When you file your individual bankruptcy , all your property standing in your name and income that you’ve got will come under review of the claims of the creditors. Nonetheless, You’ll find specific exemptions which may be protected and consist of interest in a vehicle up to $2150, household furnishings, clothes, musical instruments, as well as the federal earned income tax credit, a particular portion of wages, almost all government advantages, some bank accounts, and possibly the equity in your residence.
Nevertheless attending a credit counseling course is mandatory before you file for bankruptcy. The course may possibly need you to pay a fee. On completion of the course, a list of all assets and property that you would like exempt, which includes the names and addresses of creditors as well as the monies due is prepared. Your present income and expenses are also added to the statement.
The data on court approved forms is filed with the United States Bankruptcy Court, with a filing fee of $299. The court may approve a waiver of the fee in case you can’t pay. Alternatively you can pay in 3 installments over 84 day period after filing .
Regaining control over your financial life is possible only on filing
for bankruptcy as it presents you with provides incredible protection.
No one can deny the fact that procedure of filing for bankruptcy is
quite complex even if you hire a bankruptcy lawyer. Filing is not just
as simple as other cases, before beginning of the paper work; you have
to fulfill the credit counseling condition 180 days before the time.
This credit counseling procedure also goes together with a debtor
education itinerary, which is obligatory before your debts can be
emancipated through bankruptcy.
Let us understand the benefits of credit counseling and how it is
important for an individual under financial crises. Debtor education
requirement and the credit counseling cannot be accomplished at the same
time. Credit counseling takes place before filing for bankruptcy; on
the other hand, debtor education happens after it. You will obtain a
numbered certificate as you accomplish these necessities, which defend
you against swindle.
There are so many things that you will notice during your session of credit counseling:
Numbers of local consumers newly uncomfortable with their
accumulated debt loads are beginning to worry over the economic problems
affecting Colorado and the nation as a whole. These consumers tend to
flock toward bankruptcy attorneys to see whether or not Chapter 7 or
Chapter 13 bankruptcy protection would better their situation, and,
after the changes to the bankruptcy code following the 2005 legislation,
whether or not they would even qualify for Chapter 7 debt elimination
bankruptcy in their state of residence. While virtually all the citizens
of Coloradan that we have spoken with maintain some knowledge of
bankruptcy processes – after all, growing up in the United States of
America, even children recognize that bankruptcy is meant to offer a
fresh start to debtors who have gotten in over their head with bills
they’re unable to pay – most ordinary consumers are unaware of the
actual specifics regarding bankruptcy declaration and eventual
While we can’t pretend that the totality of knowledge
floating about the potential repercussions and intrinsic loopholes of
bankruptcy should be able to be glossed over in an article such as this,
there is information every Coloradan debtor should be aware of before
taking another step. It seems, from our correspondence, that almost no
Coloradan not already working in the financial services industry has
more than a cursory understanding of how their local statutes will
protect their assets in the event that they do decide to go through with
bankruptcy declaration. For instance, every state holds personal
exemptions that borrowers can choose to invoke rather than taking
advantage of the (generally far harsher) federal exemptions, and these
may change greatly depending on the borrowers’ location around the
country. Any consumer seriously interested in bankruptcy should first do
their own research on how bankruptcy (and, especially, bankruptcy in
Colorado) could help their own financial scenario before paying the ever
more expensive costs that comes along from even a consultation with
experienced bankruptcy attorney firms. These lawyers charge by the hour,
after all, and there is no reason to ask questions that could be easily
answered for free should the borrowers have sufficient interest.
Bankruptcy: costs of filing bankruptcy with attorney, versus cost of filing using Bankruptcy Petition Preparer.
the current U.S. Bankruptcy Code or law, the system provides
essentially TWO basic categories of outside assistance that a debtor
filing for bankruptcy may use – assistance provided by an attorney, and
assistance provided by a non-lawyer. And both of these parties come
under what is called “Debt Relief Agents or Agencies.” Basically, the
non-attorney assistance provider, who also goes by a name such as
Bankruptcy Petition Preparer (BPP), preparers the documents upon which
bankruptcy is filed with the Court for bankruptcy processing, while the
attorney (or, more accurately, the help he hires that does such work)
prepares the same set of documents, EXCEPT that the lawyer
assistance-provider can supposedly give a debtor “legal advice,” and can
appear, on the debtor’s behalf, in the administrative hearing on the
bankruptcy case administered by the Court “Trustee” (who is not a Judge,
but a court-appointed administrator) that will oversee the bankruptcy
Executive Summary What we are going to discuss here is whether or not a creditor can come to Guatemala with a judgment from a foreign (Non Guatemala) court and enforce it or make it collectible in Guatemala. We will look at the complications involved and the chances of success which are miniscule at best. I would like to point out that this is a topic not covered by our competition. There are collection law firms that discuss international judgement collection but they are trying to sell their services. In spite of this I have never seen one collection law firm getting enthusiastic about collecting foreign judgements. It is best done through a treaty which Guatemala does not have with any country. We will discuss the matter in depth below.
What is a Judgement A judgement is a decision from a court based on a trial or it could be based on a summary judgment where there was not trial held because the odds of success for the defendant were so small the court just goes ahead and railroads him. Sometimes this happens because the defendant can not afford a legal defense. This is prevalent in the USA. In this discourse we are addressing judgments for money damages. A judgement can have other aspects to it like an eviction proceeding ordering one to leave a house. It does not matter if it is a local court or a national court for this discourse. This is because Guatemala has no treaties for enforcement of foreign judgments but more on this later. The court would need to be contained in a country that Guatemala has diplomatic relations with. Guatemala also insists that the country of the judgement allows Guatemala judgements to be enforced in that country.
What is Not a Judgement A tax lien is not a judgment. Tax liens can come from local or national governments. There is normally no trial preceding a tax lien. There was no judge, no jury, no due process, no right to defend yourself, no attorney present for the defendant, no right to examine your accuser, no chance of jury nullification, etc. This is a government administrative procedure that is not enforceable offshore in other countries. A tax lien would need to be reduced to a judgement by filing a lawsuit in a court of appropriate jurisdiction in the home country. It would be like any other lawsuit. The defendant would have the right to present a defense and have a jury trail. Such a judgement would also then be dischargeable in an ordinary bankruptcy case. Tax liens are practically never converted into a judgement for these reasons and of course the expense involved, time delay to go to trail and so forth.
Guatemala Has No Treaty for the Enforcement of Foreign Judgements It is good that Guatemala has no such treaty. If a treaty like this was present the process of collecting a foreign judgment would be simplified. The judgment itself would be sufficient evidence to proceed with collection. With Guatemala, foreign judgements are anything but a cost effective easy thing to collect on.
Guatemala Corporations and Foreign Judgements Before we get into the ins and outs of the nightmares associated with collecting foreign judgments in Guatemala lets look at the initial problem a judgment creditor would face. We always have our clients use corporations for asset protection. This applies to banking, real estate, cars etc. We prefer to start with fresh corporations formed in the jurisdiction as long as they are anonymous bearer share corporations. Guatemala has very anonymous bearer share corporations. The names of the owners of the corporation do not appear in any public registry, database and the government does not know who owns the corporation. In places like the USA where the legal system has run amuck you will hear a lot of talk concerning piercing the corporate veil. This piercing the corporate veil tactic is nasty and effective in the USA. Try it in Guatemala and you will fail and have one angry judge to deal with who will be less than appreciative of your attempts to import sleazy legal tactics from the USA into his or her courtroom. The corporate veil is not going to be pierced for foreign cvil judgement collection matters. So how does the creditor attack real estate or a bank account owned by a corporation in Guatemala? He doesn’t! You are the owner of the corporation but he does not know that and cannot prove that. Ownership of Guatemala corporations is not in any public registry or database. Going to court and saying well the judgment debtor wired funds from his home country bank account to a bank account owned by this corporation, is not going to prove a single thing in Guatemala regarding corporate ownership. The judgment debtor may have invested in this corporation, he may have bought real estate from this corporation or bought a boat, a plane a car, etc. It does not prove any ownership. The judgement creditor is not going to be able to get into any Guatemala banking records using a foreign judgment as grounds. Guatemala has serious bank secrecy. You must understand that in Guatemala a corporation is a free standing judicial person (artificial person) that has its own assets and liabilities. Your liabilities are not the liabilities of the corporation. This means personal debts do not transfer over to a corporation.
Fraudulent Conveyance The catchall used to attack offshore bank accounts is fraudulent conveyance. A fraudulent conveyance references activity where funds or assets were removed from a jurisdiction to prevent a creditor from recovering the debt. The term can also apply to transferring title of real estate or a car to another to keep it from being attached by a creditor. Panama allows a creditor to pursue a fraudulent conveyance action based on a foreign judgment and this even applies to their foundations. As a comparison Guatemala is not a fraudulent conveyance friendly jurisdiction. Such cases are seldom ever heard of in Guatemala because the chances of success are extremely slight. The plaintiff would need to show that the transfer was specifically designed or intended to remove the assets from the reach of the creditor. If the defendant could show this was not the case then there is no fraudulent conveyance. The money could have been moved to say a Guatemala corporation to pay for services, goods, make an investment, buy a residence, invest in real estate, buy a boat, and so forth. Please bear in mind that in Guatemala the creditor is in the dark. He cannot just subpoena bank records like in other countries. He has no idea who owns the corporation. There are a lot of just about insurmountable obstacles in the path the creditor has to follow. This is why we do not really see these cases in Guatemala.
Foreign Judgement Enforcement Complications in Guatemala There are a lot of conditions that need to be met to enforce a judgment in Guatemala from another country.
Default judgments are not enforceable in Guatemala. The defendant must have been served personally. This means a live process server gave them the legal papers. If the service was by mail, by courier, by publication it invalidates the entire lawsuit and judgement as far as Guatemala is concerned. Dropping the papers on the doorstep or taping them to the door is not going to work. This right off the top eliminates a large amount of judgements.
The judgment must be final in that there is no more room for appeals. This is usually going to mean a few months in most cases.
The court that issued the judgment has to have had proper jurisdiction over the matter. Frivolous cases filed in foreign jurisdictions with incorrect venue or authority are not going to be enforceable. The debtor can always argue that the jurisdiction or authority the court asserted is incorrect. This can then make it a triable issue of fact in the Guatemala courts. The defendant would try to get the plaintiff to retry the entire case in Guatemala if he could not find another way to dispose of the matter. To do this means two sets of lawyers for the plaintiff, one in Guatemala and one from the foreign country. Think big money. Remember that Guatemala has no treaties for the enforcement of foreign judgments. This opens up the playing field to counter attack the plaintiff attempting to collect the judgement. When there is a treaty the judgment itself stands as admissible evidence and the grounds for objecting are most limited.
There is no enforcement if no such claim would be possible under Guatemala law. Guatemala will refuse to enforce the foreign money judgment if the claim on which the foreign judgment is based could not have been brought in Guatemala. The foreign case has to be consistent with Guatemala law. Guatemala law is not as crazy as USA, UK law. If you were sued for sending out faxes that were unsolicited, this judgment would be void in Guatemala since they have no such law in Guatemala. Many USA lawsuits are for civil violations that are absent from Guatemala law and thus not enforceable in Guatemala. This means the foreign attorney will have to retain foreign counsel to review the case and see it is consistent with Guatemala law. Can be expensive. He may have to have the entire matter translated into Spanish by a certified translator at a cost of $10 to $15 a page. Some cases are hundreds of pages. Then the Guatemala lawyer has to read the case which means billable hours. He will ask questions to the foreign attorney so now we get into double billable hours. In any event to enter the judgment into the Guatemala court system in an effort to collect there would need to be a translation of the judgment into Spanish. Then when the debtor started making objections the entire case file would most likely need to be translated into Spanish.
If the judgment was for contempt of court it makes the judgment not valid in Guatemala. This sort of judgment would not be collectible in Guatemala.
The judgment has to not be for default. In other words if you failed to respond to a foreign court action and were in domicile in Guatemala and they got a summary judgment that would not be a valid judgment.
More Foreign Judgment Collection Obstacles in Guatemala The creditor wishing to collect on a foreign judgment in Guatemala is basically on a financial mission, to collect funds. His path is like walking through a minefield. He can hit a number of unexpected or hidden tactics presented by the debtor that will make a financial recovery very unlikely.
First, we have to look at the appeals process open to the defendant. These are the things a creditor will be advised to consider before proceeding with an expensive and time consuming foreign judgment matter in Guatemala. Please bear in mind the defendant (debtor) can appeal any negative decision from a lower court two ways. The defendant can appeal to the Supreme Court claiming the law was not followed correctly applying any of the above noted objections, or all of them. He can also claim procedures were not followed correctly. He can claim the case is not consistent with Guatemala law. He can attack the way he was served. There are many things he can do. He can even file a counter claim against the creditor. The other appeals option is to appeal to the special Constitutional Courts Guatemala has to just decide constitutional issues. How hard would it be to argue that the defendant had some constitutional rights violated in the process somewhere.
If all that fails after years of waiting for the process to work its way through the courts, then there is the bankruptcy option. Guatemala has a complex bankruptcy court system that could be utilized for shelter from creditors. Using these appellate processes is going to run up the bill for the plaintiff substantially. Without the appeals system, the time required for cases can run up to the 3-5 year mark easily. Then add in appeals. and the bankruptcy for even more years. The plaintiff could conceivably go broke or die of old age before the appeals process runs out. They might recover nothing especially if a bankruptcy is used. The plaintiff might never prevail. The expenses involved could be more than the amount of the judgment. By the time all the appeals are used, the time limit for the judgment may have expired (7-10 years usually) and then the case could be dismissed because the judgment is not longer valid, thus not enforceable. And on and on it goes. Such collection efforts are indeed rarely ever seen in Guatemala.
Summary If you have read this you are looking for a secure offshore asset protection jurisdiction and structure. We have several excellent options. Please bear in mind the perfect jurisdiction and structure does not exist. There is always going to be a give and take scenario. We have managed to isolate a few excellent options but there is no perfect solution that meets the needs of everyone. We do try though!