Filing Chapter 7

Massachusetts Bankruptcy Lawyers Anthony Bucacci and Robert Simonian (508)673-9500


Chapter 7 – Bankruptcy Basics

This chapter of the Bankruptcy Code provides for “liquidation” – the sale of a debtor’s nonexempt property and the distribution of the proceeds to creditors.

Alternatives to Chapter 7

Debtors should be aware that there are several alternatives to chapter 7 relief. For example, debtors who are engaged in business, including corporations, partnerships, and sole proprietorships, may prefer to remain in business and avoid liquidation. Such debtors should consider filing a petition under chapter 11 of the Bankruptcy Code. Under chapter 11, the debtor may seek an adjustment of debts, either by reducing the debt or by extending the time for repayment, or may seek a more comprehensive reorganization. Sole proprietorships may also be eligible for relief under chapter 13 of the Bankruptcy Code.

In addition, individual debtors who have regular income may seek an adjustment of debts under chapter 13 of the Bankruptcy Code. A particular advantage of chapter 13 is that it provides individual debtors with an opportunity to save their homes from foreclosure by allowing them to “catch up” past due payments through a payment plan. Moreover, the court may dismiss a chapter 7 case filed by an individual whose debts are primarily consumer rather than business debts if the court finds that the granting of relief would be an abuse of chapter 7. 11 U.S.C. § 707(b).

If the debtor’s “current monthly income” (1) is more than the state median, the Bankruptcy Code requires application of a “means test” to determine whether the chapter 7 filing is presumptively abusive. Abuse is presumed if the debtor’s aggregate current monthly income over 5 years, net of certain statutorily allowed expenses, is more than (i) $12,850, or (ii) 25% of the debtor’s nonpriority unsecured debt, as long as that amount is at least $7,700. (2) The debtor may rebut a presumption of abuse only by a showing of special circumstances that justify additional expenses or adjustments of current monthly income. Unless the debtor overcomes the presumption of abuse, the case will generally be converted to chapter 13 (with the debtor’s consent) or will be dismissed. 11 U.S.C. § 707(b)(1).

Debtors should also be aware that out-of-court agreements with creditors or debt counseling services may provide an alternative to a bankruptcy filing.

Background

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.

Chapter 7 Eligibility

To qualify for relief under chapter 7 of the Bankruptcy Code, the debtor may be an individual, a partnership, or a corporation or other business entity. 11 U.S.C. §§ 101(41), 109(b). Subject to the means test described above for individual debtors, relief is available under chapter 7 irrespective of the amount of the debtor’s debts or whether the debtor is solvent or insolvent. An individual cannot file under chapter 7 or any other chapter, however, if during the preceding 180 days a prior bankruptcy petition was dismissed due to the debtor’s willful failure to appear before the court or comply with orders of the court, or the debtor voluntarily dismissed the previous case after creditors sought relief from the bankruptcy court to recover property upon which they hold liens. 11 U.S.C. §§ 109(g), 362(d) and (e). In addition, no individual may be a debtor under chapter 7 or any chapter of the Bankruptcy Code unless he or she has, within 180 days before filing, received credit counseling from an approved credit counseling agency either in an individual or group briefing. 11 U.S.C. §§ 109, 111. There are exceptions in emergency situations or where the U.S. trustee (or bankruptcy administrator) has determined that there are insufficient approved agencies to provide the required counseling. If a debt management plan is developed during required credit counseling, it must be filed with the court.

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.

How Chapter 7 Works

A chapter 7 case begins with the debtor filing a petition with the bankruptcy court serving the area where the individual lives or where the business debtor is organized or has its principal place of business or principal assets. (3) In addition to the petition, the debtor must also file with the court: (1) schedules of assets and liabilities; (2) a schedule of current income and expenditures; (3) a statement of financial affairs; and (4) a schedule of executory contracts and unexpired leases. Fed. R. Bankr. P. 1007(b). Debtors must also provide the assigned case trustee with a copy of the tax return or transcripts for the most recent tax year as well as tax returns filed during the case (including tax returns for prior years that had not been filed when the case began). 11 U.S.C. § 521. Individual debtors with primarily consumer debts have additional document filing requirements. They must file: a certificate of credit counseling and a copy of any debt repayment plan developed through credit counseling; evidence of payment from employers, if any, received 60 days before filing; a statement of monthly net income and any anticipated increase in income or expenses after filing; and a record of any interest the debtor has in federal or state qualified education or tuition accounts. Id. A husband and wife may file a joint petition or individual petitions. 11 U.S.C. § 302(a). Even if filing jointly, a husband and wife are subject to all the document filing requirements of individual debtors. (The Official Forms may be purchased at legal stationery stores or download. They are not available from the court.)

The courts must charge a $245 case filing fee, a $75 miscellaneous administrative fee, and a $15 trustee surcharge. Normally, the fees must be paid to the clerk of the court upon filing. With the court’s permission, however, individual debtors may pay in installments. 28 U.S.C. § 1930(a); Fed. R. Bankr. P. 1006(b); Bankruptcy Court Miscellaneous Fee Schedule, Item 8. The number of installments is limited to four, and the debtor must make the final installment no later than 120 days after filing the petition. Fed. R. Bankr. P. 1006. For cause shown, the court may extend the time of any installment, provided that the last installment is paid not later than 180 days after filing the petition. Id. The debtor may also pay the $75 administrative fee and the $15 trustee surcharge in installments. If a joint petition is filed, only one filing fee, one administrative fee, and one trustee surcharge are charged. Debtors should be aware that failure to pay these fees may result in dismissal of the case. 11 U.S.C. § 707(a).

If the debtor’s income is less than 150% of the poverty level (as defined in the Bankruptcy Code), and the debtor is unable to pay the chapter 7 fees even in installments, the court may waive the requirement that the fees be paid. 28 U.S.C. § 1930(f).

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.

Married individuals must gather this information for their spouse regardless of whether they are filing a joint petition, separate individual petitions, or even if only one spouse is filing. In a situation where only one spouse files, the income and expenses of the non-filing spouse are required so that the court, the trustee and creditors can evaluate the household’s financial position.

Among the schedules that an individual debtor will file is a schedule of “exempt” property. The Bankruptcy Code allows an individual debtor (4) 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.

Filing a petition under chapter 7 “automatically stays” (stops) most collection actions against the debtor or the debtor’s property. 11 U.S.C. § 362. But filing the petition does not stay certain types of actions listed under 11 U.S.C. § 362(b), and the stay may be effective only for a short time in some situations. The stay arises by operation of law and requires no judicial action. As long as the stay is in effect, creditors generally may not initiate or continue lawsuits, wage garnishments, or even telephone calls demanding payments. The bankruptcy clerk gives notice of the bankruptcy case to all creditors whose names and addresses are provided by the debtor.

Between 21 and 40 days after the petition is filed, the case trustee (described below) will hold a meeting of creditors. If the U.S. trustee or bankruptcy administrator (5) schedules the meeting at a place that does not have regular U.S. trustee or bankruptcy administrator staffing, the meeting may be held no more than 60 days after the order for relief. Fed. R. Bankr. P. 2003(a). During this meeting, the trustee puts the debtor under oath, and both the trustee and creditors may ask questions. The debtor must attend the meeting and answer questions regarding the debtor’s financial affairs and property. 11 U.S.C. § 343. If a husband and wife have filed a joint petition, they both must attend the creditors’ meeting and answer questions. Within 10 days of the creditors’ meeting, the U.S. trustee will report to the court whether the case should be presumed to be an abuse under the means test described in 11 U.S.C. § 704(b).

It is important for the debtor to cooperate with the trustee and to provide any financial records or documents that the trustee requests. The Bankruptcy Code requires the trustee to ask the debtor questions at the meeting of creditors to ensure that the debtor is aware of the potential consequences of seeking a discharge in bankruptcy such as the effect on credit history, the ability to file a petition under a different chapter, the effect of receiving a discharge, and the effect of reaffirming a debt. Some trustees provide written information on these topics at or before the meeting to ensure that the debtor is aware of this information. In order to preserve their independent judgment, bankruptcy judges are prohibited from attending the meeting of creditors. 11 U.S.C. § 341(c).

In order to accord the debtor complete relief, the Bankruptcy Code allows the debtor to convert a chapter 7 case to a case under chapter 11, 12, or 13 (6) as long as the debtor is eligible to be a debtor under the new chapter. However, a condition of the debtor’s voluntary conversion is that the case has not previously been converted to chapter 7 from another chapter. 11 U.S.C. § 706(a). Thus, the debtor will not be permitted to convert the case repeatedly from one chapter to another.

Role of the Case Trustee

When a chapter 7 petition is filed, the U.S. trustee (or the bankruptcy court in Alabama and North Carolina) appoints an impartial case trustee to administer the case and liquidate the debtor’s nonexempt assets. 11 U.S.C. §§ 701, 704. If all the debtor’s assets are exempt or subject to valid liens, the trustee will normally file a “no asset” report with the court, and there will be no distribution to unsecured creditors. Most chapter 7 cases involving individual debtors are no asset cases. But if the case appears to be an “asset” case at the outset, unsecured creditors (7) must file their claims with the court within 90 days after the first date set for the meeting of creditors. Fed. R. Bankr. P. 3002(c). A governmental unit, however, has 180 days from the date the case is filed to file a claim. 11 U.S.C. § 502(b)(9). In the typical no asset chapter 7 case, there is no need for creditors to file proofs of claim because there will be no distribution. If the trustee later recovers assets for distribution to unsecured creditors, the Bankruptcy Court will provide notice to creditors and will allow additional time to file proofs of claim. Although a secured creditor does not need to file a proof of claim in a chapter 7 case to preserve its security interest or lien, there may be other reasons to file a claim. A creditor in a chapter 7 case who has a lien on the debtor’s property should consult an attorney for advice.

Commencement of a bankruptcy case creates an “estate.” The estate technically becomes the temporary legal owner of all the debtor’s property. It consists of all legal or equitable interests of the debtor in property as of the commencement of the case, including property owned or held by another person if the debtor has an interest in the property. Generally speaking, the debtor’s creditors are paid from nonexempt property of the estate.

The primary role of a chapter 7 trustee in an asset case is to liquidate the debtor’s nonexempt assets in a manner that maximizes the return to the debtor’s unsecured creditors. The trustee accomplishes this by selling the debtor’s property if it is free and clear of liens (as long as the property is not exempt) or if it is worth more than any security interest or lien attached to the property and any exemption that the debtor holds in the property. The trustee may also attempt to recover money or property under the trustee’s “avoiding powers.” The trustee’s avoiding powers include the power to: set aside preferential transfers made to creditors within 90 days before the petition; undo security interests and other prepetition transfers of property that were not properly perfected under nonbankruptcy law at the time of the petition; and pursue nonbankruptcy claims such as fraudulent conveyance and bulk transfer remedies available under state law. In addition, if the debtor is a business, the bankruptcy court may authorize the trustee to operate the business for a limited period of time, if such operation will benefit creditors and enhance the liquidation of the estate. 11 U.S.C. § 721.

Section 726 of the Bankruptcy Code governs the distribution of the property of the estate. Under § 726, there are six classes of claims; and each class must be paid in full before the next lower class is paid anything. The debtor is only paid if all other classes of claims have been paid in full. Accordingly, the debtor is not particularly interested in the trustee’s disposition of the estate assets, except with respect to the payment of those debts which for some reason are not dischargeable in the bankruptcy case. The individual debtor’s primary concerns in a chapter 7 case are to retain exempt property and to receive a discharge that covers as many debts as possible.

The Chapter 7 Discharge

A discharge releases individual debtors from personal liability for most debts and prevents the creditors owed those debts from taking any collection actions against the debtor. Because a chapter 7 discharge is subject to many exceptions, debtors should consult competent legal counsel before filing to discuss the scope of the discharge. Generally, excluding cases that are dismissed or converted, individual debtors receive a discharge in more than 99 percent of chapter 7 cases. In most cases, unless a party in interest files a complaint objecting to the discharge or a motion to extend the time to object, the bankruptcy court will issue a discharge order relatively early in the case – generally, 60 to 90 days after the date first set for the meeting of creditors. Fed. R. Bankr. P. 4004(c).

The grounds for denying an individual debtor a discharge in a chapter 7 case are narrow and are construed against the moving party. Among other reasons, the court may deny the debtor a discharge if it finds that the debtor: failed to keep or produce adequate books or financial records; failed to explain satisfactorily any loss of assets; committed a bankruptcy crime such as perjury; failed to obey a lawful order of the bankruptcy court; fraudulently transferred, concealed, or destroyed property that would have become property of the estate; or failed to complete an approved instructional course concerning financial management. 11 U.S.C. § 727; Fed. R. Bankr. P. 4005.

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.

If the debtor decides to reaffirm a debt, he or she must do so before the discharge is entered. The debtor must sign a written reaffirmation agreement and file it with the court. 11 U.S.C. § 524(c). The Bankruptcy Code requires that reaffirmation agreements contain an extensive set of disclosures described in 11 U.S.C. § 524(k). Among other things, the disclosures must advise the debtor of the amount of the debt being reaffirmed and how it is calculated and that reaffirmation means that the debtor’s personal liability for that debt will not be discharged in the bankruptcy. The disclosures also require the debtor to sign and file a statement of his or her current income and expenses which shows that the balance of income paying expenses is sufficient to pay the reaffirmed debt. If the balance is not enough to pay the debt to be reaffirmed, there is a presumption of undue hardship, and the court may decide not to approve the reaffirmation agreement. Unless the debtor is represented by an attorney, the bankruptcy judge must approve the reaffirmation agreement.

If the debtor was represented by an attorney in connection with the reaffirmation agreement, the attorney must certify in writing that he or she advised the debtor of the legal effect and consequences of the agreement, including a default under the agreement. The attorney must also certify that the debtor was fully informed and voluntarily made the agreement and that reaffirmation of the debt will not create an undue hardship for the debtor or the debtor’s dependants. 11 U.S.C. § 524(k). The Bankruptcy Code requires a reaffirmation hearing if the debtor has not been represented by an attorney during the negotiating of the agreement, or if the court disapproves the reaffirmation agreement. 11 U.S.C. § 524(d) and (m). The debtor may repay any debt voluntarily, however, whether or not a reaffirmation agreement exists. 11 U.S.C. § 524(f).

An individual receives a discharge for most of his or her debts in a chapter 7 bankruptcy case. A creditor may no longer initiate or continue any legal or other action against the debtor to collect a discharged debt. But not all of an individual’s debts are discharged in chapter 7. Debts not discharged include debts for alimony and child support, certain taxes, debts for certain educational benefit overpayments or loans made or guaranteed by a governmental unit, debts for willful and malicious injury by the debtor to another entity or to the property of another entity, debts for death or personal injury caused by the debtor’s operation of a motor vehicle while the debtor was intoxicated from alcohol or other substances, and debts for certain criminal restitution orders. 11 U.S.C. § 523(a). The debtor will continue to be liable for these types of debts to the extent that they are not paid in the chapter 7 case. Debts for money or property obtained by false pretenses, debts for fraud or defalcation while acting in a fiduciary capacity, and debts for willful and malicious injury by the debtor to another entity or to the property of another entity will be discharged unless a creditor timely files and prevails in an action to have such debts declared nondischargeable. 11 U.S.C. § 523(c); Fed. R. Bankr. P. 4007(c).

The court may revoke a chapter 7 discharge on the request of the trustee, a creditor, or the U.S. trustee if the discharge was obtained through fraud by the debtor, if the debtor acquired property that is property of the estate and knowingly and fraudulently failed to report the acquisition of such property or to surrender the property to the trustee, or if the debtor (without a satisfactory explanation) makes a material misstatement or fails to provide documents or other information in connection with an audit of the debtor’s case. 11 U.S.C. § 727(d).

Source : uscourts.gov


The Facts About Filing Bankruptcy

Based on CBP data, we find that people are living longer in the financial stress sweatbox before filing bankruptcy than they have in the past.

Two-thirds of people who file bankruptcy reported struggling with their debts for two or more years before filing for bankruptcy.

One-third of people reported struggling for more than five years, double the frequency from the CBP’s survey of people who filed bankruptcy in 2007.

For those people who struggle for more than two years before filing — the “long strugglers” — we find that their time in the sweatbox is marked by persistent debt collection calls, the loss of homes and other property, and going without healthcare, food, and utilities just to make minimum payments on only some of their bills.

There is no need to live like this. The longer you wait means the longer your road to recovery. Although long strugglers do not file bankruptcy until long after the benefits outweigh the costs, they still report being ashamed of needing to file.

It is often much better to end the stress and anxiety and not delay repairing your life. The longer you wait the longer your relationships with others suffer and the more unhealthy stress and anxiety builds up.

Bankruptcy is for the most part a confidential process and your friends, family and neighbors will not know unless you tell them that you filed for bankruptcy. You should not feel ashamed to file for bankruptcy and it is not a sign of failure or defeat.

Most people need a fresh start in life at least once in their life. From start to finish, no one you encounter in the bankruptcy process will make you feel guilty or ashamed.

At Bucacci and Simonian we are not judgmental of your situation. We are here to help you.

Every year we have to meet with and file bankruptcies for our friends, family members of friends, colleagues, business associates and people we have know for many years. The best way to look at your situation is that it is no different than going to the doctor when you are too sick to recover on your own and you need professional help.

Call us today for a free confidential bankruptcy consultation.

We are Massachusetts bankruptcy attorneys who have been helping people with their financial problems for well over 25 years. Call Bucacci & Simonian at 508-673-9500 for a free and confidential consultation today.

Your Bankruptcy Discharge

Your bankruptcy discharge is more than a document from the bankruptcy court.  It is a federal court order prohibiting creditors from collecting the discharged debt from you. The important part here is discharged debt. Although you receive a discharge that does not mean all debt was discharged for example student loans and some taxes.

When creditors ignore a federal court order, it can have serious consequences for them.

Discharge applies to most creditors

All creditors who got notice of your bankruptcy are subject to the discharge injunction, with a few exceptions. That’s why it is very important to list everyone who thinks you owe them money in your bankruptcy schedules. It is better to be safe by listing anyone you may owe money to and anyone who may think you owe them money. If the creditor was properly listed and properly notified of the bankruptcy filing they will have little or no excuse as to why they attempted to collect on a discharged debt. You may have a good cause of action against the creditor if they harass you or attempt to collect on a debt after receiving the discharge.

When collector calls after bankruptcy

Whether it’s a debt buyer or the original creditor occasionally you will encounter a collector after your bankruptcy case is over. If that happens, make sure you tell the collector about your bankruptcy discharge, give them your case number and your attorney’s name and phone number.  To have a legal remedy for the violation of the discharge, you will need to prove that the collector knows about the discharge. You should keep notes about who called, the date, time, the person you spoke to, etc. If they call more than once after you informed them of the discharge, case number and attorney’s name it is important to call your bankruptcy lawyer immediately

Suing creditors to enforce the discharge

If a creditor is ignoring the bankruptcy discharge you may be able to sue them in bankruptcy court and recover damages and attorney’s fees. The amount of your recovery will depend on many factors including: the amount of stress and anxiety they caused you, if you were denied credit because of their actions, if you need to seek medical treatment due to the stress, if your credit score drops because of their actions and any other damages you can prove and demonstrate.

You can enforce the discharge against your creditors

If creditors who were discharged in your bankruptcy case continue to harass you, call your bankruptcy lawyer immediately.  Save all the evidence about how the creditor harassed you. You should not ignore attempts to collect a discharged debt. Take careful notes or all contact they have made with you including all phone calls and save all letters, emails and texts that you receive. If you suffer damages it is important to document all damages. This will help your bankruptcy attorney if the matter goes to court.

How to Handle Bankruptcy and Divorce at the Same Time

Divorce and bankruptcy are among the most stressful and emotionally fraught experiences anyone can endure, and dealing with both at the same time can seem overwhelming.

If you’re facing that prospect, it may be hard to take comfort in assurances about new beginnings (however true they are), but maybe it will help to know others have made it through the ordeal, and to learn some proven strategies for making the processes go as smoothly as possible.

Is It Wise to File for Bankruptcy Before Getting Divorced?

Before putting divorce and bankruptcy into motion, you should understand that it’s unlikely the two proceedings can truly take place simultaneously. You can file legal motions at the same time, but in most jurisdictions one case will take precedence over the other. If both cases are pending simultaneously, bankruptcy is typically suspended until the divorce court apportions marital debts and assets to each party.

Juggling the two legal actions will only complicate your situation, so for simplicity’s sake, you may want to consider filing for divorce before tackling bankruptcy. Certain circumstances, however, can make it more desirable to file bankruptcy first, and then address divorce.

Deciding the best order in which to handle divorce and bankruptcy will depend on your financial situation and the laws that apply in the jurisdiction where you live. You should consult legal counsel before starting either process to determine which makes the most sense for you. In a nutshell, here are the advantages to handling divorce before bankruptcy, and vice-versa.

When Does It Make Sense to File for Bankruptcy Before Divorce?

A main advantage to filing bankruptcy before divorce is the potential for cancelling joint marital debts that would otherwise have to be divided up as part of divorce proceedings, and then tackled separately in each spouse’s bankruptcy. A joint bankruptcy filing requires cooperation between the spouses, but it can significantly streamline the divorce process, reducing legal fees and time commitment for both parties.

In many states, a couple filing for bankruptcy can keep a larger portion of their assets than they would when filing for bankruptcy individually, after a divorce.
When Does It Make Sense to File for Divorce Before Bankruptcy?

The main case for filing for divorce before bankruptcy has to do with meeting the qualifications in your state for Chapter 7 bankruptcy. In contrast with Chapter 13 bankruptcy, which cancels certain types of debt but requires negotiating with creditors to structure a yearslong repayment plan, Chapter 7 cancels qualifying debts altogether. To meet the qualifications for Chapter 7, your income must fall below than that of the median for your state. In households where one spouse earns most or all of the income, completing a divorce before filing for bankruptcy can enable both parties to qualify for individual Chapter 7 bankruptcies.

What Happens to Your Credit After Divorce?

Whether you pursue divorce or bankruptcy first, it’s important to know going in that it may not be possible for either process to completely disentangle your finances from your soon-to-be ex-spouse’s.

For example, Chapter 13 plans on marital debt may leave both parties legally responsible for repayments. There are also categories of debt that bankruptcy cannot discharge (student loans, for example), and if you or your spouse cosigned on such a loan, you may be equally responsible for seeing to it that those debts are paid, even after divorce and bankruptcy.

Bankruptcy has severe, long-lasting negative consequences for individuals’ credit scores and eligibility for loans or credit cards. While divorce doesn’t directly affect individuals’ credit, the aftermath of divorce can lead to circumstances that bring down credit scores as well. Those situations—and the long road to recovery from the credit impact of bankruptcy—will only be complicated if either party withholds payments or otherwise uses joint debt to spite the other party.

Getting through bankruptcy and divorce is never easy, but with a sound strategy and some good faith on the part of both spouses, it’s possible to move on from them and start regaining a solid financial footing within a few years.

12 Reasons For Filing a Chapter 13 Bankruptcy

Reasons For Filing a Chapter 13 Bankruptcy1. There is a lot more flexibility when you file a chapter 13 bankruptcy. You can dismiss the case voluntarily at any time or convert it to chapter 7 bankruptcy at any time. You can modify your plan if your income changes if income changes or you decide to give up a house or a car. You can refinance or sell a house during the plan.

2. A chapter 13 bankruptcy can stop or prevent a foreclosure when you are behind on mortgage payments. You will have to pay the past due payments and continue paying the regular monthly payments going forward.

3. You can strip off and remove a second mortgage, reduce the mortgage balance of an investment or multifamily home and you can reduce the loan balance of an automobile loan.

4. More debts can be discharged in a chapter 13 bankruptcy as opposed to a chapter 7 bankruptcy such as alimony and divorce payments and money owed for malicious and willful acts.

5. Attorney’s fees can be incorporated into the bankruptcy plan. You will not have to come up with a lot of money at first and usually the attorney’s fees only reduce what the creditors receive and do not increase your payment.

6. You do not have to reaffirm an automobile loan in order to keep a car.

7. You can solve a tax problem in a chapter 13 bankruptcy and pay back at a rate that you can afford and stop tax levies.

8. You can solve a child support arrears problem in a chapter 13 bankruptcy and pay the past due amount over time, usually 36 to 60 months.

9. You can protect property that is not exempt in a chapter 7 bankruptcy and keep everything you own.

10. If an automobile loan payment is too high, you can stretch out your loan balance over 36 to 60 months and lower your monthly payment.

11. If you have filed a chapter 7 bankruptcy within the last 8 years and are not eligible to file another one until 8 years have passed you can file a chapter 13 bankruptcy and make a small monthly payment and still receive a discharge from you new debts.

12. You can protect a co-debtor from collection activity while the chapter 13 bankruptcy is pending.

This is not an exhaustive list of reasons where a chapter 13 bankruptcy may be a better choice over a chapter 7 bankruptcy. You should consult with an experienced bankruptcy attorney for a full evaluation of your case.

The Three Biggest Bankruptcy Fears

Maybe you’ve been thinking about it. You know that your life might just get better if you do it. But, like most people, you’re downright scared of filing bankruptcy.

That’s not necessarily a bad thing. Bankruptcy doesn’t have to be a last resort, but it is a serious step, and it does carry consequences.

That said, most of the dire predictions people hear (on the Internet and elsewhere) about the “tragedy” of filing bankruptcy, or the inescapable complications they’ll face, just do not materialize. Let’s explore why. . . .

Never Qualifying for a Mortgage (or a Car Loan or a Credit Card) Again

Of course, you will be able to buy a house or a car or get a credit card again, and it will happen much sooner than you would probably think. Most people believe that they can’t get any credit for seven or 10 years, based on the length of time a bankruptcy will appear on their credit bureau report. In reality, you’ll be able to get credit very soon after your case is concluded and your debts are discharged.

How can that be? After all, didn’t you just wipe out a bunch of credit balances? Who would want to take a chance on you? As it turns out, plenty of lenders will. There is no law that would prevent a creditor from extending credit to you. In fact, there are creditors who market to people who recently completed bankruptcy cases. These creditors know that your future bankruptcy options are limited for 4 years, so their chances of losing money on you through bankruptcy are very, very small. Plus, these lenders can use your recent financial circumstances to justify charging you a higher interest rate. Add to that the fact that you’ve just freed up resources by getting rid of debt and suddenly you’re a person they want to extend credit to.

Companies offer secured and unsecured credit cards to recent bankruptcy filers. Many debtors also report that local car dealerships send them letters offering to help them re-establish credit with new and used car deals. In fact, many borrowers can qualify for an FHA or VA loan just one year after a Chapter 13 bankruptcy or two years after a Chapter 7 bankruptcy.

No doubt you’ll probably pay more for your credit immediately after a bankruptcy, but within about two years or so, with a clean record and good payment history, your credit score could rise to a very respectable level that will allow you to obtain good, if not excellent credit rates very quickly.

I Will Lose All My Property

In less than 10% of personal bankruptcy cases will individual debtors be required to turn over any property or assets to the bankruptcy trustee. For most filers, their personal property and the equity in their real estate will be exempt and protected. Each state either has its own exemption scheme or makes use of the scheme included in the federal bankruptcy laws. For the most part, these exemptions will be generous enough to cover your property.  In Massachusetts you have a choice of either federal or state exemptions and the exemptions are quite generous.

My Friends, Family or Coworkers Will Find Out I Filed For Bankruptcy!

What our friends and family think of us is a powerful motivator. The fear that our bankruptcy filing will become public knowledge can be paralyzing and overwhelming. For many, the stress of dealing with obnoxious bill collectors pales in comparison to the possibility that someone we know will find out about our bankruptcy case and that you have money troubles.

Bankruptcy cases are public court records, but generally, the information on an individual bankruptcy case is not published unless it is newsworthy. The filer’s creditors are notified by mail, along with certain government agencies, but the days of publishing a bankrupt’s name in a list in the legal notices of the local newspaper are long gone in Massachusetts. The chances of your acquaintances finding out are very low unless you tell them yourself or they go to the Massachusetts Bankruptcy Court’s clerk’s office to research your name.

It may ease your mind a little bit to know that about one in 10 adults will file bankruptcy sometime over the course of their lives. It is a lot more common than you believe. So, next time you’re in church or at a family gathering, think about how there’s a good chance someone sitting near you has or will file bankruptcy. You’re not alone at all.

Chapter 7 Bankruptcy vs. Debt Consolidation

Chapter 7 Bankruptcy vs. Debt Consolidation. When is Bankruptcy Better than Debt Consolidation

In this article, we’ll discuss some of the situations in which bankruptcy may be the best option as opposed to debt consolidation.

When is Bankruptcy Better than Debt Consolidation?

Debt consolidation doesn’t work for everyone and is usually very situation specific. If someone doesn’t have enough income to pay the loan payments in addition to their living expenses, then even if they qualify for a loan they’ll likely end up in the same situation in a short period of time afterwards. Many people need to get a fresh start and put the financial distress behind them. This can be achieved quickly through a Chapter 7 bankruptcy, which wipes all debts except a few non-dischargeable debts like taxes, child support or student loans. Debt consolidation is essentially getting a new larger loan to clear up all existing debt. This now requires you to make a larger payment to one lender. If you find yourself using your paycheck to pay the loan payment and now relying on the credit cards for living expenses such as gas and food you really did not solve the problem. In fact, you may make the problem worse by ending up with a lot more debt than when you started. A fresh start can also be achieved in a Chapter 13 bankruptcy after completion of a repayment plan that pays a smaller portion of un-secured debts and discharges most of the rest. In a Chapter 13 bankruptcy you no longer have interest and late fees so it really begins on a certain date and ends on a certain date.

If creditors are suing or threatening to sue a debtor to obtain a court judgment and begin garnishing wages or bank account funds, a debt consolidation loan will do nothing to stop those lawsuits or collection efforts until the loan goes through and those debts are paid. That can take several weeks or more. Depending on where things are in the process, the debtor may not have time to secure a consolidation loan before the judgment is entered or the garnishing begins. Often when you are at the point where you are being sued by your creditors your credit is not good enough to get a loan large enough to pay the creditors. However, a bankruptcy’s automatic stay requires all creditors to immediately stop collection efforts and court actions until the stay is lifted, the bankruptcy is discharged.

Bankruptcy has many other advantages. These options should be discussed with an experienced bankruptcy lawyer and debt management attorney before deciding on the proper course of action. Your attorney’s experience and familiarity with debt issues can save you a great deal of money, resources and valuable time.

In Massachusetts bankruptcy attorneys Robert Simonian and Anthony Bucacci can assist in identifying a workable and advantageous solution to your debt issues and help you take action towards the right resolution.

Debt Consolidation vs. Debt Management Programs

It is easy to confuse a debt consolidation loan with a debt management program. A debt management program does not eliminate your many debts. Instead, your single payment is divided among your creditors by the debt management agency, who also takes a portion of your payment. Some programs are ok, especially non-profit and government agency sponsored programs, but many private sector programs are nothing more than scams in which the management firm is the only one who gets paid and debtors often end up in worse shape than before. It is very important to consider what the proposed monthly payment is and if you can actually afford that amount. Be very careful of a company that does not ask that first because they probably do not have your best interest in mind. Many debt management companies are a little deceitful by leading you to believe they are somehow affiliated with a government agency. Often this is not true and people blindly send money to the company only to find out they are doing little or nothing for them except taking your money. Also a lot of debt settlement companies use high pressure sales tactics and do not tell you about the tax consequences of debt settlement and you will end up owing the IRS for the forgiven debts. In bankruptcy there are no tax consequences and you truly get a fresh start. With debt management you may end up not saving any money at all between their fees, the accumulating interest and the tax consequences. If you cannot meet with a person face to face it is probably not a good idea to do business with them.

Facing Foreclosure ???

Facing Foreclosure and Bankruptcy

If you are facing foreclosure and the loss of your property you may want to consider your options in bankruptcy. There are many options available to you. If you are losing your home and the house has not gone to foreclosure sale yet, you can file a chapter 13 bankruptcy. This would allow you to pay the past due mortgage payments over time and save the home.

If you do not want to save the home but are afraid of losing your equity, you can file a chapter 13 bankruptcy with a sales plan. If you home is foreclosed your will most likely lose a lot or all of your equity. Generally, banks do not care if you make a profit from the home sale and are only interested in getting their money back. If you file a chapter 13 bankruptcy with a sales plan you can stop the foreclosure and sell the home for full market value. This way the bank gets their money back and you can keep the equity or use the equity to pay off other debts.

In some situations it can be advantageous to file a chapter 7 bankruptcy and allow the Chapter 7 Bankruptcy Trustee to sell the property for you. By doing this you can get full market value and preserve or save your equity and pay off other debts. The Chapter 7 Bankruptcy Trustee, and not you, has the power to stop the sale and get the most reasonable price for the home. The property would temporarily belong to the trustee who, generally speaking, has a lot more authority and power over bankruptcy assets. Otherwise, if the house went to foreclosure, you may end up with a deficiency balance and now owe more money or you could end up with little or nothing at all. If there is equity in your home and there is a threat of you losing it bankruptcy may be in your best interest.

Whether you file a chapter 7 bankruptcy or a chapter 13 bankruptcy the Bankruptcy Court will immediately impose the automatic stay which is like a restraining order against all of your creditors. This will allow you time to make a rational decision and sell your property for the full value instead of losing the property to foreclosure sale or having to sell it fast at a greatly reduced price.

All Debts Discharged

Are all of the debts discharged?

Bankruptcy: not all debts discharged. The debts discharged vary under each chapter of the Bankruptcy Code. Section 523(a) of the Code specifically excepts various categories of debts from the discharge granted to individual debtors. Therefore, the debtor must still repay those debts after bankruptcy. Congress has determined that these types of debts are not dischargeable.  Public policy reasons do not allow the discharge of certain debts.  Debts incurred for drunk driving injuries to another is one example.

Chapters 7, 11, 12,  lists 19 categories of debt excepted from discharge. A more limited list of exceptions applies to cases under chapter 13.

Generally speaking, the exceptions to discharge apply automatically if the language prescribed by section 523(a) applies. The most common types of nondischargeable debts are certain types of tax claims, debts not set forth by the debtor on the lists and schedules the debtor must file with the court, debts for spousal or child support or alimony, debts for willful and malicious injuries to person or property, debts to governmental units for fines and penalties, debts for most government funded or guaranteed educational loans or benefit overpayments, debts for personal injury caused by the debtor’s operation of a motor vehicle while intoxicated, debts owed to certain tax-advantaged retirement plans, and debts for certain condominium or cooperative housing fees.

The types of debts described in sections 523(a)(2), (4), and (6).  Obligations obtained by fraud or maliciousness not automatically excepted from discharge. Creditors must ask the court to determine that these debts excepted from discharge. Discharge can apply to the debts listed in sections 523(a)(2), (4), and (6).  Only with the absence of an affirmative request by the creditor and the granting of the request by the court.

A slightly broader discharge of debts is available to a debtor in a chapter 13 case than in a chapter 7 case. Debts dischargeable in a chapter 13, but not in chapter 7.  This includes debts for willful and malicious injury to property, debts incurred to pay non-dischargeable tax obligations.  Also debts arising from property settlements in divorce or separation proceedings. Although a chapter 13 debtor generally receives a discharge only after completing all payments required by the court.  There are some limited circumstances under which the debtor may request the court to grant a “hardship discharge.”  Even though the debtor has failed to complete plan payments.

Such a discharge is available only to a certain debtors.  Failure to complete plan payments is due to circumstances beyond the debtor’s control. The scope of a chapter 13 “hardship discharge” is similar to that in a chapter 7 case. With regards to the types of debts that are excepted from the discharge. A hardship discharge also is available in chapter 12.  Failure to complete plan payments.  If due to “circumstances for which the debtor should not justly be held accountable.”

If you have specific questions please call Bucacci And Simonian at 508-673-9500 or visit our website.

Social Media and Filing Bankruptcy in Massachusetts

Social Media And Filing Bankruptcy in Massachusetts

Many people share personal details of their lives on social media.  Social media and bankruptcy in Massachusetts may have consequences.  Post like vacations they take, places they shop, purchases they make, and even what they wear. This kind of sharing can sometimes have legal consequences. One example would be an angry post about a soon to be ex spouse could cause problems in a pending divorce.  Also, posts that exaggerate your financial situation could cause you problems in bankruptcy.  It is never wise to post information that exaggerates your lifestyle before, during or after filing bankruptcy.  Viewers of your post and creditors could misinterpret it and use it against you.  One example shows just how problematic things can be when you are not careful on social media.

Bankruptcy Filing and Social Media Problems

In 2015, the musician 50 Cent filed for Chapter 11 bankruptcy protection. During his bankruptcy he posted several photographs with a lot of money. He displayed a stack of money in his freezer.  50 Cent also posted a photograph of himself surrounded by piles of cash on a bed.  He claimed the bills were props, such as those used in music videos.  The creditors and the bankruptcy judge were not impressed and not amused by those pictures.

According to the New York Times, 50 Cent stated that the postings were important to maintaining his image and for promotion of his music. This made it difficult to determine whether he was hiding assets or money.  This made it difficult to see if he was telling the truth.   His creditors now asked to revalue his assets.  The bankruptcy judge asked him to reappear in court.

Fortunately he received a large settlement from a lawsuit and was able to pay off his creditors in a short period of time.  As you can see, it can be dangerous to post on social media if you are going through bankruptcy.

Be Careful What You Post and Share

Creditors do not know anything about you. People who do not know you can easily misinterpret your social media posts. Pictures of a business trip could be seen or interpreted as a vacation when posted on social media.   Visiting a relative out of state for an emergency can look like a vacation.  Eating at a fancy restaurant for a family event could look extravagant.  Be careful of what you post on social media before and after filing bankruptcy.

If you are considering filing bankruptcy in Massachusetts you should consult with an experienced bankruptcy attorney.  It is not wise to take advice from friends and family.  Also, trying to sort through the information on the internet could get you in trouble.  A lot of the information on the internet about bankruptcy is very general and can easily be misinterpreted.  It is always advisable to consult with an experienced bankruptcy attorney.  Call us anytime to discuss your options.  You can also visit our website to schedule an appointment.  The consultation is always free.

 

Massachusetts Evictions Unpaid Rent Bankruptcy

How bankruptcy helps with evictions and unpaid rent in Massachusetts.

The eviction moratorium is ending and unpaid rents are due.  How does bankruptcy help?

Generally, in most cases, a person threatened with eviction can move to a new place, list the past due rent in a bankruptcy petition and wipe out the unpaid rent.

Most people qualify for a basic Chapter 7 bankruptcy. In a Chapter 7 bankruptcy, tenants in debt and an evicted person can list their debts, including unpaid rents, and all of those debts are wiped out except for certain priority debts like taxes, criminal restitution, child support, alimony and student loans. Unpaid rents are the kind of debts that are wiped out.

The unpaid rent can also be wiped out in a Chapter 13 bankruptcy.

Bankruptcy can help with evictions in Massachusetts for unpaid rent.  Here are a few different choices:

Eviction filing prepared before bankruptcy filed

Eviction proceeding not filed yet then property owners cannot evict a person for unpaid rent.  The bankruptcy automatic stay protects a renter from eviction for as long as it is in effect. When bankruptcy is filed before the eviction is filed a party  involved in an eviction is protected.  The landlord will need to file a motion to lift the automatic stay.  This would remove the bankruptcy protection and then the property owner can evict a tenant for unpaid rent. A renter would still owe rent for the time a tenant occupied the home after filing bankruptcy until the tenant moves out.

Move to new home then file bankruptcy

Example: rent has not paid due to the pandemic.  Tenant moves to a new home. Past due rent scheduled in the bankruptcy.  Unpaid rent subject to bankruptcy discharge. Fees subject to bankruptcy discharge.  Costs subject to bankruptcy discharge.  The bankruptcy does not affect the new rental agreement and the tenant can keep paying rent at the new home. In Massachusetts, bankruptcy can stop evictions for unpaid rent.

Eviction filed before bankruptcy filed

Eviction not presently allowed by a court.  The bankruptcy court can protect tenants. A tenant must move out immediately if the court awards the landlord an eviction.  This is if the tenant has not filed for bankruptcy protection and included the unpaid rent. This applies to Chapter 7 bankruptcy or Chapter 13 bankruptcy.  If a renter is facing possible eviction consider filing bankruptcy before the eviction date to get the bankruptcy court protection.  A tenant with unpaid rent will get more time in the home and allow the renter to search for a new rental property.

No eviction yet? File bankruptcy then move

If the renter has not paid rent in a while and the tenant needs to file bankruptcy right away the tenant can file bankruptcy and wipe out those unpaid rent amounts.  However the renter is liable for any fees, costs and expenses.  Rent incurred from the day of the bankruptcy filing until the day property owners force tenants to move out.  Unpaid rent is subject to bankruptcy discharge.  The tenant will be responsible for any rent due after the filing of the bankruptcy.

Call us today to schedule a free consultation or visit our websiteBucacci & Simonian