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November 16, 2009
  What Is Chapter 13 Bankruptcy?
Posted By Malaise Law Firm
A chapter 13 bankruptcy is also called a "reorganization plan" or a "wage earner's plan."  A debtor who files a chapter 13 bankruptcy intends to repay all or part of her debts in installments to creditors over three to five years.  The individual's repayment plan term cannot exceed five years.

There are a number of advantages that chapter 13 affords to debtors.  The most significant is the ability to stop a home foreclosure and force the creditor to accept payments for any delinquent mortgage payments.  The bankruptcy automatic stay stops foreclosure proceedings immediately upon the debtor's bankruptcy filing with the court.  However, this temporary relief may be lost if the debtor fails to make the regular mortgage payments that come due after the chapter 13 filing.

Another advantage of chapter 13 bankruptcy is that a debtor may modify a secured loan and repay it over the plan term.  This usually lowers the monthly payment.  In certain circumstances the debtor can also "cram-down" the secured loan by stripping away the unsecured portion of a debt.  For example, a debtor may owe $20,000 on a car that is only worth $10,000.  Chapter 13 may allow the debtor to modify this loan and only pay the creditor the value of the car, or $10,000.  There are special qualifying rules for this type of modification, so be sure to discuss your situation with your attorney.

Within 15 days of the filing of the chapter 13 bankruptcy petition, the debtor must file a proposed repayment plan with the court.  The plan is also sent to the U.S. trustee and all creditors for review and opportunity to object.  The plan must provide for regular fixed payments to the trustee who then distributes the funds to creditors according to the terms of the plan (which may be less than full payment on their claims).  It is common for a chapter 13 plan to propose to pay secured creditors in full and nothing to unsecured creditors.  This largely depends on whether there is "extra" money at the end of the month after the debtor's secured creditors and monthly expenses are paid.

Occasionally circumstances change after confirmation of the chapter 13 plan that prevents the debtor from completing the repayment plan.  The debtor may ask the court to allow the debtor to modify the plan, or to grant a "hardship discharge" and end the case early.  Otherwise, at the end of the three to five year repayment period the court will discharge the debtor's remaining debts that are not "non-dischargeable" by law.  The chapter 13 bankruptcy discharge prevents those creditors from seeking payment from the debtor.   

If you are over-burdened with secured debts and are in need of relief, consult with an experienced bankruptcy attorney about your rights under chapter 13 of the bankruptcy code.

Continue reading "What Is Chapter 13 Bankruptcy?" »

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November 16, 2009
  Chapter 13 Co-Debtor Stay
Posted By Malaise Law Firm

The "Co-Debtor Stay," also known as the "Co-Debtor Automatic Stay," is a feature of a Chapter 13 Bankruptcy designed to protect a debtor by insulating him from indirect pressures from his creditors exerted through friends or relatives.  The Co-Debtor Stay stops all collection actions against any individual who is obligated on a consumer debt owed by the debtor.  The Co-Debtor Stay continues until the Chapter 13 case has concluded.

The Co-Debtor Stay is not a direct protection intended for the co-debtor.  The debtor's Chapter 13 Bankruptcy will not discharge the co-debtor's responsibilities to the creditor.  It will, however, prevent collection action by the creditor against the co-debtor (e.g. lien perfection or even adverse notation on the co-debtor's credit report) during the pendency of the Chapter 13 case. 

The Co-Debtor Stay does not prohibit collection on a debt incurred in the ordinary course of business by the debtor.  Additionally, tax debt is generally not considered a consumer debt.  It is important to note that the Co-Debtor Stay does not apply at all to Chapter 7 Bankruptcy cases.

The Co-Debtor Stay is effective immediately upon the filing of the debtor's Chapter 13 petition and continues until the case is closed, dismissed, or converted to Chapter 7 or 11.  The Bankruptcy Court can also modify or terminate the Co-Debtor Stay upon the motion of a creditor.  The creditor may be successful in this type of motion if the codebtor received "consideration" for the debt (e.g. you cosigned a car loan for your brother, who actually owns the car), if the debtor's Chapter 13 plan proposes to not pay the debt, or if the creditor's interests would be irreparably harmed by continuation of the Co-Debtor Stay.

A knowing violation of the Co-Debtor Stay is contempt of court and punishable by damages, including attorney's fees.  Any collection action taken by a creditor in violation of the co-debtor stay is void. 
The Co-Debtor Stay is a powerful tool to prevent collection action in Chapter 13 Bankruptcy.  If you are contemplating a bankruptcy filing and have co-debtors, consult with an experienced bankruptcy attorney.  An experienced bankruptcy attorney can explain your options and work with you to find the best result.

Continue reading "Chapter 13 Co-Debtor Stay" »

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