When Should You Consider Bankruptcy?
For many individuals, filing for bankruptcy relief can provide a way out of debt and a fresh financial start. But whether a bankruptcy filing is in your best interest will depend on many factors and your circumstances. Read on to learn more about what to consider if you are thinking about filing for Chapter 7 or Chapter 13 bankruptcy. Bankruptcy will impact your credit score for years to come. So it’s a good idea to evaluate all of your options before deciding to file for bankruptcy. Many creditors are willing to work with debtors to settle their debts. If you can resolve your financial issues outside of bankruptcy, you might not need to file for bankruptcy. Chapter 7 bankruptcy works well for people who can protect all of their property with exemptions, whose income is low enough to meet qualification requirements, and whose debt is the type that bankruptcy will discharge.
By contrast, Chapter 13 bankruptcy works best for people:
• whose income is too high to qualify for Chapter 7 bankruptcy
• who would like to save a house from foreclosure or a car from repossession, or
• who want to pay back nondischargeable debt, such as back child support or income tax debt, through a three- to five-year repayment plan.
So when considering whether it’s in your best interest to file for Chapter 7 or Chapter 13 bankruptcy, keep in mind that it will depend on numerous factors including:
• the type of debts you owe
• your income and expenses
• whether you’ll lose property, and
• what you hope to achieve with bankruptcy (such as keeping a house or car)
Before you file your case, you’ll want to think about the goals because a bankruptcy discharge doesn’t eliminate certain types of debt (called priority obligations). For instance, you can wipe out most credit card obligations, medical bills, and personal loans. But you can’t discharge domestic support obligations (such as child and spousal support), newer tax debt, student loans (unless you can prove undue hardship), and more. Filing for bankruptcy might not be in your best interest if you can’t get rid of your debt. However, bankruptcy can help in other ways. For instance, you can pay off nondischargeable debt over three to five years in a Chapter 13 case. If you have debts secured by your property (such as a mortgage or car loan), your lender can foreclose on the home or repossess the car if you default on your obligation (or take any other property that serves as collateral for the debt). Your lender has this right because of the lien you agreed to when you took out the loan. In most cases, you can’t wipe out your lender’s lien on the property with a bankruptcy discharge. Even after the bankruptcy, if you don’t make the loan payments, the lender can take back the property. However, bankruptcy’s automatic stay can stop or delay the foreclosure and repossession process. The relief afforded by the stay in Chapter 7 bankruptcy is usually temporary. But filing for Chapter 13 bankruptcy might allow you to:
• keep the property and catch up on your missed payments
• reduce the balance of your loan if you qualify for a cram down, and
• eliminate wholly unsecured junior liens from your house through a process called lien stripping.
If you don’t make the required payments on your debts, your creditors can take you to court to recover their money. A creditor that obtains a judgment against you in court can use it to garnish your wages or place a lien on your assets. Some creditors, like the IRS or your student loan lender, can take action without stepping into the courtroom. When you file for bankruptcy, an automatic stay goes into effect that stops almost all collection actions, including lawsuits and garnishments. Filing for bankruptcy relief can also eliminate the underlying debt. One of the most important things to consider before filing for bankruptcy is whether you’ll be able to keep all of your property. Bankruptcy exemptions allow you to protect a certain amount of assets in any bankruptcy chapter that you file. What will happen to nonexempt assets will depend on whether you file a Chapter 7 or Chapter 13 bankruptcy.
• Chapter 7 bankruptcy. A Chapter 7 bankruptcy trustee has the authority to sell any assets you can’t exempt and to use the proceeds to pay back your creditors.
• Chapter 13 bankruptcy. You can keep all of your property in a Chapter 13 bankruptcy. However, you’ll have to pay your unsecured debts (such as credit card balances, medical bills, and personal loans) at least an amount equal to the value of your nonexempt assets. If you have a significant amount of nonexempt property, filing for bankruptcy might not be in your best interest.
People who file for bankruptcy don’t lose all of their possessions. A bankruptcy filer can protect or exempt a certain amount of assets regardless of the bankruptcy chapter filed. The dollar amount of an ownership interest that you can protect is called exempt equity. Calculating exempt equity is a two-step process. First, you’ll find out how much of an item’s value you can protect, or exempt. You’ll do so by consulting your state’s exemption statutes. Although some exemption statutes tell you the number of items that you can protect, such as one motor vehicle or all prescribed health aids, others allow you to keep property valued up to a particular amount. For instance, you might be able to retain $50,000 in a home or $10,000 in household items. The dollar amount tells you how much equity you can exempt. The next step is figuring out how much equity you have in your property (the funds remaining after selling the property and paying off any outstanding loans). Suppose, for instance, that you were considering selling your house. To figure out the amount of your equity for bankruptcy purposes, you’d subtract your mortgage from the market value (the price your house would sell for). The remaining amount would be your equity.
By contrast, if you own a bicycle free and clear, you’d be entitled to all sales proceeds. Therefore, your equity would be its market value. You can own property without equity, too. If you do, you won’t use an exemption because there won’t be anything to protect.
Both Chapter 7 and Chapter 13 bankruptcy have eligibility requirements. Your income must be low enough to pass the Chapter 7 means test. By contrast, in Chapter 13 bankruptcy, the amount you owe cannot exceed certain dollar limits. Also, you must have enough income to support your Chapter 13 repayment plan.
Bankruptcy Do’s and Don’ts
If you are having difficulty paying your bills, bankruptcy may be a good solution for you. Carefully review the list below to avoid common mistakes, and get the maximum legal benefit, should you choose to file bankruptcy:
• Do seek competent legal advice! Filing for bankruptcy is an important personal decision. But bankruptcy law so complex that it’s almost impossible to understand all consequences of bankruptcy without talking to an experienced bankruptcy attorney. Before taking any financial steps, seek advice of experienced bankruptcy counsel.
• Be completely honest with your attorney. During your initial consultation, your attorney will ask you a series of questions to obtain an in-depth picture of your financial situation. You must answer these questions completely and honestly. An attorney cannot represent you effectively if you are not completely honest with us.
• Do provide your attorney with all the documents he requests. Your attorney will provide you with a list of necessary documents. Collecting all of these documents may take some time, but it’s important that you provide us with every item on that list.
• Do carefully read your bankruptcy petition: The Attorney will provide you with a draft copy of your petition before your appointment to sign the document. Please carefully review the petition before coming in to sign it. Do be completely honest on your bankruptcy petition. When you sign your bankruptcy petition, you are declaring that all the content in the petition is true and correct. Knowingly making false statements on your bankruptcy petition could result in your debts not being discharged, or, worse yet, result in criminal prosecution.
• Do fill out your Federal and State income tax returns. Our San Jose bankruptcy attorneys will need this information to effectively represent you. The bankruptcy trustee will also request to see these documents. Failure to provide copies of tax returns could mean that your debts won’t get discharged.
• Don’t worry! Millions of Americans have filed for bankruptcy protection. Not being able to pay your debts is not a crime. It is not a sign of failure. You have a right to seek relief from bill collectors, wage garnishments, and foreclosures by filing bankruptcy!
• Don’t run up debts immediately before filing bankruptcy. Incurring debts prior to bankruptcy could result in those debts not being discharged. Worse yet, the court may deny your bankruptcy altogether!
• Don’t use a non-attorney “bankruptcy preparer” unless you have completely researched all relevant legal issues. The non-attorney “bankruptcy preparers” cannot give you legal advice. They cannot analyze your situation. In some instances, by filing unmeritorious petitions that eventually get dismissed, they can cause you to lose important legal rights!
• Don’t try to hide cars, homes, or other property from bankruptcy by transferring these assets to friends or relatives. This conduct can be bankruptcy fraud. The court may dismiss your bankruptcy case, or deny discharge of your debts.
• Don’t borrow from your 401K or a home equity line to pay off your credit card debts. You may be triggering unnecessary tax expenses, or risking losing your home.
• Don’t increase your overtime hours to try to pay off your debts. Increasing your pay may disqualify you for chapter 7 relief. It may also affect what you pay back in a Chapter 13 bankruptcy.
• Don’t negotiate debt reduction with your credit cards. Debt reduction may trigger tax consequences. Talk to an attorney before engaging in debt reduction.
• Don’t file bankruptcy without understanding the consequences. Filing a “skeleton petition” can stop foreclosure of your home. But it can also jeopardize important legal rights. Bankruptcy can provide you with debt relief and a fresh start. But make sure you understand your legal rights and obligations before filing bankruptcy.
What Happens After I File For Bankruptcy?
After you complete the process for filing personal bankruptcy, there is an immediate “stay of proceedings.” This part of the process protects you from unsecured creditors trying to begin or continue any legal actions against you, such as wage garnishees, lawsuits, or any type of contact with you to collect a debt. Within five days, your trustee will send a copy of the bankruptcy paperwork to all creditors so they can begin the process of filing a claim. Your trustee will also file any outstanding tax returns up until the date of bankruptcy. Any outstanding balances or penalties will be included. After your personal bankruptcy paperwork is complete, you will have obligations such as providing monthly income statements and attending credit counseling sessions. When your bankruptcy is discharged, your debts will be canceled. It is important to understand that there may be minor exceptions to the debt cancellations. A note about your bankruptcy will remain on your credit report for a minimum of 6 years after the date of discharge. Once your debts are canceled, usually 9 months after filing, you can begin rebuilding your credit.
When Should I File for Bankruptcy?
Despite what many think, filing for bankruptcy is not the end of the world. It can actually be the fresh start you have been looking for. The laws of bankruptcy were drafted with the purpose of giving people a second chance, and not to punish them. But that doesn’t mean you should file for bankruptcy at the first sign of financial distress. Declaring bankruptcy will have short- and long-term consequences and should only be done as a last resort.
Before You File, Evaluate Your Situation
When should I file for bankruptcy? This is a question most people under financial distress ask. You should probably consider other options before going this route. These options include:
• Getting credit counseling
• Trying to negotiate your debt or make a payment plan with your creditor
• Sticking to a budget
If, however, other options don’t seem feasible, filing for bankruptcy may give you the ability to get a fresh start. Bankruptcy is a process by which you can discharge some of your debt because you are unable to repay those debts. There are usually two ways bankruptcy is declared:
• You file for bankruptcy
• Your creditors ask the court to declare you bankrupt
Chapter 7 Bankruptcy
Chapter 7 bankruptcy, otherwise known as “straight bankruptcy” or “liquidation,” allows the debtor to sell their non-exempt assets to pay off their debts; after that, the debtor will be free from all dischargeable debts. There are specific eligibility requirements that you must meet to qualify for Chapter 7 bankruptcy. Some of the scenarios where you wouldn’t be eligible for Chapter 7 include:
• Your income is too high (this is determined using the “means test”): In such cases, your case may be filed under chapter 13 bankruptcy
• You have the ability to repay your debt
• You dismissed a bankruptcy case within the past 180 days
• You previously filed for bankruptcy and the time frame to file another bankruptcy case has not passed
• You attempted to defraud creditors
Chapter 13 Bankruptcy
Chapter 13 bankruptcy requires you to make a repayment plan to pay creditors over a period of three to five years. This method is usually used if your income exceeds the limits set for Chapter 7 bankruptcy. You also need to show you comply with the eligibility requirements before you can file Chapter 13. These include:
• You are not a business organization
• You took credit counseling
• You have not dismissed a Chapter 13 case within the past 180 days
• You have not filed for a Chapter 13 within the past two years
Things You Should Know Before You File for Bankruptcy
Before you decide to declare bankruptcy, there are a few things you should consider. These include:
Not All Debts Will Be Discharged
You should know that bankruptcy does not wipe out all your debts. Some debts that will not be discharged include:
• Student loans
• Child support
• Court fines or penalties
Debts such as credit card debts, loans, lease and contract obligations, and medical bills can be discharged.
Declaring Bankruptcy Will Affect Your Credit Score
In exchange for discharging your debt, filing bankruptcy shows everyone that you may be a credit risk, which will be reflected in your credit score. Thus, getting a loan, a mortgage, or a credit card may be very difficult after declaring bankruptcy. You should note bankruptcy filed under Chapter 7 will remain on your record for 10 years. If you filed under Chapter 13, it would stay on your credit report for 7 years. After that, it is erased.
Your Co-Signers May Be Required to Pay Your Debts
Co-signers are people who agree to pay your debt if you are somehow unable/unwilling to pay the debt. If you file a Chapter 7 bankruptcy, your creditors are allowed to go after the co-signer even if your bankruptcy case is successful. Under Chapter 13, your creditors can’t go after your co-signer as long as you make your regular payments per your agreement.
Filing for Bankruptcy During a Pandemic
Filing for bankruptcy during a pandemic or other national emergency may be challenging, as operational hours for courts may change. So, first, make sure your local bankruptcy court is open and taking cases before you file. You should also expect a delay in the processing of your case.
Utah Bankruptcy Lawyer
When you need legal help with bankruptcy in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506