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06/15/2012

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Bankruptcy Frequently asked Questions FAQs

  • What is Bankruptcy?
  • Do I need an Attorney to represent me for the filing of a Bankruptcy?
  • What types of Bankruptcy are available to me as an individual?
  • What is the difference between a Chapter 7 Bankruptcy and a Chapter 13 Bankruptcy?
  • What types of debt are dischargeable in Bankruptcy?
  • What is the difference between a secured creditor and an unsecured creditor?
  • What types of debts are not dischargeable?
  • The balance on one or more of my accounts may be different now than originally reported to my Attorney, does that matter?
  • May I keep assets despite filing Bankruptcy?
  • May I transfer / sell assets prior to filing Bankruptcy?
  • May I keep certain credit cards out of the Bankruptcy?
  • Should I continue to pay my debts until my Bankruptcy case has started?
  • How does my Bankruptcy case commence?
  • When does the Section 341 Meeting take place?
  • What should I bring to the Section 341 Meeting?
  • Will my attorney be present with me at the Section 341 Meeting?
  • Will I have to attend any other meetings?
  • When will I receive my discharge from the Bankruptcy court?
  • Will I be able to establish new credit after filing Bankruptcy?
  • What is the best way to establish and rebuild credit after filing Bankruptcy?
  • How long will a Bankruptcy show up on my credit report?
  • What are the consequences of filing Bankruptcy?
  • Is there Life after Bankruptcy?

Q. What Is Bankruptcy?
A. People who are having trouble paying their debts sometimes consider bankruptcy as a remedy for this situation. An individual debtor usually files bankruptcy to obtain a discharge, which will wipe out his or her debts so that they will not have to be paid. Creditors cannot try to collect discharged debts from the bankruptcy debtor or sue the debtor and obtain a valid judgment. With a few exceptions, the creditors have no claim on the debtor's future income or future assets.


Q. Do I need an Attorney to represent me for the filing of a Bankruptcy?
A. You are not required to have an Attorney represent you for the filing of a Bankruptcy, but, if you have substantial assets, or a large estate, or feel that there have been financial circumstances that could reasonably be considered as attempts to give inaccurate information to creditors in the acquiring of debt or the hiding of assets, consulting an attorney would be a good idea. However, in the vast majority of simple consumer bankruptcies the use of an attorney is not necessary.  For a free bankruptcy manual and access to free bankruptcy forms please click here.  Or for immediate assistance 877 604 6636. 


Q. What types of Bankruptcy are available to me as an individual?
A. An individual consumer may file one of two types of bankruptcies, a Chapter 7 or a Chapter 13.


Q. What is the difference between a Chapter 7 Bankruptcy and a Chapter 13 Bankruptcy?
A. A Chapter 7 Bankruptcy is called a "liquidation" whereas a Chapter 13 Bankruptcy is called a "reorganization." Each is generally discussed below.

In a Chapter 7 Liquidation, the debtor assembles all assets, sets aside exempt assets, and decides what to do with secured assets. If there are any non-exempt assets left, the Trustee seizes such assets, liquidates them, divides the proceeds of the sale, and distributes the proceeds, pro-rata, to the debtor's unsecured creditors, satisfying as much of the outstanding balances as possible. Any remaining debts owed are then discharged.

As mentioned above, for the average consumer, most assets are found to fall into the exempt category and thus are not susceptible to seizure by the trustee.

In a Chapter 13 Reorganization, the debtor generally keeps all assets that he or she wishes to while reorganizing his or her debts in a manner that reduces the principal amounts of the debt that is due, stops interest, late-payments and over-the-limit-charges on the remaining balances, and establishes a monthly payment that must be made to the Trustee to satisfy all debts through the court approved re-payment plan.

Details of both types of consumer bankruptcies briefly described above should be discussed in detail with an Attorney, specifically addressing the facts and circumstances of your individual case.


Q. What types of debts are dischargeable in Bankruptcy?
A. Certain types of debts, such as child support, alimony, some federal income taxes, (income taxes are generally, dischargeable provided that they have been owed for at least three years and filed, at least, two years ago—the general idea is that the government has to be given a reasonable amount of time to recover taxes that it is owed), and all employer withholding taxes are not discharged in bankruptcy. Generally, federally guaranteed student loans cannot be discharged, unless the Debtor has experienced a severe, undue hardship preventing them from altogether using their education for any gainful purpose. The debtor's wrongful conduct may make some debts non-dischargeable in a liquidation bankruptcy, such as incurring credit card charges when the debtor had no intent or ability to repay, obtaining loans using false financial information, or debts for harm caused while driving under the influence of alcohol or drugs.


Q. What is the difference between a secured creditor and an unsecured creditor?
A. Generally speaking, a Secured Creditor is a creditor that has not only your promise to pay, but has a lien in the property that you possess. An Unsecured Creditor only has your "naked" promise to pay - if you are unable to make payment, the unsecured creditor does not possess a lien and therefore does not have the ability to seek possession of any specific asset, without court assistance.


Q. What types of debts are not dischargeable?
A. Priority debts are not dischargeable in a Bankruptcy. Specifically, debts such as child support, alimony, some federal income taxes, and all employer withholding taxes are not discharged in bankruptcy.

Q. Can Student Loans be Discharged in Bankruptcy?

A.  Generally speaking, student loans cannot be discharged in a bankruptcy, however, this an undue hardship exeption

Student Loan Hardship Discharge

Student loans are no longer dischargeable in bankruptcy just because they have been in pay status for a given period of time.  The only way the loan can be discharged is by proving that repayment of the loan will create an undue hardship on the debtor/borrower and his family. 

 

This standard is generally interpreted to mean that the debtor cannot maintain a minimally adequate standard of living and repay the loan.   It usually requires a showing that the conditions that make repayment a hardship are unlikely to improve substantially over time.  

 

Courts in some circuits will permit the judge to find that the debtor can repay a portion of the loan without hardship, and to discharge the balance of the loan.

The debtor's wrongful conduct may make some debts non-dischargeable in a Chapter 7 Liquidation, such as incurring credit card charges when the debtor had no intent or ability to repay, or obtaining loans using false financial information.


Q. The balance on one or more of my accounts may be different now than originally reported to my Bankruptcy Preparer or Attorney , does that matter?
A. Not really. If there are large differences please let us know, but your creditors have an opportunity to file a Proof of Claim in which they will tell the court the exact figure and the amount of the claim. The claim will then work its way through the court system.


Q. May I keep assets despite filing Bankruptcy?
A. Yes. The Bankruptcy Code and each state has exemptions that are laws that protect certain assets and keep them out of the reach of your creditors despite the fact that you are filing Bankruptcy. Assets that are exempt in most states include, but are not limited to:

  • Homestead exemption
    • Equity in Home owned generally from $50,000 to $125,000 often doubled if married.
  • Automobile exemption - $1,000 to about $7,000 in equity.
  • Personal Property exemption - $1,000 to unlimited
  • IRS Approved Retirement Instruments (i.e., 401(k); IRA, etc.) - unlimited $ amount in most states
  • Life Insurance Policies - unlimited $ amount in most states
  • Social Security Income / Disability - reasonable $ amount
  • Head of Household Wages

You may also keep secured assets, despite the fact that you are filing Bankruptcy, if you chose to re-affirm the debt that is secured by the asset. For example, if you own a home, you may keep the home provided that you continue to make your mortgage payments and arrange, to re-affirm your obligation to the mortgage lender after the Bankruptcy has been filed.


Q. May I transfer / sell assets prior to filing Bankruptcy?
A. It depends. Generally speaking, transfers of assets prior to the filing of a Bankruptcy are heavily scrutinized by the court, and, in some circumstances, may be reversed.

If you are contemplating both the filing of a Bankruptcy and the sale or transfer of assets, it is best that your first discuss whether such transactions are allowable. Otherwise, transferring assets may jeopardize your case and prevent the discharge of your debts.


Q. May I keep certain credit cards out of the Bankruptcy?
A. It depends. Legally, you may not "keep out" certain credit cards from the filing of your Bankruptcy. The law requires that you list all of your creditors in your Voluntary Petition of Bankruptcy. You do, however, in some circumstances, have the option of re-affirming a debt if, it is determined that it would be in your best interest to do so.


Q. Should I continue to pay my debts until my Bankruptcy case has started?
A. It depends. If you have a positive payment history with your unsecured creditors, it may be worthwhile for you to continue to pay minimum payments to your unsecured creditors right up until your Bankruptcy case commences.

If, however, you do not have a positive payment history with your unsecured creditors, then paying them will not preserve a good payment history, as it is already blemished.


Q. How does my Bankruptcy case commence?
A. Your Bankruptcy cases commences with the filing of your Voluntary Petition of Bankruptcy with the court.  We will prepare your petition based upon the facts and information that you provide to us within the Bankruptcy Package that we will email to you.


Q. When does the Section 341 Meeting take place?
A. The Section 341 Meeting takes place approximately 3 to 4 weeks after filing your Bankruptcy Petition with the court. You will receive notice of the Address, Date, Time and Room Number for your meeting directly from the Bankruptcy Court via the U.S. mail, or at the time of filing.


Q. What should I bring to the Section 341 Meeting?
A. Some type of photo ID (i.e. a valid Driver's License) and a document verifying your Social Security Number (i.e., Social Security Card, pay stub or Health Insurance card, etc.)


Q. Should I have an attorney present with me at the Section 341 Meeting?
A. In the vast majority of cases an attorney is not necessary. It is you, the debtor, who is sworn in and will testify as to the accuracy of the facts represented in your petition.  It usually consists of little more than “do you swear that the information presented in the petition is correct?”, you say yes and it’s done.


Q. Will I have to attend any other meetings?
A. If your are filing a Chapter 7 Bankruptcy, you will not typically need to attend another meeting or hearing before receiving your discharge order from the court.

If you are filing a Chapter 13 Bankruptcy, you will not typically need to attend another meeting. Your attorney, however, will attend your Plan Confirmation Hearing for you.

You will have to attend an additional meeting or hearing only if the Court determines that an additional adversary proceeding or a final evidentiary hearing is necessary to resolve unique issues in your case.  But again, absent unusual circumstances this is rare.


Q. When will I receive my discharge from the Bankruptcy court?
A. You will receive your discharge from the U.S. Bankruptcy court approximately 2 to 3 months after attending your Section 341 Meeting.


Q. Will I be able to establish new credit after filing Bankruptcy?
A. Yes. It is possible to re-establish your credit after filing a Bankruptcy. In fact, for many debtors, Bankruptcy is the first and most important step in re-establishing your credit.  As part of our compete services we also provide, after your bankruptcy discharge, comprehensive credit improvement manuals and guides for re-establishing your credit.

Click Here for Free Credit Repair Manuals


Q. What is the best way to establish and rebuild credit after filing Bankruptcy?
A. Bankruptcy is a blemish on your credit report. Its affect, however, may be mitigated by showing a positive payment history on credit accounts after filing the Bankruptcy. This may be done in one of two ways.

First, continue to make timely payments on secured assets, such as your home or your car. This will demonstrate your ability to make responsible payments to your creditors.

Second, apply for a secured credit card. After you have obtained the card, make purchases on the card up to the pre-set limit. After your purchases, re-deposit an amount of money equal to the amount of your purchases. After you have done this for a few months, you will have established a responsible payment pattern, and your credit card limit will likely be increased. Soon thereafter, provided you continue to show responsible use of the card, you will likely be give an usecured card. Continue to use it responsibly and you are well on your way to re-establishing your credit.


Q. How long will a Bankruptcy show up on my credit report?
A. Federal law permits creditors to report credit activity for up to seven years. Bankruptcies, however, are permitted to be reported for up to ten years.


Q. What are the consequences of filing Bankruptcy?
A. While Bankruptcy is a blemish on your credit profile, many times, depending upon a client's particular facts and circumstances, the filing of a Bankruptcy may be the first, most important step toward rebuilding one's finances. In the end, if an individual has incurred enough debt and does not have enough disposable income to direct toward credit card payments, many times there are two choices: continue to be a slave to your creditors or address the problem head on a take the steps necessary to rebuilding your financial future: manage your debt through the filing of a bankruptcy.


Q. Is there Life After Bankruptcy?
A. Yes. We have spent over a decade helping people first manage and discharge their debt and then rebuild their financial future. After your Bankruptcy has been filed and you have received your discharge, there are additional steps we may take to further assist you on your road to financial recovery. Specifically, comprehensive credit restoration services and guidance and Home purchase assistance.

WHAT IS A DISCHARGE?

The filing of a chapter 7 petition is designed to result in a discharge of most of the debts you listed on your bankruptcy schedules. A discharge is a court order that says you do not have to repay your debts, but there are a number of exceptions. Debts which may not be discharged in your chapter 7 case include, for example, most taxes, child support, alimony, and student loans; court ordered fines and restitution; debts obtained through fraud or deception; and personal injury debts caused by driving while intoxicated or taking drugs. Your discharge may be denied entirely if you, for example, destroy or conceal property; destroy, conceal or falsify records; or make a false oath. Creditors cannot ask you to pay any debts which have been discharged. Once you receive a chapter 7 discharge, you may not file another chapter 7 case for a period of eight (8) years.

WHAT ARE THE POTENTIAL EFFECTS OF A DISCHARGE?

The fact that you filed bankruptcy may appear on your credit report for up to 10 years. Thus, filing a bankruptcy petition may affect your ability to obtain credit in the future. However, if you follow our credit restoration program, you will quickly begin receiving offers of credit and even a mortgage! It is not uncommon for our clients to obtain a mortgage within six months to two years of receiving a discharge.

WHAT IS AN EXEMPTION

Bankruptcy laws explain exemption as the bankruptcy code that allows you to "exempt" (or keep) from your creditors a large amount of value in your personal and real property. For example, in most jurisdictions a debtor is allowed to keep his or her car if the equity in the car does not exceed $1,000 to $7,000.

Before you decide to file chapter 7, you must fully analyze your financial situation to determine whether a chapter 13 filing would be beneficial. Chapter 13 is for an individual debtor with stable income, who can file a Repayment Plan to pay a percentage of their general unsecured debts over the course of the Plan term, usually 36 to 60 months. An additional benefit could be retention of all assets and the opportunity to cure arrears due secured creditors, such as home mortgage(s), car loans, etc.

HOW CHAPTER 7 WORKS

A chapter 7 case begins with the filing of a petition with the bankruptcy court. In addition to the petition, you are also required to file with the court several schedules of assets and liabilities, a schedule of current income and expenditures, a statement of financial affairs, and a schedule of executory contracts and co-debtors.  A husband and wife may file a joint petition or individual petitions.

The filing of a petition under chapter 7 “automatically stays" most actions against the debtor or the debtor's property. This stay arises by operation of law and requires no judicial action. As long as the stay is in effect, creditors generally cannot initiate or continue any lawsuits, wage garnishments, or even telephone calls demanding payments. Creditors normally receive notice of the filing of the petition from the court clerk.

One of the schedules of assets and liabilities which will be filed by the individual debtor is a schedule of "exempt" property.  Bankruptcy law provides that an individual debtor can protect some property from the claims of creditors either because it is exempt under the laws of the state or residence.

According to bankruptcy laws, a "meeting of creditors" or a "341 meeting" is usually held 20 to 40 days after the petition is filed. The debtor must attend this meeting, at which creditors may appear and ask questions regarding the debtor’s financial affairs and property. However, as noted above, usually it consists of little more than the trustee’s question “is the information contained in the petition true and correct”…

If a husband and wife have filed a joint petition, they both must attend the creditors' meeting.

ROLE OF THE BANKRUPTCY CASE TRUSTEE

Upon filing of the chapter 7 petition, an impartial Bankruptcy case trustee is appointed by the United States Trustee to administer the case and liquidate the debtor's nonexempt assets. If, as is often the case, all of the debtor’s assets are exempt or subject to valid liens, there will be no distribution to creditors. Typically, most chapter 7 cases involving individual debtors are "no asset" cases.

DISCHARGE

As a general rule, excluding cases which are dismissed or converted, individual debtors are discharged in more than 99 percent of chapter 7 cases. In most cases, the discharge will be granted to a chapter 7 debtor relatively early in the case, that is, 60 to 90 days after the date first set for the meeting of creditors.

The grounds for denying an individual debtor a discharge in a chapter 7 case are very narrow and are construed against a creditor or trustee seeking to deny the debtor a chapter 7 discharge. Among the grounds for denying a discharge to a chapter 7 debtor are that the debtor failed to explain satisfactorily any loss of assets; the debtor committed a bankruptcy crime such as perjury; the debtor failed to obey a lawful order of the bankruptcy court; or the debtor fraudulently transferred, concealed, or destroyed property that would have become property of the estate.

While the information about Federal bankruptcy laws presented in this fact sheet is accurate as of the date of publication, it should not be cited or relied upon as legal authority. It should not be used as a substitute for reference to the United States Bankruptcy Code and the Federal Rules of Bankruptcy Procedure, both of which may be reviewed at local law libraries, and any local rules or practices adopted and disseminated by each bankruptcy court.