Information on Bankruptcy

By: Andrew Marx
Submitted: 2007-01-17 16:17:34
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The quick and dirty definition of bankruptcy is when a person who is unable to pay their debt goes to court seeking relief. If you are the petitioner, the court must determine if your debts are truly beyond your ability to pay. Then, depending on your case, either the court discharges the bulk of your debt or sets up a payment schedule that is in your best interests but does not entirely absolve you of the responsibility of paying your creditors.

While that might be a simplified explanation of bankruptcy, it is one of the most complicated consumer legal issues you might encounter. Part of the complexity is due to the regulations, the fact that there are different types of bankruptcy petitions, and the process to administer the petition within the court system.

The other aspect that cannot be ignored is the negative stigma attached to bankruptcy. You have not owned up to your debt, you are trying to cheat your creditors out of money, etc. It is true that some people are looking for an easy way out to not pay their bills, but the fact of the matter is that bankruptcy is a legitimate legal proceeding to reorganize your debt.

In order to decide whether bankruptcy is the right course of action, the first thing you need to do is separate the emotional response from the financial response. Then go consult with a lawyer. Bankruptcy law changed significantly last year, and your first and best source of information is always going to be someone who is aware of the legal ramifications and, in fact, whether or not bankruptcy is the best financial choice in your situation.

Credit Cards

Unless your credit cards are paid off in full before you file, chances are you will not be able to use them again after you file (and even then, the creditor may cancel the credit card.) This is not a call to action to charge up your cards the month before you file. For one, the courts may recognize that as bad faith and order you to pay those recent charges in full instead of discharging them. Two, the act of bankruptcy is intended to give you the means to show more financial responsibility and charging your cards to the max is rarely a sign of responsible spending.

However, your credit card companies will stop collection calls on your delinquent credit card accounts, and your attorney can handle all the contact with credit agencies. This is one of the most powerful benefits of a bankruptcy: the “automatic stay.” This means that all attempts to collect all debts by all entities must immediately cease.

Other Types of Debt

If you have foreclosures or garnishments, the collection actions on those will stop as well. Secured debt, i.e. mortgages and car payments, cannot be eliminated through bankruptcy. The debtor has the choice of catching up on arrears and continuing to make payments, surrendering the collateral and owing nothing, or “redeeming” the collateral with a lump sum payment of the balance due or current value, whichever is less. If reading that is already overwhelming, just know that secured debt is still your debt after you file.

In the immediate future, your credit will take a severe hit, so the likelihood that are you are extended credit after you file is slim. That does not extend indefinitely into the future. The point of bankruptcy is also to give you a chance to rebuild your credit, and sooner than you expect, you might be eligible for some forms of credit. Although something large like a mortgage on a home will probably be five years or more away.

You should also be aware that there are certain types of debt that will not be wiped clean no matter your situation. You will almost always owe on student loan payments, even in bankruptcy, as well as back taxes from the last few years. Child support and alimony are two other types of debt that you will continue to owe.

Public Disclosure of Debt

If embarrassment is your main concern, then you should know that most court proceedings are public record, can be researched by just about anyone, and in some cases, the information about your claim will show up in newspapers. Public disclosure is part of the legal process, and it should not stop of you from declaring bankruptcy if it is a sound financial decision.

A report of bankruptcy does stay on your credit report for ten years. It stays that long to discourage people who are only filing to get out of obligations they never intended to pay to begin with. Though it is possible to file multiple bankruptcies in a lifetime, for most individuals, one time should be sufficient to get you back on track financially.

The Next Step

The two most common petitions for individuals are Chapter 7 bankruptcy and Chapter 13. This is where a conversation with a lawyer is critical so that you can understand the differences between the two and get information on your eligibility for Chapter 7. The 2005 Bankruptcy Reform made it more difficult for individuals to qualify for Chapter 7 bankruptcy.

In general, Chapter 7 discharges the bulk of your debt (the exceptions were mentioned earlier) and Chapter 13 is essentially a court ordered payment plan to handle your debt. There is a court supplied formula that determines what the monthly payment should be in Chapter 13. It is based on the income and expenses of the debtor. If the plan is approved, after 60 months of steady payments whatever remains unpaid is discharged.

If you are overwhelmed by your debt, then the best thing to do is think carefully about the ramifications of filing for bankruptcy. First, separate the financial and emotional issues, and have a conversation about each separately. It is important to talk to someone who is familiar with bankruptcy law, and advisable to seek out a lawyer in any case to address the financial implications.

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