A Bankruptcy and Debt Relief Lawyer and Attorney Andy Miofsky

2249 Pontoon Road, Granite City Illinois 62040


An Illinois Bankruptcy Lawyer and Attorney 618-931-1313 Offering Chapter 7 and Chapter 13 Bankruptcy Attorney information in Madison, St Clair & Southern Illinois counties

A Bankruptcy Lawyer Andy Miofsky Documents and Information
People who file bankruptcy are protected from debt collection by an automatic stay that is issued by the Court at the time a case is filed.  Debtors who obtain a Discharge of Debt are protected from debt collection after issuance of the discharge order.  People also may be protected from unlawful collection activity under various state and federal laws, included the Fair Debt Collection Practice Act, the Fair Credit Reporting Act and Unlawful and Deceptive Acts.  Unfortunately many creditors and debt collectors who buy and sell debt, attempt to illegally collect that debt, including debt that is protected by a bankruptcy case.  The following documents provide useful information regarding your rights and give you step by step instructions about efforts you can take to collect evidence of illegal collection activity.  At A Bankruptcy Lawyer Andy Miofsky I sue debt collectors and creditors who violate your rights.  Please download and print these documents for your convenience.  Additional documents are included to assist your preparation for your first consulation with my office.
Documents are being updated to reflect changes in the law.  Please check back.  Your patience will be rewarded.  Thank you.  Andy Miofsky

Federal Trade Commission Credit Repair Fact Sheet

Free Credit Report Mail-in Form

Warning:  Creditors, including mortgage holders and mortgage servicers, who willfully fail to credit payments received under a confirmed bankruptcy plan may be in violation of the bankruptcy discharge injunction.  Please make sure you correctly apply payments in the manner prescribed by the plan.


Researching Subprime Residential Loan Securitizations by CPA and forensic accountant Kevin Byers, as originally published in The Consumer Advocate, Volumn 13, Number 4, October - November - December 2007 by the National Association of Consumer Advocates.
Glossary of Bankruptcy Terms

Bankruptcy has its own language. Here is a brief definition of terms commonly used in a bankruptcy case.

These definitions are being expanded to provide greater detail and more information than you would ordinarily expect from a Glossary.  The new definitions can be found at the Free Bankruptcy Info category.





Creditor
: The person or organization to whom the debtor owes money or has some other form of legal obligation.

Debtor
: The debtor is the entity ( person, partnership or corporation) who is liable for debts, and who is the subject of a bankruptcy case.

Debtor in Possession
: In a Chapter 11 case, the debtor usually remains in possession of its assets and assumes the duties of a trustee. The debtor in possession is a fiduciary for the creditors of the estate, and owes them the highest duty of care and loyalty.

Denial of discharge: Penalty for debtor misconduct with respect to the bankruptcy case or creditors as a whole. The grounds on which the debtor's discharge may be denied are found in 11 U.S.C. 727. When the debtor's discharge is denied, the debts that could have been discharged in that case cannot be discharged in any subsequent bankruptcy. The administration of the case, the liquidation of assets and the recovery of avoidable transfers, continues for the benefit of creditors. Discharge: The legal elimination of debt through a bankruptcy case. When a debt is discharged, it is no longer legally enforceable against the debtor, though any lien which secures the debt may survive the bankruptcy case.

Dischargeable
: Debts that can be eliminated in bankruptcy. Certain debts are not dischargeable; that it, they may not be discharged through bankruptcy or may only be discharged through Chapter 13. Family support and criminal restitution are examples of debts which cannot be discharged. Debts incurred by fraud can only be discharged in Chapter 13.

Dismissal
: The termination of the case without either the entry of a discharge or a denial of discharge; after a case is dismissed, the debtor and the creditors have the same rights as they had before the bankruptcy case was commenced. Dismissal is the penalty for many essentially minor infractions of bankruptcy procedures under the 2005 amendments.

Domestic Support Obligation: Debts for alimony, maintenance or support owed to child, spouse or governmental entity that paid for the support of the child or spouse. A new term introduced by the bankruptcy amendments of '05.

Exempt
: Property that is exempt is removed from the bankruptcy estate and is not available to pay the claims of creditors. The debtor selects the property to be exempted from the statutory lists of exemptions available under the law of his state. The debtor gets to keep exempt property for use in making a fresh start after bankruptcy.

Exemptions
: Exemptions are the lists of the kinds and values of property that is legally beyond the reach of creditors or the bankruptcy trustee. The debtor in bankruptcy keeps the exempt property. What property may be exempted is determined by state and federal statutes, and varies from state to state. 

Fiduciary
: one who is entrusted with duties on behalf of another. The law requires the highest level of good faith, loyalty and diligence of a fiduciary, higher than the common duty of care that we all owe one another. The debtor in possession in a Chapter 11 is a fiduciary for the creditors, owing loyalty to the creditors and not the shareholders of the debtor.

First Meeting of Creditors
: This is sometimes referred to as the 341 Meeting or the Trustee Meeting. You must attend this meeting.

General, unsecured claim
: Creditor's claim without a priority for payment for which the creditor holds no security (or collateral). If the available funds in the estate extend to payment of unsecured claims, the claims are paid in proportion to the size of the claim relative to the total of claims in the class of unsecured claims.

Indemnify
: to guarantee against any loss which another might suffer. In bankruptcy, it is used to describe the undertaking of one spouse in a divorce to assume certain debts of the marriage and to see that the other spouse is not forced to pay. Also called a "hold hamrless" clause.

Lien
: An interest in real or personal property which secures a debt; the lien may be voluntary, such as a mortgage in real property, or involuntary, such as a judgment lien or tax lien.

Liquidated
: A debt that is for a known number of dollars is liquidated. An unliquidated debt is one where the debtor has liability, but the exact monetary measure of that liability is unknown. Tort claims are usually unliquidated until a trial fixes the amount of the liability of the tort feasor.

Means Test
: Added to the Code in 2005, the means test is intented to screen out those filing Chapter 7 who are supposedly able to repay some part of their debts. The test is found in Officical Form B22a. Debtors who fail the means test may convert their case to another chapter of bankruptcy.

Meeting of creditors
: The debtor must appear at a meeting with the trustee to be examined under oath about assets and liabilities. Creditors are invited but seldom attend. The meeting is sometimes called the 341 meeting, after the section of the Bankruptcy Code that requires it.

Motion for Relief from Automatic Stay
: This is a motion usually filed by a creditor seeking to recover or repossess property from you. This can be done if you are not making your monthly plan payments on time, or if you indicated an intent to surrender the property to the creditor.

Non dischargeable
: A debt that cannot be eliminated in bankruptcy. Non dischargeable debts remain legally enforceable despite the bankruptcy discharge. The Code's list of non dischargeable debts is found at 11 U.S.C. 523. The scope of the discharge in Chapter 13 differs from the discharge in Chapter 7. Discharges compared.

Notice of Default and Demand for Cure
: This is a document the chapter 13 trustee files warning you that your payments are behind. When you receive this document you must propose a way to cure the delinquency. This may be done by immediate payment in full, payment over 6 months, or by filing an amended plan to spread the payments out over time.

Objection to Confirmation
: A creditor files an Objection in an attempt to obtain a better deal under a chapter 13 plan. Objections are set for hearing before a Judge. Your case does not stop if an objection is filed. Keep making your same monthly payment unless you hear otherwise from your attorney or by Court Order.

Objection to Discharge
: A creditor files an Objection in an attempt to stop the bankruptcy from discharging a specific debt. Objections are set for hearing before a Judge. Your case does not stop if an objection is filed.

Objection to Exemption
: A creditor files an Objection in an attempt to claim more property or money for the bankruptcy estate. Objections are set for hearing before a Judge. Your case does not stop if an objection is filed.

Perfection
: When a secured creditor has taken the required steps to perfect his lien, the lien is senior to any liens that arise after perfection. A mortgage is perfected by recording it with the county recorder; a lien in personal property is perfected by filing a financing statement with the secretary of state. An unperfected lien is valid between the debtor and the secured creditor, but may be behind liens created later in time, but perfected earlier than the lien in question. An unperfected lien can be avoided by the trustee.

Personal property
: Assets, such as cars, stock, furniture, etc., that is not real estate or affixed to real property.

Petition: The document that initiates a bankruptcy case. The filing of the petition constitutes an order for relief and institutes the automatic stay. Events are frequently described as "prepetition", happening before the bankruptcy petition was filed, and "post petition", after the bankruptcy was initiated.

Preference
: A transfer to a creditor in payment of an existing debt made within certain time periods before the commencement of the case. Preferences may be recovered by the trustee for the benefit of all creditors of the estate.

Pre-petition
: Claims or events arising before the commencement of the bankruptcy case, that is, before the filing of the bankruptcy petition. Generally only pre petition debts may be discharged in a bankruptcy proceeding.

Priority
: The Bankruptcy Code establishes the order in which claims are paid from the bankruptcy estate. All claims in a higher priority must be paid in full before claims with a lower priority receive anything. All claims with the same priority share pro rata. Claims are paid in this order: 1) costs of administration 2) priority claims and 3) general unsecured claims. Secured claims are paid from the proceeds of liquidating the collateral which secured the claim.

Priority claims
: Certain debts, such as unpaid wages, spousal or child support, and taxes are elevated in the payment hierarchy under the Code. Priority claims must be paid in full before general unsecured claims are paid. Proof of claim: The form filed with the court establishing the creditor's claim against the debtor. Creditors file a proof of claim in order to receive a share of money from the bankruptcy estate.

Property of the estate
: The property that is not exempt and belongs to the bankruptcy estate. Property of the estate is usually sold by the trustee and the claims of creditors paid from the proceeds.

Reaffirm
: The debtor can chose to reaffirm debts that would otherwise be discharged by the bankruptcy. Generally, when a debt is reaffirmed, the parties to the reaffirmed debt have the same rights and liabilities that each had prior to the bankruptcy filing: the debtor is obligated to pay and the creditor can sue or repossess if the debtor doesn't pay.

Relief from stay
: A creditor can ask the judge to lift the automatic stay and permit some action against the debtor or the property of the estate. If the motion is granted, the moving party (but no one else) is free to take whatever action the court permits. Relief can be absolute, for example, permitting the creditor to foreclose on property, or limited, as for example, allowing the recordation of a notice of default.

Schedules: The debtor must file the required lists of assets and liabilities to commence a bankruptcy case, collectively called the schedules.

Secured
: A claim or debt secured by a lien in the debtor's property by reason of the debtor's agreement or an involuntary lien such as a judgment or tax lien. The creditor's claim may be divided into a secured claim, to the extent of the value of the collateral, and an unsecured claim equal to the remainder of the total debt. Generally a secured claim must be perfected under applicable state law to be treated as a secured claim in the bankruptcy.

Trustee
: the court appoints a trustee in every Chapter 7 and Chapter 13 case to review the debtor's schedules and represent the interests of the creditors in the bankruptcy case. The role of the trustee is different under the different chapters.  The trustee is not your lawyer and cannot give you legal advice.  The trustee tries to maximize the recovery of money from you for the unsecured creditors.

Unsecured
: A claim or debt is unsecured if there is no collateral that is security for the debt. Most consumer debts are unsecured.
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