decision to file for bankruptcy should be made only after
determining that bankruptcy is the best way to deal with your
There have been many news reports suggesting that changes to
the bankruptcy law passed by Congress in 2005 prevent many
individuals from filing bankruptcy. It is true that these
changes have made the process more complicated. But the basic
right to file bankruptcy and most of the benefits of bankruptcy
remain the same for most individuals.
What Is Bankruptcy?
Bankruptcy is a legal proceeding in which a person who cannot
pay his or her bills can get a fresh financial start. The right
to file for bankruptcy is provided by federal law, and all
bankruptcy cases are handled in federal court. Filing bankruptcy
immediately stops all of your creditors from seeking to collect
debts from you, at least until your debts are sorted out
according to the law.
What Can Bankruptcy Do for Me?
Bankruptcy may make it possible for you to:
- Eliminate the legal obligation to pay most or all of
your debts. This is called a "discharge" of debts. It is
designed to give you a fresh financial start.
- Stop foreclosure on your house or mobile home and allow
you an opportunity to catch up on missed payments.
(Bankruptcy does not, however, automatically eliminate
mortgages and other liens on your property without payment.)
- Prevent repossession of a car or other property, or
force the creditor to return property even after it has been
- Stop wage garnishment, debt collection harassment, and
similar creditor actions to collect a debt.
- Restore or prevent termination of utility service.
- Allow you to challenge the claims of creditors who have
committed fraud or who are otherwise trying to collect more
than you really owe.
What Bankruptcy Cannot Do
Bankruptcy cannot, however, cure every financial problem. Nor is
it the right step for every individual. In bankruptcy, it is
usually not possible to:
- Eliminate certain rights of "secured" creditors. A
creditor is "secured" if it has taken a mortgage or other
lien on property as collateral for a loan. Common examples
are car loans and home mortgages. You can force secured
creditors to take payments over time in the bankruptcy
process and bankruptcy can eliminate your obligation to pay
any additional money on the debt if you decide to give back
the property. But you generally cannot keep secured property
unless you continue to pay the debt.
- Discharge types of debts singled out by the bankruptcy
law for special treatment, such as child support, alimony,
most student loans, court restitution orders, criminal
fines, and most taxes.
- Protect cosigners on your debts. When a relative or
friend has co-signed a loan, and the consumer discharges the
loan in bankruptcy, the cosigner may still have to repay all
or part of the loan.
- Discharge debts that arise after bankruptcy has been
What Different Types of
Bankruptcy Cases Should I Consider?
There are four types of bankruptcy cases provided under the law:
- Chapter 7 is known as "straight" bankruptcy or
"liquidation." It requires an individual to give up property
which is not "exempt" under the law, so the property can be
sold to pay creditors. Generally, those who file chapter 7
keep all of their property except property which is very
valuable or which is subject to a lien which they cannot
avoid or afford to pay.
- Chapter 11, known as "reorganization," is used by
businesses and a few individuals whose debts are very large.
- Chapter 12 is reserved for family farmers and fishermen.
- Chapter 13 is a type of "reorganization" used by
individuals to pay all or a portion of their debts over a
period of years using their current income.
Most people filing bankruptcy will want to file under either
chapter 7 or chapter 13. Either type of case may be filed
individually or by a married couple filing jointly.
Chapter 7 (Straight Bankruptcy)
In a bankruptcy case under chapter 7, you file a petition asking
the court to discharge your debts. The basic idea in a chapter 7
bankruptcy is to wipe out (discharge) your debts in exchange for
your giving up property, except for "exempt" property which the
law allows you to keep. In most cases, all of your property will
be exempt. But property which is not exempt is sold, with the
money distributed to creditors.
If you want to keep property like a home or a car and are
behind on the mortgage or car loan payments, a chapter 7 case
probably will not be the right choice for you. That is because
chapter 7 bankruptcy does not eliminate the right of mortgage
holders or car loan creditors to take your property to cover
Whether you are eligible for Chapter 7 depends in part on
your income. Each state has a "median family income" for
bankruptcy purposes. For Arizona, the 2009 median incomes by
family size are: One - $43,397, Two - $57,620, Three - $62,002,
Four - $71,867, Five - $78,767, Six - $85,667.
If your income is below the figure above, you are eligible
for Chapter 7. If your income is higher, you must go through a
"means test" to determine whether you are eligible. The means
test is a group of forms requiring detailed information about
your income and expenses.
If your income is above the median family income and the
means test shows that you have enough money left over that you
could pay unsecured creditors, you may have to file a chapter 13
Chapter 13 (Reorganization)
In a chapter 13 case you file a "plan" showing how you will pay
off some of your past-due and current debts over three to five
years. The most important thing about a chapter 13 case is that
it will allow you to keep valuable property--especially your
home and car--which might otherwise be lost, if you can make the
payments which the bankruptcy law requires to be made to your
creditors. In most cases, these payments will be at least as
much as your regular monthly payments on your mortgage or car
loan, with some extra payment to get caught up on the amount you
have fallen behind.
You should consider filing a Chapter 13 plan if you:
- Own your home and are in danger of losing it because of
- Are behind on debt payments, but can catch up if given
- Have valuable property which is not exempt, but you can
afford to pay creditors from your income over time.
You will need to have enough income during your chapter 13 case
to pay for your necessities and to keep up with the required
payments as they come due.
What Does It Cost to File for
It now costs $299 to file for bankruptcy under chapter 7 and
$274 to file for bankruptcy under chapter 13, whether for one
person or a married couple. The court may allow you to pay this
filing fee in installments if you cannot pay it all at once. If
you hire an attorney you will also have to pay the attorney fees
you agree to.
If you are unable to pay the filing fee in installments in a
chapter 7 case, and your household income is less than 150
percent of the official poverty guidelines (for example, the
figures for 2009 are $21,855 for a family of two and $33,075 for
a family of four), you may request that the court waive the
chapter 7 filing fee. The filing fee cannot be waived in a
chapter 13 case, but it can be paid in installments.
What Must I Do Before Filing
You must receive budget and credit counseling from an approved
credit counseling agency within 180 days before your bankruptcy
case is filed. The agency will review possible options available
to you in credit counseling and assist you in reviewing your
budget. Different agencies provide the counseling in-person, by
telephone, or over the Internet. If you decide to file
bankruptcy, you must have a certificate from the agency showing
that you received the counseling before your bankruptcy case was
Most approved agencies charge between $30-$50 for the
pre-filing counseling. However, the law requires approved
agencies to provide bankruptcy counseling and the necessary
certificates without considering an individual's ability to pay.
If you cannot afford the fee, you should ask the agency to
provide the counseling free of charge or at a reduced fee.
If you decide to go ahead with bankruptcy, you should be very
careful in choosing an agency for the required counseling. It is
extremely difficult to sort out the good counseling agencies
from the bad ones. Many agencies are legitimate, but many are
simply rip-offs. And being an "approved" agency for bankruptcy
counseling is no guarantee that the agency is good. It is also
important to understand that even good agencies won't be able to
help you much if you're already too deep in financial trouble.
Some of the approved agencies offer debt management plans
(also called DMPs). A DMP is a plan to repay some or all of your
debts in which you send the counseling agency a monthly payment
that it then distributes to your creditors. Debt management
plans can be helpful for some consumers. For others, they are a
terrible idea. The problem is that many counseling agencies will
pressure you into a debt management plan as a way of avoiding
bankruptcy whether it makes sense for you or not. You should not
consider a debt management plan if making the monthly plan
payment will mean you will not have money to pay your rent,
mortgage, utilities, food, prescriptions, and other necessities.
It is important to keep in mind these important points:
- Bankruptcy is not necessarily to be avoided at all
costs. In many cases, bankruptcy may actually be the best
choice for you.
- If you sign up for a debt management plan that you can't
afford, you may end up in bankruptcy anyway (and a copy of
the plan must also be filed in your bankruptcy case).
- There are approved agencies for bankruptcy counseling
that do not offer debt management plans.
It is usually a good idea for you to meet with an attorney
before you receive the required credit counseling. Unlike a
credit counselor, who cannot give legal advice, an attorney can
provide counseling on whether bankruptcy is the best option. If
bankruptcy is not the right answer for you, a good attorney will
offer a range of other suggestions. The attorney can also
provide you with a list of approved credit counseling agencies,
or you can check the website for the
United States Trustee Program office at
The credit counseling agencies approved to
provide counseling can be found at:
What Property Can I Keep?
In a chapter 7 case, you can keep all property which the law
says is "exempt" from the claims of creditors. If you are
subject to the federal bankruptcy exemptions, they include:
- $20,200 in equity in your home;
- $3225 in equity in your car;
- $525 per item in any household goods up to a total of
- $2025 in things you need for your job (tools, books,
- $1075 in any property, plus part of the unused exemption
in your home, up to $10,125;
- Your right to receive certain benefits such as Social
Security, unemployment compensation, veteran's benefits,
public assistance, and pensions--regardless of the amount.
The amounts of the exemptions are doubled when a married couple
However, Arizona is an "opt-out" state. If you have lived in
Arizona for the entire two years before you file, you are
subject to the Arizona exemptions. These are complicated and
very detailed, but are generally much more generous than the
federal exemptions. For example, the exemption for your home is
$150,000, as opposed to the federal amount of $20,200. The
exemption for equity in your car is $5,000, or $10,000 if you
are disabled, and this amount is doubled when a married couple
If you have not lived in Arizona for the entire two years
before you file, you must look at the six month period between
two years and two and a half years before you file. Where you
lived for most of that six month period determines which state
exemption law you must use.
Since it is probably to your advantage to use the Arizona
exemptions, you may find yourself wanting to delay your filing
until you have lived here two years.
Regardless of state law, you may use a special federal
bankruptcy exemption that protects retirement funds in pension
plans and individual retirement accounts (IRAs). The Arizona law
also exempts your IRA and identifies many different retirement
benefits as exempt.
In determining whether property is exempt, you must keep a
few things in mind. The value of property is not the amount you
paid for it, but what it is worth when your bankruptcy case is
filed. Especially for furniture and cars, this may be a lot less
than what you paid or what it would cost to buy a replacement.
Given the current real estate market in Arizona, your home as
well may have gone down in value since the time of purchase.
You also only need to look at your equity in property. That
means you count your exemptions against the full value minus any
money that you owe on mortgages or liens. For example, if you
own a $250,000 house with a $200,000 mortgage, you have only
$50,000 in equity. You can fully protect the $250,000 home with
a $50,000 exemption.
While your exemptions allow you to keep property even in a
chapter 7 case, your exemptions do not make any difference to
the right of a mortgage holder or car loan creditor to take the
property to cover the debt if you are behind. In a chapter 13
case, you can keep all of your property if your plan meets the
requirements of the bankruptcy law. In most cases you will have
to pay the mortgages or liens as you would if you didn't file
What Will Happen to My Home and
Car If I File Bankruptcy?
In most cases you will not lose your home or car during your
bankruptcy case as long as your equity in the property is fully
exempt. Even if your property is not fully exempt, you will be
able to keep it, if you pay its non-exempt value to creditors in
However, some of your creditors may have a "security
interest" in your home, automobile, or other personal property.
This means that you gave that creditor a mortgage on the home or
put your other property up as collateral for the debt.
Bankruptcy does not make these security interests go away. If
you don't make your payments on that debt, the creditor may be
able to take and sell the home or the property, during or after
the bankruptcy case.
In a chapter 13 case, you may be able to keep certain secured
property by paying the creditor the value of the property rather
than the full amount owed on the debt. Or you can use chapter 13
to catch up on back payments and get current on the loan.
There are also several ways that you can keep collateral or
mortgaged property after you file a chapter 7 bankruptcy. You
can agree to keep making your payments on the debt until it is
paid in full. Or you can pay the creditor the amount that the
property you want to keep is worth. In some cases involving
fraud or other improper conduct by the creditor, you may be able
to challenge the debt. If you put up your household goods as
collateral for a loan (other than a loan to purchase the goods),
you can usually keep your property without making any more
payments on that debt.
Can I Own Anything After
Yes! Many people believe they cannot own anything for a period
of time after filing for bankruptcy. This is not true. You can
keep your exempt property and anything you obtain after the
bankruptcy is filed. However, if you receive an inheritance, a
property settlement, or life insurance benefits within 180 days
after filing for bankruptcy, that money or property may have to
be paid to your creditors if the property or money is not
Will Bankruptcy Wipe Out All My
Yes, with some exceptions. Bankruptcy will not normally wipe
- Money owed for child support or alimony;
- Most fines and penalties owed to government agencies;
- Most taxes and debts incurred to pay taxes which cannot
- Student loans, unless you can prove to the court that
repaying them will be an "undue hardship";
- Debts not listed on your bankruptcy petition;
- Loans you got by knowingly giving false information to a
creditor, who reasonably relied on it in making you the
- Debts resulting from "willful and malicious" harm;
- Debts incurred by driving while intoxicated;
- Mortgages and other liens which are not paid in the
bankruptcy case (but bankruptcy will wipe out your
obligation to pay any additional money if the property is
sold by the creditor).
Will I Have to Go to Court?
In most bankruptcy cases, you only have to go to a proceeding
called the "meeting of creditors" to meet with the bankruptcy
trustee and any creditor who chooses to come. Most of the time,
this meeting will be a short and simple procedure where you are
asked a few questions about your bankruptcy forms and your
Occasionally, if complications arise, or if you choose to
dispute a debt, you may have to appear at a hearing. In a
chapter 13 case, you may also have to appear at a hearing when
the judge decides whether your plan should be approved. If you
need to go to court, you will receive notice of the court date
and time from the court and/or from your attorney.
What Else Must I Do to Complete
After your case is filed, you must complete an approved course
in personal finances. This course will take approximately two
hours to complete. Many of the course providers give you a
choice to take the course in-person at a designated location,
over the Internet (usually by watching a video), or over the
telephone. Your attorney can give you a list of organizations
that provide approved courses, or you can check the website for
the United States Trustee Program office at www.usdoj.gov/ust.
If you cannot afford the fee, you should ask the agency to
provide the course free of charge or at a reduced fee. In a
chapter 7 case, you should sign up for the course soon after
your case is filed. If you file a chapter 13 case, you should
ask your attorney when you should take the course.
Will Bankruptcy Affect My
There is no clear answer to this question. Unfortunately, if you
are behind on your bills, your credit may already be bad.
Bankruptcy will probably not make things any worse.
The fact that you've filed a bankruptcy can appear on your
credit record for ten years from the date your case was filed.
But because bankruptcy wipes out your old debts, you are likely
to be in a better position to pay your current bills, and you
may be able to get new credit.
If you decide to file bankruptcy, remember that debts
discharged in your bankruptcy should be listed on your credit
report as having a zero balance, meaning you do not own anything
on the debt. Debts incorrectly reported as having a balance owed
will negatively affect your credit score and make it more
difficult or costly to get credit. You should check your credit
report after your bankruptcy discharge and file a dispute with
credit reporting agencies if this information is not correct.
What Else Should I Know?
Utility Services. Public utilities, such
as the electric company, cannot refuse or cut off service
because you have filed for bankruptcy. However, the utility can
require a deposit for future service and you do have to pay
bills which arise after bankruptcy is filed.
Discrimination. An employer or
government agency cannot discriminate against you because you
have filed for bankruptcy. Government agencies and private
entities involved in student loan programs also cannot
discriminate against you based on a bankruptcy filing.
Driver's License. If you lost your
license solely because you couldn't pay court-ordered damages
caused in an accident, bankruptcy will allow you to get your
Co-signers. If someone has co-signed a
loan with you and you file for bankruptcy, the co-signer may
have to pay your debt. If you file under chapter 13, you may be
able to protect co-signers, depending upon the terms of your
chapter 13 plan.
How Do I Find a Bankruptcy
As with any area of the law, it is important to carefully select
an attorney who will respond to your personal situation. The
attorney should not be too busy to meet you individually and to
answer questions as necessary.
The best way to find a trustworthy bankruptcy attorney is to
seek recommendations from family, friends or other members of
the community, especially any attorney you know and respect. You
should carefully read retainers and other documents the attorney
asks you to sign. You should not hire an attorney unless he or
she agrees to represent you throughout the case.
In bankruptcy, as in all areas of life, remember that the
person advertising the cheapest rate is not necessarily the
best. Many of the best bankruptcy lawyers do not advertise at
Document preparation services also known as "typing services"
or "paralegal services" involve non-lawyers who offer to prepare
bankruptcy forms for a fee. Problems with these services often
arise because non-lawyers cannot offer advice on difficult
bankruptcy cases and they offer no services once a bankruptcy
case has begun. There are also many shady operators in this
field, who give bad advice and defraud consumers.
When first meeting a bankruptcy attorney, you should be
prepared to answer the following questions:
- What types of debt are causing you the most trouble?
- What are your significant assets?
- How did your debts arise and are they secured?
- Is any action about to occur to foreclose or repossess
property, to attach your wages or bank account, or to shut
off utility service?
- What are your goals in filing the case?
Can I File Bankruptcy Without
Although it may be possible for some people to file a
bankruptcy case without an attorney, it is not a step to be
taken lightly. The process is difficult and you may lose
property or other rights if you do not know the law. It takes
patience and careful preparation. Chapter 7 (straight
bankruptcy) cases are somewhat easier. Very few people have been
able to successfully file chapter 13 (reorganization) cases on
Remember: The law often changes. Each case is
different. This is meant to give you general information and not
to give you specific legal advice.
Click below to download information in pdf format.
ANSWERS TO COMMON BANKRUPTCY
QUESTIONS. This is
the information provided above.
YOUR LEGAL RIGHTS DURING AND AFTER
BANKRUPTCY: MAKING THE MOST OF YOUR BANKRUPTCY DISCHARGE.
This provides additional discussion on topics of interest after
your Bankruptcy Case is finished.
IMPORTANT INFORMATION ABOUT BANKRUPTCY
ASSISTANCE SERVICES FROM AN ATTORNEY OR BANKRUPTCY PETITION
PREPARER. The Bankruptcy
Code(527b) requires you be given this informational handout, and
that it be included in your Petition with your acknowledgment
that you received it. This contains a brief rendition of
some of the topics discussed above.
NOTICE TO INDIVIDUAL CONSUMER
DEBTOR UNDER SECTION 342(B) AND 527(A) OF THE BANKRUPTCY CODE.
The Bankruptcy Code requires you be
given this informational handout, and that it be included in
your Petition with your acknowledgment that you received it.
This contains a brief rendition of some of the topics discussed
This is the 30-page intake package that
walks you through providing all the information required to file
CUESTIONARIO DE BANCARROTA.
This is the Spanish version of the
questionnaire, for those who are more comfortable working in