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Bankruptcy Law Champions helps you connect with a

lawyer who specializes in eliminating or restructuring debts.

If you are considering bankruptcy you should realize that

the bankruptcy laws have changed recently and it is now

harder than ever before to “wipe the slate clean”.

Bankruptcy alternatives should be considered and

bankruptcy filed only as a last result.

Declaring bankruptcy is a serious and complicated matter.

Often, it is viewed by individuals and companies that have

over extended their financial debt as their only remaining

option and is seen as a way to put all the debt behind them

and start fresh. This is not always the case, and before you

take this step, you should consult with a qualified bankruptcy

expert who can advise you.

On April 20, 2005, President Bush signed into law the

Bankruptcy Abuse Prevention and Consumer Protection Act

of 2005 ("BAPCPA"). BAPCPA made substantial changes to

the Bankruptcy Code. This made it significantly more

difficult for an individual or a corporation to successfully

claim the protection that bankruptcy can offer.

Bankruptcy should not be considered without the advice of

competent legal counsel.

While there are many different types (or Chapters) of

bankruptcy, we will give you an overview of the three most

common. Chapters 7, 11, and 13 are discussed below.

Chapter 7 Bankruptcy

Liquidation Under the Bankruptcy Code

The chapter of the Bankruptcy Code providing for

"liquidation," (the sale of a debtor's nonexempt property and

the distribution of the proceeds to creditors.)

A chapter 7 bankruptcy case does not involve the filing of a

plan of repayment as in chapter 13. Instead, the bankruptcy

trustee gathers and sells the debtor's nonexempt assets and

uses the proceeds of such assets to pay holders of claims

(creditors) in accordance with the provisions of the

Bankruptcy Code. Part of the debtor's property may be

subject to liens and mortgages that pledge the property to

other creditors. In addition, the Bankruptcy Code will allow

the debtor to keep certain "exempt" property; but a trustee

will liquidate the debtor's remaining assets. Accordingly,

potential debtors should realize that the filing of a petition

under chapter 7 may result in the loss of property.

One of the primary purposes of bankruptcy is to discharge

certain debts to give an honest individual debtor a "fresh

start." The debtor has no liability for discharged debts. In a

chapter 7 case, however, a discharge is only available to

individual debtors, not to partnerships or corporations. 11

U.S.C. § 727(a)(1). Although an individual chapter 7 case

usually results in a discharge of debts, the right to a discharge

is not absolute, and some types of debts are not discharged.

Moreover, a bankruptcy discharge does not extinguish a lien

on property.

In order to complete the Official Bankruptcy Forms that make

up the petition, statement of financial affairs, and schedules,

the debtor must provide the following information:

1. A list of all creditors and the amount and nature of their

claims;

2. The source, amount, and frequency of the debtor's income;

3. A list of all of the debtor's property; and

4. A detailed list of the debtor's monthly living expenses, i.e.,

food, clothing, shelter, utilities, taxes, transportation,

medicine, etc.

Among the schedules that an individual debtor will file is a

schedule of "exempt" property. The Bankruptcy Code allows

an individual debtor to protect some property from the claims

of creditors because it is exempt under federal bankruptcy

law or under the laws of the debtor's home state. 11 U.S.C. §

522(b). Many states have taken advantage of a provision in

the Bankruptcy Code that permits each state to adopt its own

exemption law in place of the federal exemptions. In other

jurisdictions, the individual debtor has the option of choosing

between a federal package of exemptions or the exemptions

available under state law. Thus, whether certain property is

exempt and may be kept by the debtor is often a question of

state law. The debtor should consult an attorney to determine

the exemptions available in the state where the debtor lives.

Secured creditors may retain some rights to seize property

securing an underlying debt even after a discharge is granted.

Depending on individual circumstances, if a debtor wishes to

keep certain secured property (such as an automobile), he or

she may decide to "reaffirm" the debt. A reaffirmation is an

agreement between the debtor and the creditor that the debtor

will remain liable and will pay all or a portion of the money

owed, even though the debt would otherwise be discharged in

the bankruptcy. In return, the creditor promises that it will not

repossess or take back the automobile or other property so

long as the debtor continues to pay the debt.

Chapter 13 Bankruptcy

Individual Debt Adjustment

This chapter of the Bankruptcy Code provides for adjustment

of debts of an individual with regular income. (Chapter 13

allows a debtor to keep property and pay debts over time,

usually three to five years.)

A chapter 13 bankruptcy is also called a wage earner's plan. It

enables individuals with regular income to develop a plan to

repay all or part of their debts. Under this chapter, debtors

propose a repayment plan to make installments to creditors

over three to five years. If the debtor's current monthly

income is less than the applicable state median, the plan will

be for three years unless the court approves a longer period

"for cause." If the debtor's current monthly income is greater

than the applicable state median, the plan generally must be

for five years. In no case may a plan provide for payments

over a period longer than five years. 11 U.S.C. §1322(d).

During this time the law forbids creditors from starting or

continuing collection efforts.

Chapter 13 offers individuals a number of advantages over

liquidation under chapter 7. Perhaps most significantly,

chapter 13 offers individuals an opportunity to save their

homes from foreclosure. By filing under this chapter,

individuals can stop foreclosure proceedings and may cure

delinquent mortgage payments over time. Nevertheless, they

must still make all mortgage payments that come due during

the chapter 13 plan on time. Another advantage of chapter 13

is that it allows individuals to reschedule secured debts (other

than a mortgage for their primary residence) and extend them

over the life of the chapter 13 plan. Doing this may lower the

payments. Chapter 13 also has a special provision that

protects third parties who are liable with the debtor on

"consumer debts." This provision may protect co-signers.

Finally, chapter 13 acts like a consolidation loan under which

the individual makes the plan payments to a chapter 13

trustee who then distributes payments to creditors. Individuals

will have no direct contact with creditors while under chapter

13 protection.

In order to complete the Official Bankruptcy Forms that make

up the petition, statement of financial affairs, and schedules,

the debtor must compile the following information:

1. A list of all creditors and the amounts and nature of their

claims;

2. The source, amount, and frequency of the debtor's income;

3. A list of all of the debtor's property; and

4. A detailed list of the debtor's monthly living expenses, i.e.,

food, clothing, shelter, utilities, taxes, transportation,

medicine, etc.

Individuals may use a chapter 13 proceeding to save their

home from foreclosure. The automatic stay stops the

foreclosure proceeding as soon as the individual files the

chapter 13 petition. The individual may then bring the past-

due payments current over a reasonable period of time.

Nevertheless, the debtor may still lose the home if the

mortgage company completes the foreclosure sale under state

law before the debtor files the petition.11 U.S.C. § 1322(c).

The debtor may also lose the home if he or she fails to make

the regular mortgage payments that come due after the

chapter 13 filing.

Chapter 11 Bankruptcy

A case filed under chapter 11 of the United States Bankruptcy

Code is frequently referred to as a "reorganization"

bankruptcy.

Reorganization Under the Bankruptcy Code

The chapter of the Bankruptcy Code providing (generally) for

reorganization, usually involving a corporation or partnership.

(A chapter 11 debtor usually proposes a plan of

reorganization to keep its business alive and pay creditors

over time. People in business or individuals can also seek

relief in chapter 11.)

The debtor (unless a "small business debtor") has a 120-day

period during which it has an exclusive right to file a plan. 11

U.S.C. § 1121(b). This exclusivity period may be extended or

reduced by the court. But, in no event, may the exclusivity

period, including all extensions, be longer than 18 months. 11

U.S.C. § 1121(d). After the exclusivity period has expired, a

creditor or the case trustee may file a competing plan. The

U.S. trustee may not file a plan. 11 U.S.C. § 307.

A chapter 11 case may continue for many years unless the

court, the U.S. trustee, the committee, or another party in

interest acts to ensure the case's timely resolution. The

creditors' right to file a competing plan provides incentive for

the debtor to file a plan within the exclusivity period and acts

as a check on excessive delay in the case.

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