Bankruptcy FAQ's
WHAT IS BANKRUPTCY?
Bankruptcy a legal process that allows an individual who cannot pay his or her bills to get a fresh financial start. The right to file for bankruptcy is provided in the Federal Bankruptcy Law, and all bankruptcy cases are prosecuted in Federal Court. The filing of a bankruptcy petition immediately stops all creditors from seeking to collect debts while the Court accesses your financial situation and determines if bankruptcy relief may be granted in your case.
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WHAT ARE THE DIFFERENT TYPES OF BANKRUPTCY?
Depending upon your situation, federal bankruptcy law provides for different types of proceedings or Chapters in applying the law.
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Chapter 7 (Personal Bankruptcy) The complete liquidation of the debtor's estates.
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Complete liquidate for municipal governments.
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Liquidation of a businesses estate and debts.
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Chapter 12 (Family Farm Bankruptcy) governs family farm bankruptcies.
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Chapter 13 (Personal Wage Earner Bankruptcy) Scheduled repayment of at least a portion of the outstanding debts over a fixed period of time.
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WHAT IS CHAPTER 7 BANKRUPTCY?
Chapter 7 is the part of the United States Bankruptcy Code that deals with liquidation, which means the selling of all non-exempt assets by a court appointed trustee. The proceeds of the sale are used to pay creditors. In return, a debtor receives a discharge, which releases a debtor from all dischargeable debts and orders creditors to forever stop their attempts to collect the discharged debts.
When a debt is discharged, a debtor is forever relieved of the obligation to pay that debt. Not all debts are dischargeable. Non-discharged include certain taxes, alimony, child support, student loans, debts that have not been listed in the Chapter 7 petition, and debts which have been incurred as a result of either an intentional tort or the defrauding or misleading of a creditor.
Sometimes payment plans can be negotiated with creditors. Obtaining loan extensions, compromises and workout agreements require negotiation skills and the experience of an attorney. It is in your best interest to contact an attorney. These alternatives may alert your creditors to the existence of nonexempt property that the creditor could reach and can involve considerable expense. You also have the option of doing nothing. In any event, you should seek professional advice in dealing with most of these alternatives.
WHAT IS CHAPTER 13 BANKRUPTCY?
Chapter 13 of the United States Bankruptcy Code is designed primarily for residential homeowners, and allows a person or married couple to pay off all, or a portion, of their debts under the supervision and the protection of the U.S. Bankruptcy Court.
Chapter 13 is designed for working people, with steady incomes, who are overwhelmed with bills, judgments, lawsuits and other financial concerns. A Chapter 13 Plan is primarily used to repay mortgage arrears, and a percentage, or all, of the money owed to your other creditors, over a 3-5 year period. Chapter 13 can also be used as an alternative to credit counseling wherein an individual can repay their credit card debt over a 3-5 year period without the accrual of additional interest charges.
While a Chapter 13 case is in effect, creditors can not start or continue their collection efforts, and must accept what the plan pays to them. Any individual or married couple, even if self-employed, can receive Chapter 13 relief if they owe less than $250,000.00 in unsecured debt and less than $750,000.00 in secured debt.
Upon the successful completion of a Chapter 13 repayment plan, the debtor receives an official discharge and certificate of completion, which extinguishes all obligations to make further payments on unsecured debts, even though these creditors may not been paid in full. In fact, many people in Chapter 13 pay their unsecured creditors no more than 10, 20 or 30 percent of the total amount owed.
WHAT ARE SOME ALTERNATIVES TO BANKRUPTCY?
Chapter 7 Bankruptcy or "liquidation," is generally the simplest and quickest form of bankruptcy. It's available to people, corporations and partnerships. Your non-exempt property is assessed and sold by a trustee of the court, with the proceeds going to pay the creditors.
WHAT SHOULD I DO TO PREPARE FOR FILING BANKRUPTCY?
First, you should consult with an attorney. An attorney can help you plan for the bankruptcy, decide when to file a bankruptcy petition, or even avoid filing for bankruptcy.
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If you intend to file bankruptcy, you should stop using your credit cards immediately.
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Do not transfer your assets to friends, family or business associates to protect the assets from your creditors. The transfer may be considered a fraudulent conveyance. If it is, you may lose both the property and your right to a bankruptcy discharge.
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Do not destroy any business or financial records.
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Carefully choose the creditors you pay. Some creditors, such as landlords, secured creditors, and some utilities should be paid under most circumstances. If you pay a credit card debt that eventually will be discharged, you may be throwing money away. Your attorney should advise you on what debts should and should not be paid while you prepare to file a bankruptcy petition.
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DO I NEED AN ATTORNEY TO FILE BANKRUPTCY?
Individuals may file a bankruptcy petition without an attorney. This is called appearing "pro-se." However, the Bankruptcy Code is very complex and filing a bankruptcy petition requires a thorough knowledge of both the Bankruptcy Code and other Federal and State laws. In addition, bankruptcy practice differs from court to court. Experienced bankruptcy attorneys are familiar with the local rules, both written and unwritten, so it is in your best interest to consult an attorney before filing.
WHAT HAPPENS TO MY PERSONAL PROPERTY, REAL PROPERTY, AND OTHER ASSETS?
Once the bankruptcy is filed, all of your property at the time of the filing and certain other property to be received in the future becomes the property of the bankruptcy estate. This means that the bankruptcy trustee may take control of this property and sell it to satisfy your creditors. You are required to file a schedule with the court describing all of your assets. Certain property is either "excluded" from the bankruptcy estate or "exempt," which means you will be able to keep that property. Often, all of your assets can be protected. An experienced attorney will review your bankruptcy case and asset schedules to determine what will happen during the bankruptcy proceeding.
WHAT ARE PROPERTY EXEMPTIONS?
Lawmakers have determined that, even if you owe a substantial amount of debt, you are still entitled to protect and retain certain of life's necessities from the grasp of your creditors. This personal property is classified as exempt property, meaning that you can keep it, even after you receive a discharge of your debts in bankruptcy.
Under New York State Law, the following is a sample of the types of personal property that are considered exempt: (A) cash, checking or savings accounts, U.S. Savings Bond, stocks, and other marketable securities, and tax refunds up to a maximum total of $2,500.00; (B) equity in a motor vehicle up to $2,400.00; (C) basic wearing apparel; (D) $50,000.00 of the equity in your home, co-op or condo; (E) social security benefits; (F) household furnishing and certain appliances; (G) IRA, 401K and other qualified retirement accounts.
Claiming certain exemptions will limit your ability to use others. For example, if you are claiming the $50,000.00 homestead exemption, you cannot also benefit the exemption for cash, savings and tax refunds. The bottom line is that you can walk away from a bankruptcy with much, sometimes all of your cash and other personal belongings.
WILL THE FILING OF A BANKRUPTCY STOP MY BILL COLLECTORS FROM TAKING ACTION?
When you file for bankruptcy protection, an automatic stay is immediately imposed upon your creditors that preclude them from taking any further action against you to collect a debt, including the prosecution of court judgments, wage garnishments and repossession. Sometimes, it may be necessary for you to contact an individual creditor directly to obtain immediate relief and supply that creditor with your case number and the date of the filing of your petition. Once a creditor has been notified of your filing, they must immediately stop all collections efforts against you. For example, if you have been served with a summons by one your creditors to appear in court regarding the repayment of a debt, the bankruptcy filing will immediately stop this lawsuit and the creditor, and its attorney, must abide by the requirements of the bankruptcy law.
CAN I KEEP ANY OF MY EXISTING CREDIT CARD ACCOUNTS AFTER BANKRUPTCY?
The law requires a debtor to schedule all outstanding debts that are owed by the debtor as of the date of the filing of a bankruptcy petition. If you have a credit card account that has a zero balance as of the time you file your petition, this account does not have to be scheduled in your bankruptcy petition as, technically, the lender or servicing agent on this card is not a creditor, and thus will not be discharged in bankruptcy.
Even if you have an outstanding balance when you file, you may still be able to keep your account. In order to do this, you usually must agree with the creditor to repay part or all of your outstanding balance as of the time of filing. When you make an agreement of this nature, you and your creditor will execute a document known as Reaffirmation Agreement that, in most cases, requires the approval of the Bankruptcy Court before taking effect.
HOW MANY YEARS WILL A BANKRUPTCY FILING SHOW ON MY CREDIT REPORT?
Under the provisions of the Fair Credit Reporting Act, the filing of a bankruptcy petition shall remain on an individual's credit report for 10 years, but only 7 years if a debtor is successfully complete to Chapter 13 plan.
HOW LONG WILL IT TAKE ME TO OBTAIN NEW CREDIT AFTER I FILE FOR BANKRUPTCY?
The decision to grant credit in the future is strictly up to an individual creditor and varies from creditor to creditor and state to state depending on the type of credit requested. While there is no law that prevents an individual from extending credit to you immediately after obtaining a discharge in bankruptcy, you should anticipate a period of time in which you would have to establish credit. In most cases, the easiest manner in which to reestablish credit is to obtain a secured credit card from a major granter of credit after you obtain your discharge.
HOW CAN I RE-ESTABLISH MY CREDIT RATING AFTER BANKRUPTCY?
The best way is to obtain new credit and make the payments on time. Sometimes an existing creditor may continue to grant you credit based upon a reaffirmation agreement made during the bankruptcy. You may also be able to obtain a secured credit card, where the credit limit is based upon the amount of security given, or obtain credit using a co-signer.
HOW LONG DOES A TYPICAL BANKRUPTCY CASE TAKE?
The life of a typical Chapter 7 case is normally 4-6 months. A Chapter 13 bankruptcy case takes anywhere to 3-5 years to complete.
WILL I HAVE TO GO TO COURT?
In a Chapter 7 proceeding, the only Court appearance that is required is your appearance before the Court appointed Trustee at your Meeting of Creditors. This meeting usually takes place between 20-45 days after a petition is filed.
In a Chapter 13 case, you are also required to appear at a Meeting of Creditors with your Chapter 13 trustee. In addition, your appearance may also be required at the hearing in which the Bankruptcy Court considers final approval of your plan of repayment. This hearing, called a Confirmation Hearing, usually takes place approximately 3-6 months after a Chapter 13 petition is filed.
WHAT IS A MEETING OF CREDITORS?
Section 341 of the United States Bankruptcy Code affords creditors the right to meet with the debtor to determine if a discharge or a reorganization of debt is appropriate based upon the facts and circumstances presented by a debtor in their bankruptcy petition. While creditors do technically have the right to attend these proceedings and to question the debtor, creditors rarely appear at these proceedings.
In Chapter 7 proceedings, the Meeting of Creditors serves two important purposes: (A) the Court, through examination by the Court appointed Trustee, verifies that all of the representations contained in your bankruptcy petition are true and correct to your best of your belief and knowledge. In addition, the Bankruptcy Court Trustee also utilizes this meeting to verify on behalf of the Court that there are no assets that maybe considered non-exempt, which could be sold by the Trustee to repay part, or all, of your debt. A typical meeting of creditors in a Chapter 7 proceeding takes approximately 5-10 minutes to complete.
In Chapter 13 proceedings, a debtor is also required to appear before the Chapter 13 trustee. In a Chapter 13 case, the meeting of creditors serves a slightly different purpose. In addition to verifying that all of the representations made by a debtor are true and correct, the Chapter 13 trustee will also verify that the debtor has the financial ability with which to make the payments proposed in the proposed Chapter 13 plan.
Verification of a debtor's ability to make payments in a Chapter 13 case is based upon both the debtor testimony at the meeting and various documentation, usually tax returns and/or pay statements that must be presented to the Chapter 13 trustee to verify the representations made in your Chapter 13 petition. As in a Chapter 7 case, a typical meeting of creditors in Chapter 13 case takes between 5-10 minutes to complete.
HOW OFTEN CAN I FILE FOR PROTECTION UNDER CHAPTER 7?
An individual debtor can obtain relief under Chapter 7 every eight years. Please note however that the 8-year period does not run from the date of the filing of the first petition, but rather from the date the court issues the bankruptcy discharge. If you have filed for Chapter 7 protection in the past, you can file a second Chapter 7 petition so long the applicable time period have past since the issuance of the discharge in your prior case.
CAN UTILITY BILLS BE DISCHARGED IN A BANKRUPTCY PROCEEDING, AND IF SO, WILL MY UTILITY SERVICES BE TERMINATED?
Obligations to utility services can be listed in a bankruptcy petition. In addition, it is a violation of Public Service Commission regulations for a utility service to terminate the service to a bankrupt on a basis of their filing a bankruptcy petition. However, a utility may, and in most cases, will, require that you pay a security deposit to that utility to guarantee that post petition obligations shall be paid in a timely fashion.
CAN MY EMPLOYER DISCRIMINATE AGAINST ME BECAUSE I HAVE FILED FOR A BANKRUPTCY
Absolutely not. Federal law prohibits governmental units and private employers from discriminating against you because you file a bankruptcy petition or because you have failed to pay a dischargeable debt.
ARE STUDENT LOANS DISCHARGEABLE IN BANKRUPTCY?
Generally, student loans are not dischargeable in a bankruptcy proceeding. 11 U.S.C. Section 523(a)(8) cites two exceptions to this general rule:
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The student loan maybe discharged if it is neither insured or guaranteed by a governmental unit, nor made under any program funded in whole or in part by a governmental unit or non-profit institution.
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The student loan maybe discharged if paying the loan will "impose an undue hardship on the debtor and debtor's dependents."
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THE BIG QUESTION: WILL I LOSE MY HOUSE?
The answer is: Possibly. The Bankruptcy Reform Act of 2005 actually makes that possibility more likely than before. (Another one of those so-called "consumer protections.") Also, depending upon the state in which you reside, you may have more or fewer legal protections about whether your house will be forfeit. Up to a certain amount, your house is exempt. Over a particular value, and it possibly could be sold to satisfy your creditors.
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