Title 11 of the United States Code sets forth the statutes governing the various types of relief for bankruptcy in the United States . Chapter 13 of the United States Bankruptcy Code provides an individual with the opportunity to propose a plan of reorganization to reorganize their financial affairs while under the bankruptcy court 's protection. The purpose of chapter 13 is to enable an individual with a regular source of income to propose a chapter 13 plan that provides for their various classes of creditors. Under chapter 13, the Bankruptcy Court has the power to approve a chapter 13 plan without the approval of creditors as long as it meets the statutory requirements under chapter 13. Chapter 13 plans are usually three to five years in length and may not exceed five years. Chapter 13 is in contrast to the purpose of Chapter 7 , which does not provide for a plan of reorganization, but provides for the discharge of certain debt and the liquidation of non-exempt property. A Chapter 13 plan may be looked at as a form of debt consolidation , but a Chapter 13 allows a person to achieve much more than simply consolidating his or her unsecured debt such as credit cards and personal loans. A chapter 13 plan may provide for the four general categories of debt: priority claims, secured claims, priority unsecured claims, and general unsecured claims. Chapter 13 plans are often used to cure arrearages on a mortgage, avoid "underwater" junior mortgages or other liens, pay back taxes over time, or partially repay general unsecured debt . In recent years, some bankruptcy courts have allowed Chapter 13 to be used as a platform to expedite a mortgage modification application.
36-405: An individual who is badly in debt can typically file for bankruptcy either under Chapter 7 ( liquidation, or straight bankruptcy ) or Chapter 13 ( reorganization ). In some cases, options may also include Chapter 12 (family farmer reorganization) and Chapter 11 (reorganization of a company, or an individual debtor whose debts exceed the limits for a Chapter 13 filing). As a Chapter 11 bankruptcy
72-482: A Chapter 7 bankruptcy case. However, BAPCPA limited the ability of debtors to avoid liens through bankruptcy. The definition of "household goods" was changed limiting "electronic equipment" to one radio, one television, one VCR, and one personal computer with related equipment. The definition now excludes works of art not created by the debtor or a relative of the debtor, jewelry worth more than $ 500 (except wedding rings), and motor vehicles (§522(f)(1)(B)). Prior to BAPCPA,
108-418: A Chapter 7 debtor does not complete the course, this constitutes grounds for denial of discharge pursuant to new §727(a)(11). The financial management program is experimental and the effectiveness of the program is to be studied for 18 months. Theoretically, if the educational courses prove to be ineffective, the requirement may disappear. BAPCPA attempted to eliminate the perceived "forum shopping" by changing
144-514: A bankruptcy attorney. On October 17, 2005, the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) went into effect. This legislation was the biggest reform to the bankruptcy laws since 1978. The legislation was enacted after years of lobbying efforts by banks and lending institutions and was intended to prevent abuses of the bankruptcy laws. The changes to Chapter 7 were extensive. The most noteworthy change brought by
180-403: A challenge to the debtor's Chapter 7 filing is whether the debtor can otherwise afford to repay some or all of his debts out of disposable income in the five year time frame provided by Chapter 13. If so, then the U.S. Trustee may succeed in preventing the debtor from receiving a discharge under Chapter 7, effectively forcing the debtor into Chapter 13. Some bankruptcy practitioners assert that
216-411: A debtor an opportunity to adjust income by documenting additional expenses or loss of income in situations caused by a medical condition or being called or order to active military service. However, the assumption of abuse is only rebutted where the additional expenses or adjustments for loss of income are significant enough to change the outcome of the means test. Otherwise, abuse is still presumed despite
252-455: A federal court under Chapter 7, which means that the business ceases operations unless those operations are continued by the Chapter 7 trustee. In a Chapter 7 bankruptcy, the trustee is appointed almost immediately, with broad powers to examine the finances of the business in bankruptcy; generally, the trustee sells the assets and distributes the money to the creditors. The investors who took
288-470: A homestead can not be exempted. The only exception is if the value was transferred from another homestead within the same state or if the homestead is the principal residence of a family farmer (§522(p)). This "cap" would apply in situations where a debtor has purchased a new homestead in a different state, or where the debtor has increased the value to his or her homestead (presumably through a remodeling or addition). Some types of liens may be avoided through
324-505: A presumption of abuse is found under the means test, it may only be rebutted in the case of "special circumstances." Debtors whose income is below the state's median income are not subject to the means test. Under this test, any debtor with more than $ 182.50 in monthly disposable income, under the formula, would face a presumption of abuse. Notably, the Code-calculated income is based on the prior six months and may be higher or lower than
360-476: A request. However, this disadvantage is not unique to Chapter 13; it may also apply to individuals currently in a Chapter 11 or Chapter 12 case or those who are in (or have recently been in) a Chapter 7 case. The advantages of Chapter 13 over Chapter 7 include the ability to stop foreclosures although a foreclosure would be reinstated upon completion of the bankruptcy; achieve a "super discharge" of debts not dischargeable under Chapter 7; "value collateral"; bifurcate
396-452: Is already extremely low. Also, new credit extended post-petition is not covered by the discharge, so creditors may offer new credit to the newly-bankrupt. Official Federal bankruptcy forms are prescribed in the relevant Rules, and are a computer based equivalent option of paper forms. Software can also be used, which generates court-ready forms and is more simple for users. Bankruptcy petition preparers can aid in completing applications, as can
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#1733085775883432-441: Is considerably more complex and expensive than a Chapter 13 case, few debtors will choose Chapter 11 if a Chapter 13 bankruptcy is an option. Debtors may also be forced into bankruptcy by creditors in the case of an involuntary bankruptcy , but only under Chapters 7 or 11. However, in most instances, the debtor may choose under which chapter to file. In the case of an involuntary bankruptcy, the debtor may also choose to convert from
468-449: Is not available to individuals who have had bankruptcy cases dismissed within the prior 180 days under specified circumstances. In a Chapter 7 bankruptcy, the individual is allowed to keep certain exempt property . Most liens , however (such as real estate mortgages and security interests for car loans), survive. The value of property that can be claimed as exempt varies from state to state. Other assets, if any, are sold ( liquidated ) by
504-502: Is possible to obtain new debt or credit (cards, auto, or consumer loans) after only 12–24 months, and a new FHA mortgage loan just 25 months after discharge, and Fannie Mae and Freddie Mac loans after 36 months. However, during the pendency of a Chapter 13 case, the debtor is not permitted to obtain additional credit without the permission of the bankruptcy court. Moreover, creditors may not even be willing to risk lending money to such an individual, regardless of their legal ability to make
540-447: Is the bankruptcy code that governs the process of liquidation under the bankruptcy laws of the U.S. In contrast to bankruptcy under Chapter 11 and Chapter 13 , which govern the process of reorganization of a debtor , Chapter 7 bankruptcy is the most common form of bankruptcy in the U.S. When a financially troubled business is unable to pay creditors, the business may file (or be compelled by creditors to file) for bankruptcy in
576-576: The United States Bankruptcy Code , is the source of bankruptcy law in the United States Code . Title 11 is subdivided into nine chapters. It used to include more chapters, but some of them have since been repealed in their entirety. The nine chapters are: United States Bankruptcy Code; 2019 Edition , Michigan Legal Publishing Ltd., 2019, ISBN 9781640020542 This United States federal legislation article
612-654: The "special circumstances." Another major change to the law enacted by BAPCPA deals with eligibility. §109(h) provides that a debtor will no longer be eligible to file under either Chapter 7 or Chapter 13 unless within 180 days prior to filing, the debtor received an "individual or group briefing" from a nonprofit budget and credit counseling agency approved by the United States trustee or bankruptcy administrator. The new legislation also requires that all individual debtors in either Chapter 7 or Chapter 13 complete an "instructional course concerning personal financial management." If
648-483: The 2005 BAPCPA amendments occurred within. The amendments effectively subject most debtors who have an income, as calculated by the Code, above the debtor's state census median income to a 60-month disposable income based test. This test is referred to as the " means test ". The means test provides for a finding of abuse if the debtor's disposable monthly income is higher than a specified floor amount or portion of their debts. If
684-449: The U.S. Bankruptcy Code that include, along with many other reforms, language imposing a means test for Chapter 7 cases. Creditworthiness and the likelihood of receiving a Chapter 7 discharge are some of the issues to be considered in determining whether to file bankruptcy. The effect of bankruptcy on creditworthiness in many cases might not be significant, because by the time many debtors are ready to file for bankruptcy, their credit score
720-463: The U.S. Trustee has become more aggressive in recent times in pursuing (what the U.S. Trustee believes to be) abusive Chapter 7 filings. Through these activities the U.S. Trustee has achieved a regulatory system that Congress and most creditor-friendly commenters have consistently espoused, i.e., a formal means test for Chapter 7. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 has clarified this area of concern by making changes to
756-503: The amount of debt outstanding—have a legally enforceable right to the collateral securing their loans or to the equivalent value, a right that generally cannot be defeated by bankruptcy. They are therefore not entitled to participate in any distribution of liquidated assets that the bankruptcy trustee might make. In a Chapter 7 case, a corporation or partnership does not receive a bankruptcy discharge , whereas an individual may (see 11 U.S.C. § 727(a)(1) ). Once all assets of
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#1733085775883792-493: The bankruptcy, which tends to improve creditworthiness. Consumer credit and creditworthiness is a complex subject, however. Future ability to obtain credit is dependent on multiple factors and difficult to predict. Another aspect to consider is whether the debtor can avoid a challenge by the United States Trustee to his or her Chapter 7 filing as abusive . One factor in considering whether the U.S. Trustee can prevail in
828-458: The corporate or partnership debtor have been fully administered, the case is closed. The debts of the corporation or partnership theoretically continue to exist until applicable statutory periods of limitations expire. Individuals who reside, have a place of business, or own property in the United States may file for bankruptcy in a federal court under Chapter 7 ("straight bankruptcy", or liquidation). Chapter 7, as with other bankruptcy chapters,
864-404: The date of filing the Chapter 7 petition. This contrasts with a Chapter 13 bankruptcy, which stays on an individual's credit report for seven years from the date of filing the Chapter 13 petition. This may make credit less available or may make lending terms less favorable, although high debt can have the same effect. That must be balanced against the removal of actual debt from the filer's record by
900-447: The debtor can choose the federal exemptions. BAPCPA also "capped" the amount of a homestead exemption that a debtor can claim in bankruptcy, despite state exemption statutes. Also, there is a "cap" placed upon the homestead exemption in situations where the debtor, within 1,215 days (about 3 years and 4 months) preceding the bankruptcy case, added value to a homestead. The provision provides that "any value in excess of $ 125,000" added to
936-428: The debtor proposes a plan to pay his or her creditors over a 3-to-5 year period. This written plan details all of the transactions (and their durations) that will occur, and repayment according to the plan must begin within 30 to 45 days after the case has started. During this period, his or her creditors cannot attempt to collect on the individual's previously incurred debt except through the bankruptcy court. In general,
972-490: The debtor's actual current income at the time of filing for bankruptcy. This has led some commentators to refer to the bankruptcy code's "current monthly income" as "presumed income". If the debtor's debt is not primarily consumer debt, then the means test is inapplicable. The inapplicability to non-consumer debt allows business debtors to "abuse" credit without repercussion unless the court finds "cause." "Special circumstances" does not confer judicial discretion; rather, it gives
1008-543: The definition of household goods was broader so that more items could have been included, including more than one television, VCR, radio, etc. Ltd, Michigan Legal Publishing (15 December 2015). United States Bankruptcy Code; 2016 Edition . Michigan Legal Publishing Limited. ISBN 9781942842033 . Title 11 of the United States Code Title 11 of the United States Code , also known as
1044-424: The dischargeability of the student loan), and fines and restitution imposed by a court for any crimes committed by the debtor. Spousal support is likewise not covered by a bankruptcy filing, nor are property settlements through divorce. Despite their potential non-dischargeability, all debts must be listed on bankruptcy schedules. A Chapter 7 bankruptcy stays on an individual's credit report for ten years from
1080-605: The forced Chapter 7 or 11 proceeding into a proceeding under another chapter. The debtor's financial characteristics and the type of relief sought play a tremendous role in the choice of chapters. In some cases, the debtor simply cannot file under Chapter 13, as he or she lacks the disposable income necessary to fund a viable Chapter 13 plan (see below). Furthermore, Section 109(e) of Title 11, United States Code sets forth debt limits for individuals to be eligible to file under Chapter 13 : unsecured debts of less than $ 419,275, and secured debts of less than $ 1,257,850. Under Chapter 13,
1116-549: The individual gets to keep their property, and his or her creditors end up with less money than they would have had the amount given to the debtor continued to collect interest, allowing the debtor to find a way to pay the amount owed without losing their assets. The disadvantage of filing for personal bankruptcy is that, under the Fair Credit Reporting Act , a record of this stays on the individual's credit report for up to 7 years (up to 10 years for Chapter 7); still, it
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1152-417: The least amount of risk prior to the bankruptcy are generally paid first. For example, secured creditors will have taken less risk, because the credit that they will have extended is usually backed by collateral , such as assets of the debtor company. Fully secured creditors —that is, creditors, such as collateralized bondholders and mortgage lenders, for whom the value of collateral equals or exceeds
1188-411: The rules on claiming exemptions. Under BAPCPA, a debtor who has moved from one state to another within two years of filing (730 days) the bankruptcy case must use exemptions from the place of the debtor's domicile for the majority of the 180-day period preceding the two years (730 days) before the filing §522(b)(3). If the new residency requirement would render the debtor ineligible for any exemption, then
1224-431: The security interest of creditors in certain property that creditors are either charging too much interest for, or are over-secured, or both, and leading to a " cram down " modification of the debt; and prevent collection activities against non-filing co-signers ("co-debtors") during the life of the case. A chapter 13 plan is a document filed with or shortly after a debtor's Chapter 13 bankruptcy petition. The plan details
1260-524: The treatment of debts, liens, and the secured status of assets and liabilities owned or owed by the debtor in regard to his bankruptcy petition. In order for a plan to take effect, it must meet a number of requirements. These are specified in § 1325 and include: Ltd, Michigan Legal Publishing (15 December 2015). United States Bankruptcy Code; 2016 Edition . Michigan Legal Publishing Limited. ISBN 9781942842033 . Chapter 7, Title 11, United States Code Chapter 7 of Title 11 U.S. Code
1296-414: The trustee to repay creditors. Many types of unsecured debt are legally discharged by the bankruptcy proceeding, but there are various types of debt that are not discharged in a Chapter 7. Common exceptions to discharge include child support , income taxes less than three years old, property taxes , student loans (unless the debtor prevails in a difficult-to-win adversary proceeding brought to determine
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