Bankruptcy Questions / FAQs
Q- Should I listen to the TV commercials and mailers I receive promoting “Debt Consolidation” as the way out of my debt and telling me not to file a personal Bankruptcy under Chapter 7 Bankruptcy or Chapter 13 Bankruptcy?
A- NO!!! Don’t listen to those late night commercials telling you that filing a bankruptcy is the worst solution and consolidation is the best option. In these plans, you still have to pay a significant amount of debt back, and all of your creditors may not be listed at all in the plans and thus not paid at all, leaving you open for law suits in the future from those creditors not listed. In a Chapter 13 Bankruptcy repayment plan, the Court will force your creditors to accept the plan amount even if it is only a small percentage of your debt. A private consolidation service cannot do that, and does not have the legal power to do so. And once you file for bankruptcy, none of your creditors can file a law suit or take any further action against you, which a private service has no power to stop. In a Chapter 13, all interest stops on the unsecured debt as well. And if you qualify for a Chapter 7, then the dischargeable unsecured debts are being completely wiped out where a private service cannot do that for you. The real truth is in the disclaimer from these companies which states “contact your tax adviser for tax ramifications regarding repayment of any debt for less that the total amount of the debt owed”. What this really means is at the end of the tax year in which you pay off any debt for less that you owed using a debt consolidation company (or even if you on your own negotiate a lower balance payment), the creditor is mandated by the IRS to send you a “1099–C Cancellation of Debt 1099” which will show the amount of money for the debt that the creditor has taken off your balance, you must then report this debt as “earned income” on your tax return and pay taxes on that amount as if you earned this as income, AND many individuals then do not have the extra money to then pay the additional IRS tax. In bankruptcy there is no tax liability to the IRS for the debts which you are no longer legally responsible to pay.
Q- Does filing a Bankruptcy affect my credit?
A -YES!!! But in a positive way. Most personal bankruptcies are filed after a person has not paid their either secured creditors (like a mortgage or car loan) and/or unsecured creditors (like credit cards) for a period of time and their credit scores are already very low. Once a bankruptcy is filed and the case is closed by a Discharge Order and Final Decree, the person filing the bankruptcy will see their credit scores start to rise as part of the formula for a credit score is debt versus asset ratio. With the Discharge Order all debts have been discharged (your legal obligation to pay that debt is gone) thus your debt side of the debt asset ratio is gone and your credit scores will start rising again.
Q- Can I keep my home and car?
A - YES!!! It is extremely rare to lose any property, vehicles, furniture or possessions when filing for bankruptcy under either Chapter 7 Bankruptcy or Chapter 13 Bankruptcy unless you choose to surrender a particular piece of property. There are parts of the bankruptcy law called “exemptions” that protect your home, cars, pensions, clothing, jewelry and other personal belongings. The only way you would lose your home or car is if you stopped paying for it, and even then you can put all the back payments into a Chapter 13 plan paying the arrears without interest over a 36 to 60 month period. Even if one has too much equity in their home, instead of losing their home, they would file a Chapter 13, still protecting their home, but paying a percentage of their unsecured debt in a 3, 4 or 5 year plan. This percentage is often very small, but it varies because of each person’s individual situation.
Q- Can I apply to have my Driver’s license restored if I file a Chapter 13 Bankruptcy regarding my Motor Vehicle Commission (MVC) surcharges?
A- YES!!! If you have MVC surcharges that are stopping you from getting your driving privileges restored, you can file a Chapter 13 Bankruptcy petition and upon filing you would take the filing proof with your bankruptcy petition number to MVC and your driving privileges will be immediately restored. Additionally depending on your budget in the bankruptcy filing, you will pay normally a small percentage of the actual surcharges that are due spread over 36 to 60 months.
Q - Will my Creditors stop harassing me?
A - YES!!! All collection efforts must stop immediately after your filing of a Bankruptcy Chapter 7 or a Bankruptcy Chapter 13. This means all lawsuits, wage garnishment, bank levies, letters, and phone calls must stop. The bankruptcy laws that protect you in bankruptcy are Federal Laws which prevent creditors from further collections and harassment. A bankruptcy filing will even stop a Sheriff sale of your home.
Q - Does my spouse have to file along with me?
A -NO!!! Not if your spouse has separate debts from those you wish to wipe out. Many married couples share credit cards and therefore, it is a benefit to file a joint bankruptcy. It is the same price to file jointly as it is to file individually. If you file for bankruptcy, and your spouse does not share any of your debts, your spouse will not be affected by your filing.
Q - Will my friends, relatives and neighbors know I filed for bankruptcy?
A -NO!!! Only if you tell them. There is no sign that pops up on your lawn saying that you filed and no scarlet letter to wear on your lapel that tells the world you filed for bankruptcy. In fact, we file for many people that live on the same street or come from the same family or work at the same job and they do not know about each other’s bankruptcy. Your future lenders will know when you apply for a loan and/or your future landlord if you apply to rent an apartment since your bankruptcy will appear on your credit report for approximately 7 years. But they will not be concerned if you have developed new and steady credit after your discharge.
Q - Can I be fired for filing bankruptcy?
A - NO!!! U.S.C. Section 525 prohibits any employer from discriminating against you because you filed bankruptcy.
Q - Can the court deny my bankruptcy?
A -NO!!! Not if you have filed an appropriate bankruptcy petition (Chapter 7 Bankruptcy or Chapter 13 Bankruptcy) that fits with your income, assets and needs, and not if you cooperate with the court. Rarely are cases denied. Some cases may be converted from a Chapter 7 Bankruptcy to a Chapter 13 Bankruptcy or vice versa.
Q - Do I have to go to court?
A -NO!!! For both Chapter 7 and Chapter 13 cases filed, there is only one appearance necessary for the Debtor or Debtors to appear, and for you to meet with the Bankruptcy Trustee. It is a simple meeting called “meeting of creditors” although it is rare (now almost never) a creditor shows up. This is the only mandatory meeting and is it quite a simple one that occurs in a conference room not in a courtroom. I will prepare you for the meeting, and I am with you at this meeting. On Chapter 13 filings I (without you) additionally go to a Confirmation Hearing at the Federal Courthouse to confirm your Chapter 13 payment plans with the Trustee.
Q - Why do I feel like a failure for even considering filing a Bankruptcy petition?
A - YOU SHOULD NOT!!! The personal Bankruptcy Code / rules / laws were drafted and passed into law to give protection to all people in the United States who have a valid Social Security number. It is a right you have to reorganize your economic / financial life and start a new economic life. There is a good reason why over one million people file for bankruptcy each year. Additionally the roots of bankruptcy have been around since the Bible where in Deuteronomy 15:1-2: “At the end of every seven-year period you shall have a relaxation of debts, which shall be observed as follows. Every creditor shall relax his claim on what he has loaned his neighbor; he must not press his neighbor, his kinsman, because a relaxation in honor of the LORD has been proclaimed”.
Simply look at “famous people who filed bankruptcy” to see that Abraham Lincoln, Thomas Jefferson, Henry Ford, Charles Goodyear, Milton Hershey, Walt Disney, Mark Twain, Jerry Lewis, P.T. Barnum and many other famous and wonderful inventors, politicians and good people have filed for bankruptcy, and some, filed 3 to 5 times.
Please review our site including the FAQ section and see what we may be able to offer you. The selection of an attorney is an important decision, you should consult an attorney for individual advice regarding your own situation. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice or the formation of a lawyer / client relationship