Bankruptcy Law: Some Important Facts

By: Ian W Anderson
Submitted: 2007-01-17 16:10:23
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As applying for loans, credit cards and other forms of credit are easier to come by, so are the bankruptcy rates in the United States. In a ten year period, between 1994 and 2004, bankruptcy rates in the United States nearly doubled. The government’s reaction was to take a closer look at reasons parties were filing for bankruptcy, new laws were instated to ensure that individuals and businesses had valid reasons for applying for bankruptcy.

One of the primary laws regarding bankruptcy that was passed in the United States in 2004 is the Bankruptcy Abuse Prevention and Consumer Protection Act. This law just went into effect in October 2005, but has already caused quite a stir in the financial and bankruptcy law arenas. Besides making it more difficult to qualify for Chapter 7 bankruptcy, or complete bankruptcy, the law imposes stricter rules and budgets on Chapter 13 debtors.

A major change the law makes throughout the United States is the need for debtors to have filed tax returns for four years in a row before qualifying for bankruptcy. As well, dischargeable debts, or those debts where personal liability is taken away by the court system, is more difficult to come by. The Act requires that debtors prove good reason for dischargeable debt and is even requiring more debtors to take responsibility with non-dischargeable debt budgets.

As far as the two major types of bankruptcy laws are concerned, Chapter 13 bankruptcy is that which allows the debtor to keep some assets upon proving only limited debt and a steady income. This bankruptcy is excellent for those debtors who have gotten themselves into major financial difficulty but still have means of paying for some assets. The court will set up a repayment schedule and budget that allows for full repayment of mortgages or cars within three to five years.

If repayment is simply not an option, the bankruptcy law requires that a debtor will file for Chapter 7 bankruptcy. This is often referred to as complete liquidation of assets, except for exempt items. Exempt items in a bankruptcy hearing are determined by the court and are usually items that are a necessity, such as a car or work related items. As well, the courts will distribute debts into two categories: non-dischargeable and dischargeable debt.

Non-dischargeable debts also fall into two categories: non-dischargeable due to wrongful conduct on the debtor and non-dischargeable due to public policy. Wrongful misconduct by the debtor could mean theft or laundering money while public policy could include child support payment or court related judgments.

Keep in mind that in either type of bankruptcy, an individual is almost always required to still pay for taxes, student loans, alimony, child support or court related fees. This is the place where many bankrupt parties are misled in the Chapter 7 bankruptcy, as it is often referred to as "a fresh start". While the court can set up payment plans to help the debtor repay public policy debts, even Chapter 7 debtors will still be required to make payments.

Another major point regarding bankruptcy law is that a bankruptcy will stay on a credit report for approximately ten years. This will make it extremely difficult to become eligible for any type of credit, even a credit card, but especially for a car loan or a house mortgage. While some creditors will still offer limited credit to bankrupt individuals, the interest rates and finance charges are usually through the roof. This makes it even more difficult for debtors to get back on their feet.

Last but not least, keep in mind that bankruptcy law will require any co-signers to be responsible for debt payments. If mom or dad signed for a car loan when you were young and you still owe on that car, they are liable for payments. These friends or family members who were once doing you a favor may be brought into the bankruptcy law court proceedings, which can put a strain on friendships and family relations.

For specific bankruptcy law questions it is best to contact a bankruptcy attorney or legal aide in your county or state. Bankruptcy laws and proceedings may vary slightly from state to state, so be sure to make contacts in the state where you plan to file for bankruptcy.

Credit: Ian W Anderson of Bankruptcy 411, the bankruptcy information site. For more bankruptcy information and articles like this one visit: Bankruptcy Law

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