Tuesday, May 15, 2018

MCFERRAN LAW BANKRUPTCY: DIFFERENCES BETWEEN CHAPTER 7 & CHAPTER 13 BANKRUPTCIES


McFerran Law, P.S.
Practicing Real Estate Law in Western Washington since 1986

May 14th, 2018

Bankruptcy Update:
What is the Difference Between
Chapter 7 & Chapter 13 Bankruptcies?


Many people have very little understanding of bankruptcies.  Below I am attempting to give a cursory overview of the main types of bankruptcy.  It is not an exhaustive attempt to cover their differences.  Over time, I will be covering many facets of bankruptcy on my blog at Martin Prybylski’s Bankruptcy Blog. 
For most individuals, there are basically only two bankruptcy options:  Chapter 7 and Chapter 13.  Individuals can also file for Chapter 11 or Chapter 12, but they are designed for businesses and farmers or fisherman respectively. 

Chapter 7
A Chapter 7 bankruptcy is a liquidation proceeding where debtors can seek a discharge of most types of debts in exchange for assets they own that are not protected by state or federal law.  Many debtors do not have any such unprotected assets, and therefore do not need to surrender any assets to obtain their discharge. 

Assets
Assets can include more than just a debtor’s obvious tangible assets such as a car or a house.  Assets can include a debtor’s right to sue someone or a right to an inheritance.  It also includes any debts owed to a debtor by anyone including family members.
Another thing that can be viewed as an asset is anything you have paid to creditors to the detriment of other creditors.  The most common is payments made to friends or family members on debts. 

Timeline
Every bankruptcy must begin by filing the Voluntary Petition, Schedules, and other documents with the Bankruptcy Court.
In a Chapter 7, like in a Chapter 13, the debtor will be required to appear at a meeting of creditors about 30 days after the filing of the case.  If there are not objections to the debtor’s discharge, then the discharge will be issued about 60 days after the conclusion of the meeting of creditors.  If there are assets to administer, the case will not close until both the discharge is entered and the assets are fully administered.

Limitations
Not everyone can file a Chapter 7 bankruptcy.  Income can be an issue.  If a debtor makes too much money and their debt is primarily consumer in nature, then they will not be eligible for a Chapter 7 bankruptcy.  They will likely be forced into a Chapter 13.

Benefits
The biggest reason to file a Chapter 7 bankruptcy is its speed and efficiency.  A debtor is often done with their case in as little as 5 months.  The debtor is no longer under court supervision after closing, so they can continue to live their life normally and begin repairing their credit.  The debtor often pays less overall in legal fees and repayment to creditors in a Chapter 7. 

Chapter 13
A Chapter 13 bankruptcy is a reorganization proceeding where debtors propose a plan to repay creditors based on a number of requirements set out by the Bankruptcy Code.  Upon successful completion of a court approved plan, debtors will receive a discharge of most types of debts left unpaid at the end of the plan.

Assets
Like in a Chapter 7, what assets the debtor has is central to their case.  Unlike a Chapter 7, in a Chapter 13 proceeding, a debtor is not required to liquidate any assets.  Instead, a debtor must repay creditors such that unsecured creditors will receive at least as much as they would have in a Chapter 7.  Many debtors will file a Chapter 13 because they want to avoid liquidation of a treasured asset. 

Plan
The plan proposed by the debtor must be approved by the court.  The gatekeeper of an approved plan is often the Trustee assigned to supervise the case by the United States Trustee.  To obtain this approval the debtor must satisfy the requirements of 11 U.S.C. §1325.  Below are some of the important plan requirements.  This is not an exhaustive list.
-         The debtor must repay any arrears on secured loans they wish to retain. 
-         The debtor must pay all priority debts in full. 
-         The debtor must pay all disposable income into the plan. 
-         Unsecured creditors must not be treated worse than they would be in a Chapter 7.

Timeline
Debtors begin their Chapter 13 bankruptcy by filing the Voluntary Petition, Schedules, a proposed Chapter 13 Plan and other documents with the Bankruptcy Court.
Like in a Chapter 7, a debtor must attend a meeting of creditors roughly 30 days after filing their case.  After the meeting of creditors, the next hearing is the Confirmation Hearing for the proposed plan.  After successfully obtaining court approval of the plan, the debtor will simply follow the terms of the plan for the length of time dictated by the plan.  Plans are usually 3 to 5 years depending on the debtor’s income.
After successfully completing the plan, the debtor will receive their discharge of most of their remaining debts that were not.

Limitations
In a Chapter 13, a debtor must have sufficient regular income to fund a plan.  So, it is opposite of Chapter 7 where too much income can bar a filer. 
There are also limitations on how much debt a party can have when seeking a discharge in Chapter 13.  As of this writing, if a debtor has more than $394,725 in unsecured debt or $1,184,200 in secured debt, they do not qualify for a Chapter 13 bankruptcy.  If a debtor does not qualify for this reason, they may qualify for a Chapter 7 or Chapter 11 depending on their circumstances.

Benefits
The main benefits for a Chapter 13 over a Chapter 7 is the flexibility it gives the debtor.  It allows a debtor to keep a home that has arrears on its mortgage, homeowner’s association dues, or taxes.  It allows a debtor to reduce the debt and interest on certain vehicle loans.  It allows a debtor to reduce interest on credit card payments. 

Conclusion
Chapter 7 and Chapter 13 are very different vehicles for the same goal:  debt relief.  Anyone who is interested in learning how these can be used for their benefit should consult with a qualified attorney.
Call us at 253-471-1200 to schedule a FREE one-hour bankruptcy consultation at any of our offices in Tacoma, Seattle, & Kent.

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