The following is a basic outline of Bankruptcy Proceedings. It is intended to set forth general rules of law and procedure that affect the typical Chapter 7 and Chapter 13 Bankruptcy Proceeding.
The specific application of these general principles depends upon the particular circumstances of your financial condition and situation.
The purpose of a Bankruptcy Proceeding is to allow a person to obtain what is known as a "fresh start." The law and society recognize that sometimes people will find themselves in financial situations where it becomes impossible to pay their debts as they come due. Often this is caused by factors totally beyond control, such as unexpected or long unemployment, illness, loss of income, lawsuits, tax problems, and similar problems. Usually a person faces a combination of these problems. Bankruptcy offers a person a legal and proper way to become discharged or released from responsibility for some or all of their debts.
The reason the law allows a person to become released from certain debts is the recognition that it is in the best interest of all for a person to remain a productive member of society by having a second chance.
New Bankruptcy Law:
It is very important to understand that for cases filed after October 17,2005, the Bankruptcy Law has been changed. In some important ways, these new laws have made major changes in the way a bankruptcy works. There are a number of areas where we are very uncertain what some of these changes mean and how they are supposed to work.
Debt Relief Agency:
I am authorized to act as a "debt relief agency" under the new laws to help an "assisted person," which is defined as a person with mostly consumer debts (meaning debts created for personal or family use, not business) whose net equity value (discussed below) is less than $150,000.00. Most people without specific business related debts will be considered an "assisted person." Certain additional information required by law will be provided to you.
Mandatory Debt Counseling - Before and After You File:
The new law requires that all persons wanting to file a bankruptcy must seek credit counseling with an approved debt counseling service before you file. This is called a credit briefing and may be done in person, over the telephone, or through the internet. I will provide you more information about this later. There are very limited emergency exceptions.
After you file there are new requirements for a mandatory financial management course that must be taken to complete your bankruptcy.
Full Disclosure of Information - and I mean everything!
Bankruptcy starts with full and complete Disclosure of your finances. You must tell the Court under penalty of perjury, everything you own and everybody you owe money, including the debts you want to keep and pay. This is done by filling out the following forms:
► Schedule A is a list of all real estate (land) including oil and gas and mineral interests in which you have any ownership interest, individually, jointly, or otherwise, whether located in Texas or anywhere else, paid for or not.
► Schedule B is a list of all personal property owned (everything other than land) by you, which includes any property, property right, or claim, or right to property which you own, paid for or not.
► Schedule C is the list of property which you claim as exempt or protected. There are two ways to protect property which we will discuss in more detail later.
Creditors - There are three main types of creditors:
► Schedule D is a list of all creditors whose debts are secured or guaranteed by some type of property, whether real estate or personal property. The treatment of secured. creditors in bankruptcy is very important. Secured creditors are given special rights to protect their mortgage rights in the property, and so each secured claim must be dealt with very specifically. Generally speaking, if you wish to keep property which acts as security or collateral for the debt, you must pay that secured debt in full. Most secured debts are known as purchase money secured debts, which means that the debt is for the purpose of financing the purchase of the specific property. Sometimes a loan is made for one purpose and property which is not encumbered by a debt is placed up as collateral. These are known as non-purchase money secured debts, and typically are made with finance companies. It is sometimes possible to void or cancel the lien or mortgage against this property.
► Schedule E lists what are known as priority debts. The principal priority debts are taxes and unpaid child support. However, taxes may also be considered secured if a proper tax lien has been filed. Generally speaking, these debts may not be discharged in a bankruptcy.
► Schedule F lists all other debts not secured by any piece of property ("ordinary unsecured debts"). This list should include all debts, claims and even possible claims, however unlikely, which do or may exist against you. Examples are credit cards, signature loans and medical bills.
Other Required Information:
► Schedule G lists all existing contracts and unexpired leases. Executory contracts and leases are contracts which you have with another person which have not yet been completely performed.
► Schedule H lists all co-debtors who are or might be jointly liable with you on a debt.
► Schedule I lists average monthly income from all sources.
► Schedule J lists average monthly expenses as calculated on the basis of your financial situation after you file bankruptcy. New Law Change - Expenses are now required to be set according to the Financial Collection Standards of the Internal Revenue Service.
Statement of Financial Affairs or Background Questions
The Statement of Financial Affairs is a financial disclosure form. All answers to the questions in this statement are made under penalty of perjury. The questions ask for information concerning your financial condition and recent history. For example, questions deal with such matters as income over the last several years, involvement in lawsuits, repossessions and foreclosures, transfers of property, and similar matters. If you have been engaged in business, other than as an employee, additional questions must be answered concerning that business.
While I know the forms we give you may look long and complicated, they really are just long! My office cannot fill out these forms for you. It is important that you fill them out as completely and accurately as possible.
Your Main Rights in a Bankruptcy:
When a bankruptcy is filed, you receive three important protections:
Number One: The Right to be left alone: From the moment that the bankruptcy is filed, the automatic stay of the Bankruptcy Code prevents all creditors from making any attempts to collect a debt or exert control over the property of the debtor's bankruptcy estate. Creditors cannot call, write, sue or repossess. Creditors who knowingly violate the automatic stay protection can be held liable for damages.
New Law Change: The Automatic Stay protection is not so automatic and may be limited if you have previously filed a bankruptcy before. We will need to discuss this in more detail if you have previously filed.
Number Two: The Right to keep some property: The second protection is the right to exempt or protect a sufficient amount of property to maintain a household together. Generally speaking, a person's homestead, furniture, personal effects, tools of the trade, retirement/social security benefits and motor vehicles may be claimed as exempt. The exemption of other types of property depends upon your particular situation. Any property which you wish to claim as exempt and keep, you must continue to pay for it if it has a debt against it. For example, the debts on home mortgages and debts on automobiles are often reaffirmed and payments continue to be made as if the bankruptcy never occurred. If you are behind some payments, known as "arrearage," often an agreement may be reached with a creditor to catch up on the payments or a Chapter 13 Reorganization Plan filed to catch up past due payments. Corporation debtors cannot exempt property.
New Law Change: While the amount and type of property a person may exempt and protect from creditors is still quite reasonable, the new law has made some important changes which will affect some people. We will discuss this in more detail if it may cause a problem for you.
The amount of any type of property you may exempt or protect is normally based on how much net equity value you have. For most purposes the formula is: Actual Fair Market Value – secured debt = Net Equity Value.
Fair Market Value in bankruptcy is normally a used retail sales price or the cost to replace an item of property with another, "as is", or in the same condition. Sometimes, Fair Market Value is a liquidation or garage sale price.
Number Three: The Discharge or Release from Certain Debts:
Discharge of Debts
The bankruptcy discharge releases you personally from any further liability from your obligation to pay debts or claims which existed before you filed bankruptcy ("pre-petition debts"). Debts which arise after the filing of your bankruptcy generally speaking are not affected by your bankruptcy filing. You should list any and all debts which you owe no matter the amount nor to whom it is owed. Failure to list a debt may mean that you remain liable to pay that debt. Corporation debtors do not receive a discharge. Their assets are sold and the money paid to creditors.
New Law Change - The new Bankruptcy Law makes some changes in what debts may be released. We will discuss this in more detail if it applies to you.
You are advised that there are some debts not discharged by a bankruptcy. You will still be liable for these debts even after your discharge. A summary of these follows:
Some of these debts may be discharged in Chapter 13 but not Chapter 7.
The Bankruptcy Procedure
All bankruptcies in this area are filed in the United States Bankruptcy Court for the Eastern District of Texas located in
In Chapter 7 cases, the Trustee wants to know if you have any type of property above the amount you can exempt that he can sell and pay the money to your creditors. In 95 out of 100 cases, there is no extra or non-exempt property for the Trustee to sell. In the majority of cases, your bankruptcy is complete after the creditor's meeting.
In Chapter 7 cases, approximately 60 days after that meeting, unless an objection is filed by the Trustee or a creditor, you will obtain an order from the court discharging or releasing you from all dischargeable debts. You will pay any debts you agree to continue to pay and any debts which by law cannot be discharged (like taxes or student loans). Special problems and complaints objecting to the debtor's right to obtain a discharge require additional court appearances.
If you have debts that will not be discharged in a Chapter 7 or secured debts you need to catch up or refinance, you may need to consider a repayment plan under Chapter 13.
In a Chapter 13, you pay your creditors back, some or all of their debt, through a repayment plan supervised by the Court and the Chapter 13 Trustee. The amount you pay depends upon your income, living expenses and the amount and type of creditors.
Budget - From total family or household income, you subtract normal deductions for taxes, social security, etc., to get Net or Take-Home Pay. From Net or Take-Home Pay, you subtract necessary living expenses (housing, food, clothing, gas, child care, etc.) to get the Surplus of Trustee Payment.
New Law: The amount of Allowed Living Expenses is now set by law at the IRS Standards, and neither I, you, nor the Judge can vary from those amounts. However, this is one of those areas which is somewhat uncertain.
Plan - The Chapter 13 Plan is normally used to pay for debts that do not go away – like taxes- and secured debts where you need to catch up past due payments or refinance payments.
New Law Change: The biggest changes in the new Bankruptcy Law affect Chapter 13:
1. You must stay in Chapter 13 and pay creditors for a minimum of five (5) years and a maximum of seven (7) years;
2. The ability to refinance cars, trucks and other personal property is more limited;
3. The protection of the automatic stay may be limited;
4. The Plan is approved much faster than under the previous law even before all creditors have had time to file their claims. This means the Plan will have to be amended or changed, perhaps several times, to meet and pay for these later claims.
5. Annual financial statements must be filed though out the length of the Plan.
Remember - good credit is paying what you owe when it is due… anything else is less than good. The way you handle the repayment of your debts must be considered by a prospective lender. You will have to work to re-establish your credit upon completion of your bankruptcy. THERE IS NO REPRESENTATION OR GUARANTEE THAT YOU WILL BE ABLE TO SECURE CREDIT AFTER FILING OF ANY BANKRUPTCY. It is totally up to the prospective lender to make this decision. I have an additional handout which discusses this more.
There are some instances in which the Bankruptcy Court will refuse to grant a discharge to a person. The reasons generally are if the debtor:
You should be aware that filing false or incomplete information or concealing assets could be viewed as a federal crime punishable by fine and/or imprisonment. The failure to list assets or the disposition of assets can result in the denial of your discharge or provide grounds for the later revocation of your discharge when discovered. Please take your-responsibilities seriously. Ask if you have questions. Full and complete disclosure of facts and information is of primary importance in a bankruptcy proceeding.
OTHER IMPORTANT INFORMATION
In order to protect yourself before and after you are granted a discharge in bankruptcy, you must have done or will do the-following:
If you and your spouse are experiencing serious problems in your marriage, please let my office know. A divorce filing in the middle of a bankruptcy can cause very serious complications and under the law may require me to withdraw from representing either spouse in the bankruptcy.
Change of Address or Employment
If you should change your residence address or acquire a new telephone number, either at work or at home, please provide this information to this office. As your case progresses, it may be necessary to contact you and make some decisions important to you. If you are uncertain of an address or phone number for any period, please provide us with the name, address, and telephone number of someone who will be able to contact you if it becomes necessary. If you should change employment, please advise this office and the Trustee’s office of the new name, address, and telephone number of your new employer or place of business.
Copyright 2005, Stephen J. Zayler