CHAPTER 7 AND CHAPTER 13 FAQ

Chapter 7 bankruptcy is a form of bankruptcy that considers the “liquidation” (sale) of all assets owned by the bankrupt party except for assets that are “exempt” (protected) by law. Chapter 7 bankruptcy is named as much because it is addressed by Title 11 of the United States Code. Title 11 of the United States Code, for its part, is called the “Bankruptcy Code”, and the given name of Chapter 7 itself is “liquidation”. The goal of a Chapter 7 bankruptcy is to use the money obtained from the sale of unprotected assets—or protected money equivalent to the value of those unprotected assets—to pay off creditors of the person or entity who filed (“debtors”), as well as obtain forgiveness of certain debts to the extent the money distributed is not enough to pay creditors in full. In Florida, the United States Department of Justice’s Office of the United States Trustee appoints someone known as the “Chapter 7 Trustee” to administer the case and liquidate assets that are not exempt.

It depends. Many, but not all, types of debt may be “discharged”, meaning creditors can no longer go after the debtor personally. Certain obligations are not dischargeable, meaning they remain due and payable after, or even during, bankruptcy. There are several types, or classifications, of debt.

One type of debt that may survive bankruptcy is secured debt. Secured debt results from a person or entity giving or “pledging” to a creditor the legal right to sell certain property (or “collateral”) to satisfy obligations if certain obligations are not met. Debtors wanting to keep property pledged as collateral are typically required to pay secured creditors, and secured debt can remain for decades after the bankruptcy case ends. Mortgages are a classic example of secured debt.

Unsecured debts typically fall under Two (2) main categories: (i) general unsecured debts; and (ii) priority unsecured debts.

General unsecured debts, like credit card bills and medical bills, are almost always general unsecured debts that can be discharged in Chapter 7 bankruptcy.

Priority unsecured debt is nondischargeable unless otherwise negotiated. Wages owed by a business are often partially, if not entirely, considered priority unsecured debt. As for individuals, child support and alimony are nondischargeable priority unsecured debts, though some obligations arising from divorce may be dischargeable in Chapter 13 bankruptcy.

-Many types of debt—such as judgments, loans, or taxes—can be secured debts, general unsecured debts, or priority unsecured debts, and so it is important to consult with a law firm like Dal Lago Law to determine whether bankruptcy would result in a discharge. Also note that even if you or your company has nondischargeable debt, Dal Lago Law may be able to use the bankruptcy process to negotiate better repayment terms.

Debtors with competent legal representation virtually never lose all their possessions during Chapter 7 bankruptcy, but many businesses are forced to sell all their property during Chapter 7 bankruptcy.

State and federal law provide “exemptions” by which people can protect all or part of certain assets which, in some circumstances, can encompass all a person’s assets. Dal Lago Law has presided over numerous cases where debtors did not have to sell any assets. Nonexempt assets may be protected from forced sale if the debtor, or even a loved one, is willing to use exempt assets to “buy back” the nonexempt asset on terms negotiated with the Chapter 7 Trustee.

Chapter 7 Trustees may “abandon” property that is burdensome or would result in no payments to general unsecured creditors. When property is abandoned by the Chapter 7 Trustee, it may be exempt from forced sale in the bankruptcy case. We have seen Chapter 7 Trustees abandon property valued at more than $100,000.00, which is why it can be important to contact a law firm like Dal Lago Law.

If your assets are exempt or worth almost nothing, and you have little or no income, Chapter 7 might be the best choice for you. Note that income in bankruptcy can include payments from an IRA, Roth IRA, or 401(k), but exclude social security income.

If you or a loved one cannot afford to buy back your nonexempt assets, but you absolutely need to keep those assets for whatever reason, Chapter 7 bankruptcy is probably not the right choice for you.

A Chapter 7 bankruptcy may be completed in fewer than 3 months and require no payments to creditors, whereas Chapter 11 and Chapter 13 cases are designed to take 3 to 5 years to complete, and generally require payments equivalent to the debtor’s disposable income for that period. Moreover, debtors in Chapter 13 bankruptcy are required to pay over their tax refunds to the Chapter 13 Trustee.

Chapter 11 bankruptcy and Chapter 13 bankruptcy require debtors to pay at least as much as they would pay in a Chapter 7 case, with substantially higher attorneys’ fees.

It depends on the type of debt, but almost certainly.

First-time bankruptcy filers are automatically given protection from most collection activities outside of bankruptcy, which includes calls from debt collectors.

In fact, debt collectors who know about your bankruptcy but still call you may be subject to substantial penalties.

Yes! If you operate a sole proprietorship, you and your company may absolutely benefit from Chapter 7 bankruptcy.

If you are personally thinking about filing for bankruptcy, and are the part-owner of one or more limited liability companies, corporations, or partnerships, it may be worthwhile to utilize Chapter 11 bankruptcy or Chapter 13 bankruptcy. Businessowners filing for Chapter 7 bankruptcy are more likely to be forced to sell their interest in one or more businesses, but whether a businessowner must sell their ownership interests depends on the circumstances before and during the bankruptcy.

Filing a Chapter 7 bankruptcy on behalf of a business itself may not be cost-effective, though, especially if you wish to continue operations.

The attorneys at Dal Lago Law are experienced in evaluating the right form of bankruptcy for individuals and businesses alike, so feel free to contact us.

No, but it is highly advisable to consult with an attorney about not only how, but whether to file for bankruptcy.

Businesses and their owners have lost everything by filing for Chapter 7 bankruptcy by filing for bankruptcy without a lawyer—or, at best, hiring a lawyer without substantial bankruptcy experience.

Chapter 7 bankruptcy debtors do not have an absolute right to dismiss their case, so a mistaken filing can commit a business to sell all its assets even if it could have been reorganized into a profitable business under Chapter 11 bankruptcy.

Qualified bankruptcy practitioners, like the attorneys at Dal Lago Law, can identify exemptions and make sophisticated legal arguments to protect you or your business better than someone with little or no experience representing debtors in bankruptcy.

Each lawyer at Dal Lago Law handles bankruptcy matters on a weekly—if not daily—basis. Moreover, every lawyer at Dal Lago Law is an active member of the American Bankruptcy Institute and Southwest Florida Bankruptcy Professionals Association. Contact us today to see whether our services are right for you!

Chapter 13 bankruptcy, officially named “Adjustment of Debts of an Individual with Regular Income”, is a form of bankruptcy for people—but not businesses—with stable, steady income.

People who want or need to become Chapter 13 bankruptcy “debtors” typically start by gathering a large assortment of documents that show their financial condition. The assortment of documents is reviewed and used to fill out a variety of forms known as “Schedules”.  The Schedules are filed along with a cover document called a “Voluntary Petition for Individuals Filing for Bankruptcy”, or simply “Petition”. Dal Lago Law uses advanced bankruptcy software to make this process easy.

Chapter 13 bankruptcy involves the use of a proposal (called a “Plan”) to pay debt over Three (3) to Five (5) years using disposable income and tax refunds.  The Plan is usually based on the documents used to complete the Schedules. As with Schedules, Dal Lago Law uses advanced bankruptcy software to craft a Plan the bankruptcy court can approve.

Once a Plan has been proposed, Chapter 13 bankruptcy debtors are expected to make monthly payments to a Chapter 13 “Trustee”, who disburses payment and helps oversee the case. The Trustee has several job responsibilities, many which are not mentioned here.  The Trustee typically reviews the Petition, Schedules, and Plan, and conducts a “meeting of creditors” where creditors can ask the debtor questions. The Trustee also works with the United States Department of Justice to make sure the bankruptcy case follows the law and was not filed for improper reasons.  The Trustee typically asks the debtor for the documents they used to make the Petition, Schedules, and Plan.

The length of a Chapter 13 bankruptcy plan is based on how the debtor’s monthly income compares to the median family income for the debtor’s state and household size. Debtors with monthly income below the median for their state and household size generally have Three (3) year plans, whereas those whose income exceeds the median generally have Five (5) year plans.

Chapter 13 bankruptcy debtors cannot pay creditors less than they would receive in Chapter 7 bankruptcy, but Chapter 13 bankruptcy debtors are typically not required to sell or “buy back” unprotected assets.

The attorneys and other experts at Dal Lago Law can analyze qualified clients’ debts and income to devise a Chapter 13 Plan that is as fair and manageable as possible under the law.

If they otherwise qualify, yes. People that owe $2,000,000.00 in debt may still be eligible to file for Chapter 13 bankruptcy if their “noncontingent, liquidated” debts total less than $2,750,000.

If a person’sPeople with debt totaling $2,750,000.00 or more, they may still be eligible to file under Chapter 11 bankruptcy, even if they do not qualify for Chapter 13 bankruptcy.

People who would otherwise qualify for Chapter 13 bankruptcy, but have debt totaling more than $2,750,000.00, may still be able to file for Chapter 13 bankruptcy if all or part of their debt is “contingent” or “unliquidated”.

Dal Lago Law enables people to determine whether bankruptcy is right for them and, if so, what type of bankruptcy would help most.

What happens if a Chapter 13 debtor cannot make, or fails to make, Plan payments on time?

It depends on the situation, the circumstances surrounding the situation, the Trustee’s decision-making (often based on the situation and circumstances). It is critically important to ensure the Plan propose can be completed even in the event of disaster.

Dal Lago Law creates plans for Chapter 13 debtors that are manageable, and amends plans when circumstances change.

Chapter 13 bankruptcy does not always require debtors to pay all their debts. Chapter 13 bankruptcy is designed to ensure debtors can pay reasonable monthly bills, though.

One reason many Chapter 13 debtors can immediately afford their bills after filing for bankruptcy is because Chapter 13 bankruptcy gets rid of minimum monthly payments on certain debts, effectively consolidating them under one monthly Plan payment tailored to fit an average budget for the debtor’s state and household size. Chapter 13 debtors do not have to make any payments on debt that is eliminated (“discharged”) by the bankruptcy court.

-To be clear, though, Chapter 13 bankruptcy often requires debtors in Southwest Florida to make significant lifestyle changes. The cost of living a somewhat minimalist lifestyle in Southwest Florida can come near—or even exceed—the median income of an identically-sized household elsewhere in Florida. Chapter 11 bankruptcy can allow people to continue living a luxurious lifestyle if they comply with the law, but Chapter 11 bankruptcy is almost always much more expensive.

Dal Lago Law helps clients decide whether Chapter 13 bankruptcy is worth the sacrifices and, if not, can help them identify whether Chapter 7, Chapter 11, or Chapter 12 bankruptcy would help them obtain a fresh start on better terms.

In many (if not most) circumstances, yes. Under most circumstances, filing for Chapter 13 bankruptcy imposes an “automatic stay” that “stays” (i.e. pauses) many types of debt collection activities.

Debt collectors that harass Chapter 13 bankruptcy debtors in violation of the automatic stay can be forced to pay the debtor’s damages and attorneys’ fees associated with the violation(s).

Chapter 13 bankruptcy almost never gets rid of the requirement to repay a mortgage used to purchase a home debtors intend to keep, but Chapter 13 bankruptcy debtors may be eligible to use their local court’s mortgage modification program to renegotiate those debts.  The United States Bankruptcy Court for the Middle of District of Florida—encompassing Charlotte County, Collier County, DeSoto County, Glades County, Hendry County, Lee County, Hardee County, Hernando County, Hillsborough County, Manatee County, Pasco County, Pinellas County, Polk County, and Sarasota County—offers an excellent mortgage modification mediation program.

Dal Lago Law helps qualified people stop creditor harassment, halt foreclosure actions, and save their homes.

Chapter 13 bankruptcy often eliminates the debt that forced a person into bankruptcy, and sometimes gets rid of all debt.

Certain debts are generally not discharged, including (but not limited to) child support, alimony, certain taxes, student loans, and sometimes certain loans (like home mortgages and car loans) secured by property the Chapter 13 bankruptcy debtor wants to keep.

Dal Lago Law helps people find out whether—and to what extent—their debt could be eliminated by bankruptcy.

Sometimes, but not usually, as bankruptcy courts have interpreted bankruptcy as imposing hardship requirements for student loan discharge that are nearly impossible to meet—even when someone is disabled, elderly, or both.

However, the United States Bankruptcy Court for the Middle of District of Florida (which includes Naples, Fort Myers, Bonita Springs, Ave Maria, Tampa, Sarasota, North Port, Cape Coral, Marco Island, and many other cities and towns in Southwest Florida) offers a “Student Loan Management Program” that can provide substantial relief.

Dal Lago Law helps people find out whether bankruptcy can address their student loan debt.

It depends on the type of debt.

Debt associated with “Property Settlement Agreements” can often be eliminated—or “discharged”—in Chapter 13 bankruptcy, unlike Chapter 7 bankruptcy or Chapter 11 bankruptcy.

Alimony and Child Support is almost never discharged through the bankruptcy process alone.

Dal Lago Law does not represent spouses and parents in family court or divorce court, but the attorneys at Dal Lago Law still help people determine whether theirthe debt associated with those proceedings is dischargeable and, if so, help discharge that debt.

Medical bills incurred prior to bankruptcy are almost always eligible for discharge, or elimination, in Chapter 13 bankruptcy.

Medical bills incurred after, or during, Chapter 13 bankruptcy are generally not eligible for discharge in Chapter 13 bankruptcy.