South Dakota Bankruptcy Attorney
Filing Bankruptcy may be able to eliminate your debt entirely through Chapter 7 or Chapter 13 Bankruptcy . Use our free confidential legal evaluation tool to see if bankruptcy or bankruptcy alternative is the best choice for you.
Our South Dakota attorneys are from well-established bankruptcy law firms that deal exclusively in consumer debt. We have helped many people just like you get out from under the burden of excessive debt and we can help you too.
Don't wait any longer; take the first step by speaking to one of our bankruptcy lawyers near your home in South Dakota.
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Filing Chapter 7 Bankruptcy in South Dakota
In 2005, the Bankruptcy Prevention and Consumer Protection Act (BAPCA), made it more difficult to file Chapter 7 Bankruptcy. The BAPCA requires individuals to take a credit counseling course before they can file bankruptcy, a financial management course prior to the discharging of the debt and pass an income test. The goal of the legislation was to require more individuals to repay a portion or all of their debt by filing Chapter 13 Bankruptcy.
Chapter 7 Bankruptcy is the most common, easiest and least expensive type of bankruptcy. If you live in South Dakota and qualify for Chapter 7 Bankruptcy, most of your unsecured debt can be discharged with in 4 to 6 months. A trustee is assigned by the appropriate bankruptcy court to liquidate your on-exempt assets and use the proceeds from the sale to pay your creditors. Federal bankruptcy laws will assign a priority rating to your creditors and they will be paid according to their priority. Individuals, partnerships, married couples and corporations all may qualify to file Chapter 7 Bankruptcy.
One of the main changes in the BAPCA is requiring individuals to pass an income test to file Chapter 7 Bankruptcy. This test will review your median income and compare it to other similar sized families in the state of South Dakota. If your median income is less than other families in the state, you can probably file Chapter 7 Bankruptcy. If however, your median income is above the other families in South Dakota, you have to complete additional means testing.
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Bankruptcy Means Testing in South Dakota
Means testing is used to gage the amount of disposable income you have after certain expenses are deducted to pay your debt obligations. To determine your disposable income the formula will take your average income over the last six months and subtract pre-determined expenses like your mortgage payment, taxes owed, child support, tuition (up to $1650) and car payments. If you can pay up to $6,000 or $100 per month toward debt over the next 60 months, you may not be able to file Chapter 7 Bankruptcy in South Dakota. If you can not do this, but you may be able to pay 25% of your disposable income toward debt payments in the next 60 months, you may not be able to file Chapter 7 Bankruptcy.
To determine your median income, you can review the state median data provided by the United States Trustee Program. This information is updated periodically. The South Dakota State Median, as March 15, 2009, for a single wage earner was $35,533 and for a family of two it was $51,068. For a family of three it was $58,135 and for a family of four it was $69,002.
The information provided above is general information and is not legal advice. A South Dakota Bankruptcy Attorney can review your specific assets and debts and help your determine if you can file Chapter 7 Bankruptcy.
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Filing Chapter 13 Bankruptcy in South Dakota
Many individuals will not be able to file Chapter 7 Bankruptcy. If you can not file Chapter 7 Bankruptcy due to your income levels or if you have assets that you do not want to liquidate, filing Chapter 13 Bankruptcy may be a good option for you. Chapter 13 Bankruptcy will not discharge your unsecured debt immediately, but will allow you to develop a three to five year repayment plan to discharge most of your unsecured debt with in that time frame. Chapter 13 Bankruptcy does have some benefits including the ability to stop a home foreclosure, wage garnishment, creditor calls and property repossession.
Under Chapter 13 Bankruptcy a trustee will be assigned to your bankruptcy case and that trustee will work with you to manager your debt repayment. Your creditors must work with your trustee with in the structure of your debt payment plan to collect debt payments. The debt repayment plan is managed by the trustee and monitored by the bankruptcy court.
With current bankruptcy law, filing bankruptcy has gotten more complicated. Prior to filing Chapter 13 Bankruptcy, you may want to contact a South Dakota Bankruptcy Attorney who can help you file your Chapter 13 Bankruptcy petition and schedules, organize your debt repayment plan and make court appearances for you. A South Dakota Bankruptcy Lawyer will also perform the income testing to determine if you can file Chapter 7 or Chapter 13 Bankruptcy.
Under current federal bankruptcy law, certain assets or property may be exempt from the bankruptcy process. Exemptions are outlined at the federal level, but some states have created their own exemption lists. You may be able to choose your state exemptions or the federal exemptions. In other states you can only choose the state exemptions.
In the state of South Dakota, you can only use the South Dakota State Exemptions and the federal exemptions are not allowed.
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Debts Not Discharged in South Dakota Bankruptcy Cases
If you are filing Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, it is important to realize that not all debt will be considered dischargeable. Federal Bankruptcy law outlines what debt is considered dischargeable and this debt is the same in all states, including South Dakota.
Talk to a South Dakota Bankruptcy Attorney prior to filing bankruptcy to determine what type of debt you have which may not be dischargeable. Failure to pay non-dischargeable debt obligations will allow your creditors to continue their debt collection efforts.
In the state of South Dakota, the following debt is not dischargeable by filing bankruptcy:
- -Federal, state and local taxes. May be subject to specific time rules.
- -Spousal Support/Alimony
- -Child Support Payments
- -Most Student Loans
- -Mortgage Liens
- -Certain types of purchases for luxury items within 90 days of filing
- -Secure Debt
- -Penalties and fines by government agencies
- -Fraud committed in a fiduciary role including larceny and embezzlement
- -Punitive damages assessed for "willful and malicious acts"
- -Debts not outlined on the schedule and forms filed with the Bankruptcy Court
- -Drunk Driving fines
- -Certain cash advances or purchases for luxury items with in a certain time frame.
Means Test - as defined in our Bankruptcy Glossary
Bankruptcy Court - as defined in our Bankruptcy Glossary
Reestablishing Credit After Bankruptcy - Steps to Reestablish Your Credit
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Related Pages
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