Chapter 7 Bankruptcy

The answer to this question lies in the answer to a broader question: "What is the ultimate aim of filing for bankruptcy?"

If filing for bankruptcy is an opportunity for a debtor to emerge out of a financial crisis and start afresh, then Chapter 7 of the Bankruptcy Code is the way to achieve this end relatively faster. Under Chapter 7 of the Bankruptcy Code all non-exempt property of the debtor is sold and the proceeds of the same are distributed to the creditors. In most cases where Chapter 7 is brought into force the debtor has no assets to lose, therefore the fresh start takes place relatively faster.

Also known as liquidation or converting assets into money or a straight bankruptcy, Chapter 7 Bankruptcy is the most common form of filing for bankruptcy. This type of bankruptcy filing accounts for as much as 65% of all Consumer Banking filings.

As mentioned before, this is one of the faster ways of starting afresh, and more so if there are no objections from any of the parties involved. Ordinarily, most (if not all) debts would be discharged within months of the attorney filing a bankruptcy petition.

A trustee is appointed who collects all non-exempt property, sells the assets and distributes proceeds from this sale to appropriate creditors. Chapter 7 is different from other bankruptcy filings because the debtor needs to make a payment to the trustee.

Even though in some cases this would mean that you will lose all your assets, this need not always be the case. It is strongly recommended that if you are apprehensive and feel you will lose your assets, discuss the matter with your Bankruptcy Attorney. He will advise you on how to file bankruptcy.

Under Chapter 7 Bankruptcy, the debtor receives a discharge on all dischargeable debts. There are 19 general classes of debt, such as child support, most taxes and student loans that are discharged under Chapter 7 Bankruptcy.

An added advantage with Chapter 7 bankruptcy is that by signing a reaffirmation agreement a debtor can continue to pay for a car loan or a mortgage on their home. This agreement is in place because as per the US Government Bankruptcy Code a debtor could be allowed to retain some or all of his property.

The reverse of this question would be more appropriate to answer. Debtors engaged in business would usually not like the prospects of liquidation and Chapter 11 might be a better option for such individuals associated with corporations and partnerships. Also, individuals with regular income if in a debt situation would be better suited to file a Chapter 13 bankruptcy.

Also, any person who has been granted a Chapter 7 discharge (or completed a Chapter 13 plan) within the last 6 years, cannot file for a Chapter 7 bankruptcy plan.

Before filing, you want to know two things: 1) that your monthly expenses (i.e. rent, phone, medical payments and just about anything else paid by you for the living expenses of you and your family) are more than your monthly net income and 2) that your assets (all property you own at its current market value) are worth less than your liabilities (that is, the debts you presently owe and that you will list in your bankruptcy petition).

The next step in filing a bankruptcy is to have the actual petition prepared. Your bankruptcy attorney will assist you with this. The petition is an extensive document listing all of your income, assets and liabilities as well as other information with respect to your financial history. You must list all of the creditors that you owe money to and want to be discharged from that debt. Any creditor that you do not list will always remain your creditor. For example, you may want to keep one of your credit cards if you do not list that credit card company on your petition then you can continue to use that line of credit (of course, you will continue to make your monthly payments for that credit card). Your petition will be filed in the bankruptcy court for about a $150.00 fee. The moment your petition is filed an automatic stay is in place which means the creditors listed in the petition must stop their collection procedures during your bankruptcy proceeding. Only those creditors you list in the petition will be notified with respect to your filing for bankruptcy. In about 30 days from your filing date, you will be scheduled for a first meeting of creditors (called a section 341 meeting). At that meeting, the bankruptcy trustee (the person from the court) will ask you some questions. The trustee is interested in discovering whether you have any property or assets available for the benefit of your creditors. By law, you are allowed to keep certain property and the trustee's questions are very straightforward and not at all intimidating. When the trustee is finished, your creditors are given an opportunity to speak. If none of your creditors appear then an additional 60 days is set for anyone to make any objections or file any additional papers. If nothing happens in that 60 day period, your bankruptcy will be granted and you will be relieved from all debts listed in your petition. Your bankruptcy attorney will walk you through this process.