Bankruptcy has a scary reputation based on a few tidbits of truth (and lots of embellishment) that you may have heard from a friend of a friend who knew someone who filed. It’s not nearly as frightening once you know the facts.
Here are a dozen commonly held misconceptions about bankruptcy:
Unless you’re a prominent person or a major corporation and the filing is picked up by the media, the chances are very good that the only people who will know about a filing are your creditors. While it is true that bankruptcy is a public legal proceeding, the number of cases filed is so numerous that very few publications have the space, the manpower or the inclination to run a list of all of them.
Not true. Certain types of debts cannot be discharged, or erased, in Chapter 7. They include child support, alimony, divorce related property settlements*, student loans, recent income tax assessments, employer trust fund tax liabilities (unpaid employee withholding and sales taxes), and debts incurred as a result of fraud, theft or embezzlement.
* Although debts arising from property settlements contained in a divorce decree may be dischargeable in Chapter 13.
This is a misconception that keeps people who really should file for bankruptcy from making the decision to file when it would be in their best interest. Some people think that someone from the government will come to their home, take everything and sell it out from under them and they’ll be left to start over in a cardboard box. While property exemption statutes vary from state to state, each state has a law that protects the value of certain assets, such as your house, car (up to a certain value), money in qualified retirement plans, household goods, and clothing.
Most people will pass through bankruptcy and keep everything they started with. If you have a mortgage and a car loan, you can keep those in a Chapter 7 as long as you keep making the payments (the same as before you filed for bankruptcy relief).
Quite the contrary. It won’t be long before you are getting credit card offers again. The offers will just be from sub-prime lenders that will charge outrageous interest rates and you should stay far away. However, the more time that elapses between your bankruptcy discharge date and an application for credit, the rates will become increasingly reasonable if your earnings are stable and you haven’t added more debt.
A good bankruptcy attorney won't advise that you run out and run up bills again. But if you need a car, you can go out and get credit. You don’t have to go to a loan shark to get credit, but you won’t get a loan at A+ rates either. A higher interest rate on a large purchase will have a significant impact on your payment, so if possible, make sure you get a car loan before you file a bankruptcy petition and plan on reaffirming the loan terms after you file.
If you have a credit card with a zero balance on the day you file for bankruptcy relief, you don’t have to list it as a creditor since you don’t owe any money on it. You may be able to keep that card even after the bankruptcy. But be forewarned, most of your credit accounts do periodic reviews of your credit report. Your zero balance credit card lender may discover that you have filed for bankruptcy relief and cancel your account anyway.
Not necessarily. It is not uncommon for one spouse to have a significant amount of debt in their name only. However, if spouses have debt they want to discharge that they’re both liable for, they should file together. Otherwise, the creditor will simply demand payment for the entire amount from the spouse who didn’t file.
It’s really not. Technically, and Congress requires that a bankruptcy attorney tell you this, you don’t need an attorney. Like any court in our nation, the doors are open to all citizens. That said, the Law Office of Marji Hanson doesn't recommend that you go through this procedure without a bankruptcy attorney to guide and advise you, warn you of potential pitfalls, accurately prepare and file the bankruptcy statements and schedules, and deal with your Trustee and your creditors.
Far, far from the truth. Most people file for bankruptcy after a life-changing experience such as loss of a job, divorce, or a serious illness. Many of the firm's clients came to Marji after investing their money and talent in a business venture that failed. Clients have struggled to pay their bills for months, liquidated otherwise exempt assets to pay their bills, worked two and three jobs to pay their bills, borrowed from friends and family to pay their bills, and gone without essentials, but just keep falling farther and farther behind.
Not possible. You must list all of your creditors. Period. End of story. However, there is nothing stopping you from paying them back some day, even if the debt is discharged. After you receive a bankruptcy discharge, those creditors are forbidden by law to attempt any further collection activities. If your conscience won’t let you sleep nights because you didn’t pay your debts, there’s nothing in the bankruptcy code that prevents you from repaying them once you are back on your feet, even though you are no longer legally obligated to do so. But bankruptcy is an all-or-nothing deal, so you have to include all of your creditors on your petition.
Not immediately, no. But over time bankruptcy can improve your credit score. Next to a real estate foreclosure, a bankruptcy filing is the worst “negative” you can have on your credit score. Like other negatives, it can stay on your report for up to ten years. But say, for example, that someone has a credit score below 600, substantial unsecured debt (such as credit card balances, medical debt) and a history of slow payments, collections or judgments. They may see a substantial credit score increase after they receive a Chapter 7 discharge because their debt to income ratio improves dramatically after the discharge enters. Of course, they have to be careful moving forward and maintain a good history of positive credit behavior (on time payments, balances far below the credit limit or, better yet, paid in full every month). But there can be a substantial upswing on the credit in about 12 months after their bankruptcy case is filed.
Generally speaking, this is true. However, you can discharge income tax liability if all your returns were filed on time and the taxes owed are at least three years old. For example, a tax liability from a return filed on or before April 15, 2005, will be dischargeable after April 15, 2008.
You can file for bankruptcy more than once, but the 2005 Bankruptcy Reform Act lengthened the required wait between filings. You can file for Chapter 7 relief once every eight years. You have to wait two years to repeat a Chapter 13 filing and four years between a Chapter 7 and a Chapter 13.
This is the polarity myth between two extremes. On one end are clients who have been told that, after the 2005 Bankruptcy Reform Act, credit card debt can't be discharged. Not true. Excessive credit card balances that are subject to exorbitant interest rates and over limit fees are the exact problem bankruptcy is designed to resolve. On the other end of the spectrum is the misconception that it is okay to run up your card balances right before filing. That is called fraud and could result in that debt becoming a non-dischargeable liability that you will carry for life. Don’t do it.
There are many benefits of bankruptcy depending on your personal financial situation. For a free consultation with a bankruptcy attorney to get your questions answered, contact the Law Office of Marji Hanson today.