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Bankruptcy Overview & Information

Bankruptcy Overview & Information

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Daniel Cohen
UpdatedJun 10, 2024
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    4 min read
Key Takeaways:
  • Understand the types of personal bankruptcy available.
  • Consult with an experienced attorney when considering bankruptcy.
  • Choose bankruptcy as an option of last resort.

Advice to Help You Avoid Bankruptcy

Bankruptcy is a complicated and public legal process. Types of personal bankruptcy include Chapter 7 and Chapter 13. Both are options for consumers seeking to get debt relief.

Unfortunately, after the passage of the Bankruptcy Reform Act in 2005, it became harder to qualify for a liquidation bankruptcy, and there is now more complexity to an already intimidating process.

Chapter 7: Liquidation

When you hear the word “bankruptcy,” you are most likely to think of a Chapter 7 bankruptcy. This type of bankruptcy is also called Liquidation.

A Chapter 7 is a court-supervised procedure by which a trustee takes over the assets of the debtor’s estate, reduces them to cash, and makes distributions to creditors. Some assets may be protected from creditors, based on state law. This means a court appointed trustee can sell everything you own to pay off your creditors, except property that is exempt.

Sometimes, there is little or no nonexempt property in a Chapter 7 bankruptcy case, so there may not be an actual liquidation of the debtor’s assets. These cases are called no-asset bankruptcy cases.

In most Chapter 7 cases, if the debtor is an individual, he or she receives a discharge that releases him or her from personal liability for certain dischargeable debts. The debtor normally receives a discharge several months after the petition is filed. Amendments to the Bankruptcy Code enacted in to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 require the application of a “means test” to determine whether individual consumer debtors qualify for relief under Chapter 7.

Under the new bankruptcy means test, if a debtor's income is in excess of certain thresholds, the debtor may not be eligible for Chapter 7 relief, and instead be forced to file for a Chapter 13 bankruptcy.

Chapter 13: Adjustment of Debts of an Individual With Regular Income

The formal title of a Chapter 13 bankruptcy, Adjustment of Debts of an Individual With Regular Income, pretty much states what Chapter 13 is all about.

Chapter 13 bankruptcy is designed for an individual debtor who has a regular source of income, whether it be from a job or social security benefits. Chapter 13 is often preferable to Chapter 7 for people with valuable assets, because it enables the debtor to keep the asset. A common example is for someone who owns a home where the equity exceeds the limits under the home state’s homestead exemption.

A Chapter 13 bankruptcy also allows the debtor to propose a “plan” to repay creditors over time-usually five years. Chapter 13 is also used by consumer debtors who do not qualify for Chapter 7 relief under the means test, which went into place in 2005 with the Bankruptcy Reform Act.

At a Chapter 13 confirmation hearing, required as the basis for the order approving the plan and ordering the creditors to accept it (the hearing is called a section 341 hearing, or simply, “the three forty-one”), the court either approves or disapproves the debtor’s repayment plan, depending on whether it meets the Bankruptcy Code’s requirements for confirmation.

Chapter 13 is very different from Chapter 7 since the Chapter 13 debtor usually remains in possession of the property of the estate and makes payments to creditors based on the debtor’s anticipated income over the life of the plan.

Unlike Chapter 7, the debtor does not receive an immediate discharge of debts. The debtor must complete the payments required under the plan before the discharge is received. The debtor is protected from lawsuits, garnishments, and other creditor actions while he plan is in effect. The discharge is also somewhat broader (i.e., more debts are eliminated) under Chapter 13 than the discharge under Chapter 7.

Although it is now more difficult to qualify for a Chapter 7 and more people are required to enter into repayment plans, bankruptcy is still available to most people in need of its protection. Several types of bankruptcy are available, depending on your assets, income, and financial situation.

Let point you in the right direction, first to evaluate what your debt resolution options are, and whether you can avoid bankruptcy, and then to see if you can qualify for bankruptcy and what form is best suited for your needs. You will learn about the different types, the recent changes to the law, and which debts can and cannot be discharged. If you are ready to file, review our instructions on filing bankruptcy.

Be aware though, bankruptcy should be a last resort and will damage your credit score for up to 10 years. Before file for bankruptcy, investigate whether consolidating your debts is better solution, one that may help you avoid bankruptcy.

Look at each bankruptcy alternative, so you can weigh the pros and cons of all the debt consolidation options against each other. That's the best way to solve your debt problems and protect your financial future. Â

Lastly, seek counsel from an attorney with bankruptcy experience.

Struggling with debt?

Debt is used to buy a home, pay for bills, buy a car, or pay for a college education. According to the NY Federal Reserve total household debt as of Q1 2024 was $17.69 trillion. Auto loan debt was $1.62 trillion and credit card was $1.12 trillion.

According to data gathered by from a sample of credit reports, about 26% of people in the US have some kind of debt in collections. The median debt in collections is $1,739. Student loans and auto loans are common types of debt. Of people holding student debt, approximately 10% had student loans in collections. The national Auto/Retail debt delinquency rate was 4%.

Collection and delinquency rates vary by state. For example, in Hawaii, 11% have student loan debt. Of those holding student loan debt, 7% are in default. Auto/retail loan delinquency rate is 3%.

While many households can comfortably pay off their debt, it is clear that many people are struggling with debt. Make sure that you analyze your situation and find the best debt payoff solutions to match your situation.



BBenjamin Garcia, May, 2023
Excellent writing, Daniel! It is a smart idea to get in touch with a bankruptcy lawyer when you notice signs like low capital balance, negative cash flow, inability to meet debt obligations and exhausted home equity options. Talk to an experienced bankruptcy attorney who can help you assess the best options and file bankruptcy.
KKAYDEE, Oct, 2013
I filed bankruptcy in May 2013. Can I improve my credit score with the bankruptcy on my file?
BBill, Oct, 2013
Focus on creating positive history in your credit report. I have a two-part answer to your question.

Chapter 7: Let's assume you had a chapter 7 that has been discharged. If you have any zero-balance credit cards that are still open, use them sparingly and be sure to make your payments on time. Keep your credit utilization low (don't max-out the cards). If you have a mortgage or student loan payments that were not discharged in the bankruptcy, continue to pay those on time every month. If you have any questions about which debts you should or should not pay, ask your bankruptcy lawyer. Paying debts discharged in bankruptcy will not improve your credit score.

Chapter 13: If you have a chapter 13 and are now in a court-supervised payment plan, consult with your lawyer before you apply to open any new accounts.
NNathan, Aug, 2013
I was recently discharged from all debts via a chapt. 7 Now I am interested in removing the closed debts from my report and or is it necessary for a future mortgage consideration, to have this done. I am also building my credit through my bank.
BBill, Aug, 2013
The accounts included in your BK will remain on your report. They should show that they were discharged due in the BK.

Your main focus should be on establishing new lines of credit, paying them on time, avoiding running up debt, and controlling your credit utilization. Please read the article about rebuilding your credit after bankruptcy.
CCharles, Apr, 2013
This was some really helpful information! Especially the section on chapter 13 bankruptcy. Thanks for informing the public on this. It really is nice to have so much knowledge, right at your fingertips.
SStacey, Jun, 2012
I am an American who will marry a Canadian soon. I filed chapter 7 in the US a year ago. I was told it won't affect me in Canada since I have to build Canadian credit. Is that true? Also, how will my bankruptcy affect my Canadian husband? We will reside in Canada.
BBill, Jun, 2012
There is a theoretical possibility the Canadian credit reporting agencies could connect the dots and determine you are the same Stacey T. who filed bankruptcy in the US a year ago. As a practical matter, I do not believe the credit reporting agencies are advanced enough to do so. (Readers, please chime in if you have experience to the contrary.) As a result, your credit file in Canada will start with a blank slate.

Your US bankruptcy as a single person will have zero impact on your future spouse, whether he or she is American, Canadian, or a citizen elsewhere.