Bankruptcy Overview

The Bankruptcy Code provides you with relief from collection efforts under different “chapters” in the Code. Here is a very brief review of the different types of relief available:

  1. A Chapter 7 Bankruptcy provides a relatively speedy and cost-effective discharge of debts. A trustee is appointed to sell assets, but many assets owned by individuals are exempt from the sale process. There are income limits which may require some individuals to file under another chapter of the Bankruptcy Code.
  2. A Chapter 13 Bankruptcy allows you to keep even non-exempt assets in exchange for making monthly payments during a three to five year period. It also allows you to cure or modify some mortgages and car loans. There are debt limits which may require some individuals to file under another chapter of the Bankruptcy Code.
  3. A Chapter 11 Bankruptcy is generally for businesses, or for individuals whose income exceeds Chapter 7 limits and whose debts exceed Chapter 13 limits. It is often more flexible than a Chapter 13 case, but also much more expensive.
  4. A Chapter 12 Bankruptcy is for family farmers and family fishermen. It offers relief similar to a Chapter 13 Bankruptcy, but with higher debt limits and some special advantages.

Regardless of the chapter, there are some principles that govern every bankruptcy case.

Estate, Trustee and Creditors

The filing of a bankruptcy petition creates an “estate.” In a Chapter 7 case, the “estate” may be roughly defined as “whatever the debtor owned at the time of filing.” In the other bankruptcy chapters, later-acquired assets can also become part of the estate.

In a Chapter 7 case, a bankruptcy “trustee” is appointed to liquidate the estate and disburse the proceeds to creditors. Proceeds of property given as collateral go to the secured creditor first, and the remainder goes into the pool to pay unsecured creditors. Unsecured creditors are generally paid on a pro rata basis, though Congress has given some unsecured claims “priority” over others.

To get a share of the proceeds, a “creditor” is required to file a proof of claim. Since paying an invalid claim would reduce the amount owed to legitimate creditors, the trustee reviews these claims and files objections where a ground to object is apparent. Debtors and others may also object to claims, as the trustee may not be familiar enough with a claim to recognize defects.

In cases under other chapters, the debtor stays in control of the bankruptcy estate. There is a trustee in cases under Chapters 12 and 13, and in some cases under Chapter 11, but the trustee generally does not sell assets, but instead receives payments from the debtor and passes those payments along to creditors. In other Chapter 11 cases, the debtor makes payments to creditors directly.

The Stay, Exemptions and Avoiding Powers

When a case is filed, an “automatic stay” is triggered. A stay is an injunction preventing creditors from collecting from the debtor or from the estate and, as the name implies, is automatic (no separate court order is required). The stay provides the trustee with the sole right to control and liquidate estate assets, without worrying about seizures by other creditors.

A creditor who wishes to collect, or to foreclose on property of the estate may do so only with the approval of the bankruptcy court. The process is initiated by filing a motion requesting “relief” from the automatic stay. A motion may be granted if, for example, the property is collateral for a loan with a balance higher than the collateral’s value. The basic idea in that case is that the secured creditor would get the entire value of the property even if the trustee sold it, so it does no good to keep it under the control of the trustee.

An individual debtor may also wish to exempt property from the liquidation process. Recognizing that individuals may need to keep a home, a car, furnishings and other property to get a “fresh start,” Congress allows individuals to claim certain property as “exempt” from the liquidation process. Exemptions vary by state. Note that all assets of the debtor are listed, even if exempt. The debtor makes the exemption claim by filing a list of exempt property, and the trustee has a deadline to review the list and file file objections to the exemption claims before they are deemed final.

Trustees can also “avoid” certain transactions to increase the size of the estate, and therefore to increase the payout to creditors. For example, a creditor which repossessed a vehicle within 90 days before the bankruptcy petition was filed may be required to turn it over to the trustee. Similarly, if a debtor transferred a vehicle to a family member (or to an affiliate), the trustee would demand it back, or at least investigate whether the debtor received adequate consideration or was trying to protect the asset from creditors.

Discharge

A discharge is the primary objective of most debtors. As long as an individual debtor plays by the rules (including listing all assets and debts honestly), the debtor will receive a discharge of debts. A “discharge” means that creditors are barred from collecting their debts from the debtor (though secured creditors can often pursued foreclosure or repossession against collateral). Dishonesty during the bankruptcy case, or certain kinds of misconduct before the bankruptcy, will prevent a discharge. Since the primary objective of most debtors is to receive a discharge of their debts, it is very important to avoid conduct that would disqualify a debtor from the discharge.

Corporations and other artificial entities can only receive a a discharge if they remain in business and secure confirmation of a reorganization plan.

Even for debtors who play by the bankruptcy rules, certain debts are “excepted” from discharge. Debts excepted from discharge include child support, certain taxes, and debts incurred by fraud.

An individual debtor who has received a discharge must wait statutory periods before filing a later bankruptcy. A debtor who does not yet qualify for a new bankruptcy discharge may in some cases still be able to protect assets in a new bankruptcy case, but should carefully consider the need for the new filing.

You may reach us by phone at (480) 639-6719, or by email at [email protected]. You may also request an appointment┬áto review your situation.