This is a case of what you do not know will hurt you. Options that might preserve your assets for your future use after a bankruptcy might be lost if the right steps are not taken soon enough. If you are having financial problems, get in to see a skilled bankruptcy attorney as early as possible. The more time that the attorney has to assess your situation, the more options you will likely have to get the best result.
Transferring assets to relatives or friends without adequate consideration is usually deemed fraudulent by the Bankruptcy Court. The transfer is usually reversed, and is, therefore, ineffective. If the property was exempt, you will lose the exemption when the trustee reverses the transfer. Worst of all, the transfer may become a basis by which the Court will deny a future bankruptcy discharge of debts altogether. This is the worst of all possible worlds. You lose the asset, you lose the exemption if one was available, and you are not eligible for bankruptcy relief. If you have made transfers of money or property, it may be possible to put you in a position where you could still get a discharge, but you should see a skilled bankruptcy attorney immediately to evaluate the options to undo or minimize the harm of an improper transfer.
This is the process where a person takes cash advances or balance transfers on one credit card to pay the amounts owed on other credit cards. Not only is this a sign of desperation, but the amounts that you obtain as cash advances might not be dischargeable in a future bankruptcy. If you are in this situation, you are probably making your situation worse instead of better. You should stop immediately and seek the advice of an attorney.
Taking money out of retirement accounts to pay bills
Most retirement accounts are exempt from seizure in a bankruptcy or by creditors. Generally, most debts that people pay when they take money from their retirement accounts would be discharged in a bankruptcy and would not have to be paid. Usually, the best course is to save your retirement account for its intended purpose – retirement. You may even incur tax penalties for taking money out of retirement accounts prematurely. Do not take money out of your retirement account to pay bills without having a lawyer help you analyze your overall financial position. If you have drawn money out of your retirement account recently, you should call for an appointment with an attorney at Vanden Bos & Chapman, LLP as soon as possible to evaluate the consequences and to explore your options, if any, to mitigate the adverse consequences.
While you may think that repaying your friends or relatives is morally the right thing to do, a bankruptcy trustee will likely be able to reverse the transfer and take the money back from the intended recipient because the payment will be considered a preferential transfer if made within certain time periods prior to the bankruptcy. Making payments to creditors in advance of bankruptcy requires careful planning after receiving advice from a bankruptcy lawyer. If you have funds available to pay some, but not all, of your creditors, you should not repay any debts without first seeking advice from a competent bankruptcy lawyer.
Refinancing your house or taking a second mortgage on your house to pay bills
A significant amount of the equity in your house is exempt from the claims of creditors because of the homestead exemption in a bankruptcy. By taking the equity out of your house to pay bills, you are converting an exempt asset (your equity – which you may get to keep) and using it to pay bills that you could probably discharge in the bankruptcy without payment. Often, we see clients drain all of the equity in their homes and still end up filing bankruptcy. Instead of getting a fresh start with a home in which they have significant equity when they ultimately have to file bankruptcy, the client ends up with a home with no equity that they may lose after the bankruptcy because they cannot afford the higher monthly payments. You should not refinance your house or take a second mortgage to pay bills without first having a lawyer help you analyze your entire financial situation.
If you are in business, do not make the mistake of failing to remit your employee withholding taxes to the IRS and the Oregon Department of Revenue. The IRS and the Oregon Department of Revenue have the power to assess certain individuals responsible for managing a company for any employee withholding taxes that are not paid by the company. Employee withholding taxes are not dischargeable in any type of bankruptcy. Lack of money to pay employee withholding taxes is usually a symptom of a greater economic problem in a business. If you are struggling to pay your employee withholding taxes when due, you need to consult with an attorney as soon as possible to determine your best course of action.
Loaning money to your business without properly documenting the loan and without taking a security interest for repayment of the loan
It is always a difficult decision whether to loan personal funds to your own business. However, if the decision is made to make the loan, it is virtually always prudent to properly document the loan, including taking a security interest to secure repayment of the loan. Private individuals should never loan money to their own corporation or business without the assistance of an attorney to make sure the documentation is proper. This will put you in the best position for repayment of your loan if the business later becomes insolvent. If the documentation is inadequate, a bankruptcy trustee may not have to pay the loan and might be able to take the intended collateral without payment to you.
Circumstances in life change quickly. Jobs may be lost. Income may decline significantly. If you have a change in your job status or the income that you receive, you may believe that things will quickly return to normal. Often that is not the case. You need to be prepared to adjust your expenses to conform to your income levels if there is a change. If you continue to spend at the same level as your prior income, you may dig a hole so deep that you cannot get out.