Bankruptcy: What It Is, When to File, FAQ & More

bankruptcyBankruptcy filings have increased more than 500% since the early ‘80s, and well over 1 million people now file each year.  Interestingly enough, the dramatic rise in the “popularity” of bankruptcy has coincided with our increased societal reliance on credit cards.

“Overall, the increase in credit card and possibly mortgage debt levels since 1980 provides the most convincing explanation for the increase in bankruptcy filings in the United States,” Michelle J. White, a professor of economics at the University of California, San Diego and a research associate at the National Bureau of Economic Research, wrote in an article for the Journal of Economic Perspectives.  “But adverse events and debt levels interact with each other in explaining the increase in bankruptcy filings because, as debt levels increase, any particular adverse event is more likely to trigger financial distress and bankruptcy.”

In other words, it’s now easier for us to habitually spend beyond our means, and we are putting our finances in jeopardy by doing so, especially during times of economic turmoil when debt can easily become unsustainable.  This is not to say that we should all forgo credit card use or that bankruptcy is always the answer to serious debt, but rather that understanding the bankruptcy process is certainly worthwhile in this day and age.

With that in mind, you can find information on the following topics below.

Types of Bankruptcy

There are six different chapters of bankruptcy under U.S. code, but Chapter 7 and Chapter 13 are undoubtedly the most common for consumers.

  • Chapter 7:  Often referred to as “straight” bankruptcy, Chapter 7 provides for the discharge of unsecured debts (i.e. those not backed by property such as a car or a house), as well as the liquidation and sale of certain assets by a designated trustee in order to repay creditors.

    “In a chapter 7 bankruptcy, most bills are done away with (discharged) and you get to keep almost all of your property because it is exempt under state or federal law or is secured,” according to Bruce Comly French, Director of Clinical Programs and Professor of Law at the Ohio Northern University Pettit College of Law, who says roughly 80% of consumer cases are Chapter 7.

    As French notes, many assets are exempt from liquidation and can be kept after filing.  The exempt assets vary from state to state, but typically include your primary automobile, certain tools used for business, personal belongings such as furniture and clothing (up to some maximum), and part or all of the equity in your personal home.  It’s also important to note that a number of debts can’t be discharged and will still be due after filing. They usually include certain current taxes, certain fines, fraudulently incurred debt, family support obligations (including child support and alimony), and federally insured student loans.

  • Chapter 13:  Often referred to as “consumer reorganization” bankruptcy, Chapter 13 bankruptcy requires debtors to restructure their debts and create a three-to-five year repayment plan. Under the repayment plan, the debtor will use his future income to pay off, in full or partially, his creditors. As such, Chapter 13 bankruptcy is applicable only to debtors with regular income. The process of a Chapter 13 repayment plan is supervised by an impartial trustee that is appointed by the court.
  • Chapter 11:  Often referred to as “corporate reorganization” bankruptcy, Chapter 11 is typically utilized by indebted businesses to restructure their operations in the name of financial relief.  Chapter 11 bankruptcy enables a business owner to refinance debts and cancel certain contracts without ceding ownership in their company, unless the company’s debts exceed its assets – in which case equity may fall to the company’s creditors. Chapter 11 bankruptcy is typically regarded as the most complex and most expensive type of bankruptcy.
  • Chapter 12:  This type of bankruptcy is quite similar to Chapter 13 but is targeted to farmers and fishermen.
  • Chapter 9:  This segment of the bankruptcy code applies to municipalities (e.g. cities, towns, and school districts) and helps them restructure debts.  More specifically, Chapter 9 bankruptcy offers local governments and other similar organizations protection from creditors as they seek to extend the terms of their loans, refinance interest rates, garner forgiveness for certain amounts of interest or principal, and other forms of debt relief.
  • Chapter 15:  This chapter provides for cooperation between U.S. and international court systems in bankruptcy cases involving multi-national corporations.

Bankruptcy Means Test

The bankruptcy means test is m a way for the courts to determine whether you are eligible for Chapter 7 bankruptcy based on your income, assets, debts, and liabilities, or if Chapter 13 bankruptcy (or no bankruptcy at all) is more appropriate.  Chapter 7 is the form of bankruptcy most favorable to the filer, after all, as it enables debtors to completely avoid paying certain bills, rather than having to do so on an extended timeframe or with a lower interest rate – as would be the case with Chapter 13.

The means test can be broken down into four basic steps, only two of which necessarily apply to all potential filers.

  1. Calculate Your Current Monthly Income (CMI):  The word “current” can create confusion, but what this really means is that you need to calculate your average gross income (before taxes and credits) for the last six months.
  2. Compare Your CMI to the Median in Your State:  If your current monthly income is less than the median for a family of your size in your state, according to data published by the Census Bureau, then your means test is done – you qualify for Chapter 7 bankruptcy.  If it is above the state median, you will need to complete steps 3 and 4.
  3. Determine Your Disposable Income:  To find your disposable income, subtract from your CMI the following expenses (using IRS averages for your area):  housing, food, clothing, medical care, transportation, debt payments, taxes, charitable donations, etc.
  4. Figure Out Where You Fall:  If your monthly disposable income falls below a certain amount ($117 in recent years), you are eligible for Chapter 7 bankruptcy.  If your monthly disposable income falls above a certain amount ($195 in recent years), then you must file for Chapter 13 bankruptcy instead.What happens if your income lies somewhere between $117 and $195?  That’s a bit more complicated.  If you can afford to repay 25% of your “non-priority unsecured debts” – such as your credit card and personal loan balances– within 60 months, you must opt for Chapter 13 rather than Chapter 7.  If not, you are likely eligible for Chapter 7 bankruptcy.

Benefits & Repercussions of Bankruptcy

Deciding whether or not to file for bankruptcy requires careful consideration of the inherent pros and cons of doing so – of which there are many of both.

Pros Cons
Debt Forgiveness Often entails forgiven amounts owed or lower monthly payments. Monetary Expense Bankruptcy can be expensive, with attorney’s fees and filing charges.
Legal Protections Filing for bankruptcy puts into effect an “Automatic Stay”, which stops most creditors from trying to collect. Credit Score Damage Bankruptcy will remain on your credit reports for 7-10 years from the date of filing.
Line of Sight to Debt Freedom A defined plan will give you peace of mind and the ability to make strategic decisions. Reputation Bankruptcy may be frowned upon by creditors and community.

When to File for Bankruptcy

Bankruptcy is merely one of the various forms of debt relief that are potentially available to consumers, and it should be treated as such.  In other words, you shouldn’t make up your mind that bankruptcy is necessary until you fully explore your options and exhaust all other, potentially less-damaging courses of action.

“Use bankruptcy as a last resort,” says UCLA Law Professor Kenneth N. Klee.  “Once you get a discharge, there is an 8 year bar to getting another one.  Don’t use the safety valve unless you need it.”

You can find more information about when bankruptcy is necessary in CardHub’s How to File for Bankruptcy guide.  You can also get more advice from Klee and other bankruptcy experts below.

How to File for Bankruptcy

Filing for bankruptcy should begin with a trip to a bankruptcy attorney to determine your options and next steps.  Not only will an attorney help you evaluate your financial situation and make a decision regarding bankruptcy, but he or she will also help you navigate the complexities of the bankruptcy code, gather together and submit all of the required documents and forms, and ultimately leverage the bankruptcy process to maximum value.  Corporations and partnerships are required to have an attorney.

Nevertheless, some individuals do decide to try do it yourself (DIY) bankruptcy.  This isn’t advisable, particularly given the ban on multiple Chapter 7 filings within an eight-year timeframe, but you can check out CardHub’s article on How to File for Bankruptcy if that is your chosen course of action.

The best course of action, however, is to interview a few bankruptcy attorneys who offer free consultations, read some reviews about them, and at least consider professional assistance before deciding how exactly to proceed.

Bankruptcy Filings by Year

 

Number of Bankruptcy Filings & Average Household Credit Card Balance by Year

 

Ask The Experts:  Bankruptcy FAQ

CardHub consulted bankruptcy experts – both professors and practitioners – from around the country for insight into some of the most common questions people have about the bankruptcy process.  Hopefully their advice can help you navigate these treacherous financial waters as safely as possible.

What part of the bankruptcy process do you think people understand least?

Robert D’Agostino, Atlanta’s John Marshall Law School

The issue of what is and what is not dischargeable . This particularly true of tax liabilities and the IRS’s ability to impose a 100% penalty on bankrupt small business owners when the business has not paid its required taxes.

BAPCA has clarified and broadened the law applicable to what assets of an individual do not become part of the bankruptcy estate. The “mini’ chapter 11 has made that process more accessible and less expensive for small business.


David G. Carlson, Yeshiva University, Benjamin N. Cardozo School of Law

The means test for consumer debtors in 707(b)(2). Although BAPCPA made bankruptcy more expensive, it basically did nothing to bar access to chapter 7 bankruptcies. The public did not understand this and so, for at least a couple of years, bankruptcy cases plummeted, which meant that people kept the balances going on the credit cards, vastly enriching the banks. All along they could have gotten rid of that credit card debt, probably in chapter 7 cases.


Katherine Porter – University of California, Irvine, School of Law

The choice between chapter 7 and chapter 13 is the single most important legal decision in a bankruptcy. Chapter 7 is a much faster, cheaper process with a higher likelihood of discharging debt. But chapter 13 offers certain tools to deal with back taxes, missed mortgage payments, and the like that can be useful–if one can make all the required payments over a period of three to five years. All the research suggests that consumers are often steered into one chapter or the other by attorneys, or they make a less than fully-informed choice. The complexities of bankruptcy law make it quite difficult to explain the options and consequences of chapter 7 and chapter 13. A simpler system would be easier for people to understand.


Jean Braucher – University of Arizona, James E. Rogers College of Law

It is all very complicated to lay people, but I think chapter choice is perhaps the hardest thing to understand. A chapter 13 repayment plan sounds reasonable, but most people who file in that chapter do not complete their plans and get a discharge. Chapter 7 is a much better bet for getting a discharge from old debt. There are reasons to file in chapter 13, but trying to pay creditors as much as possible is not a good one, and too many debtor try that and fail.


W. Lewis Burke – University of South Carolina School of Law

The general public seems to think that the reason people file bankruptcy is because they are deadbeats. The most common cause of personal bankruptcies are illness, loss of a job and divorce. This also leads to the belief that people who file bankruptcy get off easy. If a debtor has an income of over $37,000 he has to file a Chapter 13 which requires monthly payments to be made for 5 years. However, for debtors with a modest income a chapter 7 bankruptcy will usually discharge all of the unsecured debtor and allow the debtor to keep most if not all of their property.


Kenneth N. Klee, UCLA School of Law

That it is easy to file and get relief from most unsecured debts other than tax and student loan debts.


Daniel A. Austin, Northeastern University School of Law 

What are bankruptcy exemptions, and how do they work.  People tend to ‘know’ that debtors can usually file personal bankruptcy and keep their property, but most debtors have no idea how this happens before they meet with their attorney.


Judith Klaswick Fitzgerald, Indiana Tech Law School

I assume you are asking about an individual who is likely to file either a chapter 7 liquidation or a chapter 13 ‘wage earner’ reorganization case.  In those cases, many debtors never even see a judge and their confusion is most likely about the process of bankruptcy itself.  As examples:

  • Many are confused about why there are so many filing fees when the reason they are filing bankruptcy is because they have so little money.
  • The means test is very confusing but, fortunately, most experienced bankruptcy lawyers are able to walk debtors through the process.
  • Understanding avoidance actions and how they may be used in a bankruptcy confuses and alarms both debtors and creditors.
  • Why some matters are handled in the bankruptcy court but others go to the district courts or into the state courts baffles many people, particularly when there are filing fees associated with the matter and/or parts of a case are handled by two different courts with the parties shuffling back and forth between courts.

Bruce Comly French, Ohio Northern University College of Law

In a chapter 7 bankruptcy, most bills are done away with (discharged) and you get to keep almost all of your property because it is exempt under state or federal law or is secured; probably 80% of the cases.


David R. Hague, South Texas College of Law

There are several misconceptions about bankruptcy, but I think one of the most common misunderstandings is the idea that bankruptcy will discharge all of your debts.  This is simply not true.  The most common debts that an individual will still be required to repay include, but are not limited to, federal and specific state taxes, student loans, child support, alimony, and other debts that were the result of fraud or misrepresentation.

I think another misunderstanding is the idea that you will lose your home in bankruptcy.  This is not necessarily accurate.  Unless one’s home has a substantial amount of equity beyond the applicable state’s homestead exemption, then the risk of losing the home is relatively small.  But most individuals filing for bankruptcy are not in this situation.  Instead, they are living in a home that is ‘under water.’  If that is the case, a debtor may be able to reaffirm his or her obligation on the mortgage.

Finally, and related to the above, bankruptcy typically does not take away a secured creditor’s property rights.  While the individual may be discharged on the underlying debt, bankruptcy will not wipe away a creditor’s consensual lien (e.g., security interest in a vehicle, deed of trust on the home, etc.)


What advice do you have for people who are contemplating bankruptcy? 
Robert D’Agostino, Atlanta’s John Marshall Law School

Pay bills on time. Do not get another credit card including a secured credit card. Opt for a debit card instead. Create a monthly budget. For a small businessman with vision team up with a manager.


David G. Carlson, Yeshiva University, Benjamin N. Cardozo School of Law

One should file when something bad is about to happen — a mortgage foreclosure or a wage garnishment.


Katherine Porter – University of California, Irvine, School of Law

My research shows that most people deliberate carefully before filing bankruptcy, and often reach the decision after two or more years of serious struggle with debts. Sometimes it is the risk of losing a house or car, but for many it is the collection calls and the emotional effects, such as stress, insomnia, marital problems, that comes from the overwhelming debts that lead them to seek help.


Jean Braucher – University of Arizona, James E. Rogers College of Law

You need a good lawyer with experience. Don’t try to do it yourself.
When things are still getting worse, it is too soon to file. Bankruptcy isn’t a solution unless the debtor has enough income to pay current expenses going forward and the debtor’s main problem is just too much old debt. It often makes most sense to file as things are starting to look up. For example, if the debtor has been out of work and running up a lot of debt to get by but then gets a new job, that could be the time to file. If the debtor can make ends meet except for old debt, bankruptcy is most likely to work. But some old debts can’t be wiped out in bankruptcy–student loans and child support, for example. A chapter 13 may make sense to deal with those debts. Another problem is that sometimes the debtor needs to give up a home or car that it is just too expensive to make the budget work.


Kenneth N. Klee, UCLA School of Law

Use bankruptcy as a last resort.  Once you get a discharge, there is an 8 year bar to getting another one.  Don’t use the safety valve unless you need it.


W. Lewis Burke – University of South Carolina School of Law

When the debtor feels overwhelmed by the phone calls, letters and other collections efforts they need to consult a lawyer. They should not wait until they are being sued or they have had their car repossessed. Of course, when one is in financial straits the debtor assumes they cannot afford a lawyer, but most bankruptcy lawyers can help them find a way to pay for the process. Also legal services and bar association pro bono programs may offer free legal services.


Daniel A. Austin, Northeastern University School of Law 

Most important: do not try to cope with debt by cashing in retirement assets.  As for timing, there are at least two situations where the debtor should file fairly promptly.  First, when facing a home foreclosure where the debtor has sufficient income to pay the mortgage (include catch up on arrearages, if applicable) if his/her non-priority unsecured debt is discharged AND it makes economic sense to remain in the home.  Second, where the debtor’s non-priority debts are dischargeable and discharging the debt would allow the debtor pay his/her post-bankruptcy bills in full and on time.

Let me also add: Many debtors have student loan debt.  It is possible that the debtor lives in a jurisdiction where judges permit favorable treatment of student loan debt in chapter 13, or the debtor’s circumstances would appear to meet the test for discharge of student loan debt.  In these fairly rare circumstances, and assuming the debtor satisfies the other requirements for bankruptcy, then filing bankruptcy to discharge student loan debt might be something to seriously consider.


Judith Klaswick Fitzgerald, Indiana Tech Law School

As a practical point and without providing legal advice, I would advise a prospective debtor to seek legal counsel.  The bankruptcy process is quite complex, as is the choice of chapter to file, and counsel familiar with bankruptcy law and procedure should be consulted before those critical decisions are made.  How does one know when it’s time to go through with filing? Counsel can assist in answering that question.


Bruce Comly French, Ohio Northern University College of Law

I encourage people (perhaps those who are higher income and have more debt) to look into state court trusteeships or have an attorney negotiate many bills to a more manageable level.


David R. Hague, South Texas College of Law

The biggest piece of advice that I would give is to consult with an attorney before filing.  In my experience, bankruptcy is oftentimes not the best option.  I’ve dealt with several clients who come to me thinking they must file for bankruptcy, but then come to the realization that they are simply experiencing what I refer to as a ‘two-party dispute.’  In that case, the attorney is hired to do a ‘workout’ instead of a bankruptcy.

Creditors can be reasonable, especially if bankruptcy is a threat.  It is not uncommon for a creditor to agree to receive less than 50% of what it is owed, or agree to an extended payment plan.  If this can be accomplished, then bankruptcy is oftentimes not necessary and the debtor will not even have to face the stigma associated with filing for bankruptcy.

Bankruptcy becomes necessary when creditors are refusing to participate in the workout and are filing lawsuits and seeking to garnish wages, bank accounts, etc.  Bankruptcy may also become necessary when a foreclosure is imminent or when a bank has tied up one’s funds that would otherwise be used to service debt or even daily living expenses.


What about recovering from bankruptcy – what are the best ways to get back on the right track?

David G. Carlson, Yeshiva University, Benjamin N. Cardozo School of Law

Don’t use credit cards. Live within your means!


Katherine Porter – University of California, Irvine, School of Law

The best advice is to use the painful decision of bankruptcy to take a hard look at what your family can afford. Many people try to save homes, cars, and other things through bankruptcy when they would right themselves financially much faster–and perhaps create a less stressful environment for their family–by downsizing and giving up the asset. It’s tough on children to change schools and moving is difficult, but if your attorney or the trustee or the judge is telling you that your home is unaffordable, you should listen. They have a lot of experience, and they all want to see you get a fresh start after bankruptcy. Giving up the house often means that chapter 7 is the right choice, and that is a faster process to clean up medical bills, credit card debt, and other bills. If you’ve lost your job, another great tip is to wait to file bankruptcy until you get employed. Without income–even after bankruptcy wipes out the old debt–you are going to get back into trouble if you don’t have the money to make ends meet.


Jean Braucher – University of Arizona, James E. Rogers College of Law

The key thing is to keep expenses under control and save. It is best to have enough savings to live with no income for at least six months to be able to withstand financial shocks. It is also really important to have health insurance. Debt trouble comes from a combination of low savings, running up debt, and then suffering a shock to income or expenses such as job loss or loss of hours, divorce (which means the expense of two households instead of one), and a medical issue with uninsured expenses.


Matthew J. Notowidigdo- The University of Chicago Booth School of Business

My main piece of advice is motivated by my own research. I think one barrier that catches people by surprise is simply the significant financial costs (in terms of filing fees and legal fees) that are associated with filing for bankruptcy. My impression is that individuals are sometimes caught by surprise that they may actually have to be ‘saving up for bankruptcy.’


W. Lewis Burke – University of South Carolina School of Law

Any debtor who has gone through bankruptcy has had to complete a debt counseling and a budget counseling. If the debtor follows the guidance offered by these courses they can work to regain their credit. But they should not rush into debt and apply for credit cards and other forms of easy credit. Yes, there are predatory lenders who like to lend a very high interest rates money after bankruptcy. Debtors must do everything they can to void this type of credit, and live within a budget.


Kenneth N. Klee, UCLA School of Law

Adopt strict budgeting and learn how to save.  Read The Richest Man in Babylon.  Develop a steady source of income and don’t use credit cards unless you pay the balance in full each month.


Daniel A. Austin, Northeastern University School of Law 

Pay all bills in full and on time.  For some debtors, if it is possible obtain a credit card, even if it has a credit limit of only a few hundred dollars.  Use the card for purchases, but no more than 40% of the credit limit.  Pay the card in full each month—do not carry a balance.  But only one credit card, no store cards, etc.  And, do not reaffirm any unsecured debt, even if the creditor promises to extend credit post-discharge.


Judith Klaswick Fitzgerald, Indiana Tech Law School

Again, from a practical standpoint without providing legal advice, the solution is to change the practices and habits that led to the bankruptcy -  keep track of income and expenses using a budget; don’t overspend; pay all bills when due, including taxes; put some funds away for a rainy day.

Of course, all this assumes that the debtor has income sufficient to sustain a minimal standard of living, has affordable housing, remains in good health and does not suffer some unanticipated event such as a divorce that adds to expenses without increasing income.   A bankruptcy discharge can assist a debtor with relief from the financial crisis that led to the bankruptcy but is not a remedy for future bad planning, poor spending habits or unanticipated life changes.


Bruce Comly French, Ohio Northern University College of Law

Keep with a budget.  Usually credit is available because you cannot file a chapter 7 for 8 years.


David R. Hague, South Texas College of Law

Bankruptcy will appear on one’s creditor report for 7 to 10 years.  The best way to get back on the right track is to start rebuilding your credit.  If you’ve reaffirmed debt (e.g., car loan, home loan, etc.), never be late on those payments again so that you can prove to future lenders that you are credit worthy. Avoid credit cards.  While these may seem attractive and are another mechanism to rebuild credit, they are usually a trap.  The reason one files for bankruptcy is because they’ve incurred too much credit card debt and the default interest rates are out of control.  Try using a cash system and a budget, and work on paying down secured loans (e.g., car, home, etc.) so that you can prove to lenders that you are not only capable of paying on time, but also that you now own some assets.


Does bankruptcy have a social stigma?

Kenneth N. Klee, UCLA School of Law

The interference varies geographically and is less in large cities.  The stigma is very real in small towns and parts of the south.


Daniel A. Austin, Northeastern University School of Law 

Filing bankruptcy is certainly something debtors don’t want their friends to know about, but it does not have nearly the same social stigma that it did 20 years ago or even ten years ago.  People know that the economy and making a living are tough, and there is plenty of underlying social empathy when someone has to do it.

Preconceived notions that would deter people from filing are more likely to be fear of what it will do to a person’s credit, fear and humiliation of having to set forth your inner financial life down on public schedules, plus the cost of filing and paying an attorney.


Judith Klaswick Fitzgerald, Indiana Tech Law School

I am not certain that ‘social stigma’ is any longer a primary reason why most individual debtors would fail to maximize the benefits available to them from filing a bankruptcy.  Years ago, the idea of a social stigma was frequently raised by debtors as a reason why they did not want to file bankruptcy.

Anecdotally, in the past several years, I have heard very few debtors talk about that as a determining factor.  The vast majority of cases are ‘no asset’ chapter 7 cases, so debtors retain the property that the law allows through the applicable exemptions.

The bigger question may be whether exemptions fulfill the purpose for which they exist.  With the change in the bankruptcy law that now allows debtors who choose ‘state’ exemptions to claim additional exemptions as specified in the Bankruptcy Code, an empirical study of this topic may be in order.


Bruce Comly French, Ohio Northern University College of Law

I do not think that there is any adverse stigma at this point.


David R. Hague, South Texas College of Law

Bankruptcy will always be frowned upon by one’s creditors.  That simply can’t be avoided.  And if those creditors are people or businesses with whom you work or associate, one could certainly experience some isolation and even humiliation.  To those that are financially sound, bankruptcy can sometimes be seen as a sign of weakness, failure or breach of integrity.  I’ve had several clients who, despite receiving a discharge in bankruptcy, continue to pay some selected creditors for this very reason.

I think a lot of the time debtors go through the analysis of whether they absolutely must file for bankruptcy, or whether life would simply be easier if they filed for bankruptcy.  Because of the social stigma associated with bankruptcy, some individuals will choose never to file for bankruptcy, even if it means never getting out of the hole.


How often are bankruptcies misrepresented on credit reports?

Kenneth H Barnett, University of Georgia School of Law

It’s an empirical question for which there may be research. The ones that tend to get the most media coverage are those that concern identity theft.

Some have suggested that the main problem is the highly automated nature of the investigation process at the agencies that leads to very little time being spent on the consumer’s dispute and too much reliance on the furnisher’s ‘verification.’


Is there any way to minimize the credit score damage associated with bankruptcy?

Steven A. Schwaber,  Schwaber Law

Yes, there is, but it takes time.  The only legitimate way to do this is to incur some very limited post-bankruptcy credit (perhaps a secured credit card) or continue to make payments on items being retained (most commonly the car, could be the home) and make certain every payment is made on time, then, if possible, pay off the remaining balance of the debt ahead of schedule.  Be sure the creditor reports the payment history on that debt to the credit reporting agencies.

There really is no particular function in this process that requires an attorney.

 

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