WHAT IS A 341 HEARING?
The 341 Hearing is named after Section 341 of the Bankruptcy Code and is best described as a Meeting of Creditors. This is typically your only contact with the Bankruptcy court, and actually it’s not even with a judge.
A 341 Hearing, or Meeting of the Creditors, is held in a hearing room, and you will be asked questions about the schedules that are filed in your case. You’ll be sworn in by the Bankruptcy Trustee, who’s an attorney like me, not a judge, and asked your name, your address…very easy things. Then the Trustee will typically let me ask you questions about your paperwork, just to check and be sure everything is truthful and accurate for the record.
By “the record” I mean there’s a tape recorder that sits on the table, and everything is recorded. Most of the questions require only yes or no answers, and the hearings typically last about 7 minutes…they schedule several every hour, believe it or not.
For example, one of the questions is: “Do you have any claim or lawsuit you can bring against anyone to recover money?”
The reason that question is asked is that the trustee wants to know if there is a source of non-exempt money that could be used to pay something to your creditors. (Usually all of your assets are exempt, meaning you get to keep them.)
That’s typical of what they are looking for and I go over all of the questions with you prior to the Meeting of Creditors.
There are a variety of these questions that are contained in the bankruptcy petition and schedules. I go over a lot of these topics in the first consultation, because they are essential in analyzing your case appropriately; I’m looking for whatever “red flags” there might be in the case. When I analyze a case, I look for anything that might cause a problem. My years of experience will help make the bankruptcy process and the 341 hearing go smoothly for you.
I look forward to meeting you and helping you through this difficult time.
DOES MY SPOUSE HAVE TO FILE BANKRUPTCY?
One of the questions I’m frequently asked is: “Does my spouse have to file Bankruptcy if I do?”
The answer to that question is “No”. Your spouse does NOT have to file. However, your marital status is important.
Even though a spouse may not have to file, his or her income could still have to be included in “household income,” which determines whether there’s any excess income after deducting your expenditures. You’ll subtract what your non-filing spouse’s expenditures would be, such as car payments, student loan payments, and other such items, from the combined household income. Too much excess income and you might have to file a Chapter 13 even though you might prefer to file a Chapter 7 case.
Although the non-filing spouse does not have to file Bankruptcy, his or her income is still calculated into what’s called the “Means Test”, which is a long, complicated calculation based on your last six months proof of income, which will determine your eligibility for Chapter 7 or help determine your payment, if any, to unsecured creditors in a Chapter 13.
I look forward to meeting you, and talking to you more about your financial situation, and helping you through this very difficult time.
WHAT DISCLOSURES MUST A COLLECTION AGENCY PROVIDE TO A DEBTOR?
Typically, a collection agency begins its efforts with an introductory letter. This letter usually contains the required legal disclosures, which include:
- The amount of the debt,
- The name of the original creditor,
- The period of time in which the debtor may dispute the validity of the debt (thirty days), and,
- The obligation of the collection agency to send the debtor verification of the debt if its validity is disputed.
In the original correspondence, the collection agency must also inform the debtor that it is attempting to collect a debt and that any information it gathers from the debtor or other sources will be used for that purpose. If this information is not included in the initial contact letter, the collection agency must provide it within five days.
Most lawyers recommend that debtors request verification of the debt because, in that case, a collection agency may not resume collection efforts until the information is confirmed with the original creditor. The debtor has the right to dispute the debt for thirty days.
WHAT ACTIONS MUST A COLLECTION AGENCY AVOID?
Under the Fair Debt Collection Practices Act, a collection agency may not act in the following ways:
- Third-party communications. The collection agency cannot contact third parties other than the debtor’s attorney or a credit bureau for any reason other than to locate the debtor. Collection agents who contact third parties must state their names, and may only add that they are confirming or correcting information about the debtor. They cannot give the collection agency’s name unless asked directly. They cannot state that they are calling about a debt. Collection agents may not contact a third party repeatedly unless they believe an earlier response was wrong or incomplete and that the third party has revised information. Further, collection agents cannot communicate with third parties by postcard or by correspondence that uses words or symbols that betray their collection motive.
- Attorney-represented debtor. A collection agency cannot contact the debtor directly if counsel represents him or her unless the debtor gives the collection agency specific permission to do so.
- Debtor communications. Collection agents may not contact debtors before 8:00 a.m. or after 9:00 p.m., or at another inconvenient time or place. Collection agents also may not contact a debtor at work if he or she knows that the employer bans receipt of collection calls while on the job.
- Harassment or abuse. Agents cannot threaten or use violence against the debtor or another person. They cannot use obscene or profane language. They cannot publish a debtor’s name on a “blacklist” or another public posting. Agents cannot call repeatedly or contact the debtor without identifying themselves as bill collectors.
- False or misleading statements. Agents may not lie about the debt, their identity, the amount owed, or the consequences for the debtor. They cannot send documents that resemble legal filings or court papers. Agents cannot offer incentives to disclose information.
- Unfair practices. Agents may not engage in unfair or shocking methods to collect, including adding interest or fees to the debt, soliciting post-dated checks by threatening criminal prosecution, calling the debtor collect, or threatening to seize property to which the agency has no right.
ARE THERE ANY ALTERNATIVES TO FILING BANKRUPTCY?
Debtors who have faced obstacles to paying off their debts when due have no doubt received more than their fair share of demand letters and phone calls, and the thought of getting rid of their debts, and thus the constant demands, through bankruptcy can be quite appealing.
Before making a decision to pursue that route, which can affect a credit rating and the ability to make large purchases, like a home, debtors should consider other alternatives. If the debtor’s financial problems are only temporary, he or she may want to simply ask creditors to accept lower payments or that payments be scheduled over a longer period of time. Creditors may be receptive to these ideas if the debtor has been a prompt payer in the past, or if the spectre of bankruptcy is raised, because creditors know that once a bankruptcy proceeding is initiated they will probably collect little to none of what is owed. Also, creditors may wish to avoid the difficulties of a court proceeding to collect on the debt, which can be time-consuming and expensive. Consumer credit counselors can also help creditors work out a repayment plan.
Some of these advisors work for non-profit agencies, so they charge no fees. Many credit-counseling services charge a fee for their guidance, however, and it may not appeal to an already over-stressed debtor to add another debt to the stockpile. If the debtor’s financial troubles are long-term or if the creditors will not informally agree to an alternative payment plan, bankruptcy may be the best way for the debtor to get out from under an insurmountable debt load.
In many cases, bankruptcy can be the right option to enable debtors to make a fresh start.
ARE STUDENT LOANS DISCHARGED IN A BANKRUPTCY PROCEEDING?
Educational loans are generally not discharged by a Chapter 7 or Chapter 13 bankruptcy. They may be dischargeable, however, in an adversary proceeding if the court finds that paying off the loan will impose an undue hardship on the debtor and his or her dependants.
In order to qualify for a hardship discharge, the debtor must demonstrate that he or she cannot make payments at the time the bankruptcy is filed and will not be able to make payments in the future. The debtor must apply before the discharge of the debtor’s other debts is granted. Application for a hardship discharge is not included in the standard bankruptcy fees, and must be paid for after the case is filed.
The Bankruptcy Code does not specifically define the requirements for granting a hardship discharge of a student load. Courts have applied different standards, but they often apply a three-part test to determine eligibility: (1) income-if the debtor is forced to pay off the student loan, the debtor will not be able to maintain a minimum standard of living for himself or herself and his or her dependents; (2) duration-the financial circumstances that satisfy the income test in (1) will continue for a significant portion of the repayment period; and (3) good faith-the debtor must have made a good-faith effort to repay the loan prior to the bankruptcy.
WHAT EFFECT DOES A BANKRUPTCY FILING HAVE ON THE COLLECTION OF ALIMONY AND CHILD SUPPORT
The result depends on whether the debtor filed a Chapter 7 or a Chapter 13 bankruptcy. A Chapter 7 filing should have no effect on such collections, but a Chapter 13 proceeding may stop the collection activities, at least temporarily.
Although filing bankruptcy stops, or “stays”, all efforts to collect debts, the Bankruptcy Code excludes actions to collect child support or spousal maintenance from the stay unless the creditor attempts to collect from the “property of the estate.” In a Chapter 7 proceeding, “property of the estate” includes all possessions, money, and interests the debtor owns at the time he or she files. Money earned after the bankruptcy is filed, however, is not property of the estate. Because most child and spousal support is paid out of the debtor’s current income, the bankruptcy should have little impact.
A debtor must make allowance in his Chapter 13 plan for payment of past due support obligations.Neither a Chapter 7 nor a Chapter 13 discharge affects future child or spousal support obligations. In other words, even at the conclusion of the bankruptcy proceeding, these on-going obligations remain.
DOES A BANKRUPTCY DISCHARGE ELIMINATE ALL DEBTS?
The rules on which debts are discharged, or eliminated, are different depending on which type of bankruptcy is filed. A Chapter 13 discharge affects only those debts provided for in the plan. Additional exceptions to a Chapter 13 discharge include claims for spousal and child support; educational loans; drunk driving liabilities; criminal fines and restitution obligations; and certain long-term obligations, such as home mortgages, that extend beyond the term of the plan.
In a Chapter 7 proceeding, the following debts are not discharged:
- Debts or creditors not listed on the schedules filed at the outset of the case;
- Most student loans, unless repayment would cause the debtor and his or her dependents undue hardship;
- Recent federal, state, and local taxes;
- Child support and spousal maintenance (alimony);
- Government-imposed restitution, fines, or penalties;
- Court fees;
- Debts resulting from driving while intoxicated; and
- Debts not dischargeable in a previous bankruptcy because of the debtor’s fraud.
In addition, the following debts are not discharged if the creditor objects during the case and proves that the debt fits one of these categories:
Debts from fraud, including certain debts for luxury goods or services incurred within sixty days before filing and certain cash advances taken within sixty days after filing;
Debts from willful and malicious acts;
Debts from embezzlement, larceny, or breach of fiduciary duty; and
- Debts from a divorce settlement agreement or court decree.
HOW LONG IS BANKRUPTCY AND OTHER CREDIT INFORMATION INCLUDED IN THE DEBTOR’S CREDIT REPORT?
A consumer credit report may include Chapter 7 and Chapter 13 bankruptcy information for ten years from the time the case is filed. One major consumer credit reporting agency is said to remove Chapter 13 information after only seven years, but it is not legally required to do so.
Most other credit information can be included in a consumer credit report for seven years. Civil suits, civil judgments, and arrest records, however, can be reported for at least seven years, and longer if the information is relevant for a longer time period. For example, if the civil judgment against the debtor is valid for ten years, it can be reported for credit-rating purposes for the same time period. These time limits on reporting credit information do not apply to reports for credit transactions that involve or are reasonably expected to involve a principal amount of $150,000 or more, the underwriting of life insurance involving or reasonably expected to involve a face amount of $150,000 or more, or the employment of a person at salary that is or is reasonably expected to be at least $75,000 annually. Because both the Fair Credit Reporting Act, which controls what a credit reporting agency may include in a consumer’s credit report, and the Bankruptcy Code are federal law, the same rules apply in all states. There may be some differences, however, in relation to the more-than-seven-year information, because most of the relevant time periods or statutes of limitations are found in the individual states’ laws.
WHAT HAPPENS IF THE DEBTOR’S SALARY INCREASES AFTER FILING A CHAPTER-13 WAGE EARNER PLAN?
The Bankruptcy Code requires that the debtor contribute his or her projected disposable income toward the plan payments for the first thirty-six to sixty months of the plan, depending on whether the debtor’s gross income is over-median or under median in the state the case was filed. Although the code imposes this requirement only when the trustee or a creditor demands it, in realty the trustee always requires it, at least at the beginning of the plan. Whether changes in salary will change the payment plan depends on a complete consideration of all of the circumstances.
If the debtor’s income changes after the case has been filed but before the court has confirmed the plan, making it binding on the creditors (which can take a few months), the trustee will closely scrutinize the debtor’s disposable income to make sure that the payments and the income are consistent and will incorporate any necessary changes into the plan. If the debtor’s income changes within the first thirty-six months of the repayment plan, changes in income may not necessitate any changes in payments. The trustee may, however, ask the payments be adjusted if the debtor’s income increases significantly.
After the thirty-sixth month of a confirmed plan of an under-median debtor there is no specific code requirement that disposable income be contributed to the plan, so an increase in income would probably make little difference. The trustee will consider not only the salary increase, but also whether there has been a corresponding increase in disposable income, on which the payments are based. Disposable income is the amount of the debtor’s salary that is left after deducting all reasonable living expenses. If the debtor’s salary increases but so do his or her expenses, there may be no increase in disposable income and therefore no change in the payment plan. If there is a significant increase in disposable income, the trustee may ask for an increase in payments.
In under-median cases in which the plan extends over more than thirty-six months, the increased payments may actually reduce the length of the plan’s term, so that the debtor has paid off the debts and receives a discharge sooner.
THE BANKRUPTCY CODE USES SUCH CONFUSING TERMINOLOGY. WHAT IS MEANT BY SUCH TERMS AS “PREFERENCE” AND “FRAUDULENT CONVEYANCE”?
Preferences and fraudulent conveyances are two ways in which a debtor facing the prospect of bankruptcy may attempt to show favoritism to a particular creditor or close family member or associate, or even set aside some property for himself or herself to avoid losing it to the bankruptcy estate.
A preference occurs when a debtor treats one creditor more favorably than the others. If a debtor has only $500, for instance, and owes that same amount to both First County Bank and First State Bank, but the debtor pays all $500 to First County Bank, that bank has received a preference. Bankruptcy law disfavors preferences if they are made for the benefit of a particular creditor and for a debt owed prior to filing bankruptcy, if the debtor is insolvent at the time of the payment, and if payment is made within ninety days before filing (or one year, if made to an insider like a family member or an officer of a corporate debtor).
Creditors receiving preferences may be required to return the amount paid to the debtor’s estate, so that it can be added to all the other assets and appropriately divided among all creditors.
Fraudulent conveyances are another vehicle by which debtors may attempt to defraud creditors. The Uniform Fraudulent Transfer Act (UFTA) was enacted to remove any temptation the debtor may have to hide property before declaring bankruptcy, such as by giving it to a relative. Under the Act, any transfer of the debtor’s assets within ninety days before filing bankruptcy (or one year if the transfer is to a family member or business associate) is carefully reviewed by the bankruptcy court. If the court concludes that the debtor was attempting to defraud creditors by selling property at a below-market price, for instance, the court can order that the property be turned over to the trustee. Anything sold for fair market value before the bankruptcy filing cannot, however, be recovered by the court under the UFTA.
HOW CAN A DEBTOR DETERMINE WHETHER A DEBT IS “SECURED”?
The best and perhaps the easiest way to find out whether a debt is a secured debt is to review the documents signed at the time the debt was incurred. If the debt is secured, the documents will say so and will describe the creditor’s security interest, which is usually in the property that is the subject of the financing.Sometimes, however, the type of debt itself will suggest whether it is secured. The following types of debts are often secured debts, which means that it the debtor does not make payments on the debt when due, the creditor can take back the property that secures the debt, sell it, and apply the proceeds to pay off the debt. (If the sale price is not enough to cover the full amount owed, the debtor may still be liable for the remainder.)
Home mortgages. Companies financing home purchases almost always require a mortgage on the house. If the borrower defaults on the mortgage payments, the lender can force a foreclosure, in which case the house is sold and the proceeds are used to pay off the debt.
Motor-vehicle loans. When a person purchases a car on credit, the lender puts a lien on the car, which allows it to repossess the car if the borrower defaults (i.e., fails to make payments on time).
Store purchases. Although many consumers are unaware of this, when they charge something that they purchase at the local department store, the store may retain a security interest in the item purchased based on the agreement that the consumer signed when he or she first opened the account. As a result, if the purchaser fails to pay according to the credit-card agreement, the store can take back the merchandise.
Finance company loans. When a borrower obtains a loan from a finance company and is asked to list things that he or she owns, it is possible that the finance company will obtain a security interest in the items listed.
LEARN MORE: BANKRUPTCY LAW
Bankruptcy law is primarily federal law and varies little from state to state. The United States Constitution grants to Congress the power to establish uniform bankruptcy laws throughout the United States, which ensures uniformity in how bankruptcy proceedings are conducted, encourages interstate commerce and promotes national economic security. The individual states do, however, retain jurisdiction over certain debtor-creditor issues that are not addressed by or do not conflict with federal bankruptcy law, such as which property remains exempt from creditors’ claims.
Bankruptcy law provides two basic forms of relief: (1) liquidation and (2) rehabilitation, also known as reorganization. Most bankruptcies filed in the United States involve liquidation, which is governed by Chapter 7 of the Bankruptcy Code. In a Chapter 7 liquidation case, a bankruptcy trustee collects the debtor’s nonexempt property and converts it into cash. The trustee distributes the resulting fund among the creditors in a particular order of priority described in the Code. Not all creditors will receive the full amount owed through this process, and some may receive nothing. When liquidation and distribution are complete, the bankruptcy court may discharge any remaining debts of an individual debtor. If the debtor is a corporation, it ceases to exist after liquidation and distribution, and there is therefore no real reason for further discharge because the creditors cannot seek payment from an entity that no longer exists.
In a rehabilitation or reorganization, the option courts often prefer, creditors may be provided with a better opportunity to recoup what they are owed. Chapter 11 or Chapter 13 of the Bankruptcy Code governs this type of bankruptcy. Chapter 11 usually applied to individual debtors with excessive or complex debts, or to large commercial entities like corporations. Chapter 13 usually applies to individual consumers with smaller debts. (Farmers and municipalities may seek reorganization through the Code’s special chapters, Chapter 12 and 9, respectively.) Reorganization provides a greater opportunity to retain assets if the debtor agrees to pay off debts according to a plan approved by the bankruptcy court. If the debtor fails to do so, however, the court may order liquidation.
In most instances, the bankruptcy case is filed by the debtor, which is considered a voluntary bankruptcy. Once the debtor files the bankruptcy petition, he or she is immediately entitled to relief from creditors through the bankruptcy procedure known as the automatic stay. The automatic stay freezes all debt-collection activity andforces the creditors to allow the bankruptcy proceeding to determine how payment will be made.
Under Chapters 7 and 11, creditors, too, have the option of filing for relief against the debtor, which is known as an involuntary bankruptcy. Involuntary bankruptcies are allowed only when there are a minimum number of creditors and a minimum amount of debt. The debtor has the right to file a response, after which the court determines whether the creditors are entitled to relief. If the court dismisses the involuntary bankruptcy filing, finding that it has not merit, the creditors may have to pay the debtor’s attorneys’ fees, damages for any losses the debtor experienced because of the bankruptcy, and even punitive damages to punish the creditors for the frivolous or abusive filing of a petition.
Lawyers specializing in bankruptcy law can help both debtors and creditors overcome obstacles to the repayment of debt. Their expertise often extends beyond bankruptcy to include debt repayment and collection options that can circumvent the need for a bankruptcy filing. The following are just some of the areas in which bankruptcy lawyers can assist their clients.
Collections and repossession are remedies sought by creditors against debtors who have defaulted on their obligations. Collections include any technique to get the debtor to make up the remaining debt, including use of a collection agency of the courts. Creditors may also have outstanding debts legally recognized, and then enforced against the debtor’s property involuntarily with garnishments, liens, or levies. Repossession of collateral is another technique used when property is pledged to secure a debt.
Commercial bankruptcy is a remedy available to businesses that are unable to pay their debts. Options include liquidation, in which many of the business’s assets are sold and the proceeds are divided among the creditors, and reorganization or restructuring, in which the business continues to operate according to a plan that allows for at least partial payment to creditors.
Consumer bankruptcy is a method through which individuals may be able to get out from under insurmountable debt and make a fresh start, albeit with a negative impact on their credit ratings. As in commercial bankruptcy, there are two options: liquidate assets to pay off creditors, or file a wage-earner plan that allows the debtor to retain more assets while working to pay off his or her debts.
Creditors’ rights include a full range of options available to creditors to collect unpaid debts. These rights include collection actions, repossession, foreclosure, garnishment, replevin, attachment, obtaining a court judgment, liens, and forcing the debtor into involuntary bankruptcy.
Discharge is the bankruptcy term for wiping out many of the debtor’s remaining debts at the conclusion of the bankruptcy proceeding. A discharge is available to only certain debtors, however, and only certain debts are dischargeable.
Foreclosures are the actions taken when a mortgagor fails to make the required mortgage payments on time and the lender, or mortgagee, forces the sale of the property-often the debtor’s home-to pay off the debt. Foreclosures can be either judicial, which requires court involvement, or pursuant to a clause in the mortgage that allows for such sales.
Garnishment is a creditor’s remedy aimed not directly at the debtor but rather at a third party who owes money to the debtor or holds some of the debtor’s property. The garnishment process notifies the third party that the creditor intends to apply the third party’s property to satisfy the debtor’s debt. Typical “garnishees,” as the third parties are called, include the debtor’s employer and the bank in which the debtor has his or her accounts.
Reorganizations and restructuring are methods by which a bankrupt business may reorganize itself in order to keep operating and pay off creditors at least part of what it owes. This commercial bankruptcy option has many advantages over liquidation, which requires selling off many assets and after which the business ceases to exist.
Workouts are nonbankruptcy agreements between debtors and creditors in which the creditors agree to take less money than the full amount owed or accept payments over a longer period of time than originally anticipated. Workouts have the advantages of being voluntary, less complicated, and less negatively perceived than bankruptcy.
CHANGES TO BANKRUPTCY LAW UNDER THE BANKRUPTCY ABUSE PREVENTION AND CONSUMER PROTECTION ACT OF 2005
The following are just some of the changes that took effect in 2005. Despite these changes, most people who qualified under the old law still qualify under the new law. Here are some of the major changes:
A qualifying test. Under the new law, your income is subject to a two-part means test. First, your income will be compared to your state’s median income for a household of your size. You won’t be allowed to file for Chapter 7 if your income is above your state’s median and you can afford to pay 25 percent of your unsecured debt, but you may be allowed to file for Chapter 13. Second, your income will be subject to a formula that exempts certain expenses (rent, food, etc.) to determine whether you can afford to pay 25 percent of your “nonpriority unsecured debt” such as your credit card bills.
If your income is below the state’s median but you can pay 25 percent of your unsecured debt, you may be able to file Chapter 7, but the court can still require you to file Chapter 13 instead if it believes that you would be abusing the system by filing a Chapter 7.
Under previous law, the court had great latitude in deciding whether a debtor could file for bankruptcy in consideration of their personal circumstances. Under the new law there are few if any exceptions made to the means test, no matter how sympathetic your case..
Determining what you can afford to pay: Under the new law, the court must apply living standards derived by the IRS to determine what is reasonable to pay for rent, food and other expenses to figure out how much you have available to pay your debts.
Creditors’ recourse: Creditors who won’t receive any money owed in a bankruptcy case may contest the ruling if it’s a Chapter 7 case, but could not do so in a Chapter 13 case. Under the new law, that right to contest is extended to creditors in Chapter 13 filings.
Lawyer liability: Under the new law, if information about a client’s case is found to be inaccurate, the bankruptcy attorney may be subject to various fees and fines.
Credit counseling and money management: Under the new law you must meet with a credit counselor in the six months prior to applying for bankruptcy. And before debts are discharged, you must attend money management classes. You must pay for any fees charged.
Car Loans: Under old law, a Chapter 13 bankruptcy allowed you to reduce or CRAM DOWN the amount you owed on a motor vehicle to the current market value, allowing you to pay back only the market value plus a new interest rate of prime plus 1-3%. The new bankruptcy law eliminates the cram down on motor vehicles purchased within 910 days of filing. You will have to pay the full amount owed on your car loan regardless of the condition of the car, as opposed to paying only what your car is worth under previous law. However, you may still be able to reduce the payments by lowering the interest rate and spreading the payments out over a longer period of time.