Do I Qualify for Chapter 7 Bankruptcy?

The current rules regarding bankruptcy filing in upstate New York have the following general guidelines:

An individual is allowed $50,000 in equity in a homestead and earnings of up to approximately $45,000. You also are allowed to keep certain items of household goods and automobiles. These are called New York State Exemptions which generally are as follows:

Automobile – $2,400
Household goods, library, clothing – up to $5,000

Your pensions and 401k’s are also generally exempt. Dischargeable debts generally include unsecured credit cards and obligations which are unsecured that were not advanced within 90 days of the filing date. A Chapter 7 petition, when filed, will operate as an automatic stay. this term means that efforts to collect or foreclose upon delinquent debts must stop immediately with severe penalties for violations of the automatic stay. The current requirement prior to filing a Chapter 7 petition are as follows:

1. 2 years worth of recent tax returns
2. 6 weeks worth of current pay stubs or the equivalent showing income from any source (or unemployment or disability)
3. A consumer credit counseling certificate (this is a 2-part, online certificate which costs approx 20 and 35 dollars to completes part 1 and 2 respectively)
4. A signed petition along with retainer agreement indicating that you have no assets that could be sold at auction valued at more than 500 to 1000 dollars that are non-exempt.

If you file, approx 30 days after the date of filing you’ll be required to attend a “meeting of the creditors’. This is commonly referred to as a section 341 meeting. Generally, no creditors appear at this hearing unless there have been recent high-value cash advances or luxury purchases on credit within the most recent 90 days of filing. At this hearing you are required to produce a photographic ID along with proof of your Social Security number and placed under oath. A Chapter 7 trustee will ask several questions regarding your assets and whether or not you are entitled to inherit money, whether or not you have the right to sue someone for a personal injury sustained within the preceeding 3 years, and whether or not you have personal goods that you could sell at auction valued at more than 500 dollars.

In short, if you earn less than $45,000 per year, have less than $50,000 equity in your home, have an automobile valued at less than $2,500 (or lease an automobile or make payments on an automobile) and have no other assets as discussed above, you will likely be categorized as a Consumer No-Asset case. This means that the trustee will not have to administer any of your assets. This means, for example, selling off the Harley-Davidson motorcycle in the barn and distributing 10 cents per dollar to your creditors. If this is the case that you are a consumer chapter 7 filer, you will likely receive your discharge within 60 to 90 days from the date of the first hearing.

For any additional information, please feel free to call upon my office at (518) 465-2211.

How to Get Out of a Traffic Ticket

This is a reminder of how to get out of a traffic ticket:

When you see the lights behind you from any law enforcement officer, immediately put your seatbelt on, discontinue use of a cell phone, put any beverages away, place your hands on 10 and 2 on the steering wheel, and slow the vehicle using extreme caution guiding the car beyond the fog line (white line) on the right hand side of the road.

Remember that by this time the police officer has run the license plate to determine whether or not there is a current registration, insurance, and whether or not the vehicle has been reported stolen. You have about 90 seconds before he or she comes to the window. Make sure that you already have your license out of your wallet and your insurance card out of the glove box in advance of him coming to the window. This will go a long way towards this officer being anxious about you reaching for items in the glove box.

** Remember that respect and courtesy is a great, great asset at this point when he or she asks you to roll down the window. He or she does not have to ticket you at this point. **

With hands at 10 and 2 of the steering wheel politely ask the officer if you can reach for your insurance card, license, and registration which are already on your dashboard. He or she will most likely ask you:

"Do you know why I stopped you?"

This is a trick question because you may volunteer information about the dead body that you are carrying in the trunk, or cocaine, or fireworks or any other crime you may have committed unrelated to a vehicle and traffic stop. This is the primary reason why traffic stops are conducted along the major interstate highways in the United States. You cannot imagine how many people volunteer information absolutely unrelated to vehicle and traffic stops to a police officer unrelated to this inquiry.

DO NOT VOLUNTEER INFORMATION ABOUT CHILD SUPPORT, PROBATION VIOLATIONS, OR DIFFICULTIES YOU MAY HAVE WITH YOUR LICENSE OR OTHER ISSUES IN ANOTHER STATE.

Merely say to the officer: "I do not know sir (or ma'am)" or "the man in front of me had 2 kayaks that were about to fly off his roof and I used the best judgment that I could" (only if this is true obviously because he or she will be behind you and if this is a falsehood, this will count against you with your credibility with the officer. However, if it is true that a truck was sending out sand or rock salt, or that a car with a kayak or skis was in front of you and it is true, the officer will take this into consideration with regard to your explanation for exceeding the speed limit in passing that vehicle for your own safety).

If this is a true statement, you will probably be fine. Do not lie to the officer or ask him or her to "give you a break". Most of the time, the officers respect honesty and candor and not having to worry about you reaching into your glovebox and becoming anxious and or being caused for any reason to unbuckle the safety latch on their firearm. If you give a false name at this point to an officer of the law, please be advised that this will not be taken lightly and if the officer must unlatch the safety latch on their firearm, this will be a bad position for you to be in.

The next 60 seconds are very important for you to determine whether or not he or she will issue a ticket. If you have no prior violations in New York state or otherwise, this would be good information to give to the officer because he or she will ultimately ask you and verify this information when they return to the police vehicle. If you are completely honest with him or her and it is verified, he or she will likely "give you a break" by writing a ticket of lesser importance or offering you a warning. If, however, you have recent violations, including speeding, within the past 18 months you will be unlikely to persuade the officer to give you a warning.

In this instance, explain that you will take the Driver Improvement Safety Course and if it is completed by the court date, if he or she would consider negotiating with you. This may make the officer interested in speaking further with you. The longer you can keep him or her at your window for the 60 seconds that I have described, the better off you are.

Remember, however, not to make promises or offer anything in consideration for a reduction of your ticket to any police officer.

Remember that these men and women are trying to prevent head-on collisions and they take their jobs very seriously bc they are the ones who must go and relate fatalities to the next of kin when it happens. THEY TAKE THEIR JOB VERY SERIOUSLY.

Here is a Tip to All You Snowmobile, Off Road Vehicle Drivers and Boaters

Boating while intoxicated, BWI; atv'ing while intoxicated, AWI, snowmobiling while intoxicated, SWI will NOT affect your right to drive your car or automobile to work or pleasure. In New York State, if you have been convicted under the NY State Parks and Recreation law while operating an ATV, snowmobile or boat while intoxicated, be advised that because of constitutional limits in the penalties, you will still be allowed to drive your car anywhere unrestricted on public roads with no limitations. The reason for this is that an operator of a snowmobile who does not have a motor vehicle operators license, AKA drivers license, could hypothetically be stopped and ticketed for drunk driving on his snowmobile and the maximum penalty according to law would be his registration would be suspended or revoked. Therefore a person who has a drivers license, who was similiarly stopped and arrested for the same offense, could not be penalized more than one who doesn't have a drivers license.