Northern California Bankruptcy Lawyer

On The Bankruptcy Soapbox

The Soap Box

Is It Safe To File Corporate Bankruptcy? 5 Questions To Ask

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risk of business bankruptcy

When your incorporated business fails,  you personally may still be  at risk.

I know you incorporated to separate yourself as the owner from the risks of the business.  The corporation is a separate legal person, distinct from the individuals who own the stock in the corporation.

But when the business has to shut down, the actual degree of separation is tested.

You need to know if the business can safely file bankruptcy.

Or, will using bankruptcy to shut down the business drag the owners down as well?

Can this corporation safely file bankruptcy?

Businesses looking to go out of business typically file Chapter 7.  The business closes, a trustee is appointed, and any valuable assets are sold for the benefit of creditors.

The trustee then controls the corporate checkbook and the timeline on which creditors get paid through the courts.

Bankruptcy trustees are further empowered to recover money paid by the debtor corporation where the transfer is a preference or a fraudulent transfer.  That’s the beginning of the complications in a business Chapter 7.

Before choose bankruptcy as the method for winding down, consider these five potential complications.

1.   Owe payroll taxes?

Corporate officers may have personal liability to the IRS and any state taxing authority for amounts withheld from the paychecks of employees.  Liability may extend to anyone with signature authority on the corporate bank account

This liability exists whether the corporation files bankruptcy or winds down outside of bankruptcy.

More about “borrowing” from Uncle Sam

Filing corporate bankruptcy may preserve assets from other aggressive creditors from which those taxes can be paid.  That benefits the individual officers, since every dollar the trustee pays on payroll taxes reduces what they’ll have to pay.

But bankruptcy empowers the trustee to hire professionals, investigate the debtor’s books, and pursue recovery of money owed to the corporation, either under state law, or under bankruptcy law.

The expenses of that pursuit are paid ahead of the priority taxes.

Thus a bankruptcy filing could work to shrink the pool of money for payment of payroll taxes, and drag out the time before payment is made.

2.  Made guarantees?

Landlords often require the personal guarantee of the individual shareholders before they commit to a real property lease for the corporation.  Or the lease may have been in the shareholder’s name from the start.

Any individual guarantor on a lease gets no protection from his obligations to the landlord when the tenant corporation files bankruptcy.

A bankruptcy trustee calls the shots when a corporation files Chapter 7.  He’s got the keys.

Trustees are usually quick to either vacate the premises or surrender it back to the landlord, freeing the landlord to look for new tenants.

But  pre bankruptcy lease arrears have no priority for payment in the bankruptcy case.  If there is a dividend payable to the landlord, it may be small and far in the future.  The individual is on the hook in the mean time.

3.  Used corporate credit cards ?

Almost without exception, some living, breathing human being is personally liable for every credit card.  Even if the card has the business name embossed on it, the application for that card undoubtedly contains a promise of the owner to pay the card issuer.

So, any liability of the individuals on the credit card won’t be eliminated by the business’s bankruptcy.

It can get worse:  the corporation may not, in fact, be liable at all on the card.  Not all “business credit cards” are really issued to the business. They’re issued to the people who run the business.

Filing bankruptcy doesn’t make the situation worse:  if the corporation is liable and if there are assets to pay creditor claims, the credit card folks get something toward the balance.  Only it’s a long time down the road.

4.  Benefited from paying the bills?

File bankruptcy for the business, and you may get yourself sued by the trustee for an avoidable preference.

When you and the business are jointly liable for a debt, every payment the business makes on that debt reduces your personal exposure to the creditor.  And that, in the eyes of the law, is a preference.

Payments the business made on the joint debt benefit you.  If other bills weren’t getting paid, we have an unfair discrimination between creditors of the business.  The trustee is authorized to sue you to make it more fair to other creditors.

The problem of preferences is the only item on this list of complications that is unique to bankruptcy.  Depending on the facts of the business’s operation, filing a Chapter 7 may just invite a lawsuit against you as the shareholder.

5.  Enjoyed  business help with personal expenses?

The more corporate money that flowed to insiders, the greater the threat that a bankruptcy trustee will challenge the payments,.

“Challenge” here is shorthand for “sue you”, or at least look hard at expenditures that made life easier for shareholders at a time when other creditors weren’t getting paid.

Often, the facts are just the opposite:  the shareholders were putting more money into the corporation, or going without to keep the business afloat.

But the idea of a fraudulent transfer, a payment for which the payor did not get a fair return for its money, has a long lookback period.  A bankruptcy trustee could be looking back years to see if the shareholders got more than was fair under fraudulent transfer law.

And if the books and records are sketchy, the shareholders may end up spending lots of time producing documents or explaining what happened.

Even if the end result is OK, the experience can be unnerving.

The bankruptcy takeaway

How to close out a failed corporate business can be complex.  While I’ve listed the ways a corporate bankruptcy might end up biting the shareholders, the benefits can be equally significant.

File bankruptcy and much of the wind down work passes to the trustee.  The business creditors understand there is nothing available to pay their claims against the corporation.  Assets are distributed in an orderly and predictable manner.

Before you file bankruptcy for a corporation, make sure you’ve asked yourself the five questions I’ve laid out.  Take your answers to experienced bankruptcy counsel for a review.

More

Winding up a failed business

 

Bankruptcy Discharge Slays IRS Form 1099

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In a duel between a Form 1099 and a bankruptcy discharge, bankruptcy wins every time.

The prize?  no tax on debt discharged in bankruptcy.

So, if you’ve already gotten your discharge, the creditor’s 1099, with your social security number on it, is no threat.

But you do need to file another form to secure the prize.

Bankruptcy is exception to tax

Normally, when an obligation is forgiven, the tax code treats the amount of forgiveness as if it were income.  And income is exposed to tax.

Insolvency is another exception to tax on forgiven debt

But forgiveness in bankruptcy in the first exception to the rule.

Debt forgiven in bankruptcy is not treated as income.

Creditor is clueless

So, if bankruptcy is outside the IRS rule, why are you getting a form 1099?

Because there’s another rule, requiring creditors to report to the IRS, just the way your employer is required to send the IRS your W-2.

And seemingly, the creditor can’t figure out that the reason its claim is worthless is because of the bankruptcy discharge.  So it’s easier for the creditor to just send out Form 1099, and make it your problem.

Fixing the 1099 problem

The solution is simple:  file IRS form 982.

Title 11 is the part of the United States Code on bankruptcy.  Cases are filed under different chapters of that title

Form 982 is your rebuttal to the report that you have taxable income because your debt was forgiven.  Check the very first box on the form claiming the bankruptcy exception.

This debt is excluded from income because of  Discharge of indebtedness in a title 11 case 

The IRS provides a set of instructions for filing  your “get out of tax” form.  Form  982 Instructions.

Other tax consequences of discharge

If you have real property, you may have to reduce your basis in assets by the amount of debt discharged in your bankruptcy.

But thankfully, there is an exception to this rule too:  no reduction in basis is required with respect to your principal residence claimed exempt in your bankruptcy case.  IRC 1017(c).

Tax action plan

So there you have the skinny on form 1099 and your bankruptcy discharge.

Bankruptcy has other tax implications:

Taxes dischargeable in bankruptcy

Unfiled tax years are never dischargeable

Chapter 13 gets an interest-free tax repayment plan

Your accountant needs to know about your bankruptcy

What to do with a flat-wrong 1099

 

Five Tax Tips For Two Cents

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8328967338_37e260ff6b_h_optThe tax filing deadline approaches.

So why is a bankruptcy lawyer talking about taxes?

I’ve found over three decades as a bankruptcy lawyer that there’s a surprising degree of overlap between bankruptcy and tax .

All too often, it’s tax troubles that brings a family to me for help.

Here’s my two cents on what I know about taxes.  It’s not a lot, but what I know is both simple and critical.

File those tax returns

Lots of folks who end up in my office discussing bankruptcy held off filing their returns because they figured they couldn’t pay the tax that would be due.

Bad decision.

Without a return, taxes never die

The IRS will not descend on you the week after you file a return with tax due but no check.  They’re still opening envelops.

But filing a return gets all kinds of time periods running that may benefit you:  the 3 years til the taxes are dischargeable in bankruptcy;  the 10 years til the tax collection statute runs.

Whatever you do, don’t let the IRS file a tax return for you.

Don’t pay tax on discharged debt

If your debts were discharged in bankruptcy last year, that discharge has no tax consequences.

The Internal Revenue Code specifically excludes from taxable income any debts forgiven in bankruptcy.

Cancellation of debt is tax free

You may get a 1099 reporting the cancelled debt.  The creditor whose debt is forgiven is required to do so.

It’s up to you to assert that there’s an exception to tax.  And there’s an IRS form to rebut any tax consequences.  Get it and file it.

Claim deductions for Chapter 13 payments

If you’re in a Chapter 13 that catches up arrearages on real property loans, claim those payments as deductions of your own.  Just because the trustee writes the check, it’s still you paying the mortgage interest in that payment.

How to find and claim the deduction

The concept here goes beyond mortgage interest.  If the expense was deductible had you written the check, it’s deductible if the trustee pays it.

Get the trustee’s disbursement records in your case from  the trustee’s web site and get to deducting.

If you owe tax, fix your withholding

The return to be filed this spring can tell you if you are withholding enough money to pay your taxes.

If there’s a big number on the bottom line of the return for last year, and this year looks similar, increase your withholding now.

What Goldilocks knew about taxes

And if you think you can’t pay taxes as you go and support the rest of your living expenses, you need to look hard at the big picture.

It’s generally a poor decision to short the feds so you can pay AmEx or Visa.

Amend old returns if you missed something

If you missed a deduction or otherwise overpaid your taxes in a previous year, you have only three years to amend that return and claim a refund.

Time running out to claim prior year tax breaks

Lower income families often miss the fact that they get a tax credit (that’s real money, not just a deduction) under the Earned Income Tax Credit.  Find out if you are eligible.

More

Discharging taxes in bankruptcy

The tax filing extension can be dangerous

Wiping out tax liens

Find The Right Cure for Your Debt Problems

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Get-out-of- debt advice and sales pitches abound.

Like this one.

But no one tells you that you need a diagnosis of your financial ills before prescribing the cure.

Is the stomach ache indigestion or appendicitis?

Is it temporary upset or a life threatening money pit?

The answer makes a big difference in how you treat it.

No single prescription

A doctor treating your illness wants to know your age, your medical history, other medical conditions along with your symptoms.

Same sort of questions arise if debt is what ails you.

  • Age
  • Dependents
  • Current income
  • Assets
  • Debt total

All of those factors interact to shape a treatment plan for debt.

If you are on the cusp of retirement, you don’t have time to tackle big debt by cutting out frills in the budget.

If you are young, single, suitably employed, the prescription may be different.

So don’t take to heart every buckle-down-and-pay scheme you find on the internet.

Too little, too late

Most get-out-of-debt advice is better suited for living economically after you’ve solved the debt problem.

Fewer lattes, more eating at home, less entertainment spending.

Compare bankruptcy with payment plans

That may work to get out of debt if you have time, discipline, and modest debt to start with.

But the starting point is comparing your income to your debt, in light of your fixed expenses.

How big is the problem?  To bring it down, do you require a pellet gun or a bazooka?

How precarious are things

The final question is how risky is the treatment?

Think of the endless lists of common side effects and serious complications listed with every medicine you take.

When the ailment is debt, the risk is living with no reserves.  A recent study found 40% of Americans couldn’t pay for a $400 emergency without borrowing.

Four hundred dollars isn’t much in this economy.  Yet a $400 expense would imperil a huge swath of our citizens.

It’s easy to fool yourself into thinking that you aren’t likely to face an emergency.  Yet, look at this list of pretty mundane things that require a $500  fix.

None of those are so far fetched that they couldn’t happen to any of us.

So living without a financial safety net in order to pay of big debt is big-time risky.

Here’s a further discussion of  my diagnostic of your debt alternatives:  when to hold and when to fold.

 

 

Who To Pay After Bankruptcy

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bills after bankruptcy

You’ve filed bankruptcy.

Your creditors are stayed.

A bankruptcy discharge is ahead.

You’re out from under unrelenting pressure to pay creditors.

But don’t let your sense of relief keep you from planning:  who should you pay now that you’re in bankruptcy?

Paying bills after filing bankruptcy

Two legal realities drive who needs to be paid going forward:

  1.   Not all debts are discharged in bankruptcy
  2.   Liens survive bankruptcy, unless there’s a court order otherwise.

Is this debt discharged?

The scope of the bankruptcy discharge is different in Chapter 7 and Chapter 13.

The list of exceptions to discharge that apply in Chapter 7 is longer.  Chapter 13 discharges more debts, but the discharge isn’t effective until the last plan payment is made.

Child and spousal support are not dischargeable in any chapter of bankruptcy.  To the extent not paid in the case, your obligation for delinquent and future support continues.

Student loans are the other blockbuster debts that survive a discharge in either 7 or 13.

Recent taxes are the third common debt excluded from the discharge.

Is the debt secured by a lien?

The discharge wipes out your personal liability for dischargeable debts.  But any lien associated with the debt survives as a charge on property you owned before filing.

So, you need to decide whether this is an asset 1) you want to keep, and 2) is the creditor likely to enforce the lien if you don’t pay?

If you are surrendering real property or a car you can’t really afford, don’t pay because you don’t intend to retain the asset.  If it’s a tax lien that attaches only to your household goods, it’s probably safe to not pay.  The IRS isn’t interested in your dirty socks.

However, if it’s your home or the car that gets you to work every day, then you want to stay current or get current, lest the creditor enforce the lien.

More money, less information

One of the exceptionally frustrating things about filing bankruptcy is that even when you want to keep paying on your home or your car, the creditor doesn’t send a statement so you know when and how much to pay.

While I rail about the insanity of the situation, the creditor who stops sending statements is generally just playing it safe.  Send a statement and you can be accused of violating the automatic stay or the discharge injunction.

Ask the creditor to send statements.  Ask your bankruptcy attorney to get court permission for the sending of statements.

And even if the creditor doesn’t make it easy, be persistent.  You care about keeping your stuff far more than the creditor cares about your convenience.

Most banks terminate automatic payment arrangements or even access to online banking when you file.  Make sure that you are watching your accounts and monitor whether things you want paid are getting paid.

Make and keep a record of having paid;  creditors are notorious for misapplying or not applying payments.

Being “in bankruptcy”

If you filed Chapter 7, I gotta tell you :  there’s no “there there” in bankruptcy.  Chapter 7 is more like an event than like a place.

You file your case:  it affects those you owe when you file, and encompasses what you own at the moment when you file.

There are a couple more steps to take between filing and getting your discharge.  You must appear at the first meeting of creditors; cooperate with the trustee in your case; and complete debtor education.

The trustee may be the nominal owner of your assets until your exemptions become final.  But most Chapter 7 cases are no asset cases where the trustee never takes possession of a single asset.

And whatever you earn after the day on which you file is yours to spend however you choose.

For the vast majority of debtors, life is largely unaltered by filing.  You aren’t really “in” anything.

So, you are both free to, and expected to, continue to make payments on secured debts where you’re keeping the collateral.  If you need to reaffirm a car loan, one of the first questions the judge often asks is whether you are current on payments.  If you want the judge’s approval of the reaffirmation, your answer needs to be “yes”.

You likely want to keep making payments on support obligations and student loans.  If you have taxes that will survive the bankruptcy, nothing prevents you from making payments that chip away at the non dischargeable taxes.

Paying in Chapter 13

Who to pay in Chapter 13 is more complicated.  You start by reading and understanding the plan that you have filed in your case.

It will tell you whether you pay your mortgage directly yourself or pay it through the Chapter 13 trustee.

If you’re in doubt, ask your attorney.

Nothing good happens when you ignore your plan

I’ve encountered more than a couple of Chapter 13 debtors recently who didn’t understand how the mortgage was to be paid, going forward.  A couple of others assumed that in the absence of monthly statements, it was being taken care of.

Not so.

Unless, of course, your plan provides for stripping off a lien.  If a lien is stripped, at best that creditor is treated as a general unsecured creditor.

If in doubt, ask your attorney.

Your plan undoubtedly provides for payment by the trustee of any amounts you owe for taxes as of the filing of your case.  ‘

But your plan deals only with tax years that are complete when you file.  You are expected to pay directly and in full any taxes that come due in the year in which you file your case and years after.

Using taxes to pass the means test

Failure to stay current on taxes is grounds for dismissal of your Chapter 13 case, even if your payments to the trustee are fully current.

Pay yourself after bankruptcy

For me, one of the most compelling reasons to file bankruptcy, even when there is no crisis, is to free up money to provide for your old age.

You do expect to live to a ripe old age, don’t you?

To age in comfort and independence, it requires money.  And Social Security won’t do it:  the average Social Security check is under $1300/month.

Start immediately after filing setting aside money from each paycheck.  Save before you pay anyone else, not after.

Empowering retirement savings is the unsung benefits of bankruptcy.

The Most Powerful Debt Management Tool

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black box croppedThe most powerful debt management tool isn’t a software program.

It isn’t a website, nor a consulting firm.

It isn’t even a calculator.

The most powerful debt management tool is a letter opener.

  • letteropener_tobyotter_FlickrIf you don’t open the mail, you don’t really know where you stand with your creditors.
  • If you don’t open the mail, you don’t know that your lender has instituted foreclosure proceedings.
  • If you don’t open the mail, you don’t know that you’re overdrawn at the bank or over limit on your credit card.

Or, less threateningly, that the lender has transferred the servicing of your loan.

You don’t know anything about your situation except that you are in trouble, if you don’t open the mail.

Now, there is another step:  you need to read what’s in the envelope.

The envelope, please

I know confronting what you owe and your sense that there’s little you can do about it increases your stress.

But, the dunning letter or the lawsuit isn’t itself dangerous.

Creditors don’t lace their missives with ricin or anthrax.  They need you alive to pay them!  They hope, anyway.

What you’re trying to avoid by not opening the mail, or worse, tossing it out, is facing your situation.

What you don’t know can hurt

Ignoring what’s in the mail can make the situation worse.

The only situation in which we throw people in jail for not paying their ordinary bills is when they’ve gotten a court order requiring their appearance and they ignore it.

You’ve got to open up the mail to know if you are at risk.

My friend Jay Fleischman tells a marvelous story of a doctor and the doctor’s lawyers who didn’t open the mail nor read what was inside.  Instead of collecting money from Jay’s client, they ended up paying Jay’s client $20,000 for ignoring the court-ordered bankruptcy stay.

Fight or flee

Whether the solution to your debt problems is a payment plan or a bankruptcy filing, you need to know who you owe money to and where they get their mail.

All that’s contained in your mail.

So, open the mail, know whether there’s a situation that requires your attention.  Then if you want to put the opened mail in a shopping bag to bring to your bankruptcy attorney, that works.

Just don’t show up in my office, deep in debt, and not be able to tell me who to notify about your bankruptcy case.

More

How to weigh whether to file bankruptcy

How to interview a bankruptcy lawyer

The life-threatening cost of stress

Image of black box courtesy of Thierry Ehrmann and Flickr.

Image of letter opener courtesy of tobyotter and Flickr.

Who Owns Your Business When You File Bankruptcy?

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business bankruptcy

The bankruptcy trustee’s question was straightforward (if inartful) yet the business owner nearly blew the answer.

The trustee asked:  are you the sole owner of your business?

When my client hesitated, she followed up:  are you a sole proprietor?

Focusing on the fact that he was the only person with an interest in the business, he said yes.

Wait a minute, was my response. That’s not so.

It took several minutes of sworn testimony at the first meeting of creditors to sort the matter out.

Who owns the corporate business

We were once again experiencing the phenomenon of the shape-shifting business owner.  The businessman had, in his mind, morphed into a sole proprietor rather than a stockholder.

The debtor was the sole owner of the corporation that owned and operated the failed business.

He was correct that no one else had an interest.  He skipped over the part that it was another legal entity, his corporation, that actually owned the assets and owed the debts of the business.

He owned the corporation that owned the business.

Why it matters

A sole proprietor owns a business as a personal asset.  In law, he owns the assets of the business and is liable for its debts.

A sole proprietorship has no legal existence separate from the owner.  The proprietorship may adopt a fictitious business name, but behind that dba is the individual who owns and operates the business.

So, if my client were a sole proprietor, the inventory of the business would have been an asset of the bankruptcy estate created when he filed bankruptcy.  The business bank accounts would fall to the control of the trustee.

When a corporation is created, it becomes a legal entity distinct from the individuals who own the shares in the corporation.  The corporation can have its own debts and its own funds that don’t belong directly to the shareholders.

That’s why business people incorporate:  to create a legal “person” that can take risks without exposing the shareholder’s other assets to that risk.

When my client filed his Chapter 7 case, his stock in the corporation was an asset of the bankruptcy estate, but not the business itself.  The business was owned and operated by the corporation.

Since the corporation had tons of debts, the stock that the bankruptcy trustee could administer had no net value.  That’s because, equity holders get money when a corporation liquidates only after creditors of the corporation have been paid off.

The takeaway

The first meeting of creditors in a bankruptcy case is the trustee’s opportunity to gather more information about what the debtor owns and owes.

Once you focus on what the trustee needs to get from the meeting, it’s easier to answer correctly and avoid the confusion that happened in my case.

When confusion ensues, it’s important to sort it out on the spot.

And that’s how I earned my keep in this case.

More

Rules for testifying at a bankruptcy hearing

How corporate officers can avoid personal liability

When a business needs to wind down

Myth Of The Corporate Credit Card

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business credit cardAs far as myths go, the myth of the business credit card ranks right up there with  unicorns, Big Foot, and leprechauns .

Every struggling small business owner who crosses the threshold of my office believes that his corporate credit card is not a personal debt.

Wrong.

In 39 years of bankruptcy practice, I have never seen a credit card for which a living, breathing human being was not liable.  Not one.

The card may have the corporate business name on it.  Mine says  Cathleen Moran, Moran Law Group.  

But in fact, my corporation is not even jointly liable with me on that card.  It’s just me on the hook.

Which is scary given that these “business” cards are marketed as another form of business financing.  Their debt limits are easily five figures and many businesses have a drawer full of them.

The 23% business loan

What is insidious about business credit cards is their impact on the likelihood of a small business using them becoming profitable.

Just like the consumer credit card, business folks are conditioned to think they’re doing OK in business if they make regular payments on the 23% loan they have from Big Bank on the card.

But it takes a hell of a business to pay 23% for seed capital and make a profit.

Yet few business plans look at the cost of funds when assessing how they’re doing.

Business cards when business craters

There’s a perverse “benefit” to the fact the business isn’t liable for the credit card if the corporate business gets in financial trouble.  The card isn’t a debt of the corporation.

More times than I can count, the corporate business can continue on, assuming that there is a path forward, and the shareholder can file bankruptcy and ditch the credit card balance.

The corporation is a separate legal person and the bankruptcy of its shareholder doesn’t directly impact the corporation.  And it’s far easier and cheaper to reorganize the financial affairs of the shareholder in Chapter 13 than it is to reorganize a corporation in Chapter 11, the only form of bankruptcy that gets a corporation a discharge.

Now, the business has to have a plan for funding operations without the shareholder’s credit cards.  But, if we face the fact that the business doesn’t have to service that debt either going forward, the numbers may look different.

Seems there are two sides to every coin, and every card.

More

“B” is for business in my Bankruptcy Alphabet

How to sign the corporation’s name

Your business needs a prenup

Draft an enforceable contract without a lawyer

Ten Debts That Follow You After Bankruptcy

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debts after bankruptcy

Some debts just follow you out of bankruptcy.

Not many but a few.

These debts continue to be collectible even after a Chapter 7 discharge.  The discharge in Chapter 13 is different and broader:  just another reason to choose Chapter 13.

1.   Family support

Regardless of what it’s called, court ordered payments for support of children or spouses

2.   Recent taxes

Income taxes for tax years  more than three years old, counting from when the return was due

3.   Taxes still assessable

The IRS ability to assess additional tax survives if the tax year was still assessable at filing

4.   Taxes for unfiled years

The clock doesn’t run on tax discharge until an honest return is filed.

5.   Payroll taxes

The trust portion of payroll taxes, federal and state:  that’s what the employer withholds from employee checks

6.   Judgments for drunk driving

Liability for death or personal injury from impaired operation of a vehicle

7.   Debts to spouse or child from divorce

Debts to your own lawyer do get wiped out

8.   Student loans

Unless you file suit in the bankruptcy and prove repayment is an undue hardship

9.   Money borrowed to pay non dischargeable tax

No paying taxes with a loan you want to discharge.

10.  Penalties to governments

This covers fines, penalties and forfeitures that are intended to punish not compensate

Non dischargeable if….

Three additional categories of debts survive bankruptcy only if the affected creditor successfully jumps through some legal hoops in the bankruptcy case.

Debts incurred by fraud; debts for conversion or breach of fiduciary duty; and debts for deliberate injury to person or property require the victim to file suit and prove the operative facts.

There’s a short period for filing a non dischargeability action and the presumptions operate in favor of the debtor.  But if the creditor can establish the bad behavior of the debtor that created the debt, public policy says we don’t want to shelter bad actors.

It’s important to understand that the debt must have been incurred by the bad behavior;  just trying to evade payment of an honestly incurred debt doesn’t make it non dischargeable, in most instances.

Liens survive unless…

How to get rid of liens through bankruptcy

While a bankruptcy discharge wipes out your personal liability for discharged debts, a lien on property you owned when you filed bankruptcy continues to be liable for the debt.  So you aren’t liable but your property can be seized to pay the debt.

Think of your home loan:  your discharge keeps the lender from suing you after bankruptcy for a money judgment, but it doesn’t keep the lender from foreclosing on your house if you don’t pay after bankruptcy..

After bankruptcy, as long as you continue to pay on a secured debt, the creditor is generally happy to take your money and leave you alone.  If you change your mind, or further financial troubles loom, you can walk away from the liened property, losing only the property.

An experienced bankruptcy lawyer can walk you through the bankruptcy discharge and the landscape after your case is over.

More

Interview questions for hiring a bankruptcy lawyer

What to do about tax liens

Reaffirming a car debt

 

Protecting Your Co signor When You Can’t Pay

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cosigned loans

Cosigning a loan links you and your cosignor together for the life of the debt.

If you get in financial trouble, your troubles are your co signor’s troubles too.

If you can’t pay your debts, the standard bankruptcy discharge will get rid of your debt, but it doesn’t help your co signor.

Even while you are protected in bankruptcy by the automatic stay, keeping collectors at bay, and by the discharge at the end of the case, anyone who cosigned for you is exposed.

But Chapter 13 isn’t the “standard” bankruptcy.  It has a special protection for people whose debts are co signed.

Automatic stay covers co signors

Unique to Chapter 13, Section 1301 of the Bankruptcy Code extends the protection of the automatic stay to those who are jointly liable with the debtor on consumer debts.

To qualify, the debt must be for a personal or household purpose.  

So a cosigned car loan is covered;

A cosigned business lease is not.

The benefits of the loan must have flowed to the person who filed bankruptcy.  If you co signed a loan made to a friend, your friend isn’t protected by your Chapter 13 stay.

Finally, to keep the stay in place, the Chapter 13 plan must provide for payment in full of the debt.

Co signed debts get preference

Chapter 13 plans are normally required to treat all unsecured, non priority debts the same.  Each of the general unsecured claims gets the same percentage payment through the plan.

But cosigned debts are excepted.  

The debtor can treat the cosigned debt differently and better than other debts.

It’s OK to separately classify a co signed debt and pay it in full, while other debts get little or nothing in Chapter 13.

So your plan can say:   pay 100% of the allowed claim on the joint credit card claim of BIG BANK, and far less to everyone else.

After the plan is over

The only sticky point for the co signor, who is protected from collection on the co signed debt during the plan, is that interest that may accrue on the debt over the life of the plan.

At the end of the plan, the principal on the debt and any interest owed when the case was filed, will have been paid.  But the bankruptcy case doesn’t stop the accrual of interest at the contract rate during the plan.

The cosignor will remain liable for that interest despite the bankruptcy.

Power of Chapter 13

The co debtor stay and the ability to separately classify co signed debts is just another reason why, as a bankruptcy attorney, I love Chapter 13.

Consider

The secrets of successful Chapter 13 plans

Interviewing a bankruptcy lawyer

Wipe out tax penalties in Chapter 13

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