McDowell County Bankruptcy Court
Bankruptcy cases from McDowell County are handled in the Western District of North Carolina, United States Bankruptcy Court. The Western District of North Carolina is a federal bankruptcy court which handles cases from the following Counties in North Carolina: Alexander County, Alleghany County, Anson County, Ashe County, Avery County, Buncombe County, Burke County, Caldwell County, Catawba County, Cherokee County, Clay County, Cleveland County, Gaston County, Graham County, Haywood County, Henderson County, Iredell County, Jackson County, Lincoln County, Macon County, Madison County, McDowell County, Mecklenburg County, Mitchell County, Polk County, Rutherford County, Swain County, Transylvania County, Union County, Wilkes County, Yancey County. The federal courts have 90 different judicial district across the states and U.S. territories (some states have more than one district court).Each district court has a matching bankruptcy court which handles all the bankruptcy cases arising from that jurisdiction.
Can I file my McDowell County bankruptcy case in Western District of North Carolina Bankruptcy Court?
If your residence is in McDowell County or the principal place of your business is in McDowell County, you can file your case in Western District of North Carolina Bankruptcy Court. Additionally, Western District of North Carolina handles cases from all of the following Counties: Alexander County, Alleghany County, Anson County, Ashe County, Avery County, Buncombe County, Burke County, Caldwell County, Catawba County, Cherokee County, Clay County, Cleveland County, Gaston County, Graham County, Haywood County, Henderson County, Iredell County, Jackson County, Lincoln County, Macon County, Madison County, McDowell County, Mecklenburg County, Mitchell County, Polk County, Rutherford County, Swain County, Transylvania County, Union County, Wilkes County, Yancey County. This is referred to as the court’s jurisdiction. Because Western District of North Carolina is a federal bankruptcy court, it has a limited jurisdiction of bankruptcy cases arising out of the above Counties. A regular case for breach of contract or tort action needs to be filed in the appropriate North Carolina State Court (or Western District of North Carolina Court).
What is the difference between Chapter 7 and Chapter 13 bankruptcy?
In Chapter 7 bankruptcy, the non-exempt assets of the debtor are liquidated and the proceeds are distributed to the debtor’s unsecured creditors. Chapter 7 is the most simple and quickest form of bankruptcy. In 2005 amendments were made to the bankruptcy law to require a “means test” that a debtor must meet in order to be eligible to file for Chapter 7 bankruptcy. If the “means test” is failed, the case will either be dismissed or converted to a Chapter 13 bankruptcy.Chapter 13 bankruptcy allows an individual to keep all of their possessions or assets, but they must devote a portion of their future income to repay their creditors. The debtor must have a regular source of income in order to develop a plan to repay all or part of their debts. In Chapter 13 bankruptcy the payback period is between 3-5 years depending upon the amount of income the individual has.The biggest difference is that the debtor is able to keep all their possessions in a Chapter 13 filing, but must pay back their debt over a 3-5 year period.
McDowell County Bankruptcy Court Clerk
Each bankruptcy court has its own court clerk. The court clerk’s office is where documents are filed for the bankruptcy court. The clerk’s office (or at least a part where filings are taken) is generally located in the same courthouse as the court.A court clerk can provide legal information, but not legal advice.
What is an automatic stay?
An important part of all bankruptcy filings is what is referred to as an automatic stay. By filing for bankruptcy, an automatic stay is imposed and immediately stops most lawsuits, reposessions, foreclosures, evictions, garnishments, attachments, utility shut-offs, and any debt collection.
What is a bankruptcy discharge?
A discharge in bankruptcy removes the debtor from liability for certain debts (ie. the debtor no longer has any legal obligation to pay the debts that were discharged). The discharge is permanent and prevents the creditor from further pursuing repayment of the debt or contacting the debtor. Put another way, the Debtor is no longer obligated to pay any debts that are discharged.The bankruptcy discharge is a permanent order.Once granted, the Creditor is prohibited from taking any form of collection action on a discharged debt including written communications or telephone calls with the Debtor.The discharge removes the Debtor from personal liability, but any valid lien that was not avoided in the bankruptcy case still remains.Under Chapter 7, a bankruptcy discharge may occur as soon as four months after the bankruptcy petition is filed with the clerk’s office.Under Chapter 12 or 13, the discharge occurs only after all payments under the plan which may be about four years after the bankruptcy petition is initially filed.
What is the “means test” for filing Chapter 7 bankruptcy?
If the debtor’s income is more than the state median income, they must satisfy the “means test” (If their income is less than the state median income, then they may file for Chapter 7 bankruptcy).The means test takes the the debtor’s aggregate current monthly income over 5 years, net of certain statutorily allowed expenses, is more than (i) $11,725, or (ii) 25% of the debtor’s nonpriority unsecured debt, as long as that amount is at least $7,025.The debtor may rebut a presumption of abuse only by a showing of special circumstances that justify additional expenses or adjustments of current monthly income.Unless the debtor overcomes the presumption of abuse, the case will generally be converted to chapter 13 (with the debtor’s consent) or will be dismissed. 11 U.S.C. § 707(b)(1).
Will I be required to appear in court?
A typical Chapter 7 Debtor will usually not be required to appear in court.The Chapter 7 Debtor will only have to appear in court if an objection is filed.A Chapter 13 Debtor will usually only have to appear before the bankruptcy judge at a plan confirmation hearing. A debtor usually only has to appear at a 341 meeting.A 341 meeting is a usually held at the office of the U.S. Trustee.The meeting is required under Section 341 of the U.S. Bankruptcy Code and requires a Debtor to attend the meeting so the Creditors can ask the Debtor questions about debts and property.
Do I need an attorney?
Corporations, Partnerships, or any other association are required to have an attorney.Individuals can file bankruptcy without an attorney and go “pro per” or “pro se.”But, it is very difficult to do as the rules of bankruptcy are very complex. Parties are required to follow the rules and procedures of bankruptcy court whether or not they are represented by an attorney.
What rules govern bankruptcy?
Article I, Section 8 of the United States Constitution authorizes Congress to enact laws related to bankruptcy. The rules and procedures for Bankruptcy proceedings in the United States are written in Title 11 of the United States Code. These rules are called the Federal Rules of Bankruptcy. Under the rules, the bankruptcy judge has jurisdiction to make all the decisions surrounding the bankruptcy case including eligibility and whether a debtor is entitled to a discharge. A large majority of the bankruptcy process is administrative. In certain cases (filed under Chapters 7, 12, and 13), a trustee carries out many of the administrative functions.
What are the different types of bankruptcy?
Six basic types of bankruptcy are allowed under the U.S. Bankruptcy Code.
What is a Chapter 7 Bankruptcy?
Chapter 7, sometimes called Liquidation, allows for an orderly court-supervised procedure where a trustee takes over the assets of the Debtor, reduces them to cash, and distributes the funds to Creditors.This distribution to Creditors is subject to certain exemptions that the Debtor is entitled to.Generally in Chapter 7, there is little to no assets which are nonexempt.This means generally the Creditors will not receive anything under this Chapter.These are called “no-asset cases.”A Creditor will only receive a distribution from the Debtor’s estate if the case is an asset case and the Creditor has filed proof of the claim with the bankruptcy court. Usually, in Chapter 7 cases, the Debtor is an individual and will receive a discharge that releases the Debtor from personal liability for the debts. This discharge is usually received a few months after bankruptcy is initially filed.In order for a Debtor to qualify for relief under Chapter 7, the Debtor must qualify under a “means test.”If the income exceeds a certain amount under the “means test,” the Debtor is not eligible for relief under Chapter 7.
What is a Chapter 13 Bankruptcy Case?
Chapter 13 is designed for a Debtor who has a regular source of income. Chapter 13 is preferred by most Debtors over Chapter 7 because it allows a Debtor to keep a certain asset (usually a house), and allows the Debtor to set up a “plan” to repay Creditors over a period of time (usually three to five years).Chapter 13 is also used by individual Debtors who do not qualify for Chapter 7 under the “means test.”The confirmation hearing is where the court either approves or rejects the Debtor’s repayment plan.In making its decision, the court looks to the requirements for determination under the U.S. Bankruptcy Code.Chapter 13 is different from Chapter 7 because the Debtor usually remains in possession of the property (usually the house), and makes payments to the Creditors for the duration of the payment plan.Also a difference from Chapter 7, is that the Chapter 13 Debtor does not receive a discharge until all the payments required under the plan are made.One other advantage is that the discharge under Chapter 13 is broader than under Chapter 7 (ie. more debts are eliminated).
What is a Chapter 11 Bankruptcy Case?
Chapter 11 is normally used by commercial enterprises that wish to keep operating a business and repay Creditors through a debt repayment plan approved by the bankruptcy court.During the first 120 days, the Debtor has the exclusive right to file a plan of reorganization and provide Creditors with a disclosure statement that provides the Creditors with enough information to evaluate the plan. The bankruptcy court makes the ultimate decision to approve or reject the reorganization plan.Under the plan for reorganization, the Debtor can reduce its debts by discharging some or repaying only a portion of its obligation under the original debt.Under this Chapter, the Debtor undergoes a period of consolidation and leaves with a reduced debt load and reorganized business.
What is a Chapter 12 Bankruptcy Case?
Chapter 12 is written specifically for farmers of fisherman. The procedures under Chapter 12 are very similar to those under Chapter 13. Under Chapter 12, the Debtor agrees to pay a portion of the Debtor’s debts under repayment plan (between three and five years).Like Chapter 13, under Chapter 12, there is also a trustee appointed to to disperse payments to Creditors.Under Chapter 12, a fisherman or farmer is able to continue operating a business while the repayment plan is carried out.
What is a Chapter 9 Bankruptcy Case?
A Chapter 9 bankruptcy allows for a municipality (city, town, county, school district or other public entity), to undergo a reorganization that is very similar to that available to commercial enterprises under Chapter 11. This Chapter is only available to municipalities.
What is a Chapter 15 Bankruptcy Case?
Chapter 15 deals with corporate entities where a Debtor or a Debtor’s property is subject to the laws of the United States and one or more foreign states.
What is bankruptcy?
Bankruptcy is a process where Debtors are given a fresh start from burdensome debts. It does this through a bankruptcy discharge which releases a Debtor from personal liability of certain debts and prevents Creditors from ever taking action against the Debtor to collect those debts.
What rules apply to bankruptcies in Western District of North Carolina Bankruptcy Court?
The procedures of bankruptcy are defined in the Federal Rules of Bankruptcy Court and the local rules.
McDowell County Bankruptcy Court Locations
Address: 401 West Trade Street, Room 111, Charlotte, NC 28202
Hours: 8:30 am – 4:30 pm
- Asheville Division
Address: 100 Otis Street, Room 112, Asheville, NC 28801-2611
Hours: 8:30 am – 4:30 pm