Certain basic concepts apply under both Chapter 7 and Chapter 13. The case is commenced by filing a petition with the bankruptcy court. The petition must list all of your assets, liabilities and other information required under the code. You cannot pick and choose which creditors to include on the petition, but that doesn't mean you cannot keep your home or vehicle, as will be explained later. All creditors must be listed. You may file as an individual or as husband and wife. Married couples do not have to file together if substantially all debts are solely in one spouse's name.
Your creditors can force you into bankruptcy. This is called an involuntary proceeding. For the most part, involuntary proceedings are confined to business cases. Almost all consumer cases are filed voluntarily. Approximately 75% of the cases I file a Chapter 7 "wipe-out debt" cases, the other 25% are Chapter 13 "reorganization or repayment plans" in which the debtor (or husband and wife) make payments to a Chapter 13 Trustee for a 3 to 5 year time period. Most Chapter 13 cases I file are for debtors who are trying to prevent a foreclosure of their home or repossession of their vehicle. Some Chapter 13 cases are filed because the debtor's are not eligible to file a Chapter 7 either because they have filed a prior Chapter 7 in the previous six year or they have too many assets or make too much money or because they could pay their creditors a good percentage of what they owe with a Chapter 13 plan without too much of a burden on their way of life. Some clients will file a Chapter 13 repayment plan even if they qualify for a Chapter 7 just because they want to pay their creditors. Both Chapter 7 and Chapter 13 will stop creditor action such as a foreclosure or sheriff's sale, utility shut-off, vehicle repossession or wage garnishment. See below or link to my detailed frequently asked questions page for answers to more of your questions. Feel free to e-mail me, come in to see me for a free consultation or call me locally at (313) 962-4656 or toll free at 888-Debt Gone or 888-4Walter.
The filing of the petition invokes what is known as the automatic stay. This means that your creditors are immediately prevented from doing anything further to compel collection of a debt. The harassing calls, garnishments, law suits, foreclosures, repossessions or shutting off of utility services are all stopped. The "stay" is designed to give you time to sort out your affairs free from the harassment of creditors.
In the petition, your debts are classified as either priority, secured or unsecured. Each is treated differently depending on which chapter is filed. Priority debts in consumer cases are usually limited to government tax liabilities and support obligations. Priority creditors have certain rights to payment over other creditors.
Secured debts are backed by property known as collateral, and typically consist of auto loans and mortgages. The creditor has a lien, or right to recover the property upon default. In most cases, liens attach to property by virtue of a written security agreement signed when the pledged property is purchased, or upon obtaining a loan.
Unsecured debts are almost everything else. They include credit cards, back utilities, medical bills, store charges and unsecured loans. Unsecured creditors do not have a lien or interest in your property. If you purchased certain property with a store charge or credit card, the seller cannot repossess that property on your default without a security agreement.
The process of deciding whether to file a bankruptcy proceeding often is very difficult indeed. Nobody wants to file bankruptcy, whether it be under Chapter 7 or Chapter 13 of the Bankruptcy Code. Bankruptcy is meant for the honest debtor, someone who has explored all alternatives. (see below) A bankruptcy may have adverse credit effects and there can be other undesirable ramifications. Well then, why should someone take this important step? The answer to that question, in my opinion, is that you should file only after considering the various possible alternatives. If none of these alternatives is feasible or practical for you, then filing a bankruptcy petition may be the most responsible step to take.
Did you know that Thomas Jefferson did not hesitate to utilize the United States Bankruptcy Laws. Thomas Jefferson. The third president of the United States. A statesman, diplomat, architect, author, inventor and farmer. Widely acknowledged as a genius and the smartest of all U.S. presidents. A man who gave vision to this country as one of its founding forefathers and leader of this country.
Why do I bring up Mr. Jefferson? Because he was almost constantly in debt. A whole lot of debt. Mr. Jefferson filed several bankruptcies in his lifetime; and, his debt was huge in comparison to most individuals' bankruptcies today.
The point is, bankruptcy is nothing to be ashamed of. If a person with Mr. Jefferson's credentials, aptitude and intelligence can get himself into situations, repeatedly, that require bankruptcy to solve, then it is certainly no negative reflection on you if you need to. Many famous and important people have exercised their right to file Bankruptcy including Willie Nelson, Jerry Lewis and former Treasury Secretary John Connally.
Most people who file bankruptcy would much rather repay their debt if they could, and they must deal with their ingrained fear of bankruptcy, because mis-informed societal attitudes have always looked upon bankruptcy debtors as cheats, criminals and irresponsible. Many clients insist upon telling me of their exemplary past credit history, even though it has little to do with their present predicament, and offers me no information necessary to help them now. I suspect the reason arises from a need to explain that their situation is different, because they are not cheats and criminals like others who may file.
The irony is that they really are just like most others who file. It is simply a myth to believe that most people who file bankruptcy could pay their debts if they chose. The fact is most bankruptcy debtors have sold valuable assets to repay debt, borrowed from friends and relatives, and have simply no other place to turn before looking to the bankruptcy code for debt relief.
The most common reasons for filing bankruptcy include loss of employment, insufficient medical insurance, divorce, or a failed business venture. Most recently, bankruptcy filings have been surging as a result of the unprecedented availability of high interest credit cards, which inevitably lead to a greater number of defaults when combined with any of the above problems.
The inability to keep current with bills as they become due causes stress that affects marriages, jobs and almost every aspect of life. Anyone who has suffered from a barrage of hostile telephone calls from bill collectors knows that something has to give. The bankruptcy laws have been enacted to provide a safety valve that gives honest people a fresh start, and helps them regain normal lives.
While there is little reason to feel happy about filing bankruptcy, you shouldn't feel like a loser either. If you are going through a financial crisis you are not alone. Over a million people a year turn to the bankruptcy laws for debt relief. Statistics show that the cross section of individuals and couples filing bankruptcy mirror society as a whole by income, type of employment, home ownership and almost any other relevant category. In other words, anyone can find themselves in bankruptcy.
Detroit Bankruptcy Lawyer.com Attorney Walter Metzen Bankruptcy Law Office is conveniently located just one block from the United States Bankruptcy Court in Detroit Michigan. Suite 3156 Penobscot Bldg., Detroit MI 48226. The US Bankruptcy Court for the entire Metro Detroit area is located at 211 West Fort Street, Detroit Michigan 48226. Call 313-962-4656 or 888-Debt-Gone for a Free Consultation.
The bankruptcy laws are there for a reason. On the whole, they benefit both the debtors and creditors. It is of course important to be responsible for the debts you incur, but filing a bankruptcy IS an act of responsibility. It puts you in a position to move forward, to become productive once again, provides closure, and pays your creditors from your non-exempt assets (or by other means if the court so approves in a Chapter 13 or 11 context).
It is important to seriously explore bankruptcy as an alternative to struggling for years to no avail. There are many factors to consider before filing a bankruptcy, but one of them should not be a guilty conscience.
Detroit Bankruptcy Lawyer.com Attorney Walter Metzen Bankruptcy Law Office is conveniently located just one block from the United States Bankruptcy Court in Detroit Michigan. Suite 3156 Penobscot Bldg., Detroit MI 48226. The US Bankruptcy Court for the entire Metro Detroit area is located at 211 West Fort Street, Detroit Michigan 48226. Call 313-962-4656 or 888-Debt-Gone for a Free Consultation. Recognize any of these Warning Signs?
Warning Signs. In assessing whether or not you should seek some kind of debt relief, consider the following questions:
If you answered "yes" to one or more of the preceding questions, you should consider seeking some form of debt relief. Bankruptcy, of course, offers very effective debt relief, but there are possible alternatives to filing bankruptcy which shall be covered below.
Generally speaking, the chief alternatives to bankruptcy are some form of negotiation and settlement with one or more of your creditors, perhaps by making payments through a nonprofit credit counseling service. Anytime you are dealing with alternatives to bankruptcy, be sure that you do not "put all your eggs in one basket." In other words, do not let a foreclosure sale occur or allow a judgment to be entered against you without first finding out your options under bankruptcy laws.
Nearly all large companies such as credit card issuers have limited or no resources for dealing with individual borrowers. Many of my clients relate to me that they have called and written to their creditors to attempt to work out a method of paying their debts. Most often, these people find that no matter how good their reason for wanting to work out their debts, and no matter how hard they try to pay their creditors what they can afford, the creditors simply will not "work" with them. This is because these creditors are vast bureaucracies that have no method and no personnel to deal with people on an individual basis. There are some limited exceptions, however. If your situation is like one of the following, you may want to try to work the problem out without filing bankruptcy:
When bankruptcy is appropriate, it is usually not a question of maintaining good credit - your credit standing is probably already damaged. Judgments, delinquent payments, and credit counseling services are reported to the credit agencies for long periods of time like bankruptcy. Few lenders give credit under those circumstances anyway, and even if you satisfy a judgement it still is a part of your credit history.
The credit reporting bureaus report a Chapter 7 filing for a period of almost ten years. The credit bureaus report a Chapter 13 filing for almost seven years as long as you successfully complete the plan. If the plan is dismissed, then the Chapter 13 will be reported for ten years as well.
A fresh start allows you to re-establish your damaged credit. Aside from being reflected on your credit report, the bankruptcy laws do not restrict you form obtaining credit after the case is completed. Keep in mind that whether you have good or bad credit is always a subjective decision in the eyes of a prospective creditor. Of course, you must be prepared to explain why it is necessary to file if a prospective creditor should inquire. Maintaining a good "track record" after filing will minimize the adverse impact of the financial troubles leading to the bankruptcy. With the right strategy, you can build good credit once again. Our office provides a booklet free of charge to each client explaining how to re-establish credit after bankruptcy.
There may be some "pre-filing" strategies to re-establish credit. A non-filing spouse's credit report is not affected by the bankruptcy unless the spouse is a co-signer on any of the debts. If only one spouse files then the other may be able to maintain a good credit standing. Also, if there is a bank card or line of credit with a zero balance before filing, you may be able to use the card after filing, provided it is not revoked by the creditor.
I vigorously protect my clients rights and protect them from creditor abuse. I have helped many families and individuals overcome the stress that financial problems can cause. My expertise as a bankruptcy lawyer always results in savings that far outweigh the amount of legal fees in a case.