Does Bankruptcy Erase All My Debts?
There are two different bankruptcy procedures for individuals. These proceedings are known as Chapter 7 and Chapter 13. While you may be familiar with the term Chapter 11 from the news, that chapter applies to business owners only.
Effective October 2005, Congress made sweeping changes to the bankruptcy laws that gave consumers more incentive to seek bankruptcy relief under Chapter 13 rather than Chapter 7. Chapter 13 allows people with a steady income to keep property, like a mortgaged house or a car, that they might otherwise lose through the Chapter 7 bankruptcy process. Basically in Chapter 13, the court can approve a payment plan that can run up to five years. This process lets you pay off today’s debts with future earnings. Obviously you have to have a steady source of income to qualify for this filing.
Chapter 7 is sometimes refered to as a straight bankruptcy. Basically Chapter 7 requires the liquidation of all but a few work related assets like a vehicle used in work or tools etc. All other property will be sold or given to debtors as payment. The chapter also places a limitation on the amount you can earn during this process. The intent of the law is to insure the debtor does not profit by not paying his debts.
Another difference between the two is the amount of time that must pass before you can refile. With Chapter 7 the waiting period is 8 years. With 13 it is two years.
While there are some similarities in the types of debt that can be discharged through either Chapter 7 or 13, there will be some differences as well depending on the state where you file. Most unsecred debt, garnishments, foreclosure notices and collection calls can be discharged through bankruptcy. However, child support, alimony, fines, certain taxes and student loans cannot.
Unlike the liquidation proceedings in a Chapter 7, Chapter 13 is designed to allow the debtor to pay off all the debt over a period of time. However, the court must be satisfied with the pay back plan otherwise it can order that other property such as boats, cars etc be sold to insure that the debts are fully paid. Arriving at a reasonable pay back plan is essential if the debtor wishes to keep his property.
As part of the new law, persons seeking to file under either chapter have to have attended a government approved credit counseling course within six months of filing. The idea here is to try and solve the credit problem without taking legal action. The second major change just involves Chapter 7. Today you have to satisfy a “means test” to confirm your income does not exceed a certain amount. This amount will vary by state. You can find those limits here.
The decision to file for bankruptcy can be a very emotional one and one that can cause a great deal of friction within a family. Don’t make the stress greater by trying to do it yourself. Seek out a qualified bankruptcy attorney to guide you throught the process.
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