Bankruptcy Law

Landlord-Tenant Law

Personal Injury Law

 

Bankruptcy Law

What is bankruptcy?
Bankruptcy allows individuals or businesses ("debtors") who owe others ("creditors") more than they are able to pay ("insolvency"), the opportunity to either work out an orderly repayment plan over time or liquidate their assets to eliminate ("discharge") their debts.

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Who can file bankruptcy?
With a few exceptions, any individual or business owing money to a creditor can file a bankruptcy petition with the United States Bankruptcy Court.

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What chapter should I file?
Individuals typically file either Chapter 7, a liquidation proceeding, or Chapter 13, where an individual repays a portion of his or her debts over a period of time.  Business debtors typically file either Chapter 7 to liquidate the assets of the business, or Chapter 11, a reorganization proceeding designed to allow businesses to continue to operate.

Which chapter you file depends on your particular circumstances.  For instance, if an individual's current monthly income exceeds the state median, he or she will have to pass a "Means Test" to determine whether filing for Chapter 7 is presumptively abusive.  In other words, the "Means Test" is designed to force those individuals with sufficient disposable monthly income into a Chapter 13 proceeding in order to pay his or her debts over a period of three to five years.  Another reason an individual may choose Chapter 13 (or even Chapter 11) over Chapter 7 is because that individual may have assets that have equity in excess of what can be exempted under the Bankruptcy Code.  By filing Chapter 13, an individual may be able to retain his or her non-exempt assets while still receiving relief under the Code.  In addition, for an individual facing an impending foreclosure proceeding, Chapter 13 is a very effective tool to bring the mortgage current and allow that person to keep his or her home.

The bankruptcy laws can be complex, so the counsel of an experienced bankruptcy lawyer should be sought prior to filing.

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What property can I keep?
An individual filing for Chapter 7 is required to list all of his or her debts and assets on the bankruptcy schedules.  The majority of bankruptcy cases that are filed are non-asset cases, which means there are no assets for the bankruptcy trustee to liquidate to pay off an individual's unsecured creditors.  Although state exemption laws differ, states typically allow you to keep the following types of property in a Chapter 7 bankruptcy case:

  • Equity in your home, known as a "Homestead Exemption."  The Bankruptcy Code provides that you may exempt up to $20,200 of equity. However, most states have created their own exemption laws.  Some states have no Homestead Exemption; others allow debtors to protect less equity then federal law (For instance, in Virginia an individual debtor may protect up to $5,000 of equity in his or her home).
  • Retirement plans.  Most retirement benefits are protected in bankruptcy.
  • Personal property.  You will be able to keep most household goods, furnishings, basic clothing, appliances, and books.  Most states let you retain your vehicle provided the equity does not exceed several thousand dollars (For instance, in Virginia an individual may protect up to $2,000 in equity in his or her vehicle(s)).  In addition, in most states an individual can utilize the Homestead Exemption, provided it is not utilized to protect the equity in one's home, or is given a separate exemption, as a "wild card" to protect other assets such as the cash in one's bank account(s), a tax refund, additional equity in a or vehicle or vehicle(s), or collectible items.
  • Public benefits.  All public benefits, like welfare, Social Security, and unemployment insurance are protected under the Bankruptcy Code.
  • Tools of the Trade.  Most states allow you to keep up to a few thousand dollars worth of the tools used in your trade or profession (for instance, in Virginia you may be able to keep up to $10,000 worth of tools).

Provided you are able to exempt the equity in your assets, you may retain your home and vehicle(s) by agreeing to "reaffirm" (or continue making the payments) the debt secured against your home or vehicle(s).

In the event you have assets with equity that exceeds your state's exemption laws, you may consider filing under Chapter 13 to protect your assets.

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Can I change from one chapter of bankruptcy to another?
It is possible to convert a case from one chapter to another.  The request to convert can be a simple one sentence document. There are, however, important issues to consider when converting.  For example, when converting from Chapter 13 to a Chapter 7, you will need to review whether assets have been acquired that will be considered property of the estate under Chapter 7 that were not considered property under the previous filing.

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How often can you file for bankruptcy?
A Chapter 7 bankruptcy can be filed within eight years from a previous Chapter 7 filing or six years from a previous Chapter 13 filing.  Chapter 13 can be filed four years from a prior Chapter 7 filing or two years from a prior Chapter 13 filing.

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Do you have to have a certain amount of debt to file?
No, but some situations may not warrant filing for bankruptcy.  If your distressed financial situation is temporary, you may consider making arrangements with individual creditors for a change in payment amounts or a reduction in the total amount due. If an individual has few assets and/or is unemployed, filing bankruptcy may not be necessary, as the creditor may not be able to collect on the debt.  In addition, some individuals may not qualify for Chapter 13 if their total noncontingent, liquidated, unsecured debts exceed $307,675 or their noncontingent, liquidated, secured debts exceed $922,975.

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Landlord-Tenant Law

What law addresses landlord-tenant issues?
In Virginia, the Virginia Residential Landlord and Tenant Act (VRLTA), Sections 55-248.2 through 55-248.40 of the Code of Virginia, establishes the rights and obligations of landlords and tenants.  Such rights and responsibilities can only be enforced by a court of appropriate jurisdiction.

In Maryland, such issues are covered in Title 8 of the Annotated Code of Maryland, the Real Property Article.  In the District of Columbia, landlord-tenant issues are addressed in the District of Columbia Code §§ 42-3201 to 42-3610.

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I am on a yearly lease and want to move.  How can I break my lease?
You should review your lease to determine if the lease addresses early termination.  If so, you should follow the terms of the lease regarding proper notification to the landlord to terminate the lease.  If the lease does not address early termination, discuss your concerns with your landlord.  If your landlord is unwilling to release you from the lease agreement, you should consider arranging a sub-lease or assignment that will be mutually agreeable.  Abandoning the premises will not resolve the issue and may result in the landlord filing suit against you.

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My landlord refuses to repair anything.  What can I do to get things repaired?
Serious repair issues, such as faulty electrical wiring, gas leaks, and structural damage are likely violations of local building codes and should be brought to the attention of the Building Inspection office for your city or county.  The Building Inspector may inspect the building, and if he or she determines there is a violation, issue a citation to the landlord for any issues that require repairs.  The Code sections cited above list the landlord's obligations for making repairs.

For issues not involving safety, you should review your lease to see if the lease addresses such issues.  The lease will likely advise you to notify the landlord in writing of the specific items needing repair.  Your letter should give the landlord up to thirty (30) days from receipt to make the requested repairs.  If the landlord refuses or fails to make the repairs, you can contact your local courthouse to discuss setting up an escrow account for your rent payments while the court resolves the issue.

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My roommate situation is not working out.  Can I leave without a problem?
The important thing to realize is that you are not alone, many individuals encounter conflicts with their roommates after moving in.  If you are unable to resolve your issues with your roommate(s), review the lease agreement. Most lease agreements do not address the issue, but under local law all parties to the lease will be liable for rent.  You should discuss the situation with your landlord and see if another tenant could take your place or your roommate(s) place under the lease.  Simply moving out may result in the landlord and/or your former roommate(s) filing suit against you.

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What is an eviction proceeding?
Eviction is the process by which a landlord obtains possession of the premises by entering a law suit against you and receiving judgment from the court directing you to leave the property and pay back any rent, damage claims, and the costs of the court process.  Prior to initiating an eviction proceeding, you must be in default under the lease agreement.  The landlord is required to provide you with five days written notice to leave the premises.  Once suit is filed, you will be notified of the date in which you are to appear in court to either concede or dispute the charges.

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I cannot pay all of my rent this month.  Can the landlord evict me?
The lease provides when the rent is due and payable.  If you fail to pay that amount, the landlord could send you a notice requiring that you pay the full amount plus late charges (if applicable) by a certain date.  The landlord cannot take possession (i.e., change the locks) without resorting to a formal eviction proceeding within the courts.

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My lease is about to end.  Can the landlord increase my rent?
Your landlord can increase your rent by any amount they choose.  You should contact your landlord prior to expiration of your lease agreement to discuss renewing your lease and if there will be an increase.

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I am a member of the Armed Forces and have been ordered to another location.  What can I do about my lease?
Most states provide that if you are on active duty or a civilian employee of the military, you may qualify for early termination of the rental agreement.  You should review the applicable code sections or contact an attorney to discuss the conditions that must be met for early termination.

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My landlord thinks he can come into my home at any time.  Can he?
Your landlord may gain access to the premises to make repairs, inspect the property, or to show the property to prospective buyers or tenants.  In these cases, the tenant may not unreasonably withhold access to the property.

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My lease is about to end and I don’t have another place to live.  Can the landlord evict me?
Yes.  Your landlord is not required to extend the term of the lease.  Although some leases provide for month-to-month rental agreements following the expiration of the original lease, landlords are not required by law to offer such provisions or to extend the term of the lease.  The landlord may take legal action to evict you.

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I believe my landlord has discriminated against me.  What can I do about it?
Discrimination in housing based on race, color, religion, national origin, gender, family status, age, or disability is illegal. Complaints involving such issues should be directed to your local Fair Housing Office and/or contact an attorney.

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Personal Injury

What is a personal injury claim?
Personal injury is the name given to the branch of law that covers any wrong or damage done to another's person, property, rights, or reputation.

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What kinds of personal injury claims are there?
A personal injury can happen at work, in a traffic accident, due to a faulty product or a faulty repair, as a result of a mistake made during medical treatment or due to a slip and fall on a wet floor.  The personal injury can be physical or psychological but it must occur due to the negligence or unreasonably unsafe actions of an employer, manufacturer, doctor, landlord, or another person or organization who owes you a duty of ordinary care.

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Should I contact my insurance company if I believe I have been injured?
When you have been injured, you will usually be looking to the other individual's insurance company to collect damages for your injury.  If the other individual does not have insurance or does not have enough insurance, you may be relying on your own insurance company to pay your damages.  Either way, dealing with an insurance adjuster can be frustrating and downright scary.  That is why it is a good idea to hire a lawyer to help you communicate effectively with the insurance company.

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What should I do first?
You can expect your lawyer to kick off the negotiation process by notifying the people responsible that you're hurt and will be filing a claim for your damages.  Your lawyer will then thoroughly investigate the circumstances of your injury.  You can help your lawyer by providing copies of the following:

  • Police report
  • Traffic tickets given to the other person
  • Photos of the scene of the accident
  • Names, addresses, and phone numbers of any witnesses and what they saw
  • Medical records and bills
  • Photos of your injuries
  • Wage stubs proving how much you made at the time of the accident and how much work time you missed due to your injury
  • You will also want to provide your lawyer with any other documentation you may have showing how your injury has negatively impacted your life.

 

 

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