Bankruptcy and Clemency

Everyone deserves a second chance, right? We can help you file bankruptcy, seal/expunge records, and request pardons. Let’s clean up your past for your future’s sake.

At Roemerman Law, we recognize the U.S. Bankruptcy Code for what it is — a unique to the U.S. legal regime designed to allow people to press “reset” on their financial picture. Its intent is to balance the interests of the debtor, various creditors, and underlined by the concept that bad luck or bad financial decisions should not leave people in dire straits for their entire lives — it is a “fresh start” for nearly 800,000 Americans and 100,000 businesses every year.

Much the same, record expungements/sealing of records (mandated in New York after a year in most cases) and judicial pardons allow someone to move on from past mistakes. We are here to help people recover from past issues and have a better future— please fill in the contact form to learn how.

Chapter 7 – Liquidation/”Straight” Bankruptcy

A Chapter 7 bankruptcy is supposed to serve as a “fresh start” for a debtor, wiping out most debt (particularly consumer debt) by liquidating assets.  This is done by giving all assets to a bankruptcy trustee to sell, satisfying debts (often for pennies of value on the dollar amount actually owed) and giving the debtor back any overage for non-exempt assets.

 

Certain assets (furniture, clothes, and personal effects) are exempted up to a certain dollar amount.  Others may be kept if the debts are “reaffirmed” (you claim that you owe on them and intend to pay them).  This method of relief is supposed to serve to “clean the slate” and, as such, is unavailable for the next eight years following a Chapter 7 discharge.  Further, certain debts are exempted from discharge, including alimony, child support, some taxes, and student loans, amongst others.  Chapter 7 is usually used to discharge high levels of consumer debt with low amounts of assets to lose.  Further, if your income is too high according to the “means test,” you may be forced to use a Chapter 13 reorganization (of debt). Over 60% of filings are under Chapter 7, as it is the most-preferential means of filing for a debtor. See Chapter 13, below.

 

Chapter 11 – Business Reorganization

Chapter 11 is generally used to reorganize the debts of a business. It can be voluntary (filed by the debtor/business) or involuntary (filed by the creditors, seeking payment of their claims). The debtor may opt to convert it to a Chapter 7 liquidation.  The Court will seek to balance the interests of the debtor (again, usually a company) and the creditors to reach an agreement on the (usually partial) repayment of the debts. This is done while protecting the individual assets of the owners of the company (the sole proprietor, the partners, or the shareholders).  This is the most expensive and, usually, most complex Chapter of bankruptcy filing.

 

Chapter 12 – Farmers and Fishermen

Chapter 12 is designed for “family farmers” or “family fishermen” with “regular annual income.” It enables financially distressed family farmers and fishermen to propose and carry out a plan to repay all or part of their debts. Under chapter 12, debtors propose a repayment plan to make installments to creditors over 3-5 years. Generally, the plan must provide for payments over three years unless the court approves a longer period “for cause.”

In tailoring bankruptcy law to meet the economic realities of family farming and the family fisherman, chapter 12 eliminates many of the barriers such debtors would face if seeking to reorganize under either chapter 11 or 13 of the Bankruptcy Code. For example, chapter 12 is more streamlined, less complicated, and less expensive than chapter 11, which is better suited to large corporate reorganizations. In addition, few family farmers or fishermen find chapter 13 to be advantageous because it is designed for wage earners who have smaller debts than those facing family farmers. The two categories available are 1) fisherman/farmer with or without spouse and 2) corporation or partnership. See U.S. Courts, Chapter 12.

 

Chapter 13 – Personal Reorganization

A debtor can elect a Chapter 13 reorganization of debts in order to prevent a home foreclosure, to keep valuable non-exempt property, to make up missed car or mortgage payments, or for various other reasons.  Additionally, a debtor with too much income might fail the “means test” and be barred from filing a Chapter 7 bankruptcy – at this point, Chapter 13 is the only available remedy.  Under Chapter 13, the debtor will be required to make payments for 3-5 years to creditors, equal to or greater than the amount they would have received under a Chapter 7 filing.  Generally speaking, a Chapter 7 is preferable for the debtor and over 60% of filings are under Chapter 7.

 

Chapter 15 – Parties from Different Countries

The purpose of Chapter 15, and the Model Law on which it is based, is to provide effective mechanisms for dealing with insolvency cases involving debtors, assets, claimants, and other parties of interest involving more than one country. This general purpose is realized through five objectives specified in the statute: (1) to promote cooperation between the United States courts and parties of interest and the courts and other competent authorities of foreign countries involved in cross-border insolvency cases; (2) to establish greater legal certainty for trade and investment; (3) to provide for the fair and efficient administration of cross-border insolvencies that protects the interests of all creditors and other interested entities, including the debtor; (4) to afford protection and maximization of the value of the debtor’s assets; and (5) to facilitate the rescue of financially troubled businesses, thereby protecting investment and preserving employment. 11 U.S.C. § 1501.

Generally, a chapter 15 case is ancillary to a primary proceeding brought in another country, typically the debtor’s home country. As an alternative, the debtor or a creditor may commence a full chapter 7 or chapter 11 case in the United States if the assets in the United States are sufficiently complex to merit a full-blown domestic bankruptcy case. In addition, under chapter 15 a U.S. court may authorize a trustee or other entity (including an examiner) to act in a foreign country on behalf of a U.S. bankruptcy estate. See U.S. Courts, Chapter 15.

A criminal record (or a “rap sheet”) can negatively affect you and your family in serious ways.  Aside from the embarrassment of the record, you can be denied occupational licenses, loans, employment, and even the right to vote.  The State of New York does not allow for “expungement” (total destruction) of a person’s record, but it does allow for sealing, or barring the record from public viewing.  While some records are maintained and available to law enforcement and for limited reasons, sealing generally means one’s arrests, non-convictions, violations and traffic offenses, and juvenile offenses are not available to the general public.  New York generally seals records after one year.  At Roemerman Law, we can help you obtain your “rap sheet,” see which offenses can be or are already sealed, and possibly obtain a Certificate of Good Conduct or a Certificate for the Relief from Disabilities for those more serious offenses which cannot be sealed.  Fill in our contact form and someone will reach out to you to help you set the record – your record – straight.

New York allows someone convicted of a crime to apply for clemency.  “Clemency” means mercy or leniency.  The executive branch can commute (shorten) a sentence for someone convicted of a crime, usually for a showing of good behavior and full rehabilitation.  Additionally, it can issue a pardon, which fully relieves the person of the remainder of the sentence (or, retroactively, “clears the name” of the person).  This can be done if overwhelming evidence of innocence is presented, if the person suffers a disability due to the conviction (inability to receive an occupational license), or the person may be deported.

Certificates of Good Conduct and Certificates of Relief from Disability are far more common remedies and pardons are rarer, for exceptional circumstances. Additionally, those convicted at 16 or 17 have remedies available if they meet a list of requirements. Contact Roemerman Law and we can guide you through the process of obtaining clemency from the State of New York so you can move forward with your life.

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Please fill out the form below to request a consultation with someone at Roemerman Law. We can answer your questions and help you choose the best path for you moving forward.

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