Bankruptcy FAQ

Our Monmouth County bankruptcy attorneys have years of handling bankruptcy cases. There are many things to consider when filing bankruptcy. Therefore, it is important that you have competent legal counsel guide you when filing. Our Monmouth county bankruptcy lawyers can help you decide which chapter to file under the Bankruptcy Code. Which exemptions should be used to help you maintain protected assets. These are just a few among many other important financial decisions which must be made when filing for bankruptcy.

1. MY BILLS MUST BE DELINQUENT, THE CREDITORS MUST BE CALLING, AND I MUST BE BROKE TO FILE BANKRUPTCY.

This is FALSE. If your bills are beginning to create anxiety and you see that you will not have the ability to pay them in the future, you do not have to wait until it is you are seriously delinquent and the creditors are chomping at your ankles. With a proper consultation with a bankruptcy attorney and good planning, you can avoid the stress of the lawsuits, judgments and wage garnishments that creditors will use to collect. You will also be able to protect your assets and avoid liquidating them trying to pay your bills.

2. I WILL LOSE MY HOME IF I FILE BANKRUPTCY.

This is FALSE. If you have a mortgage in place and can afford to pay that mortgage, there is no reason the bank will try to take your home. If you have equity in your home in excess of the mortgage, each state has different levels of protection for homes. New Jersey doesn’t have a state exemption but you can elect the federal exemption which is $20,200 of equity per homeowner ($40,400 of equity for married couples).

3. MY CREDIT WILL BE RUINED IF I FILE FOR BANKRUPTCY AND MY CREDIT SCORE WILL PLUMMET.

This is FALSE. If you are in a late on your bills or have your credit cards maxed out, your credit score probably has already been dragged down significantly. The exact measure of a credit score is unknown, but just having too much credit outstanding (your debt to credit ratio) even if current can reduce your credit score.

In fact, after a bankruptcy discharge you are a much better credit risk than just about anyone else, creditors will consider the following:

  • You have a clean financial slate.
  • You most likely have little or no remaining unsecured debt
  • You have just completed two course –one on credit counseling and the second on financial management
  • You have just put together a household budget and have used the bankruptcy process to strip the unaffordable debt from your budget
  • You understand clearly the implications of poor credit management
  • You can’t file another Chapter 7 for 8 years

 

4. EMPLOYERS WON’T HIRE ME AND I WON’T BE ABLE TO RENT AN APARTMENT IF I FILE BANKRUPTCY.

This is FALSE. Employers do not like to have employees that will be distracted by creditors and their collection tactics at the workplace or at home, because then the employee is unfocused and anxious about their financial situation. Neither does the employer want to deal with the extra accounting caused by wage executions. Furthermore, landlords prefer tenants who can use their salary to pay rent, not those paying creditors instead.

5. IF I KNOW I AM GOING TO FILE BANKRUPTCY, I MIGHT AS WELL MAX OUT MY CREDIT CARDS.

This is FALSE. Recent large purchases of more than $550 for luxury goods bought within 90 days of filing and cash advances of $825 within 70 days of filing will stick with you and won’t be discharged. This type of activity could result in criminal charges against you. Maxing out those cards will only create more problems in your bankruptcy filing and may lead to a dismissal of your case. Bankruptcy is not meant as a way to deceive the creditors and instead for the debtor who is trying to get a fresh start.

6. I SHOULD DO EVERYTHING I CAN TO AVOID BANKRUPTCY; INCLUDING LIQUIDATING ASSETS AND CASHING IN MY 401K OR OTHER RETIREMENT FUNDS.

This is FALSE. Retirement funds are one of the untouchables, meaning they are protected in bankruptcy. If you decide to draw upon your retirement funds prematurely to pay creditors you will face taxes and penalties on those retirement withdrawals, by the IRS, if not repaid. You should consult with a bankruptcy attorney for a consultation to see what assets of yours will and can be protected in a bankruptcy filing.

7. MY IMMIGRATION STATUS WILL BE AFFECTED AND I WILL NOT BE CONSIDERED FOR CITIZENSHIP.

This is FALSE. Filing bankruptcy is NOT a crime and will NOT affect your Green Card or application for citizenship.

8. MY FAMILY, NEIGHBORS AND EVERYONE WILL KNOW THAT I FILED FOR BANKRUPTCY, THERE IS NO PRIVACY!

This is FALSE. Although the U.S. Bankruptcy Court records are public aside from someone really looking for your records, people are not concerned enough to uncover your bankruptcy. Over 2 million people filed for bankruptcy in 2005 and 2009 is looking to be close. In these tough economic times you probably know someone who has filed for bankruptcy and just don’t know it.

Here are some people that filed bankruptcy in the past and you probably never knew

  • Abraham Lincoln (16th President of the United States)
  • Walt Disney (Oscar – winning film producer, animation & theme park pioneer (1923))
  • Donald Trump (Billionaire entrepreneur)

9. THOSE DEBT MANAGEMENT PLANS ADVERTISED ON TV AND RADIO REALLY WORK!

This is FALSE. Remember that these companies are only middlemen and even though you pay the credit counseling agency, your relationship is still with your creditors. These companies rely on employees to get payments in on time; they make mistakes, prompting more fees and penalties by the creditors. Most people are vulnerable to a positive outlook by these debt counselors about their finances. Unfortunately there are not always truthful and things don’t always get better. Check out this post about Debt Management Plans.

10. I WILL HAVE TO PAY ALL MY CREDITORS BACK SOME DAY, SO WHY FILE BANKRUPTCY?

This is FALSE. In A Chapter 7 case, debts are discharged (wiped-out) except certain taxes, child support/alimony and student loans, for example. In Chapter 13, you pay according to what you can afford over a period of time. If you are saving house, most of your payments will be going to that prearrange.

11. I HAVE FAILED IF I FILE FOR BANKRUPTCY.

This is FALSE. There’s more than meets the eye with bankruptcy. Empirical evidence shows that bankruptcies are generally caused BY HEALTH PROBLEMS (excessive medical bills), INCOME LOSS (loss of employment) and FAMILY PROBLEMS. These are nearly the same things that cause foreclosures, divorce and many other of the problems we face in life.

12. I CAN’T AFFORD TO FILE BANKRUPTCY.

This is FALSE. You can’t afford not to file bankruptcy in some cases. As previously mentioned, even Donald Trump has been involved with corporations that have filed bankruptcy. Smart and business savvy people file to save themselves from a TOTAL loss. Spending what may seem like a lot of money today can save you much more in the future. Most bankruptcy attorneys have payment plans. A consumer bankruptcy attorney will show you how to free up money in your budget to allow you to pay the fees to file the case. In Chapter 13 part of the fees can be paid through the budget plan.

There is no magic formula for deciding when bankruptcy is the right choice. It is an option you might consider if you:

  • Are paying only minimum amounts on your bills
  • Can’t budget yourself out of debt within five years
  • Are getting notices that your mortgage or loans are being foreclosed
  • Have had a severe financial setback, such as losing your job or a major client, a divorce or a costly illness

Bankruptcy does not get rid of all debts. You are still responsible for:

  • Alimony
  • Child support
  • Most recent back taxes
  • Most student loans
  • Recent large purchases of more than $550 for luxury goods bought
    within 90 days of filing
  • Fines or penalties of government agencies
  • Fraudulent debts
  • Cash advances of $825 within 70 days of filing

As a consumer, you can file for bankruptcy in New Jersey under either:

  • Chapter 7 (Straight Bankruptcy) to wipe out all debts except those listed and get an immediate fresh start or
  • Chapter 13 (Wage Earner Bankruptcy) to set up a repayment plan to pay back your debts over several years’ time.

There is no limit on the number of bankruptcy cases that a petitioner may file. In fact, there is no limit in between time frames to file bankruptcy. You must however have sufficient time between filings in order to be eligible for a “discharge.”

So if a bankruptcy case is filed prematurely, although it will not be dismissed, a discharge will most likely not be an option. So why file with no discharge available? Here are a few situations where the creditor can still use bankruptcy as a shield:

Where a debtor wants to eliminate their debt in a subsequent chapter 7 and has sufficient assets to do so, filing again could provide this result.
Where a debtor has an unliquidated asset(s) (lawsuit, insurance claim, etc) and wants to use that to pay creditors, filing another chapter 7, the debtor can then let the trustee liquidate the asset(s) into dollars, who will then pay the debtors with the converted cash.
Where a debtor recently filed a chapter 7 and has remaining non-dischargeable debts. The debtor could then file a subsequent chapter 13 and be protected for the next 5 years against wage garnishment, lawsuits, foreclosure, etc. Although, after 5 years there will be no discharge, at this time the debtor might be eligible to eliminate the debt in another chapter 7 or 13.
The time frames between discharge eligibility are as follows:

8 years between chapter 7’s. US BANKRUPTCY CODE 727(a)(8)
2 years between chapter 13’s. US BANKRUPTCY CODE 1328(f)(2)
4 years between a chapter 7 and chapter 13 US BANKRUPTCY CODE 1328(f)(1)
6 years between a chapter 13 and chapter 7(if under 70% plan). US BANKRUPTCY CODE 727(a)(9)
The time is counted from filing to filing not from first discharge to second filing.

As you can see a discharge is not always an option due to time provisions but bankruptcy may still be good debt relief and management. Creative filing techniques and good knowledge of the bankruptcy code will allow an attorney to get the debt relief you need.

8 Years Before debtor files for bankruptcy

Prior bankruptcy prevents Chapter 7 discharge

A debtor cannot receiving a discharge under Chapter 7 if he or she received a discharge in a Chapter 7 or Chapter 11 bankruptcy which was filed within 8 years before the present case is filed. [11 U.S.C. § 727(a)(8)]

6 Years Before debtor files for bankruptcy

Prior bankruptcy prevents Chapter 7 discharge

A debtor cannot receive a discharge under Chapter 7 if he or she received a discharge in a Chapter 12 or Chapter 13 bankruptcy which was filed within 6 years before the present case is filed. [11 U.S.C. § 727(a)(9)]

4 Years Before debtor files for bankruptcy

Prior bankruptcy prevents Chapter 13 discharge

A debtor cannot receive a discharge under Chapter 13 if he or she received a discharge in a Chapter 7, Chapter 11 or Chapter 12 bankruptcy which was filed within 4 years before the present case is filed. [11 U.S.C. § 1328(f)(1)]

Note: In some circumstances a Chapter 13 may be of significant benefit even if a discharge will not be received.

3 Years Before debtor files for bankruptcy

Taxes on returns due not discharged in Chapter 7

Taxes based on income or gross receipts for which a return (if required) was due within 3 years prior to the filing of the petition are not discharged in Chapter 7. [11 USC §523(a)(1)(A)] The date due includes any extensions, i.e., if the April 15 due date for income tax is extended to October 15 the later date will be used determining if the 3 year period has been passed. [11 USC §507(a)(8)(A)(i)] The 3 year period may be extended by any time in a bankruptcy plus an additional 6 months. [11 USC §108(c), 26 USC 6503(h), IRC 6503(h)]

Penalties for taxes not discharged (above), tax penalties regarding a transaction within 3 years of filing, and government fines and forfeitures are not discharged. [11 USC §727(b)] [11 USC §523(a)(7)]

Debt incurred to pay taxes not discharged (above) are not discharged. [11 USC §727(b)] [11 USC §523(a)(14), (14A))]

2 Years Before debtor files for bankruptcy

Prior bankruptcy prevents Chapter 13 discharge

A debtor cannot receive a discharge under Chapter 13 if he or she received a discharge in a Chapter 13 which was filed within 2 years before the present case is filed. [11 U.S.C. § 1328(f)(2)]

Note: In some circumstances a Chapter 13 may be of significant benefit even if a discharge will not be received.

Taxes on returns filed late not discharged in Chapter 7

Taxes for which returns (if required) were not filed or were filed within 2 years of the filing of the petition. [11 USC §727(b), 11 USC §523(a)(1)(B)(2)]

Penalties for taxes not discharged (above), are not discharged. [11 USC §727(b)] [11 USC §523(a)(7)]

Debt incurred to pay taxes not discharged (above) are not discharged. [11 USC §727(b)] [11 USC §523(a)(14), (14A)]

Transfers & obligations to hinder, delay, or defraud or done when insolvent set aside

The Trustee may recover property the debtor transferred and avoid obligations the debtor incurred which were done within 2 years before the bankruptcy, if the transfer or obligation were undertaken with the intent to hinder, delay, or defraud any entity, or when the debtor was insolvent. [11 U.S.C. §548(a)(1)]

1 Year Before debtor files for bankruptcy

Transfer, concealment or destruction of property prevents discharge in Chapter 7

The court may deny a discharge of all debt if the debtor attempted to hinder, delay or defraud a creditor through the transfer, removal, destruction, mutilation, or concealment property within one year prior to the Chapter 7 bankruptcy. [11 USC §727(a)(2)]

Payment to relative or insider is a Preference

A total of $600 or more in money or property which is paid to a creditor that is a relative or insider (certain business associates) within a year prior to filing is a preference. The Trustee may recover preferences and divide the money between all creditors. (In Chapter 13, the debtor may be able to prevent the Trustee from going after the relative by increasing the amount paid into the plan.) [11 USC §547(b)(4)(B), 11 USC §547(c)(8), 11 USC §101(31)]

 

240 Days Before debtor files for bankruptcy

Taxes assessed not discharged in Chapter 7

Taxes assessed within 240 days prior to the filing of the petition are not discharged in Chapter 7. [ 11 USC §523(a)(1)(A)] If an offer in compromise was pending, the 240 days will be extended by the days that it was pending, plus 30 days. If a stay against collections was in effect under a prior bankruptcy, the 240 days will be extended for the time collection was stayed plus 90 days. [11 USC §507(a)(8)(A)(ii)]

Penalties for taxes not discharged (above), are not discharged. [11 USC §727(b)] [11 USC §523(a)(7)]

Debt incurred to pay taxes not discharged (above) are not discharged. [11 USC §727(b)] [11 USC §523(a)(14), (14A)]

180 Days Before debtor files for bankruptcy

Dismissal of prior bankruptcy prevents filing Chapter 7 or 13.

The debtor may not file any bankruptcy if he or she filed a previous bankruptcy which was dismissed in the preceding 180 days either (1) on the court’s order because of your willful failure to obey orders of the court or to appear in court when required; or (2) at the debtor’s request after the filing of a request for relief from the automatic stay. [11 U.S.C. § 109(g)]

90 Days Before debtor files for bankruptcy

Minimum state residency requirement

The debtor must have resided in the state where the bankrupctcy is filed for the 90 days preceding the filing. If the debtor has not resided in the state that long, the debtor must file in the state where he or she has resided, or has had his or her principal place of business or which has been the location of his or her principal assets for the majority of the last 180 days. [28 USC §1408]

Payment to creditor is a preference

A total of $600 or more in money or property which is paid to a creditor within 90 days prior to filing is a preference. The Trustee may recover preferences and divide the money between all creditors. (In Chapter 13, the debtor may be able to prevent the trustee from going after the creditor by increasing the amount paid into the plan.) [11 USC §547(b)(4)(B), 11 USC §547(c)(8), 11 USC §101(31)]

Consumer debt presumed to be nondischargeable

Consumer debts owed to a single creditor and aggregating more than $550 for luxury goods or services incurred by an individual debtor on or within 90 days before the bankruptcy is filed are presumed to be nondischargeable in Chapter 7. [11 USC §523(a)(2)(C)(i)(I), 11 USC §1328(b)]

Communication by creditor requires specific case notice to specific address

Communication from creditor to the debtor within the 90 days before the bankruptcy, requires use of specific address creditor has given in bankruptcy notices. [11 USC §523(a)(2)(C)(i)(I)]

70 Days Before debtor files for bankruptcy

Debt presumed to be nondischargeable

Cash advances aggregating more than $750 (added by BAPCPA 10-17-05) that are extensions of consumer credit under an open end credit plan obtained by an individual debtor on or within 70 days before the bankruptcy are presumed to be nondischargeable. [11 USC §523(a)(2)(C)(i)(II), 11 USC §1328(b)]

Bankruptcy Filed

Commencement of Case

A voluntary bankruptcy is commenced when you file a petition with the Bankruptcy Court requesting protection from your creditors under Chapter 7 or Chapter 13. A husband and wife may file one petition together and commence a joint case. [11 USC §301, 11 USC §302, 11 USC §101(42)]

The filing also puts a stay under 11 USC §362 into effect prohibiting collection actions.

Within 15 Days After debtor files for bankruptcy

Chapter 13: Plan must be filed

In Chapter 13, the Plan must also be filed within 15 days after the Bankruptcy was filed. The plan provides for submission of future income and the treatment of creditors, specifying when and how much each kind of creditor will receive. [Rule 3015(b) FRBP]

Schedules must be filed

In both Chapter 7 and Chapter 13, schedules of assets and liabilities, a schedule of current income and expenditures, a schedule of executory contracts and unexpired leases, and a statement of financial affairs must be filed within 15 days after the bankruptcy was filed. [11 USC §521(a)(1), Rule 1007(b), (c) FRBP]

About 18 Days After debtor files for bankruptcy

Court Mails Notice of Commencement of Case

Approximately 18 days after the bankruptcy is filed, the court mails a Notice of Commencement of Case to the debtor and to the creditors included in the list of creditors. The notice contains meeting date, deadlines for objections to discharge and for filing Proofs of Claims.

The court’s Automated Information Line provides much of this information almost immediately after the bankruptcy is filed.

30 Days After debtor files for bankruptcy

Chapter 7: Statement of Intention regarding secured debt must be filed

Within 30 days after a Chapter 7 has been filed (or before the § 341 meeting if that is earlier), the debtor must file a Statement of Intention regarding property secured by consumer debt. That statement shall indicate whether the debtor intend to: (1) reaffirm the debt and continue to make the payments remaining obligated for the balance of the debt, (2) redeem the property by immediately paying the value of the property, or (3) surrender the property. [11 U.S.C. § 521(2)(A); Rule 1007(b)(2) FRBP]

A copy of the Statement of Intention must be served on the trustee and the creditors named in the statement on or before the filing of the statement. [Rule 1007(b)(2) FRBP

Chapter 13: Plan payment due.

Depending on local rules, the debtor or his attorney must mail a copy of the Chapter 13 Plan to all creditors within a specified time.

7 Days Before Meeting of Creditors “341A Meeting”

Provide copies of tax returns

Not later than 7 days before the date first set for the first meeting of creditors, the debtor shall provide a copy of the debtor’s most recent Federal income tax return to the trustee and to any creditors that have requested it. [11 U.S.C. § 521(e)(2)]

About 6 Weeks After debtor files for bankruptcy

§ 341 Meeting (Creditor’s Meeting)

Section 341 (the symbol “§” means section) of the Bankruptcy code requires the Trustee to preside at a meeting of creditors within a “reasonable time” after the filing of the bankruptcy. [11 USC §341]

This meeting is usually held approximately six weeks after Bankruptcy is filed. The meeting time and date is included in the Notice of Commencement of Case mailed by the court, and is available on the court’s Automated Information Lineshortly after the case is filed.

Each debtor is required to attend this meeting and testify under oath, but most creditors do not come to the meeting. The failure of creditors to attend the meeting does not affect their right to challenge the discharge in a Chapter 7 or to object to the plan in a Chapter 13. If the debtor does not attend, the case will be dismissed.

30 Days After Meeting of Creditors “341A Meeting”

Deadline to file objection to claim of exemption

If the Trustee or other party of interest objects to the debtor’s claim of exempt property, they must their objection within 30 days after the 341 meeting. [Rule 4003(b) FRBP]

Chapter 7: Debtor must perform under the Statement of Intention

In Chapter 7, the debtor must perform under the Statement of Intention, and (1) reaffirm the secured debt and continue to make the payments remaining obligated for the balance of the debt, (2) redeem the property by immediately paying the value of the property, or (3) surrendering the property. [11 U.S.C. § 521(a)(2)(B); but 11 U.S.C. § 521(a)(6)appears to specify a time of 45 days after the meeting for the same action]

60 Days After Meeting of Creditors “341A Meeting”

Chapter 7: Deadline for objection to discharge of a particular debt under §523(c)

Creditors have until 60 days after the first date set for 341 meeting to file a complaint under 11 U.S.C. § 523(c). That section allows creditors to object to the discharge of debts which were obtained by false pretenses, a false representation, or actual fraud; debt from fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny; and debt for willful and malicious injury. [Rule 4007(c) FRBP]

This deadline applies to objections to discharge of:

Consumer debts owed to a single creditor and aggregating more than $500 (added by BAPCPA 10-17-05) for luxury goods or services incurred by an individual debtor on or within 90 days before a Chapter 7 bankruptcy [11 USC §523(a)(2)(C)(i)(I), 11 USC §1328(b)], and

Consumer debts owed to a single creditor and aggregating more than $500 (added by BAPCPA 10-17-05) for luxury goods or services incurred by an individual debtor on or within 90 days before the bankruptcy is filed are presumed to be nondischargeable in Chapter 7. [11 USC §523(a)(2)(C)(i)(I), 11 USC §1328(b)]

Chapter 7: Deadline for objection to discharge of all debt under §727(a)

Creditors have until 60 days after the first date set for 341 meeting to file a complaint under 11 U.S.C. § 727(a). That section allows object to the discharge of all debts because of misconduct including transfer, destruction or concealment of property; concealment, destruction, falsification or failure to keep financial records; making false statements; withholding information; failing to explain losses; failure to respond to material questions; having received a discharge in a prior case filed within the last 6 years. [Rule 4004(a) FRBP]

Chapter 7: Deadline for U.S. Trustee or court to move to dismiss case for “substantial abuse” under §707(b)

Until 60 days after the first date set for the 341 meeting, the U.S. Trustee or the court may move to dismiss a case in which debts are primarily consumer debts if it finds that the granting of relief would be a “substantial abuse” of the provisions of Chapter 7. [Rule 1017(e) FRBP]

“Substantial abuse” was expanded by the Bankruptcy Reform Act, which went into effect on October 17, 2005, to include a Means Test which allows Chapter 7 only if a debtor has less income than the median for the state of residence, or can pay less than 25% of his or her unsecured debt from income remaining after meeting expenses over a 5 year period. [11 USC §707(b)]

More than 60 Days After Meeting of Creditors “341A Meeting”

Discharge entered in Chapter 7 case

Court rules require that the discharge be entered “forthwith” after the expiration of the time for objecting to discharge or moving to dismiss the case. The time for those objections expires 60 days after the first date set for creditor’s meeting. [Rule 4004(c)(1) FRBP, Rule 4004(a) FRBP, Rule 1017(e) FRBP]

The discharge is not absolute or final. The Trustee can ask that the discharge be set aside if the debtor does not turn over non-exempt property, if the debtor fails to perform other duties, or if there were other matters pending which would result in the denial of the discharge.

90 Days After Meeting of Creditors “341A Meeting”

Deadline for non-government creditors to file their Proofs of Claim

A creditor, other than a governmental unit, must file its Proof of Claim within 90 days after the first date set for creditor’s 341 meeting in order to share in payments from the estate. [Rule 3002(c) FRBP]

120 Days After debtor files for bankruptcy

Final payment on filing fees due

If the Court allowed the debtor to pay the filing fees for a Chapter 7 or Chapter 13 in payments, the final payment must be made within 120 days after the filing of the bankruptcy. [Rule 1002(b) FRBP]

180 Days After debtor files for bankruptcy

Deadline for governmental unit to file Proof of Claim

A governmental unit, such as the Internal Revenue Service, must file its Proof of Claim within 180 days after the commencement of the case in order to share in payments from the estate. [Rule 3002(c)(1) FRBP]

3 to 5 Years After First Plan Payment

Length of payments under Chapter 13 Plan

Unless all allowed claims are paid sooner, plan payments must continue for a minimum of the three-year period beginning on the date that the first payment is due under the plan, or a maximum of a five year period. [11 USC §1325(b)(1), 11 USC §1322(d)]

Discharge entered in Chapter 13

Upon completion of plan payments the discharge in Chapter 13 is entered. [11 USC §1328]

Personal Injury FAQ

As soon as possible, call Riviere Cresci & Singer LLC. Injury case consultations are always free of charge. When you are injured, whether it’s an auto accident, slip and fall, work related accident, or other injury matter insurance companies immediately begin to investigate, to build its defense and keep you from winning a recovery. If you wait longer than necessary to retain an attorney, it gives the insurance company more time to prepare a defense against your claim, one which can be protected and preserved with an attorney.

Our firm strongly advises that you do not speak to anyone from the insurance company until you speak to an attorney at this firm or another of your choice. After contacting our firm, we will be able to advise properly to protect your claim. Statements made to the insurance companies are frequently used against you at a later date, and may have a negative impact on your recovery. The insurance company has investigators looking to gather information from you to prevent you from obtaining a recovery later in a lawsuit. Investigators may at first seem friendly and advise you that they are trying to help you after an accident. Don’t let the insurance company or its employees mislead you, it in many cases is trying to minimize the payout that it is responsible for in connection with your accident. Call our firm and let us protect the settlement that you may be entitled to collect.

Always keep in mind that the insurance representative is exactly that, an insurance representative, there loyalty is not to you. It is to help the insurance company build there case and keep you from collecting money from the insurance company. So, don’t fall for the act when they are friendly and tell you its alright to talk with them, without first, seeking the advisement of an attorney. Obviously, insurance companies make more money when they are collecting premiums and not paying claims. Just let the insurance companies speak for themselves:

Don’t weaken your claim by making a statement or providing information that is beneficial to the insurance representative, claims specialist, or whomever you speak with at the insurance company. Get represented! Hire an attorney and get your claim on the right track to the recovery that you deserve. An attorney will be able to negotiate the best settlement for your case or take it trial if in your case it is necessary.

You can’t afford not to have an attorney! More likely than not, your case will be taken on a contingency basis. Contingency means: if there is no recovery for your injuries or damages, then you are not required to pay anything. A contingency fee is a percentage of the money this firm recovers for you. This type of fee arrangement was put in place by the courts, so that all accident victims can retain an experienced attorney and help them fight the insurance companies lawyers and doctors. While the percentage can vary depending on the circumstances of the case, especially where minors are involved, the fee is usually about one third of the net recovery.

In auto accident cases, your Personal Injury Protection otherwise commonly referred to as “PIP” covers your medical treatment. The insurance company cannot tell who what doctor to see; that choice remains yours. So you are free to choose your treating health care provider or doctor. In other kinds of injuries, such as ones involving your employer they may have the right to tell you which doctor you must see. Furthermore, in other types of injury cases you may have to choose a physicians depending on the type of health insurance you have. Our firm can review your set of circumstances and advise you in determining which route to take in seeking treatment.

They are not quick to pay and they will not be as long as the case or claim is on-going. However, “out of pocket” medical bills may be factored into the value of your case, a final evaluation and ultimately the settlement of your case.

Once again they are probably not going to as long as the case is on-going, but “out of pocket” wage loss and lost earning ability should also be factored into a final value evaluation and settlement of your case.

Unfortunately this is not the way it works and you will have to wait until your case is settled. At which time the “at-fault” insurance company pays, it will usually be a lump sum at the end of the case and it is final.

Personal injury settlements are final at which time you will be required to sign a full “general release” of all claims. The same applies after a jury has found for a verdict in your favor. There are however a number of exceptions to this and once again you should consult with an an attorney who can advise you in consideration of your particular set of circumstances. Structured settlements, are sometimes used to protect accident victims from the effects of latent injuries, which will pay you or your heirs damages periodically for the rest of your life and beyond.

Monies received for pain and suffering in a personal injury case is considered compensation for those injuries suffered, not a financial gain, and therefore awards in personal injury cases should almost always be tax-free.

No one case is the same; therefore each case has its own lifespan. Cases vary greatly based on a number of factors including: the nature and extent of your injuries, required medical treatment, time missed from work, the complexity of the case, the number of experts required, the number of parties involved, the court the case is filed in, the number of judges available to hear cases, motion practice and a host of other factors. However, it is safe to say, that the lifespan of most personal injury cases, is anywhere from 6 months to four years before completion. Often Riviere Cresci & Singer LLC., may attempt to settle your case before filing suit where feasible. Any attempt to settle will usually be attempted after an average of 4-6 months of regularly-scheduled medical treatment, which will end when the Doctor releases you at, Maximum Medical Improvement otherwise commonly referred to as MMI.

Not necessarily. In fact most cases never see the courtroom. Statistically speaking, 80-90% of lawsuits never go to trial. They are either settled, dismissed due to motion practice, or dismissed due to summary judgment.

If you are injured while working for your employer and it is your own fault, nobody’s fault, or the fault of your employer or coworkers, you can only recover through a Worker’s Compensation claim. Furthermore, by law you can’t be compensated for “pain and suffering” or other non-economic damages. However, if you are injured on the job due to the fault of a Third Party (such as another automobile driver with no employer-employee relationship with your Employer), then Riviere Cresci & Singer LLC., can file a Third Party claim and attempt to recover those damages that otherwise would not be recoverable, to include “pain and suffering.”

This is a question that is commonly posed by clients. As mentioned previously, no two cases are the same, and your recovery will be unique to your circumstances. There care certain factors that will allow a glimpse into how your recovery may be valued by the insurance company. These are the injuries or damages suffered compared to your amount of fault in the accident. Putting a value on cases at the outset is not something that attorneys can usually readily determine. It takes some time to for the attorney to look at the evidence at-hand, your injuries after being fully examined by medical professionals, as well as the defense presented by the other parties for a discernable amount to be determined.

A case is essentially a battle between stories. The plaintiff’s attorney tells his client’s story through the pleadings, motion practice or if it goes to trial, at trial. The attorney then supports that story with evidence in the form of witness testimony, medical testimony, photographs, videos, films, and other physical evidence.

Then, the defense attorney tells his side of the story in the same way. At the end, the case either settles based upon this evidence, or at the end of a trial, the jury is going to find in favor of the side with the most credible story. Jurors are smart, and they look for holes in the story. They look for lies and omissions. They like to reward honest people and punish liars.

The value of your case is dependent upon a number of factors, including:

  • the clarity of liability
  • the egregiousness of the defendant’s negligence
  • whether the plaintiff was also negligent and to what extent
  • the severity of the injuries, the amount of medical bills, lost wages, and other economic damages
  • the age of the plaintiff, the venue (location where the suit will be filed)
  • the plaintiff’s work history, the defendant’s character and mannerisms, the type of medical treatment the plaintiff receives
  • the plaintiff’s pre-existing conditions
  • the plaintiff’s criminal history
  • the defendant’s criminal history
  • the plaintiff’s claims history
  • the credibility of the parties
  • and a multitude of other factors

In the personal injury accident, “liens” or “subrogation liens” are an amount of money, hold or claim against your personal injury settlement or jury reward. These “liens” represent an amount of monies that have been paid to you as part of your accident. For example a medical lien is a formal written agreement between a patient and doctor. The doctor agrees to perform necessary medical treatments in return for a promise on the part of the injured patient to pay the bill once their personal injury claim is resolved. It is important to note that few doctors will agree to perform services on a lien basis unless the patient has retained an attorney. Having retained an attorney is a critical factor with medical liens, as the attorney will be the signatory to the lien agreement.

The attorney will act in a fiduciary capacity, or position of trust, to the doctor and protect his right to payment. A common misconception of the lien agreement is that the doctor’s payment is contingent on the outcome of the case. While it is common for attorneys to perform legal services on a contingent fee basis, doctors do not perform medical care dependent on the outcome of the personal injury case. The lien is simply the doctor’s agreement to await payment until the accident or injury case comes to an end. At such time the payment for medical services becomes due.

Other types of liens exist for benefits received that have helped you through your injury. If you had a workers compensation case and received benefits such as for temporary lost wages or medical treatment, and you settle a related personal injury case, the workers compensation insurance company will be entitled to a return of about 2/3 of what they paid out on your claim. This is commonly referred to as a “workers compensation lien”.

On that note, if you received medical benefits from the federal Medicare program for treatment of injuries sustained in an accident, and you settled a related accident lawsuit, Medicare will have a lien on that. This is commonly referred to as a “Medicare lien”.

Criminal Law

t is always in your best interest to consult a criminal defense lawyer as early as possible if you suspect you will be facing the criminal justice system. Whether or not you believe you have been wrongfully accused, an attorney will fight for your legal and constitutional rights and monitor the proceedings for legality and fairness. If you cannot afford an attorney, you may be eligible for free legal counsel.

If the police arrest you, immediately say to them “I want to speak to a Lawyer”. This immediately puts an end to any type of interrogation and will protect you from saying anything that might incriminate yourself. Even if you are innocent and were in no way involved in the crime for which you have been arrested, ask for an attorney and do not speak to the police without a criminal defense attorney present. Here is s list of other things you should not do:

  • Do Not Consent to a Search
  • Don’t Answer Questions Without Your Attorney Present
  • Do Not Be Hostile; Do Not Physically Resist
  • Do Not start Informing on Others Without Your Attorney Present

Most criminal defense lawyers will want to know your prior criminal history and what you expect from the case. They will review the facts of your case and spot the legal issues and defenses that may be available. They will lay out the legal process in court and what to expect over the next few weeks/months. Most criminal defense lawyers will assess your likelihood of success and variables such as the experience of the police officers involved, the judge and the prosecutors.

If you have the police report, bring it. Bring any court papers the case you are facing, as well as, any prior cases. Bring anything that you think is important to your case!

Most lawyers will require a “retainer”, or down-payment, to begin a criminal case. Often, that retainer will be substantial portion of the fee up front.

The traditional definition of a felony is a crime that is punishable by a year or more in jail. A misdemeanor is a crime that is punishable by imprisonment of less than one year. Felonies are more serious crimes than misdemeanors. In New Jersey there are different degrees of Felonies:

First degree criminal offenses:
If found guilty of a 1st-degree offense such as murder, aggravated sexual assault, or drug distribution (large quantities) you will be sentenced to 10 to 20 years in prison.

Second degree criminal offenses:
If convicted of robbery without a weapon, certain sexual assaults, aggravated assault, distribution of smaller quantities of drugs, or another 2nd-degree crime you will be sentenced to 5 to 10 years in prison.

Third degree criminal offenses:
If found guilty of possession of cocaine, ecstasy, or heroin, possession of a handgun, certain thefts, aggravated assault, or another third-degree crime you may be sentenced to serve up to 5 years in prison.

Fourth degree criminal offenses:
Unauthorized use of a vehicle, some charges involving assault and threat crimes or possession of marijuana, criminal sexual contact, or another 4th-degree crime you may be sentenced to serve up to 18 months in prison.

Municipal/Disorderly Persons Offenses:
In New Jersey lesser offenses are heard by the Municipal Court in the township, city, or municipality where the offense allegedly took place. If convicted of possession of marijuana, shoplifting, simple assault, harassment, or disorderly conduct you may be sentenced to up to 6 months in jail.

The grand jury decides whether there is sufficient evidence to indict a suspect and continue the criminal proceedings against him or her. The indictment is the formal process of charging a person with a crime. The grand jury reviews the evidence and may hear testimony in deciding whether to indict someone, but the grand jury makes no decision about guilt or innocence. All states use the grand jury system to some extent, though there may be differences in procedures and number of jurors.

The prosecutor is the attorney who represents the federal, state or local government in a case against a criminal defendant. The title of the prosecutor varies by jurisdiction, but some common titles include district attorney, county attorney, city attorney, United States attorney and state attorney. The prosecutor has the public duty to punish those committing crimes, balanced with the duty to fairly try such individuals.

Probation is a type of criminal sentence that allows a person to stay in the community rather than serve time in prison, as long as he or she complies with certain conditions, such as regularly reporting to a probation officer, refraining from alcohol and drugs and not committing further crimes. Parole is the supervised release of a prisoner from incarceration into the community before the end of his or her sentence. Conditions of parole are similar to those of probation.

Depending on the applicable federal or state laws, part of a criminal sentence may include the payment of restitution to the victim or victims for their related losses. Restitution may include compensation for property damage or loss, medical and rehabilitation expenses, lost income or funeral expenses. Part of the philosophy behind criminal restitution is to give the criminal offender a direct part in making things whole with his or her victim.

White collar crime refers generally to nonviolent financial crimes involving fraud or other dishonesty committed in business or commercial contexts. Examples include insider trading, embezzlement and tax evasion. White collar crime is sometimes described as “paper crime” or crime that is committed in white collar workplaces as opposed to jobs in blue collar industries.

A minor is prosecuted for criminal conduct in a separate juvenile court system. The philosophy of the juvenile justice system is that children should not be punished or stigmatized for criminal conduct because of their immature abilities to make proper choices and recognize right from wrong. Instead the role of the juvenile justice system is seen as rehabilitative and guiding. For particularly violent crimes, adolescents may be tried in the adult system.

Yes, if a person who is not a citizen of the United States is convicted of a crime, he or she can be deported. This includes lawful permanent residents who are lawfully living and working in the United States. Under the Immigration and Nationality Act, if a non-citizen is convicted of an aggravated felony, a crime of moral turpitude or any one of a number of listed crimes in a third category (such as violations of laws relating to domestic violence, controlled substances and possessing a firearm), he or she is at risk of deportation. In addition to deportation, a conviction may adversely affect a lawful permanent resident’s ability to become a United States citizen.

DWI

Seeing those lights flashing behind you is an all to common feeling of anxiety. Sometimes it leads to major consequences and can lead to a loss of your driving privileges.

Many people just assume that if I’m drunk I’m sunk. Do not assume that there is nothing that can be done to defend a DWI or a traffic ticket. A common reaction is: what can an attorney do for me? Seeing that the consultation is free why not inquire and find out. You’re not the first person to make this mistake. In fact many others, including well known people, have gotten a DWI. The important thing is to keep your cool and get good legal representation. Here at the Riviere Law Firm, LLC we can advise you legally and formulate a defense to your DWI charge. The only scientific way to determine whether a driver is under the influence is through blood alcohol concentration (BAC). Your BAC can be tested with a simple Breathalyzer test. The Breathalyzer tests in New Jersey are not always correct and sometimes make mistakes just like human beings.

In fact the police administering the Breathalyzers also make mistakes. Call the firm today and we will investigate all possible mistakes that may have been made in processing your DWI/DUI charge. If our firm takes your case, it is because we believe we can improve your position. Our firm will examine all records that we obtain through discovery, carefully examining if there was proof of intoxication and whether the blood or breath test was accurate. If you refused the Breathalyzer, we will explain how that affects your driving record.

If you are experiencing a problem with your driving privileges due to a recent driving infraction to include DWI, speeding, etc., our firm can help you maintain those privileges; we can help restore those same privileges. I have included a schedule of the points that me be placed on your license below. Scroll down to see what your points consequences you may be facing.

NJSA Section Offense Points
New Jersey Turnpike, Garden State Parkway and Atlantic City Expressway
27:23-29 Moving against traffic 2
27:23-29 Improper passing 4
27:23-29 Unlawful use of median strip 2
All roads and highways
39:3-20 Operating constructor vehicle in excess of 45 mph 3
39:4-14.3 Operating motorized bicycle on a restricted highway 2
39:4-14.3d More than one person on a motorized bicycle 2
39:4-35 Failure to yield to pedestrian in crosswalk 2
39:4-36 Failure to yield to pedestrian in crosswalk; passing a vehicle yielding to pedestrian in crosswalk 2
39:4- 41 Driving through safety zone 2
39:4-52 Racing on highway 5
39:4-55 Improper action or omission on grades and curves 2
39:4-57 Failure to observe direction of officer 2
39:4-66 Failure to stop vehicle before crossing sidewalk 2
39:4-66.1 Failure to yield to pedestrians or vehicles while entering or leaving highway 2
39:4-66.2 Driving on public or private property to avoid a traffic sign or signal 2
39:4-71 Operating a motor vehicle on a sidewalk 2
39:4-80 Failure to obey direction of officer 2
39:4-81 Failure to observe traffic signals 2
39:4-82 Failure to keep right 2
39:4-82.1 Improper operating of vehicle on divided highway or divider 2
39:4-83 Failure to keep right at intersection 2
39:4-84 Failure to pass to right of vehicle proceeding in opposite direction 5
39:4-85 Improper passing on right or off roadway 4
39:4-85.1 Wrong way on a one-way street 2
39:4-86 Improper passing in no passing zone 4
39:4-87 Failure to yield to overtaking vehicle 2
39:4-88 Failure to observe traffic lanes 2
39:4-89 Tailgating 5
39:4-90 Failure to yield at intersection 2
39:4-90.1 Failure to use proper entrances to limited access highways 2
39:4-91-92 Failure to yield to emergency vehicles 2
39:4-96 Reckless driving 5
39:4-97 Careless driving 2
39:4-97a Destruction of agricultural or recreational property 2
39:4-97.1 Slow speed blocking traffic 2
39:4-97.2 Driving in an unsafe manner (points only for third or subsequent offense within five years of most recent 39:4-97.2 conviction) 4
39:4-98 Exceeding maximum speed 1-14 mph over limit 2
Exceeding maximum speed 15-29 mph over limit 4
Exceeding maximum speed 30 mph or more over limit 5
39:4-105 Failure to stop for traffic light 2
39:4-115 Improper turn at traffic light 3
39:4-119 Failure to stop at flashing red signal 2
39:4-122 Failure to stop for police whistle 2
39:4-123 Improper right or left turn 3
39:4-124 Improper turn from approved turning course 3
39:4-125 Improper u-turn 3
39:4-126 Failure to give proper signal 2
39:4-127 Improper backing or turning in street 2
39:4-127.1 Improper crossing of railroad grade crossing 2
39:4-127.2 Improper crossing of bridge 2
39:4-128 Improper crossing of railroad grade crossing by certain vehicles 2
39:4-128.1 Improper passing of school bus 5
39:4-128.4 Improper passing of frozen dessert truck 4
39:4-129 Leaving the scene of an accident – no personal injury 2
Personal injury 8
39:4-144 Failure to observe stop or yield signs 2
39:5C-1 Racing on highway 5
39:5D-4 Moving violation committed out-of-state 2

Your record is reviewed every time points are added to it. If you accumulate six or more points within three years from your last posted violation, you will receive a $150 surcharge plus $25 for each additional point. Additional surcharges may also apply:

  • $100 for driving without a license
  • $250 for driving with a suspended license
  • $100 for failure to insure a moped
  • $250 for operating an uninsured vehicle
  • $1,000 for DWI, 3 years
  • $1,000 for Refusal to take breathalyzer test, 3 years

If you do not pay your surcharges, MVC will suspend your driving privileges indefinitely and take action in the State Superior Court.

  • If you receive 12 or more points on your current driver record
  • Failure to appear in court or to pay fines
  • Failure to pay surcharges
  • Driving with a suspended license
  • Failure to provide proof of insurance
  • Physical or mental disqualification
  • Drug or alcohol use while driving (DWI/DUI)
  • Reckless driving
  • Vehicle abandonment on a public highway
  • Fault in a fatal accident

In New Jersey, a person with a BAC of 0.08% or greater who operates a motor vehicle or a boat is considered to be driving under the influence (DWI). Being convicted of a DWI is a serious offense, carrying heavy penalties including:

  • Fines, fees and surcharges
  • Jail time
  • Community service
Alcohol or drug related DWI with BAC of 0.10% or greater
License loss Fines, fees & surcharges Prison term Community service requirement
7 months – 1 year $300-$500 fine $230 IDRC* fee $100 to drunk driving fund $100 to AERF* $1,000/year (for 3 years) surcharge $75 to Neighborhood Services Fund Up to 30 days 12-48 hours IDRC*
Alcohol or drug related DWI with BAC greater than 0.08% but less than 0.10%
License loss Fines, fees & surcharges Prison term Community service requirement
3 months $250-$400 fine $230 IDRC* fee $100 to drunk driving fund $100 to AERF* $1,000/year (for 3 years) surcharge $75 to Neighborhood Services Fund Up to 30 days 12-48 hours IDRC*
Repeated DWI convictions
Offense License loss Fines, fees & surcharges Prison term Community service requirement
2nd offense within 10 years 2 years $500-$1,000 fine $280 IDRC* fee $100 to drunk driving fund $100 to AERF* $1,000/year (for 3 years) surcharge $75 to Neighborhood Services Fund 48 hours- 90 days 30 days and 12-48 hours IDRC*
3rd offense within 10 years of 2nd offense 10 years $1,000 fine $280 IDRC* fee $100 to drunk driving fund $100 to AERF* $1,500/year (for 3 years) surcharge $75 to Neighborhood Services Fund 180 days Up to 90 days (can reduce period of imprisonment) and 12-48 hours IDRC*
Driving or riding with an open container
Offense Fines Community service
1st $200
2nd $250 10 days
Driving with a DWI suspension
License loss Fines or surcharges Prison term
Additional 1-2 years $500 fine $250/year (for 3 years) surcharge 10-90 days
Driving while possessing drugs
License loss Fines or surcharges
2 years Minimum $50 fine
Failure to pay DWI/DUI surcharges will result in
  • Indefinite suspension of driving privileges
  • Action filed in State Superior Court by MVC. This may include securing a lien against your property, garnishing your wages or other similar action
Notes:
  • *IDRC – Intoxicated Driver Resource Center
  • *AERF – Alcohol Education and Rehabilitation Fund
  • Underage drinking may cause a six-month delay in getting a license
  • Alcohol and drug-related offenses require completion of an alcohol screening and evaluation program

For more information please see the link below:

http://www.state.nj.us/mvc/Violations/penalties.htm