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21

Apr 2012

Virginia Bankruptcy Exemptions

Posted by / in Virginia Bankruptcy / 17 comments

Virginia Bankruptcy Exemptions

“What will they take?”  Your Virginia bankruptcy exemptions answer that question.

When you file a Chapter 7 bankruptcy, the Chapter 7 trustee can take and sell your non-exempt assets.  (The proceeds are used to pay your creditors.)

Most people don’t have “non-exempt” assets, so the trustee doesn’t take and sell anything.  But that happy result often requires careful planning and detailed knowledge of Virginia bankruptcy exemption law.

Robert Weed explains Virginia bankruptcy exemptions

Bankruptcy law is established by the Federal government. But the law gives each state control of exemptions for your house and car, clothing and furniture.

Bankruptcy is set up by the Federal government, but the law gives each state control of many exemptions.  Here’s a look at the Virginia bankruptcy exemptions.

Will they take my house?

During the real estate crisis, most people in Northern Virginia lost any equity they had in their real estate.  In bankruptcy, bad is often good.  Having no equity is often good, because Virginia is right at the bottom of the real estate equity you can keep.

Your “homestead” Virginia bankruptcy exemption is $5000.00.  That’s found in Code of Virginia 34-4.    That compares unfavorably to 100 acres of Texas, Or 160 acres of Florida.   If the bankruptcy trustee can take and sell your house, give you $5000, and have money left over to pay your creditors, that’s what he is supposed to do.

That “homestead” exemption does go to $10,000 for disabled veterans and seniors over age 65.

Now Virginia does provide much better protection for married couples.  Under “tenancy by entirety,” real estate that belongs to a married couple cannot be taken for the debts of only one.  So a married couple can protect unlimited real estate equity, as long as they are not joint on credit cards or other debts.

What about my car?  Or my truck?  My tools?

Most places, you can’t get to work without a car.  Many people owe more on their cars than it’s worth.  But for those whose car is paid for, or almost paid for, Virginia bankruptcy exemption law allows you to protect $6,000 equity in your car.

Some people can also claim “tool of the trade” protection for a vehicle.  If you are cab driver, your car is a tool of your trade.  If you are a painter, then your truck, along with your ladders and brushes, are your tools.  There’s a $10,000 Virginia bankruptcy exemption for tools.

The Virginia bankruptcy exemptions for cars and tools are pretty good, compared to many other states.

Other stuff

You are allowed to exempt most of your stuff.   Your pets, your wedding and engagements rings, and your family bible.

Clothing up to $1000.  Household furnishings, $5000.  I’ve never seen a bankruptcy trustee be interested in people’s normal clothing–you’d have to sell a lot of it at yard sale prices to get to $1000.  Somebody with a lot of electronics might have more than $5000 in household furnishings.  In Northern Virginia, where I am, the bankruptcy trustees don’t have time to mess with that.  In more rural parts of the state, I’ve sometimes heard of it.

One firearm, $3000.  That was added in July 2011.

What about money in the bank, retirements, places where there’s money?

Your retirement funds–401(k), 403(b), 457, IRA’s–are all exempt under Federal bankruptcy law and also the Code of Virginia.  Virginia also exempts the retirements of state and local government employees.

The thrift savings plans of federal employees are protected by Federal law.

What about money in the bank?

The protection for your money in the bank depends on where it came from.

Your “wages’–including commission, bonus, almost anything–is three quarters exempt under Virginia law.  That protection follows the money when it hits your bank account–as long as you can trace it.  Having direct deposit really helps with that tracing.

Your Social Security is exempt, and keeps that exemption when it hits your bank.

Disability payments are protected under Virginia law exempting sickness insurance.

Money you receive as a result of a personal injury, typically a car accident, is exempt in Virginia.

If you have cash or investments that don’t fall into any of these categories, you can use that Virginia $5000 “homestead” if you don’t need it to cover your real estate equity.   If you have cash value life insurance, you need to use that homestead exemption to protect that.

College Savings plans

Money that’s been in a 529 college savings plan for your child or grandchild (not yourself) is exempt if it’s been there for more than two years.  If it’s been there for more than one but less than two years, $5000 is exempt.

However, Virginia gives better protection for money in the Virginia 529 Plan–the specific 529 set up by the Commonwealth of Virginia.  There’s no waiting period for the bankruptcy exemption to take effect under the law for the Virginia 529 plan.

PS:  My mom “put my name on” her bank account

Under Virginia law, money in the bank belongs to the person who put it in.  (Except husband and wife are 50-50.)  So if mom put the money in, then it’s still protected, even if mom put your name on the account.  (Now if mom is giving you the money, that would be a different story.)

 

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Robert Weed has helped twelve thousand people file bankruptcy in Northern Virginia. Robert Weed is a frequent panelist and speaker at the meetings of the National Association of Consumer Bankruptcy Attorneys. He is one of Northern Virginia’s most experienced personal bankruptcy lawyers. As an expert on changing consumer bankruptcy laws, Robert Weed has been interviewed on local and national TV and quoted in newspapers across the country.

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17 comments
  • Exemptions in Bankruptcy « Charleston Bankruptcy Lawyer Blog | South Carolina Bankruptcy Law

    June 22, 2012, pm30 9:27 PM
    01

    [...] where legislators have done a poor job at protecting their constituents from creditors.  In Virginia, residents can only protect $5,000 in equity in their homes, but can protect $6,000 in a equity in a motor vehicle.  (Who thinks this stuff up anyway? Maybe [...]

  • Mike Harris

    December 3, 2012, pm31 6:58 PM
    02

    Our home has been forclosed on and we are living in our Rv. I want to move
    to an area that has more opportunity. We has one car valued at 2500.00.
    The Rv is valued around 20,000. In bankruptcy, can they take the RV that
    we are living in?

    • Robert Weed

      December 4, 2012, am31 6:19 AM
      03

      Mike:

      Well, maybe. You say “we.” If the RV is in joint names–and if you are moving INTO Virginia from MOST other states, you’d have $22,000 in exemptions to cover the RV. That is if you didn’t have much cash or anything else, which is sounds like you don’t. (You’d also be ok on the car.)

      Now if you are moving from one place in Virginia to another, and the RV is joint, you have $22,000 to cover the RV and the car, which is close enough.

      I(f the RV is only in one name, you’re going to have a problem.

  • brian whiting

    June 21, 2013, am30 1:33 AM
    04

    If you bought property overseas but you owe more than it is worth. What do you do?

    • Robert Weed

      June 21, 2013, am30 1:39 AM
      05

      Brian:

      If you owe more than its worth, there’s no problem. Show what it’s worth and show what you owe on it.

  • Karen

    August 15, 2013, pm31 2:25 PM
    06

    I am single homeowner, who has been out of work since APril this year. I was three months away from paying my ch 13, had no problems until I was laid off. Now, I am and have been searching for full-time employment since being laid off, have a temporary job 18 hour/week @7.25, provided though the AARP foundation ( senior initiative) Only receive 184.00 pension, no unemployment.. I had not been able to pay trustee for three months, and have been working with the clerk who suggested I send in something which I did. I received a call to day that they may have to dismiss the case. I have explained my situation to the trustee and to the clerk, who suggested I leave a message for the trustee, with details, which I have. Part of the details is that my attorney will not go the hearing ( if there is one) until I give her money, which I donot have. I been told that dismissal is a good thing, by the clerk, but the atty office is insisting that I go into a chp7, I cannot lose my home it’s all I have I am going through loan mod as suggested by the atty three months ago, my car, i have to get back and forth to work and interviews. And I am afraid to talk to the atty. I am so confused.

    Thank you for your assistance.

    • Robert Weed

      August 15, 2013, pm31 4:48 PM
      07

      Karen:

      Sorry that your lawyer is not answering your questions.

      Whether you want to convert to Chapter 7 or dismiss depends on a complete picture of your situation, which I don’t have. Your lawyer might be right that you want to convert. Obviously the clerk doesn’t know, but dismissal sometimes is better. It depends.

      Don’t know where you are. But the judges here would GO CRAZY if there was a lawyer in Chapter 13 who refused to go to a dismissal hearing unless you paid them more. That kind of BS is NOT allowed in this court. Don’t know what the judges think where you are.

  • Julianne

    August 24, 2013, am31 4:22 AM
    08

    My husband has been fighting cancer for over 11 years. His situation has been very serious many times. He is the soul bread winner for our family. In between relapses he has worked part time. That is all he can work sue to the disability he receives. He is working only three days a month. I am looking for employment but not working right now. We have two college aged kids; a large house payment, two paid for old cars and one newer car. our house is relatively nice but needs things like a new roof and a few cosmetics. We do not have the funds to do anything to the house. So my questions are can we declare bankruptcy and in few years sell the house and keep all the money we make off the sell or can we only keep 10,000 if we made 50,000 from the sell? Thank you so much.

    • Robert Weed

      August 25, 2013, pm31 12:12 PM
      09

      Julianne:

      Let me back up before I answer your question. If you file bankruptcy, can you keep your house Now?

      There are two answers to that question. You can keep it from your mortgage company, if you keep making the payments. And you can keep it from the bankruptcy trustee, if it’s exempt. Exempt if there’s less than $10,000 in equity today. Or exempt if it belongs to a married couple and there are no joint debts, other than the house.

      Is that works, then, yes, you can “sell the house and keep all the money you make.” The amount of money you make when you sell the house in a few years could be more than today–because you pay the mortgage down, and because the value (we hope) goes up. Yes, all that belongs to you.

      Julie, for sure you need to go talk to a good lawyer. Your husband has been fighting cancer for 11 years, he’s on disability, you can’t find work, you need to protect your house….it’s time to talk to a bankruptcy lawyer.

  • hugh

    October 18, 2013, pm31 11:18 PM
    10

    I filed Ch. 7 in 2011 and it was discharged in November 2011. Is it possible to file a Ch. 13 because of a civil lawsuit currently pending against me? There is no way that I could pay this debt and my wife was non-suited in the case. I filed the Ch.7 as an individual.

    • Robert Weed

      October 19, 2013, pm31 12:04 PM
      11

      Hugh:

      First, what is this civil lawsuit. Was it something that happened before the 2011 bankruptcy that you didn’t know you’d get sued for. Then maybe the 2011 bankruptcy covers it.

      If it happened after, then yes you probably need a Chapter 13. Now since it’s less than four years since the Chapter 7, at the end of the Chapter 13, you will still owe the rest of the money! Then it would be more than your years, so you would have to file ANOTHER chapter 13 and that would get rid of the debt at the end. That’s a terrible solution, but it may be your best choice.

  • Virginia

    July 24, 2014, pm31 11:39 PM
    12

    my two sons and my deceased husband are on the title of their home loan in Virginia.. I have been helping them keep up with payment and now have to move out of state to take care of my ill mother. I will have to quit my job and only have Social Sercurity. My sons do not make enough money to pay for the house and plan to move with me. What can they do so they wont have to suffer from this problem

    • Robert Weed

      Robert Weed

      July 25, 2014, pm31 1:20 PM
      13

      Virginia:

      I’d need to know a whole lot more to begin to answer that question. They should put together complete information and see a bankrutpcy lawyer to see if bankrutpcy can help.

  • Stephanie

    August 11, 2014, am31 1:44 AM
    14

    I recently filed chapter 7 bankruptcy in Woodbridge VA. I want to marry my fiance. Can I do that without causing any problems for him? Also I’m trying to save my house which was included in the bankruptcy. Is that possible?

    • Robert Weed

      Robert Weed

      August 11, 2014, am31 10:51 AM
      15

      Stephanie:

      Recently filed chapter 7–like last week; or like a couple months ago? Getting married after you file Chapter 7 should NOT affect your eligibility, but to avoid unnecessary questions I’d sure wait at least until after you “meeting of creditors” hearing.

      Getting married should not cause any problems for him.

      Trying to save your house from whom? Is the Chapter 7 trustee trying to sell it because you have too much equity? Then you need to buy it back form the trustee. Is the bank foreclosing? You need to catch up the payments. Maybe with a chapter 13.

      I’m wondering what you lawyer is telling you–it seems like parts of this story are missing.

  • gary steele

    November 24, 2014, am30 5:45 AM
    16

    are my social security disability benefits protected if i file a chapter 7 or 13.

    • Robert Weed

      Robert Weed

      November 24, 2014, am30 11:53 AM
      17

      Gary:

      Yes.

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