Bankruptcy

If you are dealing with an insurmountable amount of debt and feel like bankruptcy is your only option, check to see if you qualify for other debt relief options. 

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What is bankruptcy?

United States bankruptcy laws offer a fresh start to overwhelmed debtors. Bankruptcy can help you wipe out debt through discharge, create viable debt repayment plans or alter the terms of your debt.

Bankruptcy is a federal protection that helps people and businesses that can’t pay their debts. This can include debts such as medical bills, personal loans and credit cards.

Most individuals who file bankruptcy choose between Chapter 7 (liquidation) bankruptcy and Chapter 13 (repayment) bankruptcy. The type of bankruptcy you file influences whether you need to sell your assets or make payments. It may also influence how much of your debt gets canceled.

Though some may shudder at the idea of filing for bankruptcy, it can bring much-needed financial relief and a fresh start for consumers.

That being said, filing bankruptcy is a serious decision that requires a lot of thought. Read on to learn what happens when you file bankruptcy.

When should I declare bankruptcy?

If you feel overwhelmed by debt, but you’re not sure whether bankruptcy makes sense, consider speaking with a nonprofit credit counselor. This can be a good way to pursue bankruptcy and its alternatives in one fell swoop. By law, you cannot file bankruptcy unless you meet with a nonprofit budget and credit counselor to review your spending habits.

The counselor may guide you toward alternatives to bankruptcy. Or, after reviewing your case, the counselor may determine that bankruptcy makes a lot of sense for you.

In some cases, people may need to consider bankruptcy after a life-altering event. Health crises or income loss can make it tough to recover without bankruptcy.

There are other signs that you might need to consider bankruptcy. If you’ve turned to taking out car title loans or payday loans, you’re under-withholding your taxes from your paycheck or you’re considering dipping into your 401(k) to meet your debt obligations, you might have enough debt to justify declaring bankruptcy.

If you think you may be a candidate for bankruptcy, it’s wise to speak to an expert sooner rather than later.

When should you avoid bankruptcy?

If you earn too much to qualify

Bankruptcy won’t always be the right choice. To discharge your debts through bankruptcy — which means your debts will be forgiven — you must prove that you can’t make the payments to your creditors.

As a result, people with high incomes may not get the debt relief they want through bankruptcy. Instead, they may have to file a form of bankruptcy that allows them to restructure their debts, making it easier for them to make payments but not erasing the debts altogether.

If you’ve recently filed bankruptcy

Bankruptcy won’t work if you’ve recently received a bankruptcy discharge. Legally, you cannot receive a Chapter 7 discharge if you’ve received another Chapter 7 discharge in the last eight years or a Chapter 13 discharge in the past six years. (Technically, you can file before six years if your total payments account for 100% of unsecured debt claims in your Chapter 13 bankruptcy.)

Likewise, you cannot receive a Chapter 13 discharge if you’ve received a Chapter 7 discharge in the last four years or a Chapter 13 discharge in the last two years.

If you don’t have any assets at risk.

Even if you legally qualify to file bankruptcy, filing could be a waste of resources. Some people are known as “judgment-proof,” so bankruptcy may not be a good fit for them.

For example, a person with minimal assets and no income except for Social Security Income doesn’t have collectible assets. Social Security Income cannot be garnished to repay delinquent debts, leaving the person with no seizable assets. In that situation, filing bankruptcy may not be a wise decision since their debts aren’t collectible.

Instead of filing bankruptcy, one solution can be to open a bank account exclusively for Social Security Income, which protects it from creditors. Then you can send a cease communication letter to stop collectors from calling.

If you can afford to make payments by trimming expenses

A credit counselor can help you build a budget and may be able to help you lower interest rates on your existing debts. Credit counselors may track your expenses for at least 30 days so they can identify discretionary income.

Additionally, they teach clients to comparison shop and negotiate rates to lower their fixed expenses. These simple actions can help some clients avoid bankruptcy.

Types of bankruptcies

Chapter 7 bankruptcy is the most common form of bankruptcy. In 2021, 70% of all nonbusiness bankruptcy filings were Chapter 7, according to the Administrative Office of the U.S. Courts.

Sometimes referred to as liquidation bankruptcy, Chapter 7 may require debtors to sell their valuable possessions to repay some of their debts. However, this is not always the case.

Chapter 7 can be split into two categories:

  • Asset cases: In these types of Chapter 7 filings, consumers have valuables that can be sold off by their trustee in order to repay some of their debts, including luxury items such as boats, jewelry and vacation homes. However, your valuables can only be sold as long as they don’t fall under federal bankruptcy exemptions or your state’s exemptions. Be sure to check federal and state exemptions to find out where your assets fall.
  • Nonasset cases: In some cases of Chapter 7 bankruptcy, federal or state exemptions cover all of the debtor’s assets and they won’t have to forfeit any of their property. Depending on where you live, you may have to defer to either your state’s exemptions or federal exemptions.

Chapter 7 bankruptcy can remain on your credit report for up to 10 years from the date you filed.

Chapter 13 bankruptcy is the second most common form of bankruptcy. Referred to as the “wage earner’s plan” by the U.S. Courts, this form of bankruptcy requires debtors to submit to a three-to-five-year payment plan rather than liquidate their assets.

This plan may be viewed more favorably than Chapter 7 bankruptcy because the debtor is paying off at least a portion of their debt instead of having it all discharged.

Chapter 13 can stay on your credit report for up to seven years, beginning on your filing date.

Though typically reserved for businesses, debtors who don’t qualify for Chapter 13 bankruptcy may instead qualify for Chapter 11.

Chapter 11 bankruptcy allows you to reorganize your debt, though this plan may also require you to sell assets to repay some of your debts.

How to file for bankruptcy

1. Hire an attorney

Filing bankruptcy has long-term financial and legal repercussions. The U.S. federal court system recommends consulting a bankruptcy attorney before filing.

Similar to shopping around for forms of credit, it may be wise to meet with two or three bankruptcy attorneys before hiring one. It’s common for bankruptcy attorneys to offer no-obligation meetings so clients can learn about their fees and the process.

The process for filing bankruptcy can be costly. Between filing and attorney fees, the average Chapter 7 bankruptcy case costs around $1,788, while Chapter 13 bankruptcy costs $3,313 in out-of-pocket costs.

If you cannot afford the fees, you may qualify for legal aid.

2. Gather your financial documents

When filing for bankruptcy, you’ll need to disclose your income, assets and debts. This will give your attorney, trustee and the courts insight into your financial situation and can help determine which type of bankruptcy you should file.

3. Receive debt counseling

The federal Bankruptcy Code requires that you receive pre-bankruptcy debt counseling from an approved provider at least 180 days before filing. Once you’ve filed for bankruptcy, you may also be required to complete a debtor education course before your debts can be discharged.

4. File your bankruptcy petition

Next, your attorney will file an official petition. For this part of the process, you will need to provide the following documentation:

  • Schedule of assets and liabilities
  • Schedule of current income and expenses
  • Statement of financial affairs
  • Schedule of contracts and unexpired leases
  • Certificate of credit counseling
  • Copy of debt repayment plan created during credit counseling
  • Any pay stubs received within 60 days before filing

5. Meeting of creditors

The meeting of creditors, or the 341 hearing, is when you will meet with your trustee and creditors. During this time, you’ll be asked about your petition and required to verify the information you provided.

In total, the average Chapter 7 case takes about four to six months before your debts are discharged. With a Chapter 13 case, your debts won’t be discharged until you’ve finished your three-to-five-year payment plan.

How to file for bankruptcy without an attorney

A lawyer can help you decide between Chapter 7 and Chapter 13 bankruptcy. They will also answer your questions and file all the necessary forms for you. Given the complexity of the bankruptcy process, we strongly recommend consulting a bankruptcy attorney. However, if you want to file for bankruptcy on your own, here’s what you need to do:

1. File the necessary documents

Filing bankruptcy requires you to submit a flurry of documents right off the bat:

  • Importantly, you must file a petition for bankruptcy.
  • You’ll also include schedules that list your assets and liabilities (those secured by an asset and unsecured debt).
  • Additionally, you’ll provide schedules that detail your income (including disclosures of anticipated income) and expenses.
  • If you have any open contracts, you’ll have to file a schedule of executory contracts or unexpired leases.
  • You will need a statement of financial affairs, in which you explain your current income, debts, payments and any relevant financial hardships.
  • Additional requirements may include a credit counseling certificate, your debt repayment plan and two months of pay stubs.

Consumers filing for Chapter 13 bankruptcy must submit a repayment plan with their petition. You can also expect to pay a $235 case filing fee and a $75 miscellaneous administrative fee.

For those filing for Chapter 7 bankruptcy, you will pay $245 to file, $75 in miscellaneous fees and a $15 trustee surcharge at the time of filing.

2. Automatic stay

Filing your bankruptcy petition automatically stops most (but not all) collections actions against you. You should not make any regular payments during this time. However, if you’re filing Chapter 13 bankruptcy, you must start making the payments outlined in your monthly plan within 30 days of filing, even if the plan hasn’t been approved yet.

3. Appointing a bankruptcy trustee

In both Chapter 7 and Chapter 13 bankruptcy, the courts appoint a bankruptcy trustee to your case. The job of the trustee is to work with both you and your creditors in an impartial manner. The trustee will be in charge of liquidating your estate and disbursing the funds in Chapter 7 bankruptcy, or receiving and distributing funds in Chapter 13 bankruptcy.

4. Meeting of the creditors

Your case trustee will set up a meeting with you and your creditors within 21 to 50 days after you file. You must attend the meeting and answer all questions.

5. Liquidation (Chapter 7 only)

Following the meeting of the creditors, your bankruptcy trustee may begin selling assets and paying your creditors. The trustee will only sell assets that aren’t exempt by federal law.

If you want to keep your house or car, you may have the opportunity to reaffirm your debt on secured property by agreeing to make payments on the loan as agreed. You must reaffirm all loans before your property is discharged.

6. Plan confirmation (Chapter 13 only)

After the meeting of creditors, a bankruptcy judge will hold a hearing to decide whether you can realistically meet the payment obligations in your plan. They will also confirm that the plan meets the standards required by law. If the judge believes your plan is workable and meets the requirements, they will confirm it. You will continue to make payments to your trustee, a process that will last three to five years.

7. Discharge

The last step in bankruptcy is discharge. This means that your remaining debts are canceled and cannot be collected. You will owe income tax on the amount of money discharged, so be sure to set aside some money for that purpose.

Alternatives to bankruptcy

If bankruptcy doesn’t make sense for you, there are other options for lowering your debt burden:

  • Forbearance: Some creditors may offer forbearance if you’re struggling to keep up with your debts. In this case, you can pause your payments for a period of time. Interest may still continue to accrue on your debt while you don’t make payments, so be sure you understand the terms of the agreement and make a plan to get back on track.
  • Debt consolidation: Debt consolidation is a common alternative to bankruptcy. If you want to lower your monthly payments or interest rates, you may consider a debt consolidation loan. This type of loan allows a borrower to roll multiple debts into a single loan with a fixed interest rate and one monthly payment. Ideally, you’d find a loan with a lower interest rate than your current debt.
  • Debt management plans: In a debt management plan, a nonprofit credit counseling company negotiates interest rate changes on your behalf. In general, these companies specialize in lowering credit card interest rates and typically charge a small fee for their services.
  • Debt negotiation: If you’ve got cash saved up, a collections agent may accept a lump-sum payment to cancel your debt. They may accept as little as 25 cents for every dollar you owe, but you have to pay it on the spot. Lawyers and debt settlement companies may offer to negotiate on your behalf. This option works best if you have cash on hand.

Frequently asked questions

Bankruptcy will cause your credit score to drop. Because bankruptcy can stay on your credit report for up to seven (Chapter 13) to 10 years (Chapter 7), it can also make it challenging to qualify for future credit opportunities.

Bankruptcy may also require that you forfeit some of your valuables, and you’ll have to pay attorney and administrative fees.

While many of your debts can be discharged in bankruptcy, there are some important exceptions. You may not be able to discharge the following types of debts:

  • Child support
  • Alimony
  • Secured debts
  • Any fines or penalties you’re charged for breaking the law
  • Any tax debts
  • Student loans (in some cases)
  • Any debts you owe from intoxicated driving that resulted in injury or death

If your vehicle doesn’t fall under the federal or your state’s exemption laws, it’s possible that you could lose your vehicle during bankruptcy. Another thing to consider is that because auto loans are typically secured loans, if you fall behind on payments, the lender can seize your collateral — your vehicle.

While you can’t apply for a credit card during your bankruptcy proceedings, you can apply for one not long after your debts are discharged. However, keep in mind that you may be charged higher interest rates since your credit score may have taken a significant hit.

While you can get a mortgage after you’ve filed for bankruptcy, you may have to wait several years before you can apply for one, depending on the type of loan you’re pursuing.

When it comes to conventional loans, you’ll need to wait at least four years after filing for Chapter 7 and two years after filing for Chapter 13 bankruptcy.