Bankruptcy can be defined as a civil procedure through which individuals or other entities who can not pay back debts to lenders may seek relief. In most jurisdictions, a bankruptcy action is initiated by the plaintiff, usually initiated by the debtor itself. The court can also grant a temporary bankruptcy protection in certain instances, when the individual is unable to pay back the debts, or if he or she has no assets to liquidate to pay for the debts.
A bankruptcy is considered personal liability protection because it is designed to protect the person filing for bankruptcy and to provide some sort of relief to him or her. The protection is granted by the court only after examining whether the defendant, or debtor, is able to repay all the debts and is not at risk of being unable to repay them in the future. This can only be determined by considering all aspects of a debtor’s financial position, including the debt amount and his or her ability to pay for it.
Before filing for bankruptcy, the plaintiff must first obtain a written opinion that the person is in fact unable to pay the debts and can not make his or her installments on time. This opinion will be provided by a qualified and experienced bankruptcy lawyer. In cases of insolvency where the person has other assets, it is required to establish the value of these assets. A bankruptcy lawyer will help determine this value and prepare a detailed report on it.
According to federal bankruptcy laws, a bankruptcy is granted only if the court finds the debtor to be unable to pay for all the debts and that the assets of the debtor are worth less than the amount that could be owed to the creditors in the case of failure to pay back the debts. If the court finds this to be the case, it will either order the person to sell all the assets he or she owns to satisfy the debts or will declare that the bankrupt is incapable to pay for all the debts himself or herself. In such a situation, the court may allow a temporary court protection against further claims by the person filing for bankruptcy.
When the court is convinced that the debtor can still pay for the debts and that his or her assets are of reasonable value, it will appoint a trustee to oversee the administration of the debtor’s estate. This trustee is responsible for collecting the debts and distributing the proceeds to the creditors according to the terms set forth in the bankruptcy code.
A temporary court protection enables the debtor to continue to meet with the creditors on a regular basis in order to continue paying back the debts, even when he or she is unable to continue to pay them, until the court has determined that he or she is able to pay them. This is done under the supervision of the trustee. The temporary court protection will also give the debtor the chance to reorganize his or her financial resources to repay the debts in an orderly manner.
Bankruptcy protection can be granted either by the state court or by the court of bankruptcy, but the latter is more common. However, both courts have different procedures.
To qualify for a temporary court protection, the plaintiff and the defendant will have to provide the same information about each other, although bankruptcy lawyers are usually paid on a contingency basis. The debtor must file a petition for a temporary court protection with the court to prevent the proceedings.
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