Bankruptcy in a Nutshell

By: Aaron Kelly | Posted: 06th January 2011

When considering whether to file bankruptcy it is important to take into account all of the options available. For many, the need for and advantages of bankruptcy are obvious. To others, it will be a last resort. As the debts pile up and the creditors hound you, it is important to consider what can be done. This article will provide basic information on the types of bankruptcies available to both consumers and businesses.

Chapter 7 Bankruptcy - Liquidation

Chapter 7 Bankruptcy is designed for debtors who are having financial difficulties and are not able to repay their debts. If your current monthly income is above the State Median Income you will be required to perform a Means Test to determine if you are eligible for this type of bankruptcy relief. If you do not meet the requirements of the Means Test then you may be precluded from filing a Chapter 7 Bankruptcy and have the option of converting to Chapter 13 Bankruptcy or filing a Chapter 13 Bankruptcy.

Under Chapter 7 Bankruptcy a Trustee takes possession of all your property. You may claim certain property as exempt under Arizona law. A copy of the Arizona Exemption Law is attached to this notice. You can only exempt value of property that is not subject to the liens of your creditors. The Trustee then liquidates the non-exempt property and uses the proceeds to pay off your creditors according to priorities of the Bankruptcy Code.

The purpose of filing a Chapter 7 Bankruptcy is to obtain a discharge of your existing debts. If, however, you are found to have committed certain kinds of improper conduct described in the Bankruptcy Code, your discharge may be denied by the Court, and the purpose for which you filed the bankruptcy petition will be defeated.

Even if you receive a discharge, there are some debts that are not discharged under the law. Therefore, you may still be responsible for such debts as certain taxes and student loans, alimony and support payments, criminal restitution, and debts for death or personal injury caused by driving while intoxicated with alcohol or drugs.

Under certain circumstances you may be able to keep property that you have purchased subject to a valid security interest. Some of these options include what is called redemption and the renewal or reaffirmation of an existing pre-bankruptcy debt. Your attorney can explain the options that are available to you.

Chapter 13 Bankruptcy - Repayment of All or Part of the Debts of an Individual with Regular Income

Chapter 13 Bankruptcy is designed for individuals with a regular and stable source of income who are temporarily unable to pay their debts but who desire to use their best efforts and good faith to pay them in installments over a period of time subject to the protections afforded by the Chapter 13 Bankruptcy rules. You are only eligible for Chapter 13 if your debts do not exceed certain dollar amounts set forth in the Bankruptcy Code.

Under Chapter 13 Bankruptcy you must file a plan with the Court to repay your creditors all or part of the money that you owe them, using your earnings or by the disposition and/or abandonment of certain collateral such as land and motor vehicles. You are protected from your creditors in most cases upon the filing of your case but your plan must be approved by the Court before it can take effect. Under Chapter 13 Bankruptcy, unlike Chapter 7 Bankruptcy, you may keep all of your property, both exempt and non-exempt, as long as you continue to make payments under the plan.

After completion of payments under the plan your debts are discharged except for any domestic support obligations, student loans, and certain taxes, among others.

Chapter 11 - Reorganization

Chapter 11 Bankruptcy is designed primarily for the reorganization of businesses but is also available to consumer debtors. Its provisions are quite complicated, and any decision for an individual to file a Chapter 11 Bankruptcy petition should be reviewed with an attorney. Most Chapter 11 Bankruptcy cases are simply too expensive for the great majority of consumer debtors.

Chapter 12 Bankruptcy Family Farmer

Chapter 12 is designed to permit family farmers to repay their debts over a period of time from future earnings and is in many ways similar to a Chapter 13. The eligibility requirements are restrictive, limiting its use to those whose income arises primarily from a family-owned farm.

Credit Counseling

Reputable credit counselors can advise you on managing your money and your debts. They may also be able to develop a plan to repay your debts. But, most credit counselors are not reputable and charge high fees and contributions that will cause you to fall deeper into debt. Furthermore, many misrepresent their non-profit status and/or their affiliations with religious or charitable organizations. The Kelly Law Firm, L.L.C. only recommends that a person seek the credit counseling services of a group that has been approved by the United States Trustee Department or the Bankruptcy Administrator.

Honesty is Required

A person who knowingly and fraudulently conceals assets or makes a false oath or statement under penalty of perjury in connection with a case under this the bankruptcy code shall be subject to fine, imprisonment, or both and all information supplied by a debtor in connection with a case under this title is subject to examination by the Attorney General.

Final Thoughts

There is a general consensus in the legal community that the Bankruptcy Code has become much more complex since it was reformed in 2005. After the Bankruptcy Code was reformed, many attorneys decided to stop practicing bankruptcy law because of how complex the law became. Clearly, if licensed attorneys are baffled by the new law, clients should not rely on themselves or "licensed document preparers" to get through this difficult process. A qualified attorney, who will personally help you through this trying ordeal, should be employed. Like the old saying goes, you get what you pay for.

We are available to help you get through this difficult process.

Bankruptcy Lawyers in Scottsdale
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Tags: student loans, chapter 13 bankruptcy, chapter 7 bankruptcy, creditors, last resort, bankruptcy code, debtors, alimony, financial difficulties, means test, bankruptcy petition, exempt property