Credit Counseling in Bankruptcy Proceedings

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The U.S. Bankruptcy Code requires individuals to complete a “credit counseling course” before that individual can file for bankruptcy. The course must be completed within 180 days before the bankruptcy petition is filed.  A debtor must also complete a debtor education course as well, after the bankruptcy petition is filed 

The courses are provided by private companies and there are numerous options available that make taking the course convenient. You can take the course  online, over the telephone, or in person. The costs vary from $15 – $50, depending on which agency provides the counseling. You can find a list of approved agencies here.

Typically, you will want to wait until directed by your attorney before completing your pre-filing counseling. Sometimes, it is in your best interest to wait before filing your bankruptcy, and the waiting period might put you outside the 180-day window.  

During the counseling session, the counseling agency will help you prepare a budget based on your income and expenses and then review your options for repaying the debt. In most cases, the agency verifies that you do not have any realistic options for dealing with the debt other than filing for bankruptcy. You will also receive a certificate of completion, which will need to be filed along with your other bankruptcy documents. 

The time required to complete the courses can vary depending on the individual taking the course and which agency is providing the courseHowever, as a rough estimate, the online pre-filing counseling takes approximately one or two hours to complete, and the post-filing counseling can take approximately two hours. 

At Idaho Bankruptcy Center, we would be happy to assist you in learning about bankruptcy and fulfilling the steps necessary to file. We will also help you ascertain whether bankruptcy is right for your situation. You will need the assistance of a lawyer to file a bankruptcy, and it will be easier for you to engage one early on. 

Members of an LLC filing for Bankruptcy

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What happens to ownership of a limited liability company when a member files for bankruptcy?

When a member of an LLC files bankruptcy, it not only affects that member but it could also affect the remaining members and the LLC itself.

Limited liability companies are governed by the Uniform Limited Liability Company Act, Idaho Code § 30-25-101, et seq. A member’s transferable interest in a limited liability company is personal property. Idaho Code § 30-25-501. The Bankruptcy Code defines “property of the estate” as “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). Therefore, membership interests in an LLC may be property of the estate in the event an individual member files for bankruptcy. See In re A-Z Electronics, LLC, 350 B.R. 886 (Bkrtcy.D.Idaho 2006).

Since the member’s interest is included in the bankruptcy estate, what rights do the Trustee have in relation to those transferred interests? Idaho Code § 30-25-502 dictates the transfer of transferable interests:

  • Subject to section 30-25-503(f), Idaho Code, a transfer, in whole or in part, of a transferable interest:
  • Is permissible, except the transfer of a transferable interest in a professional entity is not permissible without compliance with section 30-21-901(i), Idaho Code;
  • Does not by itself cause a member’s dissociation or a dissolution and winding up of the limited liability company’s activities and affairs; and
  • Subject to section 30-25-504, Idaho Code, does not entitle the transferee to:
  • Participate in the management or conduct of the company’s activities and affairs; or
  • Except as otherwise provided in subsection (c) of this section, have access to records or other information concerning the company’s activities and affairs.
  • A transferee has the right to receive, in accordance with the transfer, distributions to which the transferor would otherwise be entitled.

As it appears in the Idaho Code, it seems easy enough to understand that the transfer of the debtor’s membership is merely economic in nature (membership interest and its value), excluding non-economic rights, i.e. voting rights. Thus, the Trustee may only having rights to receive distributions. However, in In re A-Z Electronics, LLC, the Court held:

What becomes property of the estate when a member of an LLC files bankruptcy depends on the facts. In In re Garrison-Ashburn, L.C., 253 B.R. 700 (Bankr.E.D.Va.2000), the court considered the impact of the bankruptcy filing of a 50% member in an LLC. Id. at 704-708. It observed that such a member-debtor’s ‘economic rights’ (the membership interest and its value) fall squarely within § 541(a)(1), but so, too, do his ‘non-economic rights’ (such as the ability to participate in management) because § 541(a)(1) is so broadly—and intentionally—drafted. Id. at 707-08.

However, In re Albright, 291 B.R. 538 (Bankr.D.Colo.2003), illustrates the difference between a single-member LLC and a multi-member LLC. It found that where ‘there are no other members in the LLC, … the Debtor’s bankruptcy filing effectively assigned her entire membership interest in the LLC to the bankruptcy estate, and the Trustee obtain all her rights, including the right to control the management of the LLC.’ 291 B.R. at 540. The right to control (and not just ‘participate’ in) management is significant. ‘Because the Trustee became the sole member of [the] LLC upon the Debtor’s bankruptcy filing, the Trustee now controls, directly or indirectly, all governance of that entity, including decisions regarding liquidation of the entity’s assets.’ 291 B.R. at 541.

350 B.R. 886 (Bankr. D. Idaho 2006). See Memorandum of Decision Case No. 03-04278-TLM.

Protect your limited liability company. Operating agreements may address these situations, members may meet to discuss these concerns or members may just run the risk of fellow members filing for bankruptcy.

If you are deciding whether to form a limited liability company, think about how a member’s choice in filing for bankruptcy could impact that interest and find ways to protect the other members and their interests. Do what you can to protect your LLC.

Contact an Attorney at Idaho Bankruptcy Center by Calling (208) 392-1551

New Exemptions for Debtors

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Changes in Idaho Code Section 11-605 and 55-1003 Exemptions:

Under Idaho Code Sections 11-605 and 55-1003, the State of Idaho provides a list of exemptions for debtors. An exemption means that a creditor cannot collect on the exempt asset in a collection’s lawsuit; and a bankruptcy trustee cannot sell the asset to pay creditors if the debtor files for bankruptcy protection. The dollar amount limit on each category means that the debtor can keep the exempt asset if it is not worth more that the dollar amount listed in the statute.

The Idaho Legislature passed HOUSE BILL 464 which made the following changes to the above sections of the Idaho Code:

  • C. 11-605(1): Increased the exemption for household belongings from $750 to $1000 for any one item, and $7,500 total.
  • C. 11-605(3): Increased exemption for implements, professional books, business equipment and tools of the trade from $2,500 to $10,000.
  • C. 11-605(3): Increased exemption for one (1) motor vehicle from $7,000 to $10,000.
  • C. 11-605(7): Increased the exemption for one (1) water right from $750 to $1,500.
  • C. 11-605(8): Increased the exemption for one (1) firearm from $750 to $1,500.
  • C. 11-605(10): Increased an individual exemption in any tangible personal property (“wildcard exemption”) from $800 to $1,500.
  • C. 11-605(11): Increase the exemption for unpaid disposable earnings from $1,500 to $2,500.
  • C. 55-1003: Increased the homestead exemption from $100,000 to $175,000.

If you are being harassed by creditors and need assistance either defending against a creditor’s claims or filing bankruptcy, please contact the experienced attorneys at Idaho Bankruptcy Center for a consultation.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.