Can he file for bankruptcy, and attend the creditor meeting shortly after and then be free to move? 17 Answers as of November 05, 2014

My fiancé is in a bit of a complicated situation and need some guidance. We have decided to file a visa so we can both live in my home country together. My fiancé has to declare bankruptcy as soon as possible as he can’t afford to live with all his debt and can hardly get by as it is and is facing a possibility of his wages being collected. I have a few different questions about this complicated process that I hope someone can shed some light on. Are there any other meetings he has to attend or any other reason he can’t move until the process is complete? Since he’s leaving the country, he has to quit his job, and we are a bit confused about what to do with his 401k. What is the best option for someone leaving for a different country? We don’t need the money right away but want to make sure it will still be available and won’t disappear. My fiancé was expressing some concern that he has to take it out now or it can be gone later on? Basically we have a goal to use it as retirement money but we are unsure about what the best option is for someone moving but wanting to leave the door open to possibly coming back to the US. Is it illegal to file for bankruptcy and then quit your job and take the 401k out as cash or any other option? That’s a huge concern for me that it would be seen as fraud in any way and we want to do everything legally and right. Since he needs to return his car in bankruptcy, he can’t work for long and then must make a choice about his 401k before the discharge. Can that impact the bankruptcy if he gets the money out before the discharge? Is there any options that won’t impact it?

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Janet A. Lawson Bankruptcy Attorney
Janet A. Lawson Bankruptcy Attorney | Janet Lawson
He can file bankruptcy. He will have a hearing he must attend in 4 to 6 weeks. No one can touch his 401k, ever. As long as he has not committed any fraud or run up his credit cards in the last 6 months the process will be easy.
Answer Applies to: California
Replied: 11/5/2014
GARCIA & GONZALES, P.C. | Richard N. Gonzales
I would suggest that you pay an experienced BK lawyer for an hour of his or her time to get your questions answered. There are other issues lingering just below the surface. You don't want to be "penny wise and pound foolish!" Good luck!!
Answer Applies to: Colorado
Replied: 11/4/2014
Retirement accounts are exempt up to one million dollars. The filing date is the date of the determination of assets. So when he files he should have the money in the account. The Ch 7 process takes about 3 months from the date of filing, he only appearance necessary is at the creditors meeting which will be about one month after filing. He could complete the 3 months then take the retirement account money and leave or he could even take the money out after the creditors meeting. He can file bankruptcy and then leave the US but he must be present at the creditors meeting and of course complete the second certificate, Debtors Education, which can be done on the internet.
Answer Applies to: Minnesota
Replied: 11/3/2014
Law Office of Michael Johnson
Law Office of Michael Johnson | Michael Johnson
Yes can file leave in 401k until after we file.
Answer Applies to: Florida
Replied: 11/3/2014
John Ceci PLLC
John Ceci PLLC | John Ceci
These kinds of questions illustrate the potential complexity of bankruptcy law. You and your fiance really need to sit down with a bankruptcy attorney and discuss these issues. You may want to look for an attorney who handles immigration-law cases too.
Answer Applies to: Michigan
Replied: 11/3/2014
    Ronald K. Nims LLC | Ronald K. Nims
    Bankruptcy law requires that the potential debtor have residency (where you actually live) or domicile (where you believe is your home) within the USA for two years before filing. There is no requirement for residency or domicile after filing. The debtor must attend the creditors meeting. If the debtor has moved out of the country, it is possible to attend the creditors meeting by telephone. This must be arranged in advance and there must be a person present with the debtor who can verify their identity as a government official. There is always a possibility that there may be post filing litigation, this could require your presence. Retirement plans, including 401(k)s, IRAs, state and employer plans are all exempt assets that can't be seized to pay creditors in a bankruptcy. If you intend to cash in retirement funds during your bankruptcy or shortly after, you need to consult a bankruptcy attorney in your district. Where I practice in Ohio, these funds retain their exemption after withdrawal but that isn't true in every state. Many people who file bankruptcy surrender their cars to get out from under the car loans. So, there is no problem with surrendering a car.
    Answer Applies to: Ohio
    Replied: 11/3/2014
    Tokarska Law Center
    Tokarska Law Center | Kathryn U. Tokarska
    Some of these questions depend on numbers. These numbers are private so you don't want to mention over the internet. The best thing you can do is make an appointment with a local Bankruptcy attorney to discuss the situation and options in an interactive way. In most cases, the debtor only needs to attend one 341 hearing, but they may be circumstances under which additional meetings are required. One way to help and make sure that you don't have to return for another meeting after the 341 hearing is to have an attorney who will complete the petition accurately and provide all the necessary supporting documents to the Trustee in a timely manner. Retirement funds are exempt so don't move any money out of it until you speak with a Bankruptcy attorney to confirm how/if this could impact your potential case.
    Answer Applies to: California
    Replied: 11/3/2014
    A Fresh Start
    A Fresh Start | Dorothy G Bunce
    Although typically there is only one meeting in a chapter 13 bankruptcy case, if something goes wrong, the trustee can require you to return to answer additional questions. Creditors also have the right to obtain information from bankruptcy debtors outside of the courthouse via a 2004 examination. As to the 401K account, when you leave your job, you can cash out the benefit & pay taxes, or rollover the account into an IRA. The safe choice is to rollover the money into an IRA with a financial institution of your choice.
    Answer Applies to: Nevada
    Replied: 11/3/2014
    The Law Office of Darren Aronow, PC
    The Law Office of Darren Aronow, PC | Darren Aronow
    You can file your bankruptcy and generally if your case is completed after the creditor meeting, then the remainder of the 60 days to get your discharge is more of a formality, but normally I would tell a client to wait until the discharge before you leave. If you remove the money out of the 401k before your bankruptcy then it is not exempt and the trustee could seize it.
    Answer Applies to: New York
    Replied: 11/3/2014
    Southern Michigan Bankruptcy Center | Craig Jackson
    Leave the 401k alone. The 401k will be fully protected if it is exempted on schedule c of his bankruptcy petition. For routine bankruptcy cases, there is just one meeting he would be required to attend (341 meeting of the creditors). This meeting takes place between 21 and 40 days after the chapter 7 bankruptcy case is filed. Especially if the bankruptcy is a no asset case, there will most likely be no other meetings or court appearances. There is no fraud as long as you fully disclose all assets you have on your bankruptcy petition. Whether he stays on the job or not isn't an issue. The main thing to remember is don't take money out of the 401k before he files bankruptcy, as you may not be able to exempt the amount he takes out, and have to pay the trustee some money. After he files his case, he can take out money, even before the discharge. Filing bankruptcy will stop the garnishments. Please let me know if you have any questions.
    Answer Applies to: Michigan
    Replied: 11/3/2014
    D.J. Rausa, Attorney at Law | D.J. Rausa
    Yo should hire an attorney as soon as possible.
    Answer Applies to: California
    Replied: 11/3/2014
    Thomas Vogele & Associates, APC | Thomas A. Vogele
    First, you need to contact a bankruptcy lawyer before you do anything. It appears from your question that you think you can handle this without the help of a bankruptcy professional. Trust me when I tell you that would be a huge mistake. You have a very complicated fact pattern and there are a million ways you can screw this up on your own. The good news is that your fiance's retirement account is exempt/ That means it does not get included in the bankruptcy estate and remains his property. That said, he should talk to his plan administrator before he does anything with those funds as once they are withdrawn they get taxed. I cannot emphasize it enough - you need to hire a good lawyer to help you.
    Answer Applies to: California
    Replied: 11/3/2014
    Law Office of William Stoddard | William Stoddard
    First, yes, there is a meeting where he has to appear approximately 30 days after filing for bankruptcy, so he is not going to be leaving until that is done. Second, he must complete the credit counseling course before he files for Chapter 7 bankruptcy. He may file for Chapter 7 ONLY if his income, what he has earned over the last year, or if he has had a change of jobs, what he can expect to earn from here forward that is below the mean (average) income for the state in which he lives. As he is a single man, hopefully in Washington state, which is where this is posted, basically his yearly income has to be below $52,000+. If he makes more money than that he CAN NOT file a Chapter 7 without special considerations. He would definitely need an attorney, and even then he may NOT be able to avoid filing a Chapter 13 bankruptcy (the pay something on the debt for the next 5 years based on income possibilities and amount of debt to retire.) Any amount still owed after the 60 monthly payment is discharged if it is unsecured debt (meaning there was only a promise to pay, or the thing securing the debt like a car has been returned to the creditor who sold it and there is only a defficiency still owed which is now unsecured like the promise to pay debts [drs bills, credit cards, loans from mom and dad, and any other promise type debt.]Now assuming he can qualify for a Chapter 7 filing, he must list ALL debt, nothing can be left out.? If he wants to still pay his brother after the brother loses the right to be paid, he can, but there is no longer an obligation.? So he has to list everything.He is allowed to keep a certain amount of property for a fresh start.? The 401(k) is almost entirely exemptable, meaning he will not lose it.? But Chapter 7 is a liquidation process.? One must report ones holdings in ALL property, and then ask the court to recognize exemptions so he gets to keep his declared property. Basically one can exempt up to approximately $52,000 in the value of property so long as it fits in the list of things one can keep. An example, one can keep $2,400 in value of an vehicle. However, if one owns say a $5,000 valued car, he exempts the first $2,400 and then exempts the remainder value of $2,600 under a catch all exemption which can be assigned to any piece of property. But one cannot exceed the catch all amount which is $800 plus one half of the real property exemption, if one does not have real property to exempt, ($7,500) so for some people the catch all exemption is $8,300. For others it is only $800. Clearly one having a more than $2,400 car will not have to let the court sell it to get the remainder amount to apply to the debt one is trying to discharge, so long as one can use two exemptions, with both being the right exemptions.It is neither illegal to file, quite ones job and draw out the 401(k), but it is unwise to this. First the withdrawal will create a tax event, and he will not get all his money, as they will keep some to turn over to the tax men where he will have to file to see if he can get it back. Second, he should not be quitting his job until he has at least filed, attended the meeting to creditors and completed the second credit counseling course.There are two credit counseling courses required to get a complete discharge. The first must be done before filing. The second course must be done before the discharge is entered. Receiving a notice of discharge is NOT enough, as the court system automatically sends it out if one attends the meeting of creditors. But if there is not filed proof of completing the second credit counseling course, the clerks are dismissing the uncompleted filings as this is a requirement of the amended law most people do not know was amended.Hopefully this gives you all the answers you need.
    Answer Applies to: Washington
    Replied: 11/3/2014
    Danville Law Group | Scott Jordan
    You have asked a lot of questions, which is difficult to answer in one email.
    Answer Applies to: California
    Replied: 11/3/2014
    A person can file bankruptcy without any restrictions on moving out of the country. However, they must be personally present to attend the creditors meetings and any further hearings if trustee files any objections or a creditor files any objections or if creditor files request for 2000a Examination. Thus if you leave the county, you might have to come back for the further hearings. Regarding the 401k savings. The funds in the 401k plans can be claimed exempt from the bankruptcy, however proceeds from cashing out the 401k are not exempt. If the funds are in the 401k plan at the time of filing, they can later be withdrawn as long as the bankruptcy trustee has no objections to claiming them exempt. Trustee has certain time limits to file any objection. As to quitting employment, it all depends upon a number of issues. First is you must meet the means test which is based on the average monthly gross over the past six months. Second issue is if your net income exceeds your reasonable monthly expenses, the trustee can file objection that a chapter 7 plan is filed in bad faith and move to dismiss or request you convert to a Chapter 13 plan. Thus if it is proven that you quit your employment specifically to be eligible to file a chapter 7, then trustee could possibly file objection and request for dismissal on the grounds of bad faith filing.
    Answer Applies to: California
    Replied: 11/3/2014
    Eranthe Law Firm
    Eranthe Law Firm | Cate Eranthe
    You are raising many complicated issues beyond that of an online Q&A. There could be serious legal and tax ramifications to his actions.
    Answer Applies to: California
    Replied: 11/3/2014
    Rosenberg & Press
    Rosenberg & Press | Max L. Rosenberg
    You have a lot of questions. It may be as simple as doing the bankruptcy and attending the 341 meeting and being able to move, but you should really sit down with a lawyer and talk about all of your issues. I would be happy to sit with you and meet with you.
    Answer Applies to: Connecticut
    Replied: 11/3/2014
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