FAQ

It depends on the individual case, but in state courts in Georgia, cases generally take approximately a year between the time the suit is filed and trial. The time period from filing of a lawsuit to trial in the United States District Court for the Northern District of Georgia may be shorter.

The exact process differs from jurisdiction to jurisdiction. But it usually begins with pleadings. The plaintiff files and serves a complaint that outlines the factual and legal grounds of its case. The defendant files a response as well as other objections and may also raise counterclaims against the plaintiff or even third parties. Once pleadings are closed, the parties begin discovery — utilizing interrogatories, depositions and subpoenas to gather information regarding the case. Throughout this process, settlement negotiations are usually ongoing. Once discovery concludes, if the case has not resolved, the case will go to trial before a judge or a jury. The parties may also elect to use mediation or arbitration to avoid the expense and delay of trial.

The relief available depends on the nature of the case. If you are the party seeking recovery, the most common form of relief sought is monetary compensation. In a case involving a breach of contract, this can mean monetary compensation for losses caused by the defendant’s breach or restitution for money already expended under the contract. Under certain statutes, and for certain types of non-contractual claims, the relief sought can also include items such as punitive damages or attorney fees. In some cases, a plaintiff may also seek injunctive relief — a court order requiring the defendant to take some action or refrain from some action..

There is no clear answer to this question. And depending on the cause of action, the parties may not have a choice. There are many factors that need to be considered. For example, federal courts only hear cases based on federal law or cases between citizens of different states. They may hear related claims arising under state law as well. Conventional wisdom states that litigating in state court is cheaper and faster than litigating in federal court. But that is not always the case.

Alternative dispute resolution has become increasingly popular in recent years due to the expense and the rising numbers of cases in state and federal courts. Mediation is essentially a controlled negotiation where the parties present their respective cases and attempt to arrive at a mutual solution with the help of an impartial mediator. Arbitration is similar to a trial where each party presents witnesses and evidence to an arbitrator (or a panel of impartial arbitrators) who ultimately renders a binding decision.

Once served with a lawsuit, it is important to consult an experienced litigation attorney immediately. Defendants must file a response to a lawsuit, and the manner in which they respond can have a significant and continuing impact on the case. Moreover, there is a limited time to respond, and failing to do so within the prescribed time limits can lead to a default judgment against the defendant.

Chapter 7 bankruptcy, sometimes called a straight bankruptcy is a liquidation proceeding. The debtor turns over all non-exempt property to the bankruptcy trustee who then converts it to cash for distribution to the creditors. The debtor receives a discharge of all dischargeable debts usually within four months. In the vast majority of cases the debtor has no
assets that he would lose so Chapter 7 will give that person a relatively quick “fresh start”.

One of the main purposes of Bankruptcy Law is to give a person, who is hopelessly burdened with debt, a fresh start by wiping out his or her debts.

Chapter 13 Bankruptcy is also known as a reorganization bankruptcy.

Chapter 13 bankruptcy is filed by individuals who want to pay off their debts over a period of three to five years. This type of bankruptcy appeals to individuals who have non-exempt property that they want to keep. It is also only an option for individuals who have predictable income and whose income is sufficient to pay their reasonable expenses with some amount left over to pay off their debts.

Yes, they will! By law, all actions against a debtor must cease once the bankruptcy documents are filed. Creditors cannot initiate or continue any lawsuits, wage garnishees, or even telephone calls demanding payments. Secured creditors such as banks holding, for example, a lien on a car, will get the stay lifted if you cannot make payments.

Your wife or husband will not be affected by your bankruptcy if they are not responsible (did not sign an agreement or contract) for any of your debt. If they have a supplemental credit card they are probably responsible for that debt. However, in community property states, either spouse can contract for a debt without the other spouse’s signature on anything, and still obligate the marital community. There are a few exceptions to that rule, such as the purchase or sale of real estate; those few exceptions do require both spouse’s signatures on contracts. But the day to day debts, such as credit cards, do NOT require both spouses to have signed.

Community property states are: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.

Your lawyer will be able to guide you in this regard.

Bankruptcy filings are public records. However, under normal circumstances, no one will know you went bankrupt. The Credit Bureaus will record your bankruptcy and it will remain on your credit record for 10 years.

The most common reasons for filing bankruptcy are:

Unemployment: Large medical expenses; Seriously overextended credit;
Marital problems, and;
Other large unexpected expenses.

A Harvard Study reported that half of US bankruptcies were caused by medical Bills (MSNBC). The study was published online in February of 2005 by Health Affairs. The Harvard study concluded that illness and medical bills caused half (50.4 percent) of the 1,458,000 personal bankruptcies in 2001. The study estimates that medical bankruptcies affect about 2 million Americans annually — counting debtors and their dependents, including about 700,000 children.

Whether a debtor keeps credit cards after filing bankruptcy is up to the credit card company. If you are discharging a credit card they will cancel the card unless you reaffirm the debt. Even if you have a zero balance the credit card company might cancel the card.

The debtor is discharged 3 – 5 months after bankruptcy is filed. More than 99% of the bankrupts are discharged.

One of the major purposes of bankruptcy legislation is to afford the opportunity to a person hopelessly burdened with debt to erase his or her debt and thereby get a fresh financial start. A bankrupt’s debt is erased when he or she is discharged.

The debtor is discharged 3 – 5 months after bankruptcy is filed. At that time all debts (with some exceptions) are written off.

Yes! A number of banks now offer “secured” credit cards where a debtor puts up a certain amount of money (as little as $200) in an account at the bank to guarantee payment. Usually the credit limit is equal to the security given and is increased as the debtor proves his or her ability to pay the debt. Two years after a bankruptcy discharge, debtors are eligible for mortgage loans on terms as good as those of others, with the same financial profile, who have not filed bankruptcy. The size of your down payment and the stability of your income will be much more important than the fact you filed bankruptcy in the past. The fact you filed bankruptcy stays on your credit report for 10 years. It becomes less significant the further in the past the bankruptcy is. The truth is, that you are probably a better credit risk after bankruptcy than before.

Most unsecured debt is erased in a bankruptcy except for:

Child support and alimony;
Debts for personal injury or death caused by your;
drunk driving;
Student Loans; and
Income tax debt.

The following debts are not erased in both Chapter 7 and Chapter 13. If you file for Chapter 7, these will remain when your case is over. If you file for Chapter 13, these debts will have to be paid in full during your plan. If they are not, the balance will remain at the end of your case:

Debts you forget to list in your bankruptcy papers, unless the creditor learns of your bankruptcy case;

Child support and alimony; Debts for personal injury or death caused by your intoxicated driving; Student loans from government organizations, unless it would be an undue hardship for you to repay; Fines and penalties imposed for violating the law, such as traffic tickets and criminal restitution; and

Recent income tax debts and all other tax debts.

This is a complicated area of the bankruptcy law and an attorney should be consulted. You can discharge (wipe out) debts for federal income taxes in Chapter 7 bankruptcy only if all of these five conditions are met:

The IRS has not recorded a tax lien against your property. (If all other conditions are met, the taxes may be discharged, but even after your bankruptcy, the lien remains against all property you own, effectively giving the IRS a way to collect.) You didn’t file a fraudulent return or try to evade paying taxes. The liability is for a tax return (not a Substitute or Return) actually filed at least two years before you file for bankruptcy. The tax return was due at least three years ago.

The taxes were assessed (you received a notice of assessment of federal taxes from the IRS) at least 240 days (eight months) before you file for bankruptcy. (11 U.S.C. §§ 523(a)(1) and (7).)

In addition, the following debts may be declared non-dischargeable by a bankruptcy judge in Chapter 7 if the creditor challenges your request to discharge them. These debts may be discharged in Chapter 13. You can include them in your plan, and at the end of your case, the balance is wiped out:

Debts you incurred on the basis of fraud, such as lying on a credit application; Credit purchases of $1,225 or more for luxury goods or services made within 60 days of filing; Loans or cash advances of $1,225 or more taken within 60 days of filing;

Debts from willful or malicious injury to another person or another person’s property; Debts from embezzlement, larceny or breach of trust; and

Debts you owe under a divorce decree or settlement unless after bankruptcy you would still not be able to afford to pay them or the benefit you’d receive by the discharge outweighs any detriment to your ex-spouse (who would have to pay them if you discharge them in bankruptcy).