What is bankruptcy?
There are two types of personal or consumer bankruptcy. Chapter 7 bankruptcy allows discharge of debts without requiring monthly payments to the bankruptcy court or a trustee and usually allows you to keep items like a house, cars, and household goods. A Chapter 13 bankruptcy, on the other hand, is for people who earn more money, who have equity in certain items (like a house) that they want to keep, or who are delinquent on things they want to keep like a house or car. Chapter 13 requires 36-60 payments to the chapter 13 trustee to repay the delinquency, equity, or a percentage of the debt.
You can determine the chapter appropriate for you by determining your gross income or by completing a federal means test. If you earn more than the median income in Georgia, you may still be eligible for a Chapter 7 if you pass the means test. If you fail them both you may be better suited for a Chapter 13 repayment plan.
A Chapter 13 plan is not a death sentence; it just means that you will be required to make payments over the course of 3-5 years. It may not even result in paying more money to creditors than you would in a Chapter 7.
How do I stop the phone calls?
One of the surest ways to stop all collection calls is to file the bankruptcy petition. Once the automatic stay goes into effect after the petition is filed, most collectors can no longer call you. Although very effective, this is not the only tool to stop harassing phone calls.
However, you don’t need bankruptcy to stop creditor phone calls and harassment. Under federal law, once you tell debt collectors in writing to stop calling they are prohibited from calling. Under the Fair Debt Collection Practices Act, a collection agency may not act in any of the following ways:
- Attorney-represented debtor. A collection agency cannot contact the debtor directly if an attorney represents him or her unless the debtor gives the collection agency specific permission to do so.
- Debtor communications. Collection agencies may not contact debtors before 8:00 a.m. or after 9:00 p.m. local time, or at another inconvenient time or place. Collection agencies may not contact a debtor at work if he or she knows that the employer bans receipt of collection calls while on the job or if the debtor tells the collection agency not to do so.
- Third-party communications. The collection agency cannot contact third parties other than the debtor’s attorney or a credit bureau for any reason other than to locate the debtor. Collection agencies who contact third parties must state their names, and may only add that they are confirming or correcting information about the debtor. They cannot give the collection agency’s name unless asked directly. They cannot state that they are calling about a debt. Collection agencies may not contact a third party repeatedly unless they believe an earlier response was wrong or incomplete and that the third party has revised information. Further, collection agencies cannot communicate with third parties by postcard or by correspondence that uses words or symbols that betray their collection motive.
- Harassment or abuse. Collection agency agents cannot threaten or use violence against the debtor or another person. They cannot use obscene or profane language. They cannot publish a debtor’s name on a blacklist or other public posting. Agents cannot call repeatedly or contact the debtor without identifying themselves as bill collectors.
- False or misleading statements. Agents may not lie about the debt, their identity, the amount owed, or the consequences for the debtor. They cannot send documents that resemble legal filings or court papers. Agents cannot offer incentives to disclose information. They cannot state that they are an attorney when they are not.
- Unfair practices. Agents may not engage in unfair or shocking methods to collect, including adding interest or fees to the debt, soliciting post-dated checks by threatening criminal prosecution, calling the debtor collect, or threatening to seize property to which the agency has no right.
Even if you orally tell debt collectors that you never intend to pay, the law prohibits them from contacting you except to send one last letter making a final demand before filing a lawsuit. It is difficult to police this action, even with the federal law protecting you, so these efforts may or may not be successful.
Another effective way to stop the phone calls is to know your rights. If a caller threatens to sue you, judgments are normally as easily dischargeable in bankruptcy as credit card debt. After you have decided on bankruptcy, this threat really has little significance or meaning.
More importantly, if your only income is solely from social security or social security disability a lawsuit will do little to help collection efforts. You may be judgment proof and may not even need to file a bankruptcy. The best advice is to consult with one of our bankruptcy attorneys.
Are student loans discharged in a bankruptcy proceeding?
Educational loans guaranteed by the United States government are generally not discharged in a Chapter 7 or Chapter 13 bankruptcy. They may be dischargeable; however, if the bankruptcy court finds that paying off the loan will impose an undue hardship on the debtor and his or her dependents.
In order to qualify for a hardship discharge, the debtor must demonstrate that he or she cannot make payments at the time the bankruptcy is filed and will not be able to make payments in the future. The debtor must apply before the discharge of the debtor’s other debts is granted. Application for a hardship discharge is not included in the standard bankruptcy fees.
The Bankruptcy Code does not specifically define the requirements for granting a hardship discharge of a student loan. Courts have applied different standards, but they often apply a three-part test to determine eligibility: (1) income – if the debtor is forced to pay off the student loan, the debtor will not be able to maintain a minimum standard of living for himself or herself and his or her dependents; (2) duration – the financial circumstances that satisfy the income test in (1) will continue for a significant portion of the repayment period; and (3) good faith – the debtor must have made a good-faith attempt to repay the loan prior to the bankruptcy.
What effect does bankruptcy have on alimony and child support?
A Chapter 7 filing should have no effect on such collections.
Although filing bankruptcy stops, or stays, all efforts to collect debts, the Bankruptcy Code excludes actions to collect child support or spousal maintenance from the stay unless the creditor attempts to collect from the property of the estate.
In a Chapter 7 proceeding, property of the estate includes all possessions, money, and interests that the debtor owns at the time of filing. Money earned after the bankruptcy is filed; however, is not property of the estate. Since most child and spousal support is paid out of the debtor’s current income, the bankruptcy should have little impact.
A debtor under Chapter 13 must pay all domestic support obligations that fall due after the petition is filed directly to the domestic support holder. Failure to do so could result in dismissal of the case. Neither a Chapter 7 nor a Chapter 13 discharge affects future child or spousal support obligations. In other words, even at the conclusion of the bankruptcy proceeding, these are on-going obligations that must be paid.
How does bankruptcy affect my debt?
An unsecured debt is one where you have not pledged collateral or in which a lien has not been filed against you. Unsecured debts include things like a credit card, medical, and most other debts. Most judgments are also unsecured and can be easily discharged in bankruptcy.
Unsecured debts are normally dischargeable in bankruptcy. There are exceptions to the rule such as if the debts were incurred in anticipation of bankruptcy or within 90 days of filing or if there is some fraud associated with the transaction. Unsecured debts that were incurred to pay non-dischargeable taxes, student loans, or associated with alcohol or malicious torts (wrongdoings) may also be non-dischargeable.
Secured debts are completely different. If you want to keep your house or your car and you are current on those payments, you will normally be able to keep them if you want to continue to make those payments. If you are not current and want to keep your secured property, you will likely be able to keep the property by entering into a repayment plan for the arrearage (what you are behind). If, however, you want to forfeit (or surrender) the property and not make any more payments or incur any more debt associated with the property, even if you owe more than the property is worth, that is an option as well.
Will I lose my home or property?
For example, if you owe $1,000 on your furniture but it is only worth $150, Woodruff Law offices work with the creditor so that you only pay the value of the furniture.
One of a debtor’s major concerns in a consumer bankruptcy is the thought of losing their home. Although possible in some cases, loss of the debtor’s home need not always result from filing bankruptcy.
If the debtor in a Chapter 7 liquidation bankruptcy is behind on his or her mortgage payments, the home may be lost. In this case, the mortgage lender will usually ask the bankruptcy court to lift the automatic stay so that it can institute foreclosure proceedings so the home can be sold and the proceeds used to pay off the debt.
On the other hand, a debtor who is not behind on the mortgage payments in a Chapter 7 may still lose their home because they have too much equity in their home. If the amount of debt owed on the home is less than the home’s market value, the debtor could lose the house unless the homestead exemption entitles the debtor to most of the equity.
In a Chapter 13 proceeding, however, even if the debtor is behind on mortgage payments, if the Chapter 13 plan includes paying back all missed mortgage payments and current payments are paid directly when due, then the debtor should not lose his or her home. If the debtor is current on his or her house payments, the home will not be lost if the debtor continues to make payments when due.
If the debtor rents rather than being a homeowner, and if the debtor is current on those rental payments, then it is unlikely that the landlord would even become aware of the bankruptcy proceeding. If the debtor is behind, however, he or she could be evicted. Even after the automatic stay is triggered by the bankruptcy filing, the landlord is likely to ask the court to lift the stay so they can get their rental property back. In this situation, the Court is likely to grant that request.
Do I have to list all my debts?
Who will know about the bankruptcy filing?
The same holds true for your family, unless they have a stake in the bankruptcy. Unfortunately, any party can learn of a bankruptcy through an internet search or any public record report.
Will my employer fire me if I file for bankruptcy?
How long is bankruptcy included on my credit report?
Most other credit information is included in a consumer credit report for seven years. Civil suits, civil judgments, and arrest records may be reported for up to seven years and longer if the information is relevant for a longer period of time. For example, if the civil judgment against the debtor is valid for ten years it can be reported for credit-rating purposes for the same period of time.
Since the Fair Credit Reporting Act, which controls what a credit-reporting agency may include in a consumer’s credit report, and the Bankruptcy Code are federal laws, the same rules apply in all states. There may be some differences relating certain information since relevant time periods or statutes of limitations are found in individual state laws.
How sure can I be that my bankruptcy will be granted?
What if I don’t do anything?
If you have been threatened with a lawsuit or if you have been sued, you may choose to ignore such filing. This will not extinguish the debt or address the situation. This will only prolong the inevitable. Once the requisite time has passed, a judgment will likely be entered against you and your property. After this, the plaintiff will be able to proceed against your assets or income. Usually, this is not the best option.
If you have not been sued, remember that unsecured creditors usually (except student loans and taxes) must sue in order to collect. They cannot garnish your wages or your bank accounts or take other actions without suing you first. You cannot be thrown in jail for not paying your debts and your creditors cannot collect money that you do not have.
Before determining whether inaction is the best action, consider your budget. Write out all of your income and the sources that provide that income. Next, write out your expenses. If you cannot pay your expenses from your income, it is a foregone conclusion that your debt will likely overtake you someday.
It is at this point that bankruptcy is usually your best option.
Can I get relief from my taxes or student loans?
What’s the difference between a Chapter 7 and Chapter 13 bankruptcy?
Chapter 13 debtors have to repay a portion or all of their unsecured debts in monthly installments over a period of three to five years. This isn’t as bad as it sounds. Most Chapter 13 plans in Georgia pay only a certain percentage of their debt back to their unsecured creditors.
The most significant benefit of Chapter 13 consumer bankruptcy is the debtor’s ability to hold on to nonexempt assets that would be subject to liquidation in a Chapter 7 case. At the completion of the repayment plan, the debtor gets a discharge on the unpaid portion of the claims.
Am I eligible to file for bankruptcy?
Our firm fully explains the bankruptcy process and bankruptcy eligibility requirements at no cost to you during a no-charge initial consultation. Our attorney team has practiced bankruptcy law in the Marietta area since 2008 and has the knowledge and experience to answer your questions and provide comprehensive bankruptcy law legal services.
The 2005 changes to the bankruptcy code made eligibility more challenging but the vast majority of individuals who would have been eligible before the changes still are eligible now.
Even if the means test disqualifies you from Chapter 7, we have found that we are still able to find debt solutions for people who have the desire and the need for bankruptcy relief.
Can I file a second time?
The truth is that you can file bankruptcy more than once even following recent changes to bankruptcy laws. The most common scenario in multiple filings is to file for Chapter 13 bankruptcy after having filed Chapter 7 bankruptcy. Why? While debtors must wait eight years to file Chapter 7 a second time, they can often file Chapter 13 almost immediately after filing for Chapter 7. Known as a Chapter 20.
How does this work? Chapter 7 allows for the sale, in most cases, of non-exempt property and the elimination of debt. Chapter 13, in most cases, allows for a court-approved payment plan at lower monthly payments and with a quicker pay-off date. The result is that debtors can successfully pay off their car, reduce or eliminate other debt, and keep and remain in their home.
Under Chapter 13, debtors can in certain circumstances fully eliminate a second home mortgage because in today’s depressed real estate economy second mortgages are often no longer secured by any equity.
Who can help me explore my multiple bankruptcy filing options?
At the bankruptcy law firm of Woodruff Law offices, we have handled hundreds of bankruptcy cases, including many second filings. For more information about our firm and your bankruptcy rights and options, contact our offices.
What is the difference between private debt management and bankruptcy in Marietta?
With office locations in Marietta, Georgia, Woodruff Law offices serve clients throughout Georgia in a wide range of consumer bankruptcy law matters. Our firm is known for the services we provide and are committed to providing each of our clients with the individualized attention they deserve. We know the challenges our clients face and are here for support and guidance.
Debt consolidation companies advertise that debt consolidation is a good alternative that will allow you the same amount of debt relief without having to file for bankruptcy. In reality; however, bankruptcy is almost always a better option for individuals. Why? Because debt consolidation companies are not regulated by laws like bankruptcy attorneys and often make promises that they cannot keep. In addition, debt consolidation companies are front-loaded with fees, and creditors, while you are in a debt consolidation program, are not prohibited from suing you.
Take initiative and learn about your options for debt relief. An experienced attorney in our firm will educate you about bankruptcy in Georgia and give you the information you need to make a smart decision. We have helped thousands of people get the debt relief they need.
Should both spouses file?
At Woodruff Law offices, we provide the legal counsel needed to make informed, advantageous decision regarding the filing of Chapter 7 or Chapter 13 bankruptcy. Firm founder, Ronna Woodruff has several years of experience in bankruptcy and litigation experience and has handled hundreds of bankruptcy cases.
Each bankruptcy case is different; it requires personalized and tailored attention to the facts and circumstances of each case. Is the bulk of your property owned jointly by you and your spouse as marital property? Do either of you have separate property? Is one spouse interested in filing for bankruptcy while the other is anxious to avoid it?
We can and do help you make these and other strategic decisions.