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Do I file?

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Anonymous
Not applicable

Do I file?

I am new here and do not even have an attorney yet but I am considering Ch7.   I owe about 30K in CC debt, as well as about 15.5k back to the state for an unemployment overpayment.  I have combined income of about 50K (took a large paycut after being unemployed for 10 months).  Wife and I own 2 cars, but neither have a value of more than 2.5K.  Own home with value of about 135K and owe about 123K.  I know the KY homestead exemption is only 5K per person but am hoping this will be ok.  Just looking for your guys opinions,  should I file?   One other question, and I know this might be silly but I honestly dont know.  Will I have to turn over posessions such as TV's, digital camera, clothes, wifes jewelry ect...   Thanks for any input ypou can give.

Message 1 of 5
4 REPLIES 4
DaveInAZ
Senior Contributor

Re: Do I file?

While the $30k in CC debt can be discharged most debt to federal, state or local governments, including taxes or claims for over payment cannot be discharged. That's quite a large overpayment of unemployment benefits, and chance of disputing/reducing that?

 

In KY you can chose between KY state exemptions or the federal BK exemptions, you must chose between them, you can't mix them, as in picking the different exemptions you prefer. According to Nolo.com it looks like the federal exptions would be better for you:

 

- $22,975 expetion for personal residence

-  $3,675 for your motor vehicle
- $1,550 for jewelry
- $12,250 aggregate value ($575 per individual item) on household goods, furnishings and appliances, clothes, books, animals, crops, or musical instruments
- $2,300 for tools of trade including implements and books

 

So, whether you will have to turn over posessions such as TV's, digital camera, clothes, wifes jewelry ext. depends if their value falls under those exemptions

 

There are 2 BK courts in KY, Eastern and Western, you need to figure out which one you are in, their websites have alot of useful info. With $50k income you'll want to check the "means test" to ensure you income less expenses is not more than the median income for your area if your income is more than the median income you can forced into a Ch 13 repayment BK, Goggle "Kentucky bankruptcy means test (your city or county).

 

If you do decide to file BK you'll want to retain legal representation, this info is intended as intial info for you decide whether to take the next step and make an appointment for initial consultation with a BK attorney.

Message 2 of 5
Anonymous
Not applicable

Re: Do I file?

From what i have read, unemployment overpayments are treated as any other unsecured debt.  Not as taxes.  Does anyone else know if this is correct.

Message 3 of 5
despritfreya
Frequent Contributor

Re: Do I file?

"I owe about 30K in CC debt, as well as about 15.5k back to the state for an unemployment overpayment."

 

"While the $30k in CC debt can be discharged most debt to federal, state or local governments, including taxes or claims for over payment cannot be discharged."

 

"From what i have read, unemployment overpayments are treated as any other unsecured debt. Not as taxes. Does anyone else know if this is correct."

 

ChrisKY,

 

You are absolutely correct.

 

The unemployment overpayment is dischargeable unless the state files a timely 523 complaint and can prove fraud.

 

In re Reinstein, 32 B.R. 885 (Bankr. E.D.N.Y., 1983)

In re Ortiz, 514 B.R. 762 (Bankr.N.J., 2014)

 

This has been the law for decades.

 

Des.

Message 4 of 5
DaveInAZ
Senior Contributor

Re: Do I file?


@Anonymous wrote:

From what i have read, unemployment overpayments are treated as any other unsecured debt.  Not as taxes.  Does anyone else know if this is correct.


Yeah, looks like your research is correct. I Googled it and each hit I clicked confirmed that overpayment of unemployment benefits (more common that I would have thought) is considered an unsecured debt like CC debt and can be discharged in Ch 7, with a couple catches:

 

- Fraud: If the overpayment was due to fraud - you intentionally gave them false information that the caused overpayment - it is not dischargable.If the mistake was theirs then it can be discharged.

 

- Ch 13: If you are forced into Ch 13 repayment of some of the overpayment can be forced if other repayment of unseccured debt is included in the repayment plan.

 

- No Automatic Stay: While unsecured CC debt receives an automatic stay - meaning they can make no attempt to collect after you file - the state can continue to attempt to collect the unemployment overpayment until discharged. This includes wage garnishment and/or seizing $$$ in bank accounts. Once discharged they can't attempt to collect.

 

- If you still receive unemployment or have to reapply in the near future the state can reduce future payments to take back the overpayment.

 

Message 5 of 5
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