Individuals who are on the verge of financial ruin may seek protection through federal bankruptcy laws available throughout the United States. If you are having problems paying bills or being threatened by creditors with lawsuits, wage garnishment or ban garnishment, bankruptcy may offer a solution.
How do I obtain relief from my creditors?
For certain people, filing a bankruptcy case will achieve the relief from debt that they seek because a bankruptcy can result in the grant of a discharge of debts to an individual. A discharge is the forgiveness of personal liability for debts which have been incurred prior to the filing of the case. With few exceptions, creditors are prohibited from suing a debtor, obtaining a judgment or collecting for debts which have been discharged and will have no claim on the future income or assets of the individual who has filed for bankruptcy relief as a debtor.
Bankruptcy, while it may relieve a personal obligation to repay a debt, does not eliminate most mortgages or liens on property. Thus, in order to retain a car or a house which has been pledged as collateral on a loan, a debtor will ordinarily have to repay the creditor the full amount of the debt over time or redeem the property by paying the full value of the collateral in cash to the creditor.
What is a discharge and how do I get one?
In exchange for the receipt of a discharge, a debtor must turn over all non-exempt property to a court-appointed trustee. The trustee is required to sell the property and distribute the proceeds to creditors according to the priorities established by the Bankruptcy Code. Frequently, creditors receive no distribution from a bankruptcy case.
In some cases, a debtor is denied a discharge and thus continues to be obligated on all the debts that were the subject of the bankruptcy. Reasons for the denial of a discharge include court determinations that the debtor has concealed assets, has fraudulently transferred assets to avoid payment to creditors or has made a false statement under oath. Such acts may also be the subject of criminal proceedings against the debtor, which may result in fines or imprisonment.
In those cases where a debtor receives a discharge, certain debts may nonetheless be excepted from discharge. These include obligations for alimony or child support, certain taxes and student loans, and debts incurred by false statements or representations. If the Bankruptcy Court determines that a particular debt was incurred through the debtor's fraud, that debt may likewise be excepted from discharge.
What are my alternatives?
Individuals may choose several different types of bankruptcy. The choice of a particular chapter will depend upon the financial circumstances of the debtor, the amount and nature of the debts to be dealt with in the bankruptcy, the exemptions available and the types of assets owned by the debtor.
What is Chapter 7 bankruptcy?
Chapter 7 is what most people refer to as "straight bankruptcy." In a Chapter 7, the debtor turns over all of his or her non-exempt assets to a Chapter 7 trustee. The Chapter 7 trustee liquidates the assets and distributes the proceeds to the debtor's creditors. By order of the Bankruptcy Court, the person is then discharged from all debts.
Will all my debts be discharged?
A debtor cannot discharge certain debts, including most taxes, student loans, alimony and child support, debts incurred through fraud or theft, and certain other types of non-dischargeable debt.
How often can I file Chapter 7?
A debtor can receive a discharge from his or her debts only once every eight years.
How do I benefit from a Chapter 7 case?
Once you file your case, your creditors are prohibited from continuing suits against you or from attempting to collect their claims against you and your property. Rather, creditors must look solely to the Bankruptcy Court and the assets within its control for payment of their claims. By filing the Chapter 7 case and obtaining a discharge, you receive a total forgiveness of the discharged debts and receive a "fresh start."
What are the differences between Chapters 7 and 13?
Chapter 7 of the Bankruptcy Code is entitled "Liquidation" and, as the name implies, generally requires sales or foreclosure of all property except property deemed to be exempt. In most instances, the Chapter 7 debtor is promptly discharged from all or most pre-bankruptcy debts and receives a fresh start on a new economic life. This new economic life frequently begins only with exempt assets.
Chapter 13 is entitled "Adjustment of Debts of Individuals with Regular Income." It is often called "wage earner" or just "Chapter 13." Chapter 13 debtors pay all or part of their debts through future income rather than through liquidation or foreclosure of present assets. Corporations and partnerships are not eligible for Chapter 13. The Chapter 13 debtor's income must be regular, but can come from such things as self-employment, pension, welfare or alimony.
How does Chapter 13 work?
Under Chapter 13, the debtor presents a plan of debt repayment which is reviewed by the Chapter 13 trustee, creditors and the Bankruptcy Court. The plan must be filed in good faith, must provide for payments that are feasible in light of the debtor's income and expenses and must also provide for payments over time that are equal in value to the money creditors would have received if the debtor had chosen Chapter 7 liquidation instead of Chapter 13. The plan must also provide that, for a period of three years, all of the debtor's income above reasonable expenses will be used to pay debts.
If the Chapter 13 plan is approved, all payments are made through the Chapter 13 trustee's office, and the trustee is paid a commission. Most plans must run at least three years and cannot exceed five years. Chapter 13 provides that the debtor receives a discharge from most pre-bankruptcy debt upon making the payments called for by the plan.
Can I keep my property?
Chapter 13 debtors often keep property they would lose in a Chapter 7. Keeping secured property in a Chapter 7 usually requires the creditor's agreement. Secured creditors do not have such control in a Chapter 13.
Consequently, Chapter 13 debtors usually keep their cars, house and other important property subject to security interests, even if the creditor wants the property back. Property not subject to security interests can also be kept in a Chapter 13, even though its value is not exempt and would be lost in a Chapter 7.
How about paying taxes?
Filing bankruptcy under either Chapter 7 or Chapter 13 will stop all IRS or state tax collection activities on taxes accruing prior to filing bankruptcy. But if a Chapter 7 is filed, these tax collection activities often resume shortly after filing because the tax obligation usually cannot be discharged in bankruptcy.
Furthermore, interest and penalties continue to accrue. On the other hand, filing a Chapter 13 halts the accumulation of interest and penalties, and taxes may be paid over the life of the plan. The filing of bankruptcy does not stop the IRS or state from assessing or demanding payment of taxes arising after bankruptcy.
What about non-dischargeable debts?
Most debts can be discharged under either Chapter 7 or Chapter 13, some cannot be discharged under either chapter and some can only be discharged under Chapter 13. For example, debts involving fraud and embezzlement may be dischargeable through a Chapter 13 if the plan is confirmed. Debts arising from child support, alimony, student loans, criminal fines and criminal restitution debts, on the other hand, are among those which cannot be discharged under either chapter. However, Chapter 13 has an advantage over Chapter 7 because the Chapter 13 debtor is protected by the bankruptcy court while making payments under the plan.
Can I protect others liable on the debt?
Creditors are prohibited from attempting to collect pre-bankruptcy debts from a debtor under either Chapter 7 or Chapter 13. But the filing of a Chapter 13 can also stop all actions against certain co-debtors, even though those co-debtors are solvent and do not join the Chapter 13 petition. This protection may be permanent if the plan provides for payment of the co-signed debt in full and is fully performed.
What are the disadvantages of Chapter 13?
Debtors remain under court supervision for the life of the plan, which is up to five years. They are not free to make new debts or sell assets without permission. Debtors who propose less than full payment to their unsecured creditors will be required to live on a budget for the life of the plan. The plan payments may be deducted directly from the debtor's salary by order of the court. If plan payments are not made, the case may be dismissed by the court on motion by the trustee or any creditor may petition the court to have their property returned. Some courts require that you surrender recently purchased property or luxury items before they will confirm a Chapter 13 plan. Chapter 13 is a form of bankruptcy and will appear as such as on your credit record even if you pay all of your creditors in full.
What is Chapter 12 bankruptcy?
Chapter 12 is designed to allow family farmers to retain their property and pay creditors over an extended period of time.
What is Chapter 11?
Chapter 11 is a reorganization proceeding usually involving corporate debtors, but it is also available to individuals who have been engaged in a commercial enterprise and desire to stay in business, restructure existing debts and attempt to reorganize and retain assets under court supervision.
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