name and social security number. Whether they own a business operating as a sole proprietorship is included as well. A petition also includes a number of “schedules.” These are additional documents itemizing relevant information, such as real property, personal property and creditors.

If there is an error or omission in a petition, the filer must correct it by first filing an amended petition. This requires using the appropriate official form and checking “amended filing” on the top right of the page. They must also file a Notice of Amendment. This notes the changes in the amended petition (see Rule 1009-1 ). As with most other documents, the notice of amendment must be served on parties in interest and creditors accordingly.

Amending a List, Schedule, or Statement (Other Than Mailing List of Creditors)

Lists, schedules and statements are an integral part of filing for bankruptcy. They inform the court and parties in interest about debts, assets and other necessary information. These documents, like any other, may have errors or need to be updated post-filing.

Like amending a bankruptcy petition, amending a list, schedule or statement requires refiling the document using the appropriate official form and checking “amended filing.” If that checkbox is not present, the document shall be labeled “AMENDED” in the title. However, in addition, and unlike with a petition:

“If the official form for the list, schedule, or statement to be amended does not include a signature page, the debtor shall include, as the last page of the amended list, schedule, or statement, a fully completed Declaration About an Individual Debtor’s Schedules (Official Form 106Dec) or a fully completed Declaration Under Penalty of Perjury for Non- Individual Debtors (Official Form 202).” Rule 1009-2 .

When amending lists, schedules or statements, you must also service notice of the amendment on parties in interest.

Why Does South Dakota Bankruptcy Rule 1009-2 Exclude Mailing Lists of Creditors?

There is a separate rule pertaining to amending a mailing list of creditors. Like the other two rules highlighted above, Rule 1009-4 lays out a few steps for amendment. However, the court found it pertinent to note that a debtor does not need to amend both the mailing list of creditors and a schedule.

When it comes to a mailing list of creditors, South Dakota bankruptcy rules specifically carved out an exception, which seems to be more functional. The court provides that a debtor does not need to amend both a mailing list of creditors and a schedule. Instead, simply filing an amended schedule will do and the clerk will update the mailing list after receipt of the amended schedule.

While this article is intended to simplify common questions about the South Dakota bankruptcy process and amendments to filings therein, bankruptcy has serious legal and financial consequences . There is no substitute for a conversation with an expert. Please contact us today at Thomas A Blake Law to learn more and let us understand your specific circumstances. We can help you navigate the bankruptcy process and all it entails.

Vehicle Liens and Bankruptcy in South Dakota

Mon, 30 May 2022 18:49:40 GMT

When you file for bankruptcy in South Dakota, the court begins an analysis of your income, expenses, debts and assets to determine how best to rectify your financial challenges. This analysis will include any vehicles you are financing or own outright. For example, those which are subject to a lien, and those which are not. Some debts can be discharged through bankruptcy, and some will be restructured for repayment. Others, like in the case of certain vehicle liens, may continue without being affected.

Do You Own or Finance Your Vehicle?

If you own your vehicle outright, meaning there is no lien or lender involved, the vehicle may be sold to discharge other debt. However, it may not be subject to such a sale if it can be considered “exempt” property. Under South Dakota law, vehicles are not automatically exempt from bankruptcy proceedings. That means it is possible that they can be sold off. However, South Dakota does have an additional property exemption . This allows a debtor to exempt any property from bankruptcy up to $7,000 for the head of a family or $5,000 otherwise. This could include the equity in your vehicle.

How Vehicle Liens Work

You may own your vehicle outright and be able to list it as exempt property. Though, many people cannot afford the high price of owning a vehicle. However, they likely can afford to pay for it by financing, i.e. paying much smaller sums over time until the full price is recompensed. To do this, a lender, usually a bank, will pay the full price to the vehicle dealer or seller, and the individual who is purchasing the vehicle pays the bank back over time. This arrangement creates a lien. And that means if the bank does not get paid in full, they can take the vehicle and sell it to recoup the money they’re owed.

What Happens to Your Vehicle in Bankruptcy When There’s a Lien on It?

A vehicle which is still being financed would likely have a lien attached to it from the lender. This creates a separate analysis when it comes to the vehicle. In bankruptcy, a lien from a vehicle loan is a “secured debt,” which means such a debt is unlikely to be discharged and you might have to return the vehicle to satisfy it. Whether or not the lien has been perfected (recorded properly) and whether a debtor is behind on that vehicle’s payments are the main considerations in understanding what will happen to a vehicle subject to a lien in bankruptcy.

In the specific instance where a debtor does not own a vehicle outright and there is a perfected lien on the vehicle which existed before bankruptcy, a debtor has a few options. When you file, you can choose to return your car to the lender to satisfy that particular debt. If your arrangement allows you to keep the car, it will still be subject to the lien and required payments. Overall, it’s unlikely that a bankruptcy proceeding will allow you to discharge a secured debt like a vehicle lien. If you retain the vehicle and cannot make payments during or after bankruptcy, the remaining lien will allow the lender to repossess the vehicle.

While this article is intended to simplify common questions about the bankruptcy process and vehicle liens in South Dakota, bankruptcy has serious legal and financial consequences . There is no substitute for a conversation with an expert. Please contact us today at Thomas A Blake Law to learn more and let us understand your specific circumstances. We can help you navigate the bankruptcy process and all it entails.