Chapter 13 Motion To Dismiss in Portland, Oregon
Bankruptcy Attorney in Portland, Oregon
Responding to a Legal Motion to Dismiss a Chapter 13 Bankruptcy
You might’ve heard Chapter 13 motion to dismiss in Portland OR, either from your friends or from the internet. Typically, when a debtor fails to make payments on time under a Chapter 13 repayment plan, the bankruptcy trustee may file a motion to dismiss, which can make the debts nondischargeable. Luckily, with the help of an experienced bankruptcy attorney, you can object to this motion.
In Oregon, Michael D. O’Brien & Associates, P.C. is the bankruptcy firm that can effectively help you with your financial concerns. We are experienced, competent, and nationally-certified consumer bankruptcy attorneys. If you need assistance, get a free initial consultation today!
What Is Legal Motion To Dismiss A Chapter 13 Bankruptcy?
A motion to dismiss in Chapter 13 bankruptcy is a formal request made by a party, typically the debtor or a creditor, to the bankruptcy court, seeking the termination or dismissal of the Chapter 13 bankruptcy case. The motion challenges the legal sufficiency or validity of the case, asserting that there are grounds to warrant its dismissal.
When responding to a motion to dismiss in Chapter 13 bankruptcy, the debtor has two potential arguments. Firstly, they can dispute the trustee’s position, asserting that the trustee’s request for dismissal is unfounded. To support this argument, the debtor should meticulously document the reasons why the trustee’s justification for dismissal lacks merit. This could involve providing evidence such as pay stubs, clearly indicating deductions made from their wages for payment purposes.
Secondly, the debtor may argue that they have the ability to resolve the issue at hand. In this case, the debtor should propose a well-defined plan for addressing the problem. Additionally, they can explain why the circumstances that caused the disruption in their payments were unforeseen and temporary.
How to Respond to the Motion to Dismiss Chapter 13 Bankruptcy?
When responding to a motion to dismiss in a Chapter 13 bankruptcy case, it is crucial to carefully address the arguments raised by the opposing party and present a strong defense. Here are some steps to consider when responding to a motion to dismiss:
- Review the motion and supporting documents: Thoroughly read and understand the motion to dismiss and any accompanying documents filed by the opposing party. Identify the specific grounds and legal arguments presented for the dismissal.
- Consult with your bankruptcy attorney: Seek guidance from your bankruptcy attorney, who can provide valuable insights into the merits of the motion and assist in formulating an effective response strategy. They can help evaluate the strengths and weaknesses of your case and develop a solid defense.
- Prepare a detailed response: Draft a response that addresses each argument raised in the motion to dismiss. Present legal arguments and factual evidence to counter the claims made by the opposing party. Clearly explain why the dismissal is unjustified and demonstrate that you meet the requirements for Chapter 13 bankruptcy.
- Support your response with evidence: Gather and include relevant supporting documents to strengthen your response. This may include financial records, pay stubs, bank statements, or any other evidence that validates your ability to comply with the bankruptcy requirements or disproves the opposing party’s allegations.
- Adhere to court rules and deadlines: Ensure that your response is filed within the specified deadline set by the court. Follow all court rules and procedures when submitting your response. Failure to comply with deadlines or procedural requirements may weaken your position or result in the dismissal of your case.
- Attend the hearing, if required: If a hearing is scheduled to address the motion to dismiss, make sure to attend and present your arguments before the court. Be prepared to respond to any questions or objections raised by the opposing party or the court.
Consider negotiation or mediation: In some cases, it may be beneficial to engage in negotiations or mediation with the opposing party to reach a resolution. This can help avoid lengthy litigation and potentially lead to a mutually acceptable outcome.
How much does bankruptcy cost?
The cost is broken into three components – a filing fee, some mandatory class fees, and the attorney fees. As to the attorney fee, like everything, the devil is in the details which is why we provide a free case evaluation so we can learn about your problem, identify your goals, and develop a strategy to achieve those goals. Find out how much a bankruptcy will cost you.
What are the Other Options To Approach Chapter 13 Motion To Dismiss?
Below are the other wise options to consider in response to Chapter 13 motion to dismiss:
Modify Your Plan
If your financial situation has changed and you find it difficult to afford your Chapter 13 payment, it is important to reach out to your attorney. By doing so, you may have the opportunity to adjust your repayment plan and lower your monthly payment.
To remain in your case, you must file necessary documents and provide supporting evidence demonstrating the change in circumstances. It’s important to note that the rules of the repayment plan mandate that certain bills, such as your mortgage payment, specific taxes, and outstanding support payments, must be paid in full. If your income has significantly decreased to the point where you cannot meet the minimum mandatory payments, a modification may not be available as an option.
Seek for a Hardship Discharge
Depending on the duration of your case, there is a potential option to request an early hardship discharge from the court. However, several conditions must be met and demonstrated, including:
- Practical inability to modify your existing plan.
- Inability to make payments due to circumstances beyond your control.
- Fulfilling payment obligations to unsecured creditors, typically excluding those holding your car or house note, is equivalent to what they would have received in a Chapter 7 case.
Convert Your Chapter 13 to Chapter 7 Bankruptcy
If you and your attorney determine that you are unable to afford your plan payments, you have the option to convert your case to a Chapter 7 bankruptcy. However, in order to qualify for Chapter 7, you must demonstrate that your income falls below the threshold set by the means test.
Converting to a Chapter 7 case presents a challenge, as there is a possibility of losing nonexempt assets (property that cannot be protected through bankruptcy exemptions) to the Chapter 7 trustee. Additionally, if you are still behind on payments for your home or car, you will need to make arrangements with the respective creditors to retain possession of those assets. Failure to do so could result in foreclosure or repossession.
Have Your Case Dismissed By The Bankruptcy Court
If you determine that it is in your best interest to withdraw from the Chapter 13 case, you have the option of taking no action. This approach may be suitable if there have been significant changes in your financial situation or if there are obstacles preventing you from converting to Chapter 7 bankruptcy.
Once the case is dismissed, it is as if you never initiated bankruptcy proceedings. Consequently, you will lose the protection of the automatic stay, which previously prevented your creditors from attempting to collect their debts while you were involved in the bankruptcy case. Your creditors will have the ability to initiate wage garnishment, seize funds from your bank accounts, and place liens on your property.
Refile Your Chapter 13 Bankruptcy Case
If your case is dismissed without prejudice, you have the option to refile and initiate the Chapter 13 process anew or alternatively, file for Chapter 7 bankruptcy if you meet the eligibility criteria. It is important to note that if you decide to file within one year of the dismissal, the automatic stay, which protects creditor actions, will only last for 30 days. In the new case, your attorney will need to request an extension of the automatic stay from the court.
Why Do I Need a Chapter 13 Bankruptcy Attorney in Portland, Oregon?
Filing Chapter 13 bankruptcy alone is already a complex legal process for an average individual. It becomes even more challenging when responding to a motion to dismiss Chapter 13 bankruptcy case. Although having an attorney is not required by bankruptcy laws, it is essential for achieving the best possible outcome. To find the right bankruptcy attorney, consider the following qualities:
- Nationally Certified – National certification indicates that the attorney has undergone rigorous evaluation and demonstrated a high level of knowledge in bankruptcy law. Choosing a nationally certified bankruptcy attorney can never get you wrong.
- Experienced – Hiring an experienced bankruptcy attorney will certainly increase your chances of success. While experience is not the sole indicator of an attorney’s competence, it does play a significant role. An experienced attorney knows how to handle matters accurately and efficiently, which can save you considerable time, money, and effort.
- Reputable – A reputable bankruptcy attorney is one who is considered credible. It demonstrates the attorney’s commitment to excellence and upholding the highest standards of professionalism. In other words, selecting a reputable attorney provides additional assurance that you are in good hands.
With over 27 years of legal experience, choosing Michael D. O’Brien & Associates, P.C. is the wisest decision you can make. We understand the challenges debtors face and offer a personalized approach tailored to your specific needs. Our team is nationally certified, experienced, and reputable. Selecting our legal team to assist you in objecting to a Chapter 13 motion to dismiss is an excellent choice. Get a free consultation now!
Call our Portland, Oregon Chapter 13 Bankruptcy Attorney Now!
Responding to a Chapter 13 motion to dismiss is a challenging task. As mentioned in the preceding sections, you must prepare a comprehensive response with solid and reasonable legal arguments. While an average individual can do this, the outcome will be significantly different if it is handled by a seasoned Chapter 13 bankruptcy attorney.
We provide highly personalized and effective legal services. Our legal team has over 27 years of legal experience, is reputable and most of all, nationally certified. We will go through every technical detail of your case to ensure that we handle your case with diligence and excellence. Other than bankruptcy, we also offer Oregon estate planning and debt alternatives. Get help now!