For individuals who are facing financial difficulties, debt is one of the biggest challenges to deal with. Fortunately, bankruptcy provides a legal route out, designed to give debtors a new start by eliminating most debts. While bankruptcy does provide relief, it may involve major sacrifices on the part of the debtor, for example, forfeiting a percentage of income and liquidating assets.
Bankruptcy is the process by which a person legally declares himself or his business unable to pay outstanding debts. There are several different types of bankruptcy and some are available only in particular circumstances. The process involves meeting with a judge to determine payment schedule or, in some cases, declaring legal bankruptcy discharging most or all debts. When a business declares bankruptcy, that business will either close or continue to function with reduced payments to debtors.
Chapter 11 of the U.S. Bankruptcy Code provides for the reorganization of the assets and liabilities of corporations or partnerships that are unable to pay their creditors. While individuals can also file for Chapter 11 bankruptcy, it is a far less common route because the eligibility requirements are strict and the proceedings can be the most complex and expensive bankruptcy option.
The process of Chapter 11 bankruptcy is started by filing a petition in the Bankruptcy Court in the area where the debtor is domiciled or incorporated. A debtor may choose to file voluntarily if certain requirements are met or involuntarily by a creditor or creditors who meet specific criteria.
A Chapter 11 debtor proposes a plan whereby the business will remain alive through a restructure and a payment plan for creditors. If accepted, the debtor may continue the business and become the “debtor in possession” though the business would be subject to the oversight of the court and the debtor may be forced to relinquish control over major decisions.
Chapter 13 bankruptcy is known as a wage earner’s plan and provides for management of debt. This type of bankruptcy enables individuals with regular income, who meet specific requirements, to keep their property while repaying creditors from their future income according to a strict schedule.
A Chapter 13 bankruptcy petition is filed in the Bankruptcy Court in the area of the debtor’s residence or domicile. The debtor proposes a repayment plan which must then be approved by the court. Upon approval, the court will appoint a Chapter 13 trustee who distributes the funds to the creditors for a percentage fee. During the repayment period, which is between 3 and 5 years, creditors are not permitted to start or continue collection efforts.
For individuals with limited income who find themselves unable to pay back heavy debt, Chapter 7 bankruptcy, known as “liquidation bankruptcy” can provide debt relief. It is the most common form of bankruptcy filed in the U.S.
Chapter 7 involves the liquidation of many of the debtor’s assets by a court-appointed trustee who takes ownership of those assets, sells them and then distributes the proceeds to creditors.
There are several types of exempt assets, regulated by both federal and state bankruptcy statutes, which cannot be liquidated, helping the debtor when the time comes to start fresh.
Chapter 7 bankruptcy is filed in your local Bankruptcy Court and the petition must include documents which detail your assets and liabilities. Most individuals who choose to file Chapter 7 are required to first participate in a session with an approved credit counselor.
Heavy debt is a huge financial and emotional burden for most Individuals to carry. While bankruptcy is one option to manage debt, it is generally considered to be a last resort as it stays on your credit record for 10 years. Bankruptcy can have far reaching, negative effects on many aspects of your life, for example your ability to get credit, find employment, and rent or buy a home.
So while paying down debt can be a gut wrenching process, there are several ways to get a grip on it without resorting to bankruptcy. These include prioritizing which debts to pay off first, meeting with a reputable debt or consumer credit counselor to help balance larger financial issues with your day-to-day cash flow, debt negotiation and repayment plans, and creating and sticking to a practical budget.
Student loans have become increasingly popular, offering opportunities to those who otherwise couldn’t afford college tuition. At the same time, student loans can also present a significant financial risk. While many college graduates find jobs enabling them to repay the loans, graduating with a degree doesn’t necessarily guarantee that ability especially in a time of economic uncertainty.
It’s important to choose your student loans carefully. Student loans are offered by the federal government, the educational institution (and backed by the federal government), or a private lender. There are several types of federally procured loans and they generally have lower rates, which are fixed throughout the period of the loan. They also offer more flexible repayment options which can be changed based on the borrower’s circumstances and income.
Private loans are provided by banks or credit unions and vary from lender to lender. They may offer lower rates at first but only for variable interest rate loans which can get higher based on broader interest rate hikes. Most private loans require a co-signer as students typically don’t have much of a credit history. In addition, private loans aren’t subject to the same rules and regulations as federal loans and may not be as flexible regarding repayment options.
This case presents the question whether the federal court or an arbitrator is to resolve a claim of “fraud in the inducement,” under a contract governed by the United States Arbitration Act of 1925,1 where there is no evidence that the contracting parties intended to withhold that issue from arbitration. … click to see more
Radlax Gateway Hotel
We consider whether a Chapter 11 bankruptcy plan may be confirmed over the objection of a secured creditor pursuant to 11 U. S. C. §1129(b)(2)(A) if the plan provides for the sale of collateral free and clear of the creditor’s lien, but does not permit the creditor to “credit-bid” at the sale… click to see more
Hamilton v. Lanning
Chapter 13 of the Bankruptcy Code provides bankruptcy protection to “individual[s] with regular income” whose debts fall within statutory limits. 11 U. S. C. §§101(30), 109(e). Unlike debtors who file under Chapter 7 and must liquidate their nonexempt assets in order to pay creditors, see §§704(a)(1), 726, Chapter 13 debtors are permitted to keep their property, but they must agree to a court approved plan under which they pay creditors… click to see more
RUTH S. STEPHENS v. SWEET WATER STATE BANK
This case concerns a mortgagee’s challenge to a debtor’s plan filed under Chapter 13 of the United States Bankruptcy Code. The mortgagee filed its claim in the state circuit court after the federal bankruptcy court had confirmed the debtor’s plan, and the circuit court made an adjudication of the mortgage priorities different from that set out in the plan. We hold, under the facts of this case, that the bankruptcy court’s order confirming the plan was res judicata as to the mortgagee’s claim in circuit court; therefore, we reverse the judgment of the circuit court and remand the cause… click to see more
Ransom v. FIA Card Services
Chapter 13 of the Bankruptcy Code enables an individual to obtain a discharge of his debts if he pays his creditors a portion of his monthly income in accordance with a court-approved plan. 11 U. S. C. §1301 et seq. To determine how much income the debtor is capable of paying, Chapter 13 uses a statutory formula known as the “means test.” §§707(b)(2) (2006 ed. and Supp. III), 1325(b)(3)(A) (2006 ed.). The means test instructs a debtor to deduct specified expenses from his current monthly income. The result is his “disposable income”-the amount he has available to reimburse creditors. §1325(b)(2)... click to see more
Lawyer Reviewed Cases
In Re: Glay H Collier II, et al
reviewed by Cherney Bankruptcy Law Firm
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANAMONROE DIVISION IN RE: … GLAY COLLIER, II JUDGE ROBERT G. JAMESOPINION AND ORDER. This Opinion addresses the conduct of respondent, Glay H. Collier… click to see more
USA v. Rahim
reviewed by Bournakis & Mitchell, P.C.
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ROME DIVISION… Defendant Ras Rahim moves for a reduction of his sentence … based on “extraordinary and compelling reasons.” (Dkt. 186.) After reviewing the submissions of the parties… click to see more
In Re: DAILY FANTASY SPORTS LITIGATION
reviewed by The Royko Group
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS In re: DAILY FANTASY SPORTS LITIGATION ) … OPINION AND ORDER November 27, 2019 O’TOOLE, S. D.J.This action consolidates for centralized pretrial proceedings more than eighty individual and putative class actions… click to see more
04/02/56 BAY COUNTY BAR ASSOCIATION v. FINANCE
reviewed by Clark Law Group, P.A
Bill by Bay County Bar Association, a voluntary association, against Finance System, Inc., a Michigan corporation, and Victor R. Benish, doing business as Finance System of Bay City, to restrain defendants from certain activities claimed to constitute the unauthorized practice of law… click to see more
Department of Transportation v. Mendel
reviewed by Cherney Bankruptcy Law Firm
This suit arises from a condemnation action in which the Department of Transportation took square footage from and acquired a permanent slope easement on commercial property in order to widen… click to see more
Wright v. Wright
reviewed by Bournakis & Mitchell, P.C.
Linda (Wife) and Seaborn (Husband) Wright were married in 1985. It was a second marriage for both, and they had no children. Each brought assets and debts to the marriage, including Husband’s house which… click to see more
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Sixth Circuit Court of Appeals Reverses District Court Ruling on Automatic Stay in Foreclose Case
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TPC Bankruptcy and District Court Opinions Uphold Uptiering Transaction and Teach an Important Lesson on the Need for Express Lender Protections in Debt Documents
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Text Messages From Debt Collectors? Not in My Backyard!
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