Questions and Answers

CHAPTER 7 BANKRUPTCIES

1. What is the difference between a chapter 7 and chapter 13 bankruptcy?
In a chapter 7 bankruptcy, debtors are granted a discharge from debts after a few months and no monthly payments are required to be made to the bankruptcy trustee. In a chapter 13 bankruptcy debtors are discharged from their debts after making monthly payments to a court appointed trustee for a 3 to 5 year period.

2. How much debt is required to file for a bankruptcy?
There is no minimum amount of debt required to file for bankruptcy. In most cases, debtors should not file for bankruptcy if their dischargeable debt is less than $7,500.00.

3. If a prior chapter 7 bankruptcy was filed and discharged how long does a debtor have to wait to file another chapter 7 bankruptcy?
8 years from the filing date.

4. If a debtor is married does he or she have to file bankruptcy with the spouse?
No. A married debtor can file jointly with their spouse or can file a separate single bankruptcy in his or her name only.

5. Are the names of persons who file chapter 7 cases published?
When a chapter 7 case is filed, it becomes a public record and the names of the persons filing may be published by some credit-reporting agencies. However, newspapers do not usually report or publish the names of consumers who file chapter 7 cases.

6. How does a bankruptcy filing affect lawsuits that have been filed to collect debts?
The filing of any kind of bankruptcy automatically stops any lawsuit from proceeding to collect a debt. If a discharge is granted, lawsuit debts are discharged along with other debts.

7. What is the affect of a discharge in a bankruptcy?
It is a court order releasing a debtor from all of his or her dischargeable debts and ordering the creditors not to attempt to collect them from the debtor. A debt that is discharged is a debt that the debtor is released from and does not have to pay.

8. What debts are not discharged in a bankruptcy?
All debts of any type or amount, including out-of-state debts, are dischargeable in a chapter 7 case except for the types of debts that are by law nondischargeable in a chapter 7 case. The following is a list of the most common types of debts that are not dischargeable in a chapter 7 case:

1. Most tax debts and debts that were incurred to pay nondischargeable federal tax debts.
2. Debts for obtaining money, property, services, or credit by means of false pretenses, or a false financial statement, if the creditor files a complaint in the bankruptcy case.
3. Debts not listed on the debtor’s chapter 7 forms, unless the creditor knew of the bankruptcy case in time to file a claim.
4. Debts for fraud, embezzlement, or larceny, if the creditor files a complaint in the bankruptcy case.
5. Debts for domestic support obligations, which include debts for alimony, maintenance, or support, and certain other divorce-related debts, including property settlement debts.
6. Debts for intentional or malicious injury to the person or property of another, if the creditor files a complaint in the bankruptcy case.
7. Debts for certain fines and penalties.
8. Debts for most educational benefits and student loans, unless a court finds that not discharging the debt would impose an undue hardship on the debtor and his or her dependents.
9. Debts for personal injury or death caused by the debtor’s operation of a motor vehicle, vessel or aircraft while intoxicated.
10. Debts that were or could have been listed in a previous bankruptcy case of the debtor in which the debtor did not receive a discharge.

9. Who is eligible for a chapter 7 discharge?
Any person who is qualified to file and maintain a chapter 7 case is eligible for a chapter 7 discharge except the following:

1. A person who has been granted a discharge in a chapter 7 case that was filed within the last 8 years.
2. A person who has been granted a discharge in a chapter 13 case that was filed within the last 6 years, unless 70 percent or more of the debtor’s unsecured claims were paid off in the chapter 13 case.
3. A person who files and obtains court approval of a written waiver of discharge in the chapter 7 case.
4. A person who conceals, transfers, or destroys his or her property with the intent to defraud his or her creditors or the trustee in the chapter 7 case.
5. A person who conceals, destroys, or falsifies records of his or her financial condition or business transactions.
6. A person who makes false statements or claims in the chapter 7 case, or who withholds recorded information from the trustee.
7. A person who fails to satisfactorily explain any loss or deficiency of his or her assets.
8. A person who refuses to answer questions or obey orders of the bankruptcy court, either in his or her bankruptcy case or in the bankruptcy case of a relative, business associate, or corporation with which he or she is associated.
9. A person who, after filing the case, fails to complete an instructional course on personal financial management.
10. A person who has been convicted of bankruptcy fraud or who owes a debt arising from a securities law violation.

10. How long does a chapter 7 last?
A successful chapter 7 case begins with the filing of the bankruptcy forms and ends with the closing of the case by the court. If there are no nonexempt assets for the trustee to collect, the case will most likely be closed shortly after the person filing receives his or her discharge, which is usually about four months after the case is filed. If there are nonexempt assets for the trustee to collect, the length of the case will depend on how long it takes the trustee to collect the assets and perform his or her other duties in the case. Most chapter 7 consumer cases with assets last about six months, but some last considerably longer.

CRIMINAL DEFENSE

1. What is the difference between a felony and misdemeanor?
Felony is a crime where the maximum punishment in prison exceeds one year. Misdemeanor is a crime where the maximum punishment in jail is one year or less.

2. There has been no charge filed but a law enforcement officer wants to talk to me.
Should you talk?
No. You should seek the advice of a lawyer first.

3. Should you hire a lawyer before a criminal charge is actually filed?
Yes, if it is certain or likely a charge will be filed. Otherwise, you may want to seek the advice of lawyer and hire one when the charge is actually filed.

4. A criminal charge has been filed and there is a warrant for your arrest. What is the first thing you should do?
Contact a lawyer. The lawyer may be able to have the warrant withdrawn without you being arrested.

5. You have been arrested. Should you talk to a law enforcement officer?
No, not without consulting a lawyer, and or having a lawyer present.

6. After the charge is filed should you talk to other people about the charge?
No. While it is natural to want to talk to family and friends, any statements you make could be used against you.

7. How long does a criminal case take to be completed?
There is no exact time for the completion of a case. Although a judge may set certain deadlines, some cases take years to become final.

8. Is there mandatory jail or prison time for all felonies?
No. While some felonies (alcohol, sexual offenses) have required jail or prison terms, most defendants charged with felonies are eligible for probation.

9. If you are placed on probation can you be released early during your probationary period?
Yes. Misdemeanor probation terms usually are 6 months to two years; felony probation term is usually 5 years. A defendant may apply to the court to be released early from probation during the term. The court has sole authority to terminate,

10. How long does a criminal conviction stay on your record?
For the lifetime of defendant, unless the conviction is expunged, cancelled, or set aside. The following offenses are examples of convictions which may pursuant to statute be expunged by a Missouri court:

1. 1st offense for DWI after 10 years from date of conviction if no other arrests or convictions for alcohol related traffic offenses during the 10 years
2. Passing bad checks (felony or misdemeanor)
3. Fraudulently stopping payment of checks
4. Fraudulent use of credit card
5. Negligent burning or exploding
6. Negligent setting or allowing fire to escape
7. Tampering in the second degree
8. Property damage in the second degree
9. Trespass in the first degree
10. Trespass against posted property
11. Gambling
12. Private peace disturbance
13. Drunkenness in church or courthouse
14. Peace disturbance

DWI

1. What is the difference between a DWI and a DUI?
By statute, there is no difference between driving while intoxicated and driving under the influence in Missouri.

2. When can you be charged with DWI?
When the arresting officer believes there is probable cause that you have operated a motor vehicle while under the influence of alcohol, illegal drugs, prescription drugs, or a combination thereof.

3. What is the difference between a felony and DWI and a misdemeanor DWI?
To be charged with a felony, you must have been convicted of 2 previous DWI convictions. These prior offenses may have occurred in any state. A misdemeanor is charged if you have one or no prior convictions.

4. To be charged with a felony what is a time limit for the consideration of previous convictions?
In Missouri, there is no time limit as to when the prior convictions occurred.

5. How soon should a lawyer be hired after you are charged with a DWI?
At your earliest convenience. Your license may be suspended or revoked after you are charged, and there are time limits to contest the suspension

6. How long will you lose your license if convicted?
First offense – 30 days
Second offense – One year if the previous conviction occurred more than 5 years from the date you are charged with the current one – five years if the prior offense was within 5 years.
Third or subsequent offense – 10 years, or for your lifetime if you are convicted after a 10 year revocation.

7. Can you lose your license if you are not convicted of a DWI?
Yes. The Department of Revenue can suspend or revoke your license 15 days after your arrest if you are arrested upon probable cause that you were operating a motor vehicle with a blood alcohol level of 08 or greater. The term is 1 year if you have had an alcohol  offense within 5 years.

8. If your license is suspended or revoked can you receive a hardship license or limited driving privilege?
Yes, with certain exceptions. You are not eligible if your suspension is for 30 days, if you are convicted of felony DWI, or if you have refused a chemical test or your breath, blood, or urine more than once.

9. If your convicted of a DWI is there a mandatory minimum jail or prison sentence?
Yes, depending on the number of prior convictions and the court you are charged in.

1.     Municipal Court – none; at Judge’s discretion
2.     State Courts –

1st offense – none, unless your blood alcohol level exceeds .15
2nd offense – within 5 years – 10 days
3rd offense – 30 days
4th offense – 60 days
5th or subsequent offense – 2 years

10. How long does a DWI conviction stay on my driving record?
If you have had only one DWI arrest and conviction, you may expunge or cancel all records of the arrest, plea, trail and or conviction after ten (10) years from the date of your guilty plea or conviction.