NEW BANKRUPTCY LAW QUESTIONS
The new bankruptcy law took effect on October 17, 2005. These are some of the questions
that clients have asked us along with our responses:
Q. Will the new bankruptcy
law prevent people from filing bankruptcy?
For 90 to 95% of our clients, they
will still be able to file Chapter 7 and eliminate their debts, or if they want
they will be able to file a Chapter 13 Plan and pay a little bit back.
The new law - The Bankruptcy Abuse
Prevention and Consumer Protection Act will be less efficient and more complicated
than the prior law, but the majority of the provisions will not impact most
I think that this new law is much
ado about nothing and people are worried for no reason.
Q. Do the changes help
the credit card companies?
We are not sure if the credit card companies will benefit.
The credit card companies are hoping they will benefit, but only time will tell.
Q. I make $24,000 per year
and owe $22,000 in credit card bebt. I cannot
get caught up and my wages are being garnished. Will bankruptcy help me?
A. You qualify for a Chapter 7
or a Chapter 13. Either Chapter will help you deal with your creditors.
Q. My wife has a pile of
medical bills - will bankruptcy help?
Chapter 7 or Chapter 13 will wipe
out medical bills. We would need to review your income and the value of
your assets to determine what the best option for your family might be.
Q. I only earn $27,000
per year and I have $31,000 in credit card debt. What can I do?
A. Your income is under the State
of Texas median income. You probably could file either a Chapter
7 or 13. We would need to review the value of your assets and then give
Q. I heard that if
I earn over the Median Income, I may have to file a Chapter 13. Is this
A. If you earn over the
median income, that does not mean that you must automatically
file a Chapter 13. For clients who earn over the median income, we must
work through a budget with some pre-determined allowances, deduct secured debt
payments and some actual expenses and see if we have over $166 per month or
whether the surplus allows a 25% dividend to unsecured creditors. The
majority of people who are over the median income may still be able to file
Chapter 7 if they choose to do so.
Q. What is the median income
A. In Texas, the median income for one person is approximately $33,280,
for two people, it is approximately $46,454, three approximately $48,755, four
approximately $56,246, and approximately $48,567 for five people.
Q. I heard that I must
use current monthly income (CMI) when working up my budget for bankruptcy.
What is CMI?
A. CMI will be based on your income
over the past 6 months. We will look to see what the past 6 month's earnings
have been and divide by 6. Your current actual income may be different
than the CMI and certain income, such as Social Security is excluded from CMI.
Q. How does Credit Counseling
A. In order to file bankruptcy,
you must attend a credit briefing from an agency such as Consumer Credit Counseling.
This briefing must take place within 180 days before you file bankruptcy.
Then after you file there is a
short credit class that you must also attend. We do not have a problem
with this part of the law and even if we had a problem with it, the two credit
counseling components of the law are a requirement to file and get a discharge.
Q. What changes have been
made with respect to the forgiveness of credit card debt?
A. If you have purchased a luxury item
valued at $500 within 90 days of filing, or have taken a cash advance of $750
or more within 70 days of filing, those debts are presumed not to be discharged.
Q. I filed a Chapter 7 ten years ago.
Can I file again?
A. Yes, you can file now. Debtors will
not be able to file Chapter 7 for 8 years after filing Chapter 7. If they
file a Chapter 13, they can't file for Chapter 7 and get a discharge for 4 years.
After filing a Chapter 13, they can't file and get another Chapter 13 discharge
for 2 years. All the time periods run from filing date to filing date.
Q. How have the rules in Chapter 13 changed
regarding payment to car loan creditors?
A. Chapter 13 clients will not
be able to cram down on car loans as easily as in the past. If the debtor
took out the car loan less than two and one half years ago, they cannot cram
down on the car. That means that under Chapter 13, they would have to
pay the full loan amount back in monthly payments.
If the loan was over 2.5 years
old, then the debtor could cram down the loan and pay the Fair Market Value,
which is often much less than the loan balance.
Q. I am behind on my mortgage,
what can I do?
A. You can take all the
payments you have missed and file a Chapter 13. Chapter 13 will help clients
who have delinquent mortgage payments to keep their homes.
Q. What are the most
important things you want consumer to know about this new law?
A. Most people will not
be affected by the changes. The results we will be able to obtain will
be the same as what we have been able to attain in the past. In other
words, we should be able to eliminate a great deal of debt. Each case
we analyze will depend on the facts presented. Clients will also have to attend
Credit Counseling classes.
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