Peter Francis Geraci A Bankruptcy Blog - Chapter 7 & 13

The main causes are loss of jobs, illness, and bad luck.  Other causes are:  using credit cards for regular living expenses, and not paying them off in full every month; car accidents; getting ripped off by used car dealers; co-signing for unreliable people; and divorce.

Let's talk about each of these causes briefly.

Loss of job

If you lose your job, and qualify for unemployment compensation, the amount of money you receive may be less than your regular paycheck.  Sometimes, unemployment compensation runs out, or you do not qualify, and this means that your income is zero.  While you are unemployed, you can file a Chapter 7 case, but you are prohibited from filing under Chapter 13 unless you have a regular source of income.

It may be to your benefit, especially if you usually earn $45,000 yearly, or more, to file a Chapter 7 before you get back to work.  This is because there is an income test in Chapter 7 cases, meaning you can have too much income to do a Chapter 7. This usually comes into play over $45,000, in urban areas like Chicago.  If you are not a higher income person, this timing is not so important.

You may not want to not file a Chapter 7 case unless you are already back to work, for several reasons.  First, your bad luck may not be at an end.  If you are out of work, you probably don't have medical insurance.  If you become ill after you have filed a bankruptcy, and run up a bunch of medical bills, you will have to pay them, because you will have used up your chance to do a bankruptcy already.  Secondly, if you are not working, your money is short, and if you fall behind in your rent or utilities, or your car insurance lapses because you didn't pay it and you wreck your car, you will have already used up your 6 year chance to file a bankruptcy and start fresh.  Thirdly, when you aren't working, no on can garnish your wages, and you probably don't have any savings that they can attach, so what is the point of doing a bankruptcy until you are back to work? 

The reason for doing a bankruptcy is to start fresh.  You cannot start fresh if you are still out of a job.  Once you return to work, a bankruptcy can be filed in as little as one day, to protect you from creditors, so wait until you are back to work to worry about getting rid of your bills.  You may run up some more before that happens!

Illness

Bankruptcy can discharge medical bills not covered by insurance.  Many people are forced to seek relief from medical bills they cannot pay, because either they have no insurance, or their insurance did not pay all the bills.  Medical bills can be devastating.  A discharge in bankruptcy will eliminate all bills up to the date of filing the case.  If you have a chronic illness, or have to get more medical treatment, it may be a good idea to wait until you are sure that you will have no more uninsured medical bills to pay, before you file a bankruptcy.  Your bankruptcy lawyer can advise you on this.

Bad Luck

Most people who work for a living have little or no savings.  They need to spend their paycheck on current expenses, and there is very little to save.  Any excess income is spent on entertainment and on buying consumer goods.  If there is any break in the income, this is a disaster.  Having a car break down, and missing work for a week because of it, can sometimes put a person behind in their bills so that it is impossible to catch up.  Usually, it will take more than a week, though.  Plant closings are an example of bad luck that is forcing many Americans to totally restructure their lives, and makes it impossible to meet their credit obligations.  Loss of a job is a major cause of bankruptcy.

Another variation on the loss of a job, is reduction of pay.  The employee is still working, but the pay has been reduced.  This happens when a company breaks a union, or when employees have to voluntarily accept pay cuts in order to prevent the company from going out of business altogether.  I have had many employees who were making $12 to $18 per hour suffer pay cuts down to $6 to $9 per hour, and this makes it impossible to live at the same standard as when the pay was double.  Something has to go, and especially if there is only one person in the family working, bankruptcy is the only solution to pay cuts.  It enables the family to go back to just paying its regular living expenses, instead of paying for a lot of luxury items on credit.

Illness has already been discussed as another form of bad luck.  Sometimes the bad luck of other people will cause a person to have to get relief from creditors by filing under the bankruptcy laws to discharge their debts.  A recent phenomenon is bankruptcy caused by drug or alcohol use. A person may be married to someone who has bad habits that cause them to default on joint debts, or to use their charge cards to support an irresponsible life style.  The other person is stuck paying for the results of the addiction.  I have seen mothers and fathers who have had to use all their savings, and all their credit, in trying to pay for treatment and defense of their drug addicted children.  Finally, they have spent all their savings, borrowed beyond their credit limit, had their property stolen by the addict child to sell for drug money.  Then they can no longer meet the payments on the loans they have taken to help their child, and bankruptcy is the only alternative to wage garnishments and lawsuits.

Death of a person that was contributing to the household expenses can make it impossible for survivors to pay creditors.  I have seen many people who otherwise had good credit, but had sudden deaths in the family, and had to go further into debt in order to pay the funeral expenses of their loved ones.  Not only the expenses of death of their relatives, but the time off from work, and travel expenses to distant home towns, account for more than a few bankruptcies.

Underemployment

Salaries in the last 10 years have not kept pace with expenses.  The cost of apartments, cars, food, gasoline, and clothing, goes up 10% or more each year, but salaries do not.  The standard of living is actually going down in this country, thanks to things like foreign cars, and "Reaganomics."  Many people, such as steelworkers, have had to take lower paying jobs.  Many factory jobs are not available due to shifts to non-union states, and to foreign countries, so former factory workers may have to take lower paying jobs in retail, just to have a job.  When you have to take a lower paying job, you may have to get rid of your debt with a bankruptcy

Problem: Bill and Sally have been married for 20 years. Bill recently lost his job in middle management, and is now working at half his former salary, driving a limousine. Sally had an operation, and since there was no insurance, owes $8,000 in unpaid medical bills. She used to be a secretary, but knows nothing about computers, and can only work for $6.50 an hour as a receptionist. They can't pay for their credit card debt that used to be easy for them to pay.

The Peter Francis Geraci Chapter 7 or 13 Solution: Underemployment and illness will require Bill and Sally to readjust their life style. A Chapter 7 to get rid of their credit card debt, and avoid lawsuits and garnishments, will help them start fresh, or a Chapter 13 to give them a no interest repayment plan.

No.  Owing money you can't pay is bad. Money can be used for good or bad purposes.  People end up without money because of circumstances beyond their control, or for other reasons.  Bankruptcy merely adjusts the debt situation to 0 again.  You start out even.  You get a fresh start, while still keeping the necessities of life.  But the prevailing attitude about bankruptcy is that is "bad."

This is an interesting perception.  The origin of bankruptcy can be found in ancient traditions, as found in the Bible, Deuteronomy 15.1:  "In the 7th year, each creditor shall release his debtors.  This shall be known as The Lord's Release."   In the Old Testament, it was the policy that a debt could exist only 6 years, and should be relaxed or forgiven in the seventh year.   The purpose was to prevent damage to society by allowing a debt to live forever.  The lender was cautioned thereby to lend only as much as the borrower could reasonably be expected to repay. 

There are other Biblical references to debt, such as St. Paul's admonition in Romans 13:8; "Strive to owe no debt, except that debt that binds us to love one another."  I have found nothing in any religion that states that owing money to another is "good."  In the Koran, there is a prohibition against lending money at interest.  In most Moslem countries today, Moslems borrow at no interest from "banks of the faithful."

In modern times, lenders do not follow this idea.  In an era where charge cards are sent out through the mail and applications are "pre-approved", creditors lend money without regard to whether or not the borrower can pay it back.  They cover their losses by charging huge rates of interest.  I have seen contracts with interest rates as high as 53%.  In olden days, this was known as usury.  Technically, any lending of money at interest is known as usury.  But, until modern times, it was the money lender, or usurer, that was bad, not the poor person who had to borrow.

Of course, capitalism could not exist without the practice of lending capital and charging interest.  But bankruptcy laws provide a legitimate, legal, and moral safety valve for the excesses of the credit system.  Now, you don't have to join the French Foreign Legion, disappear to Australia, or blow your brains out, to escape from your creditors. Bankruptcy was so important to the Founding Fathers of the United States, that, when the U.S. Constitution was written in 1787, they directed Congress to make uniform bankruptcy laws.  Article III, Section 8 of the United States Constitution states: "Congress shall make uniform laws relating to Bankruptcy."

Bankruptcy is therefore more fundamental to the United States of America than the Bill of Rights, and such things such as freedom of the press, and freedom from unreasonable searches and seizures.

The United States Bankruptcy laws are part of the Federal Code.  They were passed into law by the United States Congress, our elected Senators and Representatives.  All bankruptcy in the United States is governed by federal law, and the procedures are as much a part of our society as lending money at interest.

After the American Revolution, when the first Continental Congress met in 1787, one of the topics debated was whether or not to have a uniform bankruptcy law.  Many of the American settlers had to run from creditors in England.  They had to leave the country to avoid being thrown into debtor's prison.  Each American colony had different laws relating to collection of debts.  Some had provisions that a person could be jailed for debt, and some, like the colony of Georgia, were havens for debtors and had laws which prevented bad treatment of people who owed money.

There was little disagreement between the Founding Fathers of the United States of America, when it came to having a bankruptcy law.  Freedom from debt was important, and so was the ability to start fresh.  Therefore, in the United States Constitution, Article III, Section 8, we find the provision, "Congress shall make uniform laws relating to bankruptcy."

However, the banking lobby was so strong that each state kept their own bankruptcy laws until 1898, when the U.S. Bankruptcy Code was passed.  It was modified greatly in 1978 to deal with the amazing amount of consumer credit, and is constantly being tinkered with by Congress to balance the interests of those who lend money, and those who borrow it.

It is to the advantage of moneylenders, however, to use public relations techniques to convince the public that bankruptcy is bad, and to make it something that  is bad or evil.  I agree that you should not discharge your debts until it is absolutely necessary, but there is certainly nothing wrong or illegal about it.  No one comes out to your house and takes your clothes.  No one paints a big "B" on the sidewalk in front of your house.  In fact, no one is interested.

If you find yourself with no savings, nothing left over after you pay your rent, mortgage, food and utilities, and still have bills to pay, you should consider taking advantage of the fresh start provisions of the bankruptcy law.  Bankruptcy is like getting a fresh start.  Your debts are forgiven, except those that you want to continue to pay, and you can start saving money and doing things the right way, instead of suffering because of the credit trap.

People come into my office and ask, "What will happen to me if I file a bankruptcy?"  No one ever came in, when I used to be a general practice attorney, and said, "What will happen to me if I don't have get convicted for running a red light?"  They never said, "What will happen to me if I sell my house?"  But people who are being chased by bill collectors sometimes feel that they should not be able to get relief and that they will be punished if they get a fresh start.  They do not realize that a big part of bankruptcy laws is forgiveness.

Nothing will "happen" to you if you file a bankruptcy.  You won't suddenly become rich and famous, or popular, or beautiful or handsome, and, on the other hand, you won't suddenly be miserable and an outcast.  One out of every 22 Illinois families will file for some type of bankruptcy relief, on the average, and in some states, the average is higher. 

I'll lose my car.  NO.  The only people who lose cars are those who want to give them back.  We can tell you in advance if there is a problem with your car.  Most people get rid of their bills, but keep their car. 

I'll lose my house. NO. No one files a bankruptcy to lose anything.  Your attorney calculates your net equity in your house and determines what kind of bankruptcy will help you keep your house while dealing with your other bills.  You don't lose your house. 

What about 7 years?  THERE IS NO SUCH THING.  You cannot file another bankruptcy Chapter 7 for 8 years after the last one, but you can start fresh and apply for credit as soon as you are discharged of your debt.  There is no 7 year waiting period to start over. You can apply for new loans even during a bankruptcy. 

If I filed Chapter 7 before, Can I file Chapter 13?     Yes.  No waiting 8 yrs

If I filed Chapter 13 before, Can I file Chapter 7 or another 13?  Yes.  You will need to know the date you filed each case, and whether it was discharged or dismissed.

My credit will be bad.  It probably is now. YOU HAVE TO MUCH CREDIT, NOT GOOD CREDIT. Your credit (ability to borrow more money) is probably bad now, because you have too many bills and are only paying interest.  After a bankruptcy, you have no bills, usually, except house or car payments.  You can start to rebuild your credit.  It won't be good again until you have some money saved, and re-establish a good record of repayment.  Everyone who asks this question has already ruined their credit!  But your "credit" is usually better faster if you filed for some relief under the bankruptcy laws and get rid of your bills and save some money in your bank account. 

I'm afraid. NO.  Bankruptcy proceedings are very low pressure.  Many times, there is not even any appearance in court. 

Everyone will know.  NO.  Except in very small towns, no one cares.  Notice goes to creditors only. 

My credit union will hate me. Sometimes.  If you have a co-signer, you will just keep up your same payments.  If you just have a charge card or personal loan from your credit union, you can stop your payroll deduction, and treat them just like any other creditor.  They have no connection to your employment, other than they may rent space at your place of employment.  I'll never get credit again.   NO.  Unfortunately, there are plenty of finance companies ready to lend you more money as soon as you get a fresh start. 

I'll never be able to buy a home.  NO.  You certainly can't buy one now, can you?  And if you don't get rid of your debt, you never will be able to save the down payment.  Terms are stricter after a bankruptcy, but plenty of people are accepted for home mortgages after bankruptcies.  

The attorney fees are expensive.  NO.  They are often the smallest part of the picture.  The only court cost in a Chapter 7 is $274.00, and we can accept our fees in installments. If you are getting rid of your bills, it will be very easy to pay a lawyer.  Most people open a file with my office with $150 or $200 down, and pay our fees in installments over the next 6 or 8 paychecks. 

I'll never get a bank account. NO.  If you have a checking or savings account now, you can keep it.  If you don't have one, you may have a problem because banks are getting real picky about opening accounts for people with no money.  So if you don't have an account now, we suggest you open one BEFORE you file a bankruptcy. 

It takes a long time.  MAYBE.  Chapter 13 repayment plans last 3 to 5 years, but Chapter 7 proceedings are generally closed within 6 months, so you can start fresh then. 

I can go to just any lawyer and do a bankruptcy.  NO.  Bankruptcy work is generally concentrated among lawyers who do a lot of it, because it requires specialized knowledge.  If the lawyer does not do bankruptcy work every day, he may not want to keep up with the latest developments in the law.  We recommend asking any lawyer you may want to represent you, the questions in our brochure under "QUESTIONS TO ASK YOU LAWYER ABOUT HIS KNOWLEDGE OF BANKRUPTCY" 

Under Chapter 7, you submit a list of your debts, and a list of your assets.  I only file Chapter 7 cases where your assets are exempt from creditors, and you will keep them. After your attorney files this list, or petition, the Clerk of the U.S. Bankruptcy Court sends notice that you will appear at a "meeting of creditors" to testify about your petition.  That meeting is short, your attorney goes with you, and any creditors that want to ask you questions relating to your debt, can do so.  Typical questions are:  "Do you have a car?, What happened to the merchandise you bought?" and How much is your house worth?"  These are questions you have already answered in your petition, so the "meeting of creditors" is often very short and painless.

Next, under Chapter 7, the creditors have 60 days to object to your discharge in bankruptcy.  Your attorney will be working on any deals, or "reaffirmations", which creditors who financed your house or car or other things will want. Then the Bankruptcy Judge will issue a notice of a hearing on these "reaffirmations", at which time you will appear to state that you want to make these deals, and then, the Court will issue a "Discharge", which states that all dischargeable debts are gone.  Of course, debts which are exempted from discharge will remain, such as certain taxes and student loans.

Under Chapter 13, you file a similar list of assets and debts, but at the first meeting of creditors, the purpose is to examine your proposed repayment plan.  After that, the Bankruptcy Judge holds a hearing to approve or "confirm" your plan. Then, you simply make the payments until the plan is complete, and then the Court issues a discharge.

So, while there is ya lot of work in figuring out what to do, preparing your petition, and dealing with your creditors, almost all of that is done by your attorney.  All you have to do is show up where you are supposed to, and, for Chapter 13 cases, make your payments in full and on time.