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Bankruptcy - A Way to eliminate or Reorganize your debts

Posted on: 08th Apr, 2004 04:10 am
If you're in financial crisis and cannot repay your debts, bankruptcy may be the solution to your debt problems. To learn what bankruptcy is and how it may work for you, check out the bankruptcy information below:

What is bankruptcy?

Bankruptcy helps to eliminate a part of your debts and may offer a payment plan where you pay back your debts with court supervision. When you declare bankruptcy, the court puts an automatic stay on any legal actions (collections, garnishment, foreclosure etc) taken by creditors/lenders due to non-payment of debt.

There are personal and business bankruptcies. The most common types of personal bankruptcies are Chapter 7 and Chapter 13.

When should you file bankruptcy?

If you're unable to manage your debts and need to eliminate or reorganize them, you should consider declaring bankruptcy. Below are the conditions when you should declare bankruptcy.
  • You're making the minimum payments on your bills.
  • More than one account is in collection.
  • The lender is about to foreclose on your home.
  • You've recently lost your job.
  • You have tried other debt solutions and they haven't worked.

What is a bankruptcy discharge?

A discharge is a court order releasing the debtors from the personal liability to pay off their debts. The discharge order is usually issued 4 months after filing Chapter 7 bankruptcy and 3-5 years after filing Chapter 13 bankruptcy (30-60 days after your final payment).

The discharge does not remove any unpaid liens placed on your property before you filed for bankruptcy due to default on a secured debt (a mortgage or car loan). So, the lender can carry out a foreclosure after the automatic stay is lifted. To avoid a foreclosure after your Chapter 7 bankruptcy has been discharged, and keep your home, you should sign a Reaffirmation Agreement (for exempt equity) and continue paying your mortgage.

How to file bankruptcy

Instead of filing bankruptcy on your own, it's better to get help from an attorney who'll guide you through the process. There are 3 steps to filing for bankruptcy. They are:
  • Deciding which chapter you can file for under the Means Test.
  • Enrolling for Credit Counseling.
  • Filing the court documents, including a financial statement.
For more details on how to declare bankruptcy, check out this information on filing for bankruptcy.

What happens after you declare bankruptcy?

Take a look at the bankruptcy information given below and get an idea of what happens after you declare bankruptcy.
  1. Creditors are notified: Within 14 days of declaring bankruptcy, the court notifies your creditors about the filing. The court sends a copy of your bankruptcy petition, including a notice that the automatic stay has been put in place, the name of your trustee, and the date when the 341 creditor meeting has been set.

  2. 341 Meeting with your creditors: Between 20-40 days after filing, the trustee holds a 341 Meeting with your creditors. You are required to attend and answer any questions put to you under oath.

  3. Trustee's role: In a Chapter 7 bankruptcy case, the trustee takes a look at your assets and determines which ones your state law exempts from being sold. Any nonexempt assets are sold off to pay your debts. In a Chapter 13 bankruptcy case, the trustee negotiates with your attorney and creditors to work out a repayment plan you can afford.

  4. Creditors may challenge the discharge: Your creditors have 60 days from the 341 meeting to convince the court you should not be able to discharge their debt.

  5. Financial Management course: Under the 2005 changes to the bankruptcy code, you are required to enroll with a court approved credit counseling service within 180 days before you file for bankruptcy.

Can you keep your home after filing bankruptcy?

You'll be able to keep your home if you've filed Chapter 13. But if you've filed Chapter 7, you may or may not be able to protect the equity in your home from your creditors/lenders. There are Federal and State Homestead exemptions. If your equity is less than the exemption, then you'll be able to keep your home.

Federal and State Exemptions
Some states permit their citizens to use the Federal exemptions, while others do not. Every state court requires an individual filing for bankruptcy in their state to have lived there for at least 2 years or to have lived in that state for the majority of the 180 days before the 2 year period in order to use their exemptions.

If you have more equity in your home than the state homestead exemption allows, then the trustee will sell your home. You will get an amount equal to the exemption, and the rest will go to pay off your debts, including your court costs. If you are still paying on your mortgage, you may reaffirm your mortgage and exclude your home from your bankruptcy estate.

However, if you have sold or transferred property to another person in order to avoid losing that property in bankruptcy, then you may lose part of an exemption or have your bankruptcy petition denied.

What debts are not discharged?

There are certain debts which cannot be discharged by filing for bankruptcy. These include:
  • Student loans
  • Back taxes
  • Fraudulent debts
  • Alimony
  • Child support
  • Large purchases
  • Government penalty

Pros and cons of declaring bankruptcy

Filing bankruptcy gives you a fresh financial start and helps to eliminate or restructure your debts so you can manage your finances well. However, when you file Chapter 7, it hurts your credit score. But Chapter 13 has a positive effect on your score as you can repay all or part of your debts. Thus, bankruptcy isn't always bad. What's important is to understand how bankruptcy works and which Chapter would suit you the best.

Related Articles

Related Forum Discussions
can a first mortgage and or heloc be written off in a bankruptcy ???
Posted on: 24th Jan, 2011 07:41 am
Hi michael!

Welcome to forums!

If you receive a bankruptcy discharge, then you won't be personally liable for the mortgage payments any longer. However, you'll have to surrender the property and the lender will foreclose it in order to recover his dues.

Feel free to ask if you've further queries.

Posted on: 24th Jan, 2011 10:42 pm
Do you know of any group members who have had success through an adversity hearing to eliminate their mortgage due to the mortgage company not being able to prove holder in due course basically being able to proove they are a true creditor to the mortgage
Posted on: 25th Jan, 2011 05:09 pm
Well... I don't think so. However, if your debts are charged off and assigned to a collection agency, then it will be considered as an unsecured debt.
Posted on: 25th Jan, 2011 09:57 pm
We have just been approved for a loan modification. We are in the 3 month trial period. We also was dismissed from chapter 13. We want to transfer into a Chapter 7. We went to talk to the Debt Stoppers who handled the 13 for us they said it would be better to refile the the chapter 13. What should we do?Would it be wise to convert into a Chapter 7 they said we could loose our home. :?:
Posted on: 26th Jan, 2011 07:38 pm
Hi Guest,

You won't lose your home in Chapter 7 if you reaffirm your mortgage. However, once you reaffirm your mortgage, you will become personally liable for the mortgage payments. If you make the payments on time, you'll be able to save your property. However, after reaffirmation, if you fail to make the payments, then the lender can immediately foreclose the property.

Take care
Posted on: 27th Jan, 2011 02:12 am
Under Chapter 7, what can they take from me? Can they take things like cloths, furniture, TVs?
Posted on: 07th Feb, 2011 11:37 am
Hi aiden!

Welcome to forums!

As far as I know, most of the personal property people own- clothing, household furnishings and appliances are protected under bankruptcy law. The trustee won't be able to take those items away from you.

Feel free to ask if you've further queries.

Posted on: 07th Feb, 2011 11:10 pm
can any chapter save a person who owe back land tax
Posted on: 08th Feb, 2011 12:56 pm
Hi dane,

Back taxes do not get discharged in bankruptcy filing.

Posted on: 08th Feb, 2011 11:07 pm
what happens when the parent is doing bankrupcy and they die and the house and car is on the bankrupcy
Posted on: 09th Feb, 2011 08:48 am
Hi sherrie,

Your query will be best answered by a bankruptcy attorney. However, as far as I can understand, the bankruptcy filing will get dismissed and the lender will foreclose the house and the car in order to recover their dues.
Posted on: 09th Feb, 2011 10:27 pm
I am very confused and somewhat scared. The U.S. is currently going through the worst decline in 70 years. The U.S. dollar is not in jeopardy of being removed as the world reserve capital. If you are an economist, you know what this will do to the American infrastructure. Knowing that within 2 years this will happen, should I keep my mortgage, that is 15,000.00 upside down, and attempt a modification or do bankruptcy. I have already done two free means tests and passed, but am still unsure what to do. Can anyone help me?
Posted on: 10th Feb, 2011 07:21 am
There si a typo on my last entry. It was meant to say that it is in danger of being removed with the word now not the word not.
Posted on: 10th Feb, 2011 07:23 am
Hi Jackman!

Welcome to forums!

If you want to keep the property and stay in it for a longer period of time, then you should go for loan modification. If you don't want to keep the property, then you should go for bankruptcy and get rid of not only your mortgage but all other debts.

Feel free to ask if you've further queries.

Posted on: 10th Feb, 2011 11:10 pm
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