About Chapter 7 ...
This chapter is about "liquidating" your non-exempt property.
In chapter 7, the trustee "liquidates" your non-exempt property and uses the money to pay creditors. "Liquidates" means that the trustee takes the property and sells it. Frequently debtors will have NO non-exempt property. In that case, you keep all your property.
Accordingly, potential debtors should realize that the filing of a petition under chapter 7 may result in the loss of property.
Note, however, that chapter 7 will not let you avoid paying a mortgage or a car loan. Those must be paid, even in chapter 7, if you want to keep the property. If you are behind on a mortgage or car loan and want to catch up, chapter 7 is NOT for you! A chapter 7 bankruptcy case does not involve the filing of a plan of repayment as in chapter 13. Instead, the bankruptcy trustee gathers and sells the debtor's nonexempt assets and uses the proceeds of such sales to pay creditors in accordance with the provisions of the Bankruptcy Code.
Chapter 7 Eligibility
To qualify for relief under chapter 7 of the Bankruptcy Code, the debtor may be an individual, a partnership, or a corporation or other business entity. One of the primary purposes of bankruptcy is to discharge certain debts to give an honest individual debtor a "fresh start." The debtor has no liability for discharged debts. In a chapter 7 case, however, a discharge is only available to individual debtors, not to partnerships or corporations. Although an individual chapter 7 case usually results in a discharge of debts, the right to a discharge is not absolute, and some types of debts are not discharged. Moreover, a bankruptcy discharge does not extinguish a lien on property (such as an attachment or execution) unless the bankruptcy judge issues a specific order regarding the lien. Sometimes a creditor will try to convince the judge that a particular debt should not be discharged. We will help you if that situation arises.
How Chapter 7 Works
A chapter 7 case begins with the debtor filing a petition with the bankruptcy court serving the area where the individual lives, or where the business debtor is organized or has its principal place of business or principal assets. Debtors must also provide the assigned case trustee with a copy of the tax return or transcripts for the most recent tax year as well as tax returns filed during the case (including tax returns for prior years that had not been filed when the case began). Individual debtors with primarily consumer debts have additional document filing requirements. They must file: a certificate of credit counseling and a copy of any debt repayment plan developed through credit counseling; evidence of payment from employers, if any, received 60 days before filing; a statement of monthly net income and any anticipated increase in income or expenses after filing; and a record of any interest the debtor has in federal or state qualified education or tuition accounts. A husband and wife may file a joint petition or separate individual petitions. Even if filing jointly, a husband and wife are subject to all the document filing requirements of individual debtors.
The courts charge a fee of $335, which can be paid in installments or can be waived in certain circumstances.
The Bankruptcy Code allows an individual debtor to protect some property (that is, to claim it as exempt) from the claims of creditors and from the trustee. Many states have taken advantage of a provision in the Bankruptcy Code that permits each state to adopt its own exemption law in place of the federal exemptions. In other jurisdictions, the individual debtor has the option of choosing between a federal package of exemptions or the exemptions available under state law. Thus, whether certain property is exempt and may be kept by the debtor is often a question of state law. The debtor should consult an attorney to determine the exemptions available in the state where the debtor lives.
Filing a petition under chapter 7 "automatically stays" (stops) most collection actions against the debtor or the debtor's property. But filing the petition does not stay certain types of actions, such as criminal prosecution, and the stay may be effective only for a short time in some situations. The stay usually arises by operation of law and requires no action by a judge unless you've filed more than one case in a year. As long as the stay is in effect, creditors generally may not initiate or continue lawsuits, wage garnishments, or even telephone calls demanding payments. The bankruptcy clerk gives notice of the bankruptcy case to all creditors whose names and addresses are provided by the debtor.
Between 20 and 40 days after the petition is filed, the case trustee (described below) will hold a meeting of creditors. The debtor must attend the meeting and answer questions regarding the debtor's financial affairs and property. If a husband and wife have filed a joint petition, they both must attend the creditors' meeting and answer questions. The case trustee and the US Trustee will review the papers we filed and decide whether a chapter 7 discharge is appropriate.
It is important for the debtor to cooperate with the trustee and to provide any financial records or documents that the trustee requests. The Bankruptcy Code requires the trustee to ask the debtor questions at the meeting of creditors to ensure that the debtor is aware of the potential consequences of seeking a discharge in bankruptcy such as the effect on credit history, the ability to file a petition under a different chapter, the effect of receiving a discharge, and the effect of reaffirming a debt. Some trustees provide written information on these topics at or before the meeting to ensure that the debtor is aware of this information. In order to preserve their independent judgment, bankruptcy judges are prohibited from attending the meeting of creditors.
In order to provide the debtor complete relief, the Bankruptcy Code allows the debtor to convert a chapter 7 case to case under chapter 11, 12 or 13 as long as the debtor is eligible to be a debtor under the new chapter. However, a condition of the debtor's voluntary conversion is that the case has not previously been converted to chapter 7 from another chapter. Thus, the debtor will not be permitted to convert the case repeatedly from one chapter to another.
Role of the Case Trustee
When a chapter 7 petition is filed, the U.S. trustee (or the bankruptcy administrator in Alabama and North Carolina) appoints an impartial case trustee to administer the case and liquidate (sell) the debtor's nonexempt assets. If all the debtor's assets are exempt or subject to valid liens, such as mortgages, the trustee will normally file a "no asset" report with the court, and there will be no distribution to unsecured creditors. Most chapter 7 cases involving individual debtors are no asset cases. But if the case appears to be an "asset" case at the outset, unsecured creditors must file their claims with the court within 90 days after the first date set for the meeting of creditors unless otherwise ordered by the court. A governmental unit, however, has 180 days from the date the case is filed to file a claim. In the typical no asset chapter 7 case, there is no need for creditors to file proofs of claim because there will be no distribution. If the trustee later recovers assets for distribution to unsecured creditors, the Bankruptcy Court will provide notice to creditors and will allow additional time to file proofs of claim. Although a secured creditor does not need to file a proof of claim in a chapter 7 case to preserve its security interest or lien, there may be other reasons to file a claim. A creditor in a chapter 7 case who has a lien on the debtor's property should consult an attorney for advice.
The primary role of a chapter 7 trustee in an asset case is to liquidate the debtor's nonexempt assets in a manner that maximizes the return to the debtor's unsecured creditors. The trustee accomplishes this by selling the debtor's property if it is free and clear of liens (as long as the property is not exempt) or if it is worth more than any security interest or lien attached to the property and any exemption that the debtor holds in the property. The trustee may also attempt to recover money or property under the trustee's "avoiding powers." The trustee's avoiding powers include the power to: set aside preferential transfers made to creditors within 90 days before the petition; undo security interests and other prepetition transfers of property that were not properly perfected under nonbankruptcy law at the time of the petition; and pursue nonbankruptcy claims such as fraudulent conveyance and bulk transfer remedies available under state law. In addition, if the debtor is a business, the bankruptcy court may authorize the trustee to operate the business for a limited period of time, if such operation will benefit creditors and enhance the liquidation of the estate.
The Chapter 7 Discharge
A discharge prevents the creditors from taking any collection actions against the debtor. Because a chapter 7 discharge is subject to many exceptions, though, debtors should consult competent legal counsel before filing to discuss the scope of the discharge. Generally, excluding cases that are dismissed or converted, individual debtors receive a discharge in about 99 percent of chapter 7 cases. In most cases, unless a party in interest files a complaint objecting to the discharge or a motion to extend the time to object, the bankruptcy court will issue a discharge order relatively early in the case – generally, 60 to 90 days after the date first set for the meeting of creditors.
The grounds for denying an individual debtor a discharge in a chapter 7 case are narrow and are construed in the debtor's favor, usually. Among other reasons, the court may deny the debtor a discharge if it finds that the debtor: failed to keep or produce adequate books or financial records; failed to explain satisfactorily any loss of assets; committed a bankruptcy crime such as perjury; failed to obey a lawful order of the bankruptcy court; fraudulently transferred, concealed, or destroyed property that would have become property of the estate; or failed to complete an approved instructional course concerning financial management.
Secured creditors may retain some rights to seize property securing an underlying debt even after a discharge is granted, by way of foreclosure or repossession. Depending on individual circumstances, if a debtor wishes to keep certain secured property (such as an automobile), he or she may decide to "reaffirm" the debt. A reaffirmation is an agreement between the debtor and the creditor that the debtor will remain liable and will pay all or a portion of the money owed, even though the debt would otherwise be discharged in the bankruptcy. In return, the creditor promises that it will not repossess or take back the automobile or other property so long as the debtor continues to pay the debt.
If the debtor decides to reaffirm a debt, he or she must do so before the discharge is entered. The debtor must sign a written reaffirmation agreement and file it with the court. The Bankruptcy Code requires that reaffirmation agreements contain a long list of disclosures. Among other things, the disclosures must advise the debtor of the amount of the debt being reaffirmed and how it is calculated, and that reaffirmation means that the debtor's personal liability for that debt will not be discharged in the bankruptcy. The disclosures also require the debtor to sign and file a statement of his or her current income and expenses which shows that the balance of income paying expenses is sufficient to pay the reaffirmed debt. If the balance is not enough to pay the debt to be reaffirmed, there is a presumption of undue hardship, and the court may decide not to approve the reaffirmation agreement.
An individual receives a discharge for most of his or her debts in a chapter 7 bankruptcy case. A creditor may no longer initiate or continue any legal or other action against the debtor to collect a discharged debt. But not all of an individual's debts are discharged in chapter 7. Debts not discharged include debts for alimony and child support, certain taxes, debts for certain educational benefit overpayments or loans made or guaranteed by a governmental unit, debts for willful and malicious injury by the debtor to another entity or to the property of another entity, debts for death or personal injury caused by the debtor's operation of a motor vehicle while the debtor was intoxicated from alcohol or other substances, and debts for certain criminal restitution orders. The debtor will continue to be liable for these types of debts to the extent that they are not paid in the chapter 7 case. Debts for money or property obtained by false pretenses, debts for fraud or defalcation while acting in a fiduciary capacity, and debts for willful and malicious injury by the debtor to another entity or to the property of another entity will be discharged unless a creditor timely files and prevails in an action to have such debts declared non dischargeable.
The court may revoke a chapter 7 discharge on the request of the trustee, a creditor, or the U.S. trustee if the discharge was obtained through fraud by the debtor, if the debtor acquired property that is property of the estate and knowingly and fraudulently failed to report the acquisition of such property or to surrender the property to the trustee, or if the debtor (without a satisfactory explanation) makes a material misstatement or fails to provide documents or other information in connection with an audit of the debtor's case. There is a time limit for such requests, however.
We will help you determine what property you can claim as exempt, and help you keep as much property as possible.
You usually can't use chapter 7 to get out of a mortgage and still keep the property.
Anybody can file a chapter 7 bankruptcy case. Not all debts are discharged however, such as taxes and student loans.
A chapter 7 case requires that we gather information about all of your debts, your property and your budget. This will include your tax returns for the last three years and your income and expenses for the last six months.
Credit counseling is required before filing! Contact us for the name of a licensed counselor. Not all "counselors" are licensed to provide bankruptcy counseling.
We will help you maximize your exemptions to keep as much property as possible.
Filing a bankruptcy petition halts most collection activity, including home mortgage foreclosures. In chapter 7, however, the foreclosure generally will be allowed to resume if you don't continue to pay the mortgage. The same is true of car loans; the bank will be permitted to reposess the car if you don't pay. We may be able to help you reduce the amount you pay, however.
You must attend a meeting with the trustee. We will go with you, of course.
If there is a problem, we will help you solve it.
Complete honesty and full disclosure is required! If you don't comply with that requirement, the consequences of failing to comply with the rules can be drastic!
A bankruptcy case is included in your credit report for about ten years.
If necessary, you can usually (but not always) convert the case to chapter 13. This would be appropriate if you got behind on a mortgage or car loan and want to try to solve the problem without filing a new bankruptcy case.
The case trustee generally supervises the administration of the case. The case trustee collects and sells your non-exempt property.
The bankrutpcy judge can deny you a discharge if you abuse the system or do not follow the rules.
If you have a mortgage or car loan, you will have to continue to pay it if you want to keep the property.
Sometimes, in special cases, you can agree to continue to be legally responsible for paying a debt, if the judge permits it. This is called "reaffirmation" of the debt. We don't usually recommend this because you can voluntarily repay any debt. The discharge prevents the creditor from collecting, not you from paying if you want to.
Chapter 7 generally does not discharge taxes, student loans, alimony or child support!
If you get a discharge but they find out later that you have abused the system, the judge could revoke the discharge!
Click here to return to our Home Page.
This information is a General Summary only; your circumstances may be different. No legal advice is intended nor offered on this page or this website. Consult an attorney if you have questions!
Call us today!
Law Office of David G. Baker - 236 Huntington Avenue - Boston, MA 02115 - 617-340-3680