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The Far Limits of the Means Test

Very few people who want to file Chapter 7 bankruptcy need to take the means test all the way to its limit. But if you do, you better have some iron-clad “special circumstances” to defeat your “presumption of abuse.”

The means test triggers whether or not your case is presumed to be an abuse of Chapter 7. Each step of the means test gives you a way to avoid this presumption of abuse. So, you avoid the presumption IF ANY of the following apply to you:

1. your income is no more than the median family income for your state and your size of family;

2. your income is more than the applicable median family income, but, after subtracting a list of allowable expenses, your remaining monthly disposable income is less than $117 per month; or

3. your income is more that the applicable median family income, your remaining monthly disposable income is between $117 and $197 per month, AND when you multiply your specific monthly disposable income amount by 60, this total is less than 25% of your “non-priority unsecured debts” (debts not secured by collateral, excluding special “priority debts”—certain taxes, support payments, etc.).

(See my last few blogs about these earlier parts of the means test.)

A large percentage of people who want to file Chapter 7 avoid the presumption of abuse on the first step—having sufficiently low income. Many others do so because their monthly disposable income is low enough at the second step, or their monthly disposable income is low enough in comparison to the amount of their debt.

BUT, if after all this you still have a presumption of abuse, your case will either be dismissed (thrown out) or else changed into a Chapter 13 case (requiring payments to your creditors). Your last chance to avoid this is if you can show “special circumstances.” The Bankruptcy Code lays out this law as follows:

[T]he presumption of abuse may only be rebutted by demonstrating special circumstances, such as a serious medical condition or a call or order to active duty in the Armed Forces, to the extent such special circumstances… justify additional expenses or adjustments of current monthly income for which there is no reasonable alternative.

So when pushed to the limit, a test that is supposed to be an objective way to decide who qualifies to file a Chapter 7 bankruptcy comes down to a very subjective question about whether any “special circumstances” apply.

To be fair, much of the means test IS objective, in the sense that it involves a whole lot of number-crunching to see if you can escape that dreaded “presumption of abuse.” But when a lot of those numbers—such as the allowed expense amounts, or the above-mentioned $117 and $195 amounts—appear arbitrary or do not accurately reflect your honest reality, then that “objectivity” has gotten away from the purpose for which it was supposedly intended.

Regardless, if you want to file a Chapter 7 case and, after going through all the steps of the means test, you are among that small minority of people still with a presumption of abuse, how likely are you going to be saved by the remaining subjective step in the process? Will you be able to persuade the judge that your “special circumstances” defeat the presumption of abuse?

This is a prime example of when you want a very experienced and conscientious bankruptcy attorney at your side. Why? Because the ambiguousness of the law, as you saw in the excerpt above, means that your attorney will need to 1) know how the local bankruptcy judges are interpreting this law, 2) carefully apply that to the details of your case when advising you about your options before filing your case, and then 3) if necessary be persuasive in making your case for “special circumstances” in court.  

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The Arbitrariness of the “Objective” Means Test

The means test is supposed to be an objective way to decide who qualifies to file a Chapter 7 bankruptcy. So what’s so objective about whether your “monthly disposable income” is less than $117 or more than $195? Sounds pretty arbitrary to me.

Before getting to this step of the means test, let me bring you back to its beginning.  I can’t emphasize enough that many, many people qualify for Chapter 7 strictly based on their income.  As I explained a few blogs ago, if your income is no more than the published median income for your state and family size, you skip the rest of the means test. You’re presumed to qualify for Chapter 7.

So if and only if your income is more than the median, you take the next step of the means test—deducting expenses from your monthly income. These allowed expenses are based on a terribly complicated set of rules I discussed in my last blog. After deducting these expenses, that leaves you with your “monthly disposable income,” a very important amount.

This brings us to those $117 and $195 “monthly disposable income” amounts mentioned above. And here’s where the “objective” rules get quite arbitrary. Catch this:

1) IF your “monthly disposable income” is $117 or less, then you are presumed not to be abusing the system to be filing a Chapter 7 case. In other words, you’ve passed the means test.

2) IF your “monthly disposable income” is more than $195, then you are presumed to be abusing the system to be filing under Chapter 7.

3) IF your “monthly disposable income” is between $117 and $195, then whether or not you are presumed to be abusing the system depends on one more step. You ARE presumed to be IF you multiply that specific “monthly disposable income” by 60, and the resulting amount is enough to pay at least 25% of your “non-priority unsecured debts.” (Priority debts are a category of special debts like certain taxes, support arrearage, and such.) If that resulting amount pays less than 25% of that set of debts, then you are presumed not to be abusing the system to be filing under Chapter 7.

So where do those critical two numbers—come from? Notice they amount to a difference of only $78 per month between being presumed to be able to file a Chapter 7 case and being presumed not to be able to.

Well, let’s take it a step further. Multiply the monthly amounts of $117 and $195 both by 60 months (the length of a maximum-length Chapter 13 case) and you get close to $7,025 and $11,725, respectively. (These used to be $6,000 and $10,000 when the law passed in 2005, and has been adjusted for inflation. The current amounts are good until April 1, 2013.) The effect of this set of rules is that:

1) if you theoretically CAN’T pay at least $7,025 to your “non-priority unsecured creditors” within 5 years of monthly payments (60 months), than it’s OK for you to be in a Chapter 7 case and write off those creditors;

2) if you theoretically CAN pay $11,725 or more to those creditors within 5 years, than it’s NOT OK for you to be in a Chapter 7 case, and instead you should be in a Chapter 13 case paying your disposable income to those creditors; and

3) if you theoretically can pay somewhere in between those two amounts in 5 years, then whether you should be in a one Chapter or the other turns on whether or not the total to be paid to the creditors would amount to at least 25% of the “non-priority unsecured debts.”

So where do these decisive $117/$195 and $7,025/$11,725 amounts come from? As far as I can tell, they are totally arbitrary.  Some creditor lobbyist or Congressional staff person likely just pulled a couple numbers out of his or her head. I can’t see any principled reason to pick those amounts to determine whether a person should or shouldn’t be allowed to file a Chapter 7 case.

Sensible or not (and the means test is anything but!), the law is the law: if your income is over the median then the amount of your monthly disposable income determines whether you are presumed to be abusing the bankruptcy system by filing a Chapter 7 case.

I will finish this series on the means test with one last blog. Because, even if you have too much disposable income resulting in a presumption of abuse, you might STILL be able to stay in Chapter 7 by defeating that presumption through “special circumstances.”

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The “Black Box” of the Means Test

What happens if you make too much money so that you are over “median income,” but you still want to file a Chapter 7 case?  You get to go through the “black box” that is the expenses side of the means test.

In the last couple of blogs I’ve covered the first part of the means test, the income part. That part says that if your income is no more than the medium amount for your state and your size of family, you can skip the rest of the means test and qualify for Chapter 7. But if your income is over the applicable median income amount, then you have to go through the convoluted expenses part of the means test to see whether you can still do a Chapter 7 case.

As much as I want in these blogs to help you understand how bankruptcy works, there is a limit to what can be effectively conveyed within the limitations of a blog. Much of the expenses part of the means test goes over that limit. So in this blog we will avoid that nitty-gritty. But here’s what you should know.

The concept behind the means test is pretty straightforward: debtors who have the means to pay a meaningful amount to their creditors over a reasonable period of time should be required to do so. But putting that concept into law resulted in maddeningly complicated and unclear rules. Not surprisingly, trying to apply those rules to real life has been challenging.

The expense rules got really complicated by trying to be objective. Congress assumed that it couldn’t trust debtors to list their anticipated expenses because they’d just show they had no money left over for their creditors. For a more objective standard, Congress could have picked between either the actual expenses a debtor in fact pays for food, clothing, etc., or else used some standard amount for expenses.

Well, Congress chose…  BOTH—a mix between actual and standard expenses. So now for some expenses we must use standard amounts, based on Internal Revenue Service tables. But this gets complicated quickly because some of those expense standards are national, some vary by state, and some even vary among specific metropolitan areas within a state. Then some other “necessary” expenses can be the actual amounts expected to be spent. And there are even some expenses which are partly standard and partly actual (certain components of transportation expenses). Add in deductions for secured debt payments (vehicle, mortgage) and priority debts (income taxes, accrued child support), and trying to figure out when they can and can’t be claimed, and you get an idea why I’m not going to get any deeper into this “black box.”

I WILL tell you in my next blog what happens at the other end of this “black box” of expenses—what happens if you have some disposable income after deducting expenses.

I’ll close today by emphasizing that the expense rules are not clear how they are to be applied to many common situations. The result is that different courts have interpreted these rules in inconsistent ways, requiring the U.S. Supreme Court to resolve these disputes one at a time.

So this is a prime example of why you want to have an attorney who fully understands these often confounding rules, and is also on top of the pertinent local and national court interpretations of these rules. There’s a lot riding on it—whether or not you qualify for Chapter 7, and how much and how long you have to pay into a Chapter 13 case. In other words, what’s potentially at stake is years of your life, and thousands, if not tens of thousands, of dollars.

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The Rigid “Means Test” Makes the Timing of Your Bankruptcy Filing Critical

Waiting just one day to file your Chapter 7 bankruptcy case can make qualifying for it much easier—or much harder!

How could such a small delay make such a big difference?

One of the main goals behind the huge amendment to the bankruptcy law in 2005 was to force more people to pay a portion of their debts through Chapter 13 payment plans instead of writing them off in a Chapter 7 “straight bankruptcy.” And the primary tool that is supposed to accomplish this is the means test. The rationale behind this test was that instead of allowing judges to make judgment calls about who was or was not abusing the bankruptcy system, a rigid financial test would ferret out who had the “means” to pay a meaningful amount to their creditors in a Chapter 13 case.

But in real life rigid rules can have unintended consequences. An experienced and conscientious lawyer will work to turn these consequences to your advantage, and avoid their disadvantages. Here’s an idea how this plays out with the means test.

In my last blog I explained the first part of the means test, which essentially compares the income you received during the six FULL CALENDAR months before filing bankruptcy to a standard median income amount for your state and your family size. If your income is at or under the applicable median income, then you get to file a Chapter 7 case (except in very unusual circumstances, which I’m not going to get into here). If your income is higher than the median amount, you may still be able to file a Chapter 7 case but you have to jump through a whole bunch of extra hoops to do so. And there’s a risk that you will be forced to go through a Chapter 13 payment plan.  So you can see that having income below the median income amount makes your case much simpler and less risky.

But how can filing the case a day earlier or later matter so much? Because of the means test’s fixation on those six prior full calendar months. And because the means test includes ALL income during that precise period (other than social security).  Virtually all money that comes into your hands during that period is counted, not just taxable income. 

So imagine that you received some irregular chunk of money, say an income tax refund, a few catch-up child support payments, or an insurance settlement or reimbursement.  Not a huge amount, say $3,000, received on July 15 of last year. Your only other income is from your job, where make a $42,000 salary, or $3,500 gross per month. Let’s say that the median annual income for your state and family size is $43,000.

So now we’re getting close to the end of January, your Chapter 7 bankruptcy paperwork is ready to file, and you’re anxious to get it filed so that you get protection from your aggressive creditors. BUT, if your case is filed on or before January 31, then the last six full calendar month period will be from July 1 through December 31 of last year, which includes that $3,000 extra money you received in mid-July. Your work income of 6 times $3,500 equals $21,000, plus that $3,000 totals $24,000 received during that 6-month period. Multiply that by 2 to make that an annual amount, and that equals $48,000, higher than the $42,000 median income. So you’d have failed the income portion of the means test.

But if you just wait to file until February 1, then the applicable 6-month period jumps forward by 1 full month to the period from August 1 of last year through January 31 of this year. Now that new period does NOT include the $3,000 you received in mid-July. So now your income during the 6-month period is $21,000, multiplied by 2 is $42,000. So now you’re under the $43,000 median income amount. You’ve passed the income portion of the means test, and you get to skip the awkward and risky expenses part of the means test. So you’re much more likely to breeze through your Chapter 7 case. Hooray!

Last thing: what if that $3,000 chunk of money was not conveniently received almost 6 months ago, but rather only a 2 or 3 months ago, and you’re desperate to file your case? You need to stop a garnishment or foreclosure and simply can’t wait another few months to file. Well if you file now, then you will be over the median income, and will need to go through the expenses part of the means test. You may still be saved there, or there may even be other ways of qualifying for Chapter 7. More about those in my next blog or two. But if you are concerned about this now, please call to set up a consultation with me right away. This blog should make clear that careful pre-bankruptcy planning is critical. The sooner we start, the more likely time will be on your side.

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Stepping Over the “Means Test” Hurdle Without Breaking Your Stride

Are you among the large majority of people whose income easily qualifies them for Chapter 7 “straight bankruptcy”? You can find out right here and now.

As you’ve likely heard, a few years ago Congress passed a major set of changes to the bankruptcy laws intended to make it harder for some people to file Chapter 7.  The idea was that those who have the means to pay a meaningful amount of their debt to their creditors in a three-to-five-year Chapter 13 payment plan ought to do so. So they shouldn’t be able to just write off all their debts in a Chapter 7 case. At least that’s the theory behind the means test.

In practice, for many people it’s quite an easy hurdle to step right over.  Most people who want to file a straight bankruptcy can still do so.

The means test is truly an odd one. It has two parts. The income part—the one I’m addressing here today—is relatively easy to figure out.

But the second part, involving living expenses, is one of the most complicated formulas imaginable. This law was worded so poorly that more than six years after it became effective there’s still a lot of debate about how it’s supposed to work. Fortunately, most people don’t need to get to that part of the test, and we won’t here.

That’s because if you pass the income part of the test, you can totally skip the expenses part.

So, the income part of the means test compares your income to a published “median income” for a household of your size in your state. If your income is no more than that median, then right away you’ve passed the test—you get to file a Chapter 7 case.

But even this easy part of the test has its quirkiness.

1. It is NOT based on your taxable income for the previous calendar year, or anything that simple. Instead it is based on the precise amount of income you received during the six full calendar months before your case is filed. So, for example, if your case is filed on January 25, 2012, we look at every dollar you received during the six-month period from July 1 through December 31, 2011. Then take that six-month total and divide it by six to come up with a monthly average.

2.The income included for this purpose is not just your “taxable income,” but rather every bit of income you’ve gotten from all sources during that period of time, including irregular ones like child and spousal support payments, insurance settlements, unemployment benefits, and bonuses. The exception: exclude all social security income.

Then multiply your six-month average monthly income by 12 to come up with your annual income. The last step is to compare that amount to the median income for your state and your size of family. You can find that median income in the table that you can access through this website. (This median income information gets updated every few months, so make sure you’re using the current table.)

If your income, as calculated in this precise way, is no more than the median income applicable to your state and family size, then you can file a Chapter 7 case. Congratulations—you’ve cleared the means test hurdle!

If your income is MORE than the applicable median amount, don’t despair. You may well still be able to file a Chapter 7 case. More on that in my next blog.  

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In a Chapter 7 Case, “The Only Thing We Have to Fear is Fear Itself”

There’s a lot you can do to help make your “straight bankruptcy” Chapter 7 case a straightforward one, but one thing you can’t control is your creditors’ reactions to it. You know that creditors can sometimes try to prevent you from discharging (legally writing off) your debts, so naturally you worry about this. Here’s why you shouldn’t worry.

Let’s first be clear that I’m not talking here about the kinds of debts that simply can’t be discharged, and don’t require any creditor objection for that to happen—for example, back child and spousal support, many taxes, and criminal fines. Instead I’m talking about the right of any creditor to object to the discharge of its debt, under certain limited circumstances.

You might figure that if your creditors have ANY chance to object to the discharge of their debts, it would jump at the chance to do so. Or at least enough of them would object to cause you trouble. But that is NOT what happens. Most Chapter 7 cases go through with NO creditor objections at all. Well, why not?

1. The legal grounds for creditors’ objections are quite narrow. They need to have evidence that the debt was incurred through your fraud or misrepresentation, arose out of a theft or embezzlement, as a result of your intentional injury to a person’s body or property, or was related to other similar bad acts. So creditors don’t object to the discharge of their debts simply because most of the time no such facts exist.

2. Even within such narrow grounds, relatively common situations such as bounced checks or the use of credit not long before filing bankruptcy can be seen as fraudulent, so creditors can object to these kinds of debts. But even in these situations, creditors often do not bother to object because they decide it’s not worth “throwing good money after bad”—spending more money for their staff time and attorney fees in the hopes of first getting a bankruptcy judge to agree with them, AND then still needing to get you to repay the debt.

3. One of the reasons why sensible creditors decide not to object even when they think they might have the legal grounds to do so is that they risk being ordered to pay your attorney’s fees to defend against their objection. That can happen if the judge thinks that “the position of the creditor was not substantially justified.” So creditors risk not only paying for their own costs to object, but also paying for your costs in fighting the objection.

So that’s why most creditors just write off the debt and move on.

But there ARE two exceptions.

1. Leverage: If a creditor thinks it has a decent case against you—such as with a string of bounced checks or a debt incurred shortly before the bankruptcy was filed—it may well object to the discharge of the debt knowing that YOU can’t or don’t want to pay attorney fees in fighting it, EVEN if you have a decent defense. So they’ll raise the issue in the hopes of forcing you to enter into a settlement quickly.

2. Axe to grind: If you have someone you owe money to who is simply very mad at you, so that your bankruptcy filing really aggravated him or her, then this creditor might be looking for an excuse to hurt you back. Ex-spouses and ex-business partners are the most common. Irrational anger by those types, not reined in by the financial realities, probably causes the messiest objections.

To reduce any anxiety you have about any of this, talk it over thoroughly with your attorney. If you have any concern about how you incurred any of your debts, or if someone has threatened you with any trouble if file bankruptcy, lay it all out. Often, your fear will not be justified. And if there are potential problems, being up-front about it may enable your attorney help reduce the risks.

A final bit of good news: creditors have a very limited time to raise objections: generally 60 days after the Meeting of Creditors. So, if whatever assurances given by your attorney still doesn’t stop you from worrying in the meantime, you’ll at least know that you can stop worrying after that date.

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THE Goal of Bankruptcy: Discharge of Your Debts

Most—but not all—debts are written off, or “discharged,” in a bankruptcy case. Is there a simple way to know what will and what will not be discharged?


As part of getting a fresh start for the new year, I’m covering the most basic concepts about bankruptcy in the first few blogs of the year. And there is nothing more basic than bankruptcy’s main purpose, getting a fresh financial start through the legal discharge of your debts.

Both kinds of consumer bankruptcy can discharge debts. But most Chapter 13s tend to have other purposes as well, and the discharge usually occurs only 3 to 5 years after the case is filed. In contrast, most Chapter 7 “straight bankruptcy” cases are filed for the sole purpose of discharging debts. And in most Chapter 7 cases, all debts that the debtors want to discharge are discharged, and it happens within just three months or so after your case is filed. So I’m focusing in this blog on Chapter 7 discharge of debts.

So is there a simple way of knowing what debts will and will not be discharged in a Chapter 7 case?

Sorry. Not really.

I can give you a list of the categories of debts that can’t, or might not, be discharged (and will give you that list in a couple paragraphs), but some of those categories don’t have clear boundaries, and some depend on whether a creditor is going to challenge the discharge and how a judge might rule.

But why can’t it be simple? Because in the political tug of war between creditors and debtors over the last few centuries, there have been lots of compromises, leaving us today with a bunch of hair-splitting rules about what debts can and can’t be discharged.  Believe it or not, the original bankruptcy laws in England did not even include ANY discharge of debt, since bankruptcy was originally designed as a procedure to help creditors collect from debtors.

But I’m making it sound a lot worse than it is in practice. Here’s what you need to know:

#1:  All debts are discharged, EXCEPT for those that fit within an exception.

#2:  There ARE a lot of exceptions, BUT if you are thorough and candid with your attorney you will almost always know whether you have any debts that may not be discharged. Surprises are rare.

#3:  Some debts are never discharged, NO MATTER WHAT: for example, child or spousal support, criminal fines and fees, and withholding taxes.

#4:  Some debts are never discharged, but THAT’S ONLY IF the particular debt fits certain conditions: for example, income taxes, depending on conditions like how long ago the taxes were due and the tax return was filed; and student loans, as long as conditions of “undue hardship” are not met.

#5:  Some debts are discharged, UNLESS timely challenged by the creditor and resulting in a ruling by the judge that the debt meets certain conditions involving fraud, misrepresentation, larceny, embezzlement, or intentional injury to person or property.

#6:  A few debts (used to be many more) can’t be discharged in Chapter 7, BUT can be in Chapter 13: for example, divorce debts other than support.

The bad news: as simple as I would like to make it, determining what debts aren’t dischargeable is simply not simple. But there’s more good news than bad. First, for many people all the debts they want to discharge WILL be discharged. Second, an experienced bankruptcy attorney will be able to predict quite reliably whether all of your debts will be discharged. And third, if you have troublesome nondischargeable debts, Chapter 13 is often a decent way to keep those under control. More about that in my next blog about simple Chapter 13.

 

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Keeping the Vehicle You Owe On in a Chapter 7 Bankruptcy

Chapter 7 is the take-it-or-leave-it bankruptcy when it comes to your vehicle with a loan against it. In most cases you either keep on making the payments or you surrender the vehicle, nothing much in between.

To be clear I’m talking here about a vehicle that you owe on, with the lender as a lienholder on your vehicle title, and with no more equity (value beyond the debt) than is covered by your available vehicle exemption. In other words, this is not a vehicle that your Chapter 7 trustee is going to be interested in, either because it has no equity—it’s worth less than the debt against it—or the amount of equity is protected by the exemption.

But if your trustee wont’ be interested, your vehicle creditor will be very interested, in the vehicle and in your bankruptcy.

So back to the take-it-or-leave-it part. Here are the two straightforward choices.

First, even f you don’t want to or need to keep your vehicle, you can surrender it to your creditor after your bankruptcy is filed. (Or you can surrender it before you file, but that gets risky—be sure you have talked to your bankruptcy attorney and have a clear game plan beforehand.) You likely know that if you just surrendered your vehicle without a bankruptcy, you’ll very likely owe and be sued for the “deficiency balance”—the amount you would owe after your vehicle is sold, its sale price is credited to your account, and all the repo and other costs are added. (You can usually count on that deficiency balance to be shockingly high.) The bankruptcy will write off that deficiency balance, which could well be one of the reasons you decided to file bankruptcy.

Second, if you want to keep your vehicle, in most cases you have to be current on your loan, or quite quickly get current. You will almost for sure be required to sign a reaffirmation agreement legally excluding the vehicle loan from the discharge (the legal write-off) of the rest of your debts. And you have to sign that reaffirmation agreement and get it filed at the bankruptcy court within quite a short period of time—usually within 60 days after your bankruptcy hearing. Then you have to stay current if you want to keep the car, just as if you had not filed a bankruptcy. And also just as if you had not filed bankruptcy, if that vehicle later gets repossessed or surrendered, you could very well be hit with a deficiency balance.

When I say take-it-or-leave-it, I mean there usually aren’t any other more flexible options. Almost always—especially with conventional, national vehicle loan creditors—you are stuck with the terms of your original loan contract—no reducing the balance of the loan or the interest rate. If you’re behind, almost always you must pay up the arrearage and be current within a month or two. There can be exceptions, especially with local finance companies and other smaller players who would rather minimize their losses by being flexible. So be sure to ask your attorney whether your vehicle creditor has that kind of history. And if you do need more flexibility—if you must hang onto your vehicle, and owe more than it is worth, and you can’t afford the payments—ask about Chapter 13 as a possible solution to your dilemma.

In general, “straight bankruptcy”—Chapter 7—can be the best way to go if your vehicle situation is pretty straightforward: you either want to surrender a vehicle, or else you want to hang onto it and are current or can get current within a month or two of your bankruptcy filing.


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Keeping Everything You Own Through Chapter 13 Bankruptcy

One good reason that people filing Chapter 7 don’t lose any of their stuff to the bankruptcy trustee—if they did have something to lose, they  likely file a Chapter 13 instead. How does Chapter 13 protect what you’d otherwise lose in a Chapter 7 “straight bankruptcy”?

As I said at the beginning of my last blog, protecting assets that are collateral on a loan—like your home or vehicle—is a whole different discussion than protecting what you own free and clear. Chapter 13 happens to be a tremendously powerful tool for dealing with secured creditors—especially with homes and vehicles. But that’s for later. Today I’m talking about using Chapter 13 as a way to hang onto possessions which are worth too much or have too much equity so they exceed the allowed exemption, or simply don’t fit within any available exemption.

Right off the bat you should know that if you have possessions which are not exempt, you may have some choices besides Chapter 13. You could just go ahead and file a Chapter 7 case and surrender the non-exempt asset to the trustee. This may be a sensible choice if that asset is something you don’t really need.  There are also some asset protection techniques—such as selling or encumbering those assets before filing the bankruptcy, or negotiating payment terms with the Chapter 7 trustee —which are delicate procedures well beyond what I can cover today.

But depending on your overall situation, if you have an asset or assets which you really need (or simply want to keep), you can file a Chapter 13 and keep that asset by paying for the privilege of not surrendering it.  You do that by paying to your creditors as much as they would have received if you would have surrendered that asset to a Chapter 7 trustee. But you have 3 to 5 years to do that, while you are under the protection of the bankruptcy court. Your Chapter 13 Plan is structured so that your obligation is spread out over this length of time, making it relatively easy and predictable to pay (in contrast to, for example, negotiating with a Chapter 7 trustee to pay to keep an asset).

Whether the asset(s) that you are protecting is worth the additional time and expense of a Chapter 13 case depends on the importance of that asset. Often people with assets to protect have other reasons to be in a Chapter 13 case, and the asset protection feature is just one more benefit. And believe it or not, depending on the amounts and nature of your assets and debts, you may be able to hang onto your non-exempt assets in a Chapter 13 case without paying anything more to your creditors. This tends to be more likely if you owe taxes or back support payments. One of the biggest advantages of Chapter 13 is that it can play your financial problems—like having too much assets and owing back taxes—against each other. So that you get an immediate solution—assets protected right away and the IRS off your back–and a long-term solution, too—assets protected always and IRS either written off or paid for, until you’re done and are free and clear.

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Keeping Everything You Own in Bankruptcy

You want to know: “Can I really keep everything I own if I file bankruptcy?”

A two-part answer:

1) Yes, you can, usually, keep those possessions that are all yours (you don’t owe any money on them).  

2) Yes, you can, usually, keep those particular possessions on which you are making payments to a creditor (like your home or vehicle), IF you want to keep it them, AND are willing and able to meet certain conditions. (Hint: those conditions are usually lots better in bankruptcy than without one.)

In today’s blog I’ll get into the first part of that answer. I’ll get to the second part later.

Most people who file bankruptcy can keep what they own for two reasons: 1) exemptions and 2) Chapter 13 protections. I’m covering exemptions today.

Make no mistake: at the heart of bankruptcy is the basic principle that your debts are discharged—legally written off forever—in return for you giving all your assets to your creditors. Except you can keep any of your assets which fit within an exemption. As the saying goes, this exception swallows the rule. Most of the time, all assets are exempt and so debtors get a Chapter 7 discharge without giving anything to the trustee.

Exemptions are simply a list of the types and amounts of assets that are protected from your creditors, and thus from the Chapter 7 trustee acting for those creditors. But exemptions are anything but simple.

First, the Bankruptcy Code contains its set of federal exemptions, and each state also has its own exemptions. If you file a bankruptcy in certain states, you have a choice between using the federal exemptions and the state ones, while in other states you can only use the state exemptions. In states where you have a choice, picking which of the two exemption schemes is better for you is often not at all obvious and you need an experienced attorney to advise you.

Second, if you have moved relatively recently from another state, you may have to use the exemption rules of your prior state. Because different state’s rules can differ wildly, thousands of dollars can be at stake depending on what day your bankruptcy is filed.

Third, once you know which set of exemptions apply to you, whether any of your particular assets is covered by an exemption, and thus protected from your creditors, is often not clear. The exemption statues were often written many decades ago, use archaic language, and have a whole history of court ruling to interpret what they include. Plus the local trustees often have unwritten rules about how they interpret the exemption categories in practice. So, determining whether an asset is exempt or not is often much, much more than checking down a list of exemptions. By way of example, if you and your spouse each have one vehicle that you use for getting to work, and a third one used by your 18-year-old to get back and forth to school, will your vehicle exemption cover all three vehicles? Under what circumstances?

So navigating through exemptions can be much more complicated than it looks, and is one of the most important services provided by a bankruptcy attorney.

The fact remains that among most people who do end up filing a Chapter 7 bankruptcy case, everything they own DOES fit within the exemptions. So the bankruptcy trustee takes nothing from them.

But what if you DO own one or more assets which do not fit any of the available exemptions? How can those still be protected through a Chapter 13 case?  I cover that in my next blog.

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