Common Bankruptcy Questions & Myths

Part 4.  I hired a bankruptcy attorney, so I filed for bankruptcy. 

Short Answer: No. This is NOT true.

You have not filed your bankruptcy until your petition, schedules and other required documents have been filed with the bankruptcy court.  Simply hiring a bankruptcy attorney or declaring that you “are filing for bankruptcy” does not mean that you have filed for bankruptcy protection.  

How do you know if you filed for bankruptcy protection?  If you have met with your attorney to sign your bankruptcy petition and schedules, then this is a good indicator that your case has been filed or is about to be filed.  If you are unsure, you should ask your attorney when your case will be filed.  Sometimes, your attorney will have you come in to sign your petition and schedules; however, will tell you that your case won’t actually be filed until a later date.  You might know your case has been filed because you have a case number.  Again, you can ask your attorney for your case number if you think your case has been filed. If you are confused or unsure whether your bankruptcy has been filed, then you should immediately consult your attorney for clarification.  There is a critical distinction between having hired an attorney and actually filing your bankruptcy case.  This distinction includes different legal protections that are offered to someone when they have hired an attorney, and when they have actually filed for bankruptcy.

You do not have the protections of bankruptcy such as the imposition of the automatic stay, unless and until you have an active bankruptcy filing.  In other words, you are not protected by bankruptcy law until you file your bankruptcy case.  The automatic stay of bankruptcy, which prohibits creditors from collecting from you during your bankruptcy case, does not become effective simply because you have hired an attorney and/or declared your intent to file for bankruptcy protection.  The reality is that you must actually file your case with the Court before you are entitled to the protections of bankruptcy, and before you are “in” bankruptcy.  Once you have filed your bankruptcy case with the court, the automatic stay that is described above will take effect and act as a prohibition on all pre-petition creditors from attempting to collect from you.

This brings up a point that is commonly misunderstood by consumers who will be filing for bankruptcy.  Declaring your intent to file, such as telling a creditor that you are going to file for bankruptcy, will not stop that creditor from taking collection action against you.  Until you file for bankruptcy protection, a creditor can continue collection activities against you, including sending statements, calling you, and even pursuing legal action against you.  In some situations, your attorney may be able to stop harassing phone calls from creditors even though you have not yet filed your bankruptcy.  Jessica Nomie Law can help with this. 

As always, if you ever have questions or concerns about your case status, then you should consult with your attorney.

The information and materials provided in this article have been prepared for informational purposes only and do not constitute legal advice and do not constitute an attorney-client relationship between you and this law firm. If you believe you have a legal case or claim, you should contact an attorney promptly; strict time limitations may apply to your case or claim.

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