Bankruptcy: Is it right for you?

The following is not intended to be legal advice. If you are considering bankruptcy, please contact an attorney.

There are several kinds of bankruptcy available under the United States Bankruptcy Code. Each has different eligibility requirements and offers unique options. To learn what kind of option you qualify for and what’s best for your specific situation, contact a bankruptcy attorney.

Helpful tip: Some debts cannot be discharged at the end of a bankruptcy process. These include child support payments, debts incurred as a result of driving under the influence, student loans and some federal taxes. Talk to your attorney if you’re considering bankruptcy and have these debts.

Chapter 7 Bankruptcy 

Often called “regular bankruptcy,” “straight bankruptcy” or “liquidation,” this is bankruptcy in its most basic form. Chapter 7 discharges all of your unsecured debts, and there’s no repayment plan.

Under Chapter 7, you must give up any nonexempt property that you own, meaning, select property items that aren’t covered by bankruptcy protection. The trustee assigned to your bankruptcy may sell this property and divide the proceeds among your creditors.

Property that isn’t discharged includes secured loans like cars, homes, and some credit card purchases. You can choose to forfeit these assets that provide security for the loan, in order to discharge the debt.

In most cases, however, people who file a Chapter 7 bankruptcy don’t lose any assets by filing.

Chapter 7 Bankruptcy Process

The first thing to do when filing for bankruptcy is to meet with a qualified bankruptcy attorney who can ensure that your interests are properly protected, especially before making any large payments to a single creditor, or disposing of assets either through sale or gifting.

Whether you choose to work with an attorney or to handle the case by yourself, the process generally goes like this:

1. analysis of your financial affairs by an approved credit counseling agency;
2. filing the case with the bankruptcy court;
3. the 341 meeting;
4. pre-discharge debtor education course; and
5. discharge.

Step One: Analysis of Your Financial Affairs Before beginning any kind of bankruptcy proceeding, a detailed analysis of your current financial situation must be completed. It includes:

• systematic documentation of your average monthly income;
• your average monthly expenses; and
• your financial goals.

This analysis will also determine which chapter of the U.S. Bankruptcy Code or your state’s Bankruptcy Code best meets your needs and protects your interests. Most people who file for bankruptcy have the option to choose whether they want to follow the state or federal code. Because these two codes may allow for different property exemptions, this decision can have a significant impact.

Under the new bankruptcy code, you’ll also be required to complete a credit counseling course, such as this one, which you’ll complete shortly.

Once all the filing documents are in place, the legal proceedings can begin.

Step Two: Filing the Case with the Court The legal portion of the bankruptcy process begins when you and your attorney file an official bankruptcy petition with the bankruptcy court.

Once the filing is complete, an automatic stay is in effect. The automatic stay protects you from all collection activities, lawsuits, and foreclosure proceedings that your creditors would otherwise attempt. They must stop all collection efforts at once, and cannot contact you in any way, except through the court and your attorney.

Step Three: The 341 Meeting

Approximately forty-five days after filing your bankruptcy petition with the court, you and your attorney will attend a meeting, known as the 341 meeting, with your creditors and the appointed bankruptcy trustee.

Once your financial information is confirmed, the trustee will review your bankruptcy petition. This usually takes between 15 and 30 minutes.

Step Four: Pre-Discharge Debtor Education Course

Before you receive your discharge from bankruptcy, you’ll have to complete a debtor education course. Usually this course is between two and four hours long. The course provides additional information on how to stay out of debt after your bankruptcy is complete.

Step Five: Discharge

Your Chapter 7 bankruptcy is complete and you are no longer responsible for the debts discharged in your bankruptcy. The court has eliminated all of your remaining eligible debts, and your creditors are satisfied. You are now out of bankruptcy and have complete control over your money.

Chapters 11 and 12 Bankruptcy 

Chapter 11 Bankruptcy

This chapter of the bankruptcy code is for very complex debt reorganizations. While available to individuals, due to its great expense and complexity, it’s usually reserved for use by large corporations.

Chapter 12 Bankruptcy

This bankruptcy is for family farmers and is very similar to Chapter 13 described on the next page.

Chapter 13 Bankruptcy 

This type of bankruptcy involves a reasonable, court-approved repayment plan designed to pay back all or part of your debt over a five-year period.

This plan will be based on your income level, and covers both secured and unsecured debt. You’ll typically have to pay all of your disposable monthly income to the trustee, who then disperses the money to your creditors. A certain amount will be allowed for entertainment and emergency purchases.

The Chapter 13 repayment plan must pass two tests, the best interest test and the best efforts test. The best interest test states that unsecured creditors must be paid at least as much as they would have if you filed for Chapter 7. The best efforts test requires that you pay all disposable income to the trustee for up to sixty months.

Under law, Chapter 13 cannot last longer than five years. As long as you make your payments under the payment plan, creditors can’t contact you. This plan is an excellent solution as long as you can create and follow a budget.

Chapter 13 Bankruptcy Process

What are the steps in the process?

The first thing to do when filing for bankruptcy is to meet with a qualified bankruptcy attorney who can ensure your interests are properly protected (especially before making any large payments to a single creditor or disposing of assets through either sale or gift).

Whether you choose to work with an attorney or perform the process by yourself, the process generally goes like this:

1. analysis of your financial affairs with an approved credit counseling agency;
2. filing the case with the court;
3. the 341 meeting;
4. approval by the court;
5. repayment period;
6. pre-discharge debtor education course; and
7. discharge.

Step One: Analysis of Your Financial Affairs Before beginning any kind of bankruptcy proceeding, a detailed analysis of your current financial situation must be completed. It includes:

• Systematic documentation of your average monthly income
• Your average monthly expenses
• Your financial goals.

This analysis will also determine which chapter of the U.S. Bankruptcy Code or your state’s Bankruptcy Code best meets your needs and protects your interests.

Most people who file for bankruptcy have the option to choose whether they want to follow the state or federal code. Because these two codes may allow for different property exemptions, this decision can have a significant impact.

Under the new bankruptcy code, you will also be required to complete a credit counseling course (such as this one).

Once all the filing documents are in place, the legal proceedings can begin.

Helpful tip: If you choose Chapter 13, a detailed payment plan, meeting the Chapter 13 qualifications (either U.S. or your state’s), must be developed. Payments under this payment plan are made to an appointed trustee who disperses the money to your creditors.

Step Two: Filing the Case with the Court

The legal portion of the bankruptcy process begins when you and your attorney file a bankruptcy petition (official document) with the appropriate bankruptcy court. You also have up to fifteen days from the day you file the petition to file the payment plan and details of your financial situation.

Once the filing is complete, an automatic stay is in effect. Arising as a matter of law, the stay protects you from all collection activities, lawsuits, and foreclosure proceedings. Your creditors must stop all collection efforts, and cannot contact you in any way.

Step Three: The 341 Meeting

Approximately forty-five days after you file your petition with the court, you and your attorney will attend a meeting, known as the 341, with your creditors and the appointed bankruptcy trustee.

Once your financial information is confirmed, the trustee will review your repayment plan. This is to make sure your plan is reasonable, that you’re likely to meet your payment requirement, and that you are making a good faith effort to repay your creditors.

Step Four: Approval by the Court

Once the 341 meeting is completed, your Chapter 13 plan is sent to the bankruptcy judge for approval at a confirmation hearing. The judge makes sure all court costs have been paid, whether your plan complies with the law, whether it was made in a good faith effort to repay your creditors and that you’re able and likely to meet the requirements of the payment plan.

Helpful tip: Generally, the plan is approved and the filer is not required to attend the hearing.

Step Five: Repayment Period

Once the court approves your plan, you start making plan payments (if you haven’t already done so) to the trustee. The trustee then disburses the payments to your creditors in accordance with your plan.

Step Six: Pre-Discharge Debtor Education Course

Before you receive your discharge from bankruptcy, you’ll have to complete a debtor education course. Usually this course is between two and four hours long. The course provides additional information on how to stay out of debt after your bankruptcy is complete.

Step Seven: Discharge

Your Chapter 13 repayment plan is now complete. You’ve made all your payments, the court has eliminated or discharged all your remaining eligible debts, and your creditors are satisfied. Now you are out of bankruptcy and have complete control over your money.

The federal government has passed several acts that are designed to protect and assist you should you find yourself in debt. Here are brief descriptions of three such laws.

Fair Credit Reporting Act:

This is a federal law that regulates the activity of the credit reporting agencies, also called the “credit bureaus.” It provides a way for you to remove inaccurate, false, or outdated information from your credit report.

If you find that some of your information is incorrect, you may write to the credit bureaus, which then have to verify the accuracy of the information within a specific period of time. If they can’t verify it, it must be removed from your credit report.

The law also states that any information more than seven years old must be removed, with the exception of certain bankruptcy information, which can be reported for ten years.

Because the burden of proof is on the credit reporting agencies and not you, the consumer, this law is very powerful.

Helpful tip: Up to 50% of all credit reports are estimated to have inaccurate information. Check your credit report annually to make sure everything is correct. By visiting AnnualCreditReport.com, you can get a free copy of your credit report once a year from each of the three major credit reporting agencies: Equifax, Experian and TransUnion.

Fair Debt Collection Practices Act:

This law regulates collections agencies, and what they and your creditors can and cannot do when trying to collect a debt from you. Under this law, creditors and debt collectors must work with you in a professional and reasonable manner. This means that they cannot:

harass you; call before 8 a.m. or after 9 p.m.; call you at work if you don’t want them to; or use profane language, threats of imprisonment, seizure of property or violence.

Congress passed this law to prevent harassment and abuse, by making creditors and collection agencies accountable for their actions when attempting to collect debts. If you’re being contacted by creditors and debt collectors and feel that they’re dealing with you in an unprofessional and disrespectful way, tell them to stop by using this exact phrase: “Pursuant to the Fair Debt Collections Practices Act…” and finishing the sentence by saying they cannot continue the behavior that you find uncomfortable and harassing. If it doesn’t stop, you may report the creditor or debt collector to the Federal Trade Commission.

Regardless of the behavior of the creditor or debt collector, if you just want the letters and phone calls to stop, you can write a “cease and desist” letter. Your attorney can give you a sample copy.

Remember: While a “cease and desist” letter will stop a creditor or debt collector from contacting you in the future, it won’t stop them from taking legal action against you for your unpaid debt.

Fair Credit Billing Act:

This law is designed to help consumers challenge information on their credit card bills. Under this law, if you notice a mistake in your credit card bill, you can contact the company who made the charge, in writing and within sixty days of receiving the bill. Be sure to include your name, address, account number, and any details of the mistake in the letter.

The company then has thirty days to respond and investigate the issue. If an error is found, the company is required by law to tell you how they’re fixing the mistake and remove any fees or charges associated with it. If an error isn’t found, they’re still required by law to inform you.