Can I File Bankruptcy if I'm Not Late on My Payments?

By Tom Streissguth

If a financial storm is brewing, you have the option to file for bankruptcy protection. The federal bankruptcy code allows individuals, couples and businesses to go through this process in order to discharge debts and get a financial fresh start, if absolutely necessary. The bankruptcy laws, and a sweeping bankruptcy reform passed by the government in 2005, govern who may file for bankruptcy.

If a financial storm is brewing, you have the option to file for bankruptcy protection. The federal bankruptcy code allows individuals, couples and businesses to go through this process in order to discharge debts and get a financial fresh start, if absolutely necessary. The bankruptcy laws, and a sweeping bankruptcy reform passed by the government in 2005, govern who may file for bankruptcy.

Chapter 7 and Chapter 13

For individuals and couples, bankruptcy comes in two basic varieties: Chapter 7 and Chapter 13. In a Chapter 7 process, you submit your non-exempt assets to a court trustee who sells them in order to pay your creditors. Your debts are discharged, i.e. canceled, at the end of the process, unless federal law makes them "nondischargeable." A Chapter 13 bankruptcy allows you to partially repay your creditors over a span of three to five years. A trustee draws up the plan and collects your payments; at the end of the process, if you've kept up the payments, your outstanding debts are discharged. Both forms of bankruptcy protect you from lawsuits and collection actions by your creditors until the court issues the discharge.

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Who May File?

Federal law sets forth the rules for who may file for bankruptcy protection. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 provides that individuals or families with median earnings above the average in their state of residence are subject to a means test. This applies only to bankruptcy filers with primarily consumer debt, in most cases credit card debt. The means test takes into account allowed deductions, such as living and educational expenses. If a Chapter 7 bankruptcy filer is found to exceed the means-test guidelines, the court may dismiss the case or convert it to a Chapter 13.

Account Status

The bankruptcy law does not refer to the status of your credit accounts, whether they're current, late, in collections or written off by the creditor. Many people file for bankruptcy even if they are current on their accounts, but facing circumstances, such as a divorce or sudden medical expenses, that will prevent them from making payments in the future. The court pays attention only to a filer's income and allowed deductions from that income in applying median income standards and the means test.

Considerations

Filing for bankruptcy while not in default on loans or behind on credit cards may benefit your credit score in the long run. Late payments on accounts that are allowed to accumulate over a long period of time will cause severe damage to your score and take longer to overcome than a bankruptcy filing while you're still current. Once the bankruptcy is discharged, a good record of repayments will gradually return the credit score to health, despite the bankruptcy flag - which remains on your report for a minimum of ten years — and much more quickly than if you have multiple late payments showing. Many bankruptcy attorneys recommend filing for bankruptcy before you drain savings and retirement accounts to pay debts that will ultimately prove impossible to repay.

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Provisions of Chapter 13 of the Federal Bankruptcy Laws

References

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What Happens if a Bank Discharges a Home Loan During a Bankruptcy?

At the end of a bankruptcy case, you will receive a bankruptcy discharge that relieves you of all financial obligations toward the debt. The discharge also applies to home mortgages. Depending on whether you file for Chapter 7 or Chapter 13 bankruptcy, and whether you are current on your monthly payments, you may have several options if you would like to keep your home.

Can You File Bankruptcy Owing Less Than You Make?

If you're facing serious financial difficulties, you may consider filing for bankruptcy protection under federal law. The bankruptcy process is designed to give you a fresh financial start, discharging certain debts while allowing you to keep some "exempt" property. However, if you owe less than you earn, a new bankruptcy law passed in 2005 will make it difficult for you to qualify for a Chapter 7 bankruptcy, which involves liquidation of your assets and discharge of your debts. Instead, you may have to file for Chapter 13 bankruptcy, which requires partial or full repayment to your creditors.

Does a Trustee Take Over the Business of the Debtor in a Chapter 13?

Owning a business is no protection against financial troubles. If you are a sole proprietor, a Chapter 13 bankruptcy allows for some court-ordered protection from creditors. A court trustee looks at your disposable income, draws up a repayment plan, takes the payments and works with your creditors. A Chapter 13 case may allow you to discharge your debts, including business loans, even though you are personally liable for them.

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