FREQUENTLY ASKED QUESTIONS
Bankruptcy/Debt Law | Criminal | Traffic | Contractual & Business | Domestic/Family Law
Bankruptcy/Debt Law
Q. Do I qualify for Bankruptcy?
A. Generally, your gross income must be below the median income for you to file. Additionally, your total debts must be more than three times your gross income.
Q. What debts are non-dischargeable in Bankruptcy?
A. Student Loans, Judgments,Some Local, State, Federal Taxes. Note that some tax liability can be discharge.
Q. What are the disadvantages of filing for bankruptcy?
A. The Trustee can order some of your property sold in order to pay creditors and himself. Remember, the trustee works for the creditors. Any property transferred within the last couple of years will need to be disclosed.
Q. Are there any other alternatives to filing?
A. Yes, you can seek a of your modification of your mortgage loan; you can offer your creditors a settlement, and there are other credit repair measures.
Q. I received civil complaint and summons, should I ignore it?
A. No, you should contact an Attorney immediately. An Attorney can either settle the claim against you and answer the complaint on your behalf.
Q. What happens if I ignore it?
A. The creditor can receive a judgment against you and attach property. To clarify, the creditor can place a lien on your real estate, freeze your accounts and garnish them, and or conduct a sheriff sale of your other property in order to satisfy their judgment.
Q. I received a notice from a collection agency or Attorney’s office. What should I do?
A. Contact an Attorney immediately. Having an Attorney handle the matter on your behalf from the beginning will achieve the best results.
Q. Why should I file for Bankruptcy?
A. If you are unable to keep up with your monthly expenses and other necessary needs; and/ or you are facing foreclosure; and/ or you owe income taxes or unpaid medical bills; and/ or you are being sued by your creditors.
Q. Are there any prerequisites to filing for bankruptcy?
A. Yes, and these depend on what chapter you qualify for. Generally, to file under Chapter 7 your gross income must be less than the median income in this state (based on your family size) and your monthly necessary* expenses, according to IRS standard deductions, must be exceed your monthly gross income.
Q. What Happens in a Bankruptcy Proceeding?
A. Chapter 7 Bankruptcy Proceedings
When you file Bankruptcy your property and debts become part of what is called a Bankruptcy Estate. You have certain exemptions at law that are unreachable by the Trustee and Creditors; we can discuss exemptions during your consultation.
Generally, there is a hearing before the Chapter 7 trustee called a 341 Meeting of the Creditors. A notice is sent from the court telling you when your 341 Meeting of the Creditorsis going to held. At the hearing, the trustee assess whether or not you have any nonexempt assets that can be taken to pay back your creditors. If there are none, which is the case in most situations, he will find a no asset case. Trustee will also make note of any documents he needs from you or your Attorney.
Chapter 13 Bankruptcy Proceedings
For Chapter 13 bankruptcy proceedings, your Attorney develops a Chapter 13 Plan where you propose to pay off your creditors in either a three or five year plan. This type of Bankruptcy is a little more complex because the trustee will have to review the proposed monthly payment plan and see if any modifications are necessary. In some cases, creditors will argue to increase your monthly payment.
The Chapter 13 trustee examines your claims and your creditors' claims to make sure they are consistent with each other. Then, the trustee makes a judgment as to whether your proposed monthly payment is enough according to the law.
In most cases, the judge will confirm the plan by signing the confirmation order. Should circumstances change while you are under the plan, such that your monthly payments are no longer affordable, you may want to modify the plan.
Q. What is the major difference between Chapter 7 and Chapter 13 Bankruptcy?
A. Chapter 7 is called the Discharge Bankruptcy. Generally, people who qualify for this type of Bankruptcy make less than the median income in their state and have a good amount of debts/liabilities and very little assets. Debtor receives a full discharge of their debts at the end of this bankruptcy.
A. Chapter 13 is called the Wage Earners Bankruptcy. Generally, people who do not qualify for Chapter 7, because their income is substantially above the median, qualify for this type of bankruptcy if they are struggling financially and or facing foreclosure. Chapter 13 is sort of like a giant consolidation plan which can last for either three or five years. During the plan, payments are mailed into the Trustee, who receives an administrative fee from administrating the plan, and then the trustee pays the creditors for the debtor.
Q. How will our firm assist you in filing for Bankruptcy?
A. We provide you with a financial analysis of your individual case, prepare the Bankruptcy Petition, File it for you, and Correspond with the Trustee and Bankruptcy on your behalf. In addition, we will also be present at the Bankruptcy Hearing to represent you.
Q. What to bring to your first meeting with us?
A. A detailed list of your monthly expenses. In addition, paystubs, and tax returns for the past two-three years, any documents pertaining to foreclosure, collections, and/ or proceedings instituted against you.
Q. How long will the whole process take?
A. It depends on what chapter you file. Typically in a Chapter 7 case, once you file you attend a 341 hearing/meeting and if there are no issues with your case, your case is administered and is finalized within a couple of months and your debts are discharged. Since Chapter 13 is a payment plan, it typically takes several years. Once you file you similarly attend a 341 meeting and the Trustee reviews your Chapter 13 plan and determines whether it is fair and reasonable to your creditors. Once your plan is confirmed, the plan continues for the period of time specified. During the plan, the debtor sends payments into the Trustee who disburses the payments to the debtor’s creditors.
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Criminal
Q: What is a misdemeanor?
A: A crime that is less serious than a felony and is usually punishable by fine, penalty, forfeiture, or confinement in a place other than prison for a period less than a year.
Q. Can I receive supervised probation if I am convicted of a misdemeanor offense?
A. Yes, it depends on the severity of the crime (class level) and your prior criminal record.
Q. If I am stopped by the Police and they ask to search my car should I allow them to?
A. If you are being stopped for a simple traffic stop (speeding), you do not have to consent to a search. You have a fourth (4) amendment right to refuse. You can politely tell the officer that you do not want to consent to the search. Even if the police have a valid warrant to place you under arrest, they may search your person but not your car or the occupants in your vehicle unless your car and or occupants are also subjects of the arrest warrant.
Q. If I am under investigation, do I have to talk to the police?
A. No! If you are in custody, police officers are required to inform you of your right to remain silent Miranda Rights. Any statements made to investigators after you are informed of your rights can, and will, be used against you in court. You can invoke your Fifth (5) amendment right and refuse to answer questions at any point and invoke your right to have an Attorney present. If you decide to answer questions, however, you cannot give false information or you may be charged with obstructing justice or giving false information to law enforcement officers.
Q. Do I need an attorney for misdemeanor or traffic charges?
A. Only you can make this decision. You have the right to represent yourself if you wish. In North Carolina, the most serious misdemeanors can result in jail time, even if you have absolutely no prior record. Therefore, by law a Judge must advise you of your rights and tell you that you have the right to be represented by an Attorney.
Q. As crimes or convictions on a juvenile record will not follow me right?
A. No! These charges will remain on your record and may prevent you from entering into certain programs or being hired for a job in future.
Q. What is expungement?
A. Generally, the legal process of removing a criminal conviction or charge from a person’s criminal background.
Q. Who is eligible for expungement?
A. The first group consists of persons convicted of a criminal misdemeanor while under the age of 18. The main requirement for eligibility for such a person is a clean record since the conviction.
B. The second group of people who are eligible for a NC expungement are those individuals, who were arrested or charged with a crime, but subsequently the criminal charges were dismissed, or the person was found not-guilty or not responsible in a court of law. To be eligible for an expungement under those circumstances a person must not have a prior expungement or any felony convictions.
Q. If a record is expunged, will it disappear forever?
A. It depends; the records may not completely "disappear" and the record may not show up on a simple background check by an employer, but may still be available to law enforcement and show up during a check for a professional license in the state. For more information, contact us so we can discuss the issue in further detail.
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Traffic
Q. How many points are specific traffic violations?
A.
| Violation |
Points |
Automatic Suspension |
Seat Belt
Improper Equipment |
0 |
N |
| Littering (G.S. 14-399) involving use of motor vehicle |
1 |
N |
Highway racing (not prearranged) or knowingly lending a motor vehicle to be used in the race.
Speeding to Elude (MISD) |
10 |
Y |
|
Operating a motor vehicle during a period of revocation or suspension of either the driver's license or vehicle
registration. (MISD)
|
10 |
Y |
|
1. Manslaughter (or negligent homicide) resulting from the operation of a motor vehicle. (felony)
2. Prearranged highway racing or knowingly lending a motor vehicle to be used in a prearranged race. (Felony)
3. Failure to stop and render aid when involved in an accident resulting in bodily injury or death (hit-and-run driving) (Felony)
4.Impaired driving, including driving a vehicle while under the influence of an impairing substance; driving a vehicle with an alcohol concentration of 0.08% or more; and driving a commercial vehicle with an alcohol concentration of 0.04% or more (a revocation pursuant to G.S. 20-16.5 is not a conviction). (Misdemeanor)
5. Transportation of intoxicating liquors for the purpose of sale. (Misdemeanor)
|
12 |
Y |
| Failure to properly restrain a child in a restraint or seat belt |
2 |
N |
|
1. Running through a stop sign
2. Speeding in excess of 55 miles per hour
3. Failing to yield right-of-way
4. Running through red light
5. No driver's license or license expired more than one year
6. Failure to stop for siren
7. Driving through safety zone
8. No liability insurance
9. Failure to report accident where such report is required.
10.Speeding in a school zone in excess of the posted school zone speed limit
11. Each at-fault accident that results in bodily injury (in excess of $ 1800.00) or death or total property damage (including the insured's property) of $ 3000.00 or more
|
3 |
N |
|
1. Reckless driving (Misdemeanor)
2. Following too closely
3. Driving on wrong side of road
4. Illegal passing
5. Reckless driving. (Misdemeanor)
6. Passing a stopped school bus
7. Driving through safety zone
8. Driving by a person under 21 after consuming alcohol or drugs
9. Speeding more than 10 mph over the limit, if total speed was in excess of 55 mph but less than 76 mph.
10. Speeding 10 miles or less in excess of limit in speed zone of 55 or greater*
11. Following too closely.
|
4 |
N |
|
12. Hit and run, property damage only (Misdemeanor) (If personal injury = Felony)
13. Speeding in excess of 75 miles per hour (mph) when posted limit is less that 70 mph. (Misdemeanor)
14. Speeding in excess of 80 mph when limit is 70 mph or greater
|
4 |
Y |
NOTE: If you accumulate 12 or more points within a three-year period, the NC DMV may suspend your license. The first suspension of your driver's license under the point system shall be for no more than 60 days. The second suspension shall not exceed 6 months and any subsequent suspension shall not exceed one year.
Q. I have received a North Carolina speeding ticket. How is this going to affect my insurance?
A. All insurance companies approved to provide automobile liability insurance in North Carolina are required to be members of the North Carolina Rate Bureau (NCRB). This Plan created a system of points (different from Drivers License Points which are used by the NC Division of Motor Vehicles) that the insurance companies can use to assess surcharges to the owners insurance costs.
| Points |
Surcharge (%) |
Points |
Surcharge (%) |
| 1 |
25 |
7 |
160 |
| 2 |
45 |
8 |
220 |
| 3 |
60 |
9 |
260 |
| 4 |
80 |
10 |
300 |
| 5 |
105 |
11 |
300 |
| 6 |
130 |
12 |
340 |
Q. If I receive a Speeding ticket is it mandatory that I appear in court?
A. North Carolina law does require individuals to appear in Court when they receive speeding tickets at specific speeds. However, an attorney can get your mandatory appearance waived thereby saving the client from having to appear in court.
Q. If my license is suspended for too many insurance points or unpaid speeding tickets can I apply to have a limited driving privilege?
A. Yes, depending on how many prior offenses you have and if you have unpaid fines. Call to schedule a consultation; we may be able to repair your driving record and to have the suspension lifted. In addition, as Attorneys we can apply to the court to request that you be granted a limited driving privilege even if your license is currently suspended.
Q. What are implications of Driving While Under the Influence or Driving Under the Influence and how can I be charged with it?
A. Generally, a person can be charged with such a charge, while under the influence of an impairing substance or with an alcohol to blood concentration of 0.08% or more at any relevant time after driving.
B. A Charlotte DWI/DUI or Concord DWI/DUI citation will result in an initial thirty (30) day revocation of the driving privilege. This revocation typically begins on the day of the Charlotte DWI stop (or sometimes the next day if the stop occurs late at night). In some cases, the privilege may be reinstated form limited purposes (such as school, employment, medical, treatment, community service, ect).
C. If you are convicted of a NC DWI it will result in twelve (12) insurance points. This corresponds to a four hundred (400) percent surcharge to your NC insurance.
Q. If i receive a violation in another state will that affect my license?
A. Yes, is one of the 45 out of 50 states that are part of the Driver's License Act (see North Carolina Driver's license act). What this means is that if you receive a violation in another state that will be reported on your North Carolina Driver's license. You will need to consult with an Attorney in the other state to take care of those matters. Failure to do so will result in the suspension of your North Carolina License.
All states are members except for Georgia, Michigan, Wisconsin, Tennessee , and Massachuetts is part of the DLA.
Q. What are implications of DWI/DUI and how can I be charged with it?
A. While under the influence of an impairing substance or with an alcohol to blood concentration of 0.08% or more at any relevant time after driving.
B. A Charlotte DWI citation will result in an initial thirty (30) day revocation of the driving privilege. This revocation typically begins on the day of the Charlotte DWI stop (or sometimes the next day if the stop occurs late at night). In limited cases the privilege may be reinstated (school, employment, medical, treatment, community service, ect).
C. If you are convicted of a NC DWI it will result in twelve (12) insurance points. This corresponds to a four hundred (400) percent surcharge to your NC insurance.
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Q. If I am suspected of driving while impaired, do I have to submit to a breathalyzer? What if I refuse?
A. Before asking you to submit to a breathalyzer, police officers should advise you of your rights with regard to breathalyzer tests. If you refuse to submit to a breathalyzer, a willful refusal will result in an immediate thirty (30) day suspension and at least an additional one year suspension of your driver’s license. This is true regardless of whether you are convicted for driving while impaired.
Q. Will I ever be able to drive if I am convicted of DWI/DUI?
A. Yes, in limited circumstances you may qualify for a limited driving privilege.
Contractual & Business Matters
Q. What is a contract?
A. A contract is an agreement between two or more persons (individuals, businesses, organizations or government agencies) to do or to refrain from doing, a particular thing in exchange for something of value (money, exchange of services or property).
Q. What is a breach of a contract?
A. When one side fails to fulfill their obligations or duties under the terms of the contract or makes it difficult or hard for the other party to perform the contract.
Q. Does a contract have to be in writing to enforceable?
A. It depends, but it is best that is. When a contract is in writing and signed by the parties of the contract, there is less of a chance of a party being able to deny its existence and or the terms of that contract.
Q. If the other person breaches the contract that I have entered into with them, what can I do?
A. It depends, you have may have several remedies. First, we must determine whether the contract was valid. Even if it was not, you still may have a remedy depending on how much the other party performed. Maxwell Law Firm can advise you of your rights and in addition to:
• Write an initial demand letter on your behalf.
• Can contact the other party or their counsel and try to reconcile or reach an agreement on your behalf.
• File a suit on your behalf
So please call today and schedule a consultation in order discuss your issue with us.
Q. I entered into a contract am I bound to the contract or may I break it?
A. This answer also depends; there are several reasons why a contract would be rendered unenforceable (illegality, duress, fraud, ect). In addition, there are several defenses available to stop a contract from being enforceable. Also, a contract may be wholly or partially enforceable. Our law firm can look over the contract and review it for potential problems and properly advise you on your rights. Even if the contract is completely enforceable, our firm may be able to renegotiate the contract on your behalf.
Q. Why should I have an attorney write my contract when I can pay a flat fee and download one from the internet?
A. First, when you purchase a form from the internet the company who drafted the contract is not responsible for errors and misstatements of law in that contract. Second, the internet company that you purchase your contract from can not and will not warrant the validity of that contract. Third, the contract may not contain the details and all the essential terms that the parties have agreed to.
A. Also, Legal Zoom is illegal in North Carolina. Click here to find out why.
Q. What sort of Contracts does the Maxwell Law Firm have experience drafting?
A. Lease, Room-mate, Vendor , Employment, Non-compete, Business, Consumer, Contractor, Sub-Contractor, Licensing, and Retainer Agreements, as well as Releases. If you are interested in any of these types of agreements, please call and make an appointment.
Q. I am starting a business, what kind of business structure should I form?
A. Depends on your needs, number of employees, purpose of the business. We can discuss that during a consultation.
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Domestic/Family Law
Q. Should I enter into a prenuptial agreement?
A. It depends; property you own before you are married is your separate property. However, in NC things you acquire during marriage are considered marital assets. If you feel that you will acquire a substantial amount of assets while you are married or do not want to become liable for your spouses debts while you are married, then you may want to consider executing a prenuptial agreement.
Q. What is an uncontested Divorce?
A. A Divorce based on one year of separation.
Q. How is the liability for Child Support Determined?
A. Based on the non-custodial parent's gross income and monthly reasonable expenses.
Q. Is it possible to avoid having my Divorce and Child Support Matter heard before a Judge before it is finalized?
A. Yes, if you and the other party can agree to the terms in mediation and or by agreement.
Q. What are the benefits of entering into a Separation Agreement rather than litigating my custody/divorce case?
A. For one your legal fees will be much lower. In addition, you rather than the judge will have control of division of your assets and custodial/child support matters.
Q. I would like to change my Legal Name? How can I do that?
A. It Depends, each county may have a different procedure for the documentation and filing. Please call our office for a consultation.
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