Yes.

The Statement of Financial Affairs portion of the Bankruptcy Petition specifically asks in question 9 if you have been involved in a lawsuit, court action or administrative proceeding in the last year. This includes personal injury lawsuits as well as all other types of legal actions.

Paragraph 33 of Section A/B  (asset section) of the Bankruptcy Petition  requires that you disclose “Claims against third parties, whether or not you have filed a lawsuit or made demand for payment”, In the examples, it specifically lists “accidents”.  In Colorado the proceeds are generally protected by exemption statute  13-54-102(1)(n) and at least one court decision.

(n) The proceeds of any claim for damages for personal injuries suffered by any debtor except for obligations incurred for treatment of any kind for such injuries or collection of such damages;

Failure to disclose a personal injury action may prevent you from pursuing the action because the insurance company involved in the case may request dismissal as a result of it not being disclosed in your Chapter 7 or Chapter 13 Bankruptcy.

You should always consult with your  bankruptcy attorney regarding your specific situation before filing bankruptcy.

The short answer is no.

The new Colorado exemptions only apply to cases filed  after April 7, 2022.  If it makes sense to dismiss your Chapter 13 Bankruptcy and you currently qualify to file a Chapter 7 bankruptcy then it may be an option. However, you must qualify to file a Chapter 7 Bankruptcy. If you have previously filed Chapter 7 Bankruptcy, you must wait a minimum of 8 years and one day from the date of your previous filing.  You should give yourself a couple of weeks extra just be sure. You must also show that your income is below the median income per form 122A-1 or that you have no disposable income per form 122A-2. You should also be able to show that when you compare you monthly net income with your monthly expenses that you are upside down or close to break-even. Not all expenses that you deduct from your  income are deductible  in this determination. So, you need to be careful.

You should consult with your bankruptcy attorney before  you decide to get out of Chapter 13 as is may have significant negative consequences.

In addition to the Trustee and creditors’ ability to prevent a discharge under section 727 of the Bankruptcy Code  for transfers with in one year of filing,  there is another section of the Bankruptcy code to be concerned about.

Under section 548 of the Bankruptcy Code, a Trustee has the ability to go back two years prior to the date of filing bankruptcy to undue a transfer  made with ”actual intent to hinder, delay or defraud any entity to which the debtor was or became, on or after the date  that such transfer was made or such obligation was incurred, indebted;

Bankruptcy Code Section 548 is  follows in part:

(a)(1) The trustee may avoid any transfer (including any transfer to or for the benefit of an insider under an employment contract) of an interest of the debtor in property, or any obligation (including any obligation to or for the benefit of an insider under an employment contract) incurred by the debtor, that was made or incurred on or within 2 years before the date of the filing of the petition, if the debtor voluntarily or involuntarily—

(A) made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted; or

(B)(i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and

(ii)(I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation;

(II) was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital;

(III) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor’s ability to pay as such debts matured; or

(IV) made such transfer to or for the benefit of an insider, or incurred such obligation to or for the benefit of an insider, under an employment contract and not in the ordinary course of business.

So, transferring an interest in real estate or other property under the circumstances described in this portion of Bankruptcy Code section 548 can cause you significant problems in bankruptcy. It may result  in the loss of  very assets that you transferred  in an effort to protect. Transferring assets to an “insider” such as a family member will result in increased scrutiny of the transfer. The Courts are split on whether transferring the property back prior to filing bankruptcy will  undue the problem.

The Trustee also has the ability to go back further in time  to undue transfers. For example, if  the IRS is involved, it is a 10 year look back period.

You need to consult your bankruptcy attorney about the consequences of any transfer that you have made so that you can be properly advised.

 

 

 

What happens if I transfer my interest in my house or other property  without receiving fair market value within one year  before I file Bankruptcy?

You will likely cause yourself a lot of problems.

One problem is that the Trustee or a creditor may file an action against you in the Bankruptcy Court to prevent you from obtaining a Bankruptcy Discharge of your debts.

Section 727 of the Bankruptcy Code provides for the Discharge of the debtor except under certain circumstances. The first section provides as follows:

(a) The court shall grant the debtor a discharge unless-…

(2)  the debtor, with intent to hinder, delay, or defraud  a creditor or an officer of the estate charged with custody of the property, has transferred, removed, destroyed, mutilated or concealed-

(b) Property of the debtor, within one year before the date of filing of the bankruptcy.

 

Typically, a person hastily  transfers property without receiving fair market value or legal counsel  because they fear that a creditor will take the property from them to pay a debt.

This is not the only problem a transfer could cause with your bankruptcy because the Trustee has other ways to attack the transfer even if the  transfer occurred more than one year before you file bankruptcy. I will discuss this in my next post.

The Trustee or creditor will still need to prove that the transfer was done with intent to hinder, delay, or defraud. Defending such an action, whether you win or lose could be quite expensive.

You should consult with your bankruptcy attorney prior to making any transfer of property.

Yes.

The updated Colorado Law provides:

“Any past or present child support obligation owed by a parent or child support
payment made by a parent that is required by a support order is exempt from
levy under writ of attachment or writ of execution for any debt owed by
either parent.”

It needs to be  Court Ordered child support to be protected. Voluntary child support payments are not protected as child support.

Before the recent change in the law, if you co-mingled the funds with other money in a bank account you could have an issue protecting it. That is no longer an issue but, you should still segregate it  into a separate bank account to be safe.

You should always consult with your attorney prior to filing bankruptcy to make sure your assets are protected.

The new Colorado Exemption law   protects a mobile home, manufactured home, trailer and trailer coach that you live in on one or more lots that  you own as a homestead. Your home and your lot or lots are protected in same amounts as a site-built house on one or more lots. The law specifically refers to a “lot or lots”.

If you have  a mobile home, manufactured home, trailer or trailer coach that sits on acreage that you own it is not clear if that is protected as a homestead.

You may also be limited under Federal Law to an exemption of $189,050 if you purchased the  mobile home, manufactured home, trailer and trailer coach and land less than 1215 days before you file for bankruptcy.

You should always consult with your attorney to determine what is protected in your situation.

Protection may depend on the type of disability benefits that you are receiving.

Social Security Disability and VA Disability are protected under Federal Law.

Colorado’s new Exemption Law is intended to protect disability  that is not already protected.

Any claim for public or private disability benefits or proceeds thereof that  is not already protected  by law,  is now protected up to $5,000 per month in Colorado.  Amounts above  $5,000 per month are subject to garnishment.   If you purchased a private disability policy, this new law should help you protect your monthly benefits or proceeds.

You should consult with your attorney to make sure that you are protected.

No.

The 2022 Colorado Exemption law now protects Health Savings Accounts from creditors and the Bankruptcy Trustee. Prior to the updated law, a Health Savings Account in Colorado was not protected in bankruptcy.

You should always consult with your attorney regarding your specific situation  when considering filing bankruptcy.

Yes. Within Limits.

To protect your business equipment, you must own it personally. The equipment cannot be owned by your LLC or Corporation.  An LLC and a Corporation are separate legal entities. What they own is not the same as what you own. For example,  to protect a vehicle used in a business, it  must be titled in your name and not the Corporation or LLC.  It is ok if you use it in the business but you must own it.  Questions of who paid for the vehicle or recent transfers may arise.

Under the new Colorado Exemption law, you can protect up to $60,000 in business equipment that you own  if it is used for your “primary gainful occupation”. $20,000 is protected if it is used in your “non primary gainful occupation” like a second job. So is you have regular job and you do lawn care on the side, you can protect up to $20,000 of the equipment if it is owned by you.

 

You should always consult with your attorney about your specific situation.

Yes!

On March 7, 2022 a new Colorado law expanded the definition of dwelling to  include tiny homes, railway cars, shipping or cargo containers or sheds and even yurts. Dwellings qualify for the Colorado Homestead Exemption. The amount of the Homestead Exemption was also increased in the same legislation.

The Homestead Exemption  has  been increased  to protect $250,000 in equity for a person under 60 years of age.

If you are  60 years of age or older, the Homestead Exemption now protects up to $350,000 in home equity.

For a disabled person or a person that  has a disabled spouse or disabled dependent living in the dwelling,  the Homestead Exemption now protects up to $350,000 in equity.

You only receive one Homestead Exemption for  your dwelling even if you are filing bankruptcy with your spouse.

In most circumstances, you must be living in the dwelling to claim the Homestead Exemption.

You must be a resident of Colorado for at least 2 years to use the Colorado Exemptions.

In addition, Federal Law limits the protection to $170,000 if you have not owned your dwelling for 1215 days which is about 41 months.

You should always speak to an attorney regarding your specific situation before you decide to file for bankruptcy.