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Schedule C: Property Exemptions

Keeping Assets in a Chapter 7: Understanding Bankruptcy Exemptions

Bankruptcy Exemptions are the laws that allow you to keep assets in a Chapter 7 Bankruptcy

The most common type of bankruptcy is a Chapter 7 bankruptcy, aka a liquidation bankruptcy.  The process usually takes approximately three to four months for a standard case. During this process you file a petition that provides information about your life. This information includes your income, expenses, debts, assets, and personal information. The bankruptcy process allows you to keep certain items. If you have more then the minimal items the bankruptcy trustee sells the debtor’s nonexempt assets and uses the proceeds of such assets to pay creditors. Understanding bankruptcy exemptions can help you determine the right debt management option for you.

Who can file

Chapter 7 is an option for individuals or businesses. An individual gains fresh financial start after filing a Chapter 7 — only select debts remain after discharge. A business uses a Chapter 7 to close the business after it is no longer profitable.

 

How to qualify

When a debtor files Chapter 7, the court looks at the household income. If the household income is below the median for your state, you can qualify for Chapter 7. If your household income is above the median income for your state, you may still qualify. The court analyzes all income under the “Means Test.” This test is basically used by the court to determine if you have any disposable income at the end of every month to pay over to your creditors. The court determines the disposable income by deducting specific monthly expenses from your “current monthly income” (your average income over the six calendar months before you file for bankruptcy). Some of these expenses are actual expenses, such as car payments, mortgage payments, taxes, etc. Other expenses are based on the Internal Revenue Service standards for your county, such as utilities, food, etc.

 

Exemptions

When filing a Chapter 7, most people are most concerned about what assets you can keep. There are certain bankruptcy exemptions (or protections) that apply to anyone filing for bankruptcy. Your exemptions vary under state and federal laws. The exemptions you can use depend on state law and where you have resided for the past two years.
In Virginia, there are various exemptions that apply for residents. Some of the most common exemptions include:
Clothing: up to $1,000 of the value of clothing. Used clothing have a very low resale value; we use thrift store prices to value clothes. The only issue that ever arise are if there are a significant amount of newer designer clothes.
Vehicles: each debtor may keep up to $6,000.00 in equity in a car. If a car is jointly owned, this means a couple can have up to $12,000.00 worth of equity in the car. This means that if you have a car worth $20,000.00, but there is a $18,000.00 loan on the vehicle, there is only $2,000.00 worth of equity.
Household good and furnishings: each debtor can keep up to $5,000.00 on household goods. Generally, there is no issue with these items unless you have valuable antiques or collectibles.
Wedding and engagement rings: debtors are allowed an unlimited exemption for wedding and engagement rings. This means there is no limit on the value you can have for an engagement and/or wedding ring.
Tenants by the Entirety: there is an unlimited exemption for property titled Tenants by the Entirety (TBE) when there is no joint debt between the spouses. In Virginia, the law allows property (usually a marital home) to be titled in a specific manner between a married couple, but also requires that no joint debts exist between the parties. If you think this may apply to you, then I recommend speaking to an experienced bankruptcy attorney. Steps have to be taken to ensure there is no joint debt and that needs to be proven to the trustee in your case.
Federally-qualified retirement plans: traditional retirement plans, such as your 401(k), IRS, Thrift Savings Plan (TSP), etc. are all 100% exemption.
Tools of the trade: there is a $5,000.00 exemption for assets that are directly related to your primary profession.
Wildcard: Virginia bankruptcy exemptions are generous for everything exception a potential wildcard. A wildcard applies to any asset that has no other exemptions available, including cash in the bank and equity in a house. A debtor may also use this exemption to supplement any other exemption if more protections are needed.

Virginia’s wildcard is also called a Homestead Deed; it has this name because a document must be filed in the land records in the county in which you reside. This exemption is a $5,000.00 lifetime exemption. Debtors receive additional $500.00 exemption for any dependents.The exemption increases to $10,000.00 at the age of 65. However, since this is a lifetime exemption, if you file bankruptcy and use $1,500.00, you only have $3,500.00 remaining for any future bankruptcies filed in Virginia (until you turn 65).

 

NOTE: The above list of Virginia bankruptcy exemptions is NOT complete or exhaustive list. It includes only the most common exemptions. Additionally, these exemptions may change. 

 

Warnings about assets, exemptions and transfers 

It is also important to note that transferring assets to avoid including them in your bankruptcy is a bad plan. All transfers of property within two years of filing bankruptcy must be disclosed. The case trustee can reverse transactions. If the court determines you did the transfer with the intend to avoid a bankruptcy or to hide assets from creditors, the court may also deny you a discharge of your debts.

 

The court may review all debts that a debtor paid back within the last year. If you have paid back family, friends, or business partners, the court can actually sue those individuals for return of the funds. The court believes that a debtor must treat all creditors the same; as a result, you must treat American Express the same as Uncle Joe. Paying one creditor more money than another is considered a preference because you are giving preferred treatment to one creditor over another.
Once a Chapter 7 bankruptcy is filed, you cannot voluntarily dismiss the case.  A judge must review any request to end a debtor’s case. A judge will not dismiss your case just because a debtor is losing property or a trustee sues a debtor’s  family member.

 

An experienced Virginia bankruptcy attorney will be able to review your situation and help prevent potential problems in your case. Having an lawyer handle your case properly from the start can prevent problems later on.

 

Alternative options

If Chapter 7 is not right for your situation, there can be other options. Many people who qualify for Chapter 7 due to their income, choose to file a Chapter 13 because there are not adequate bankruptcy exemptions to protect all of their assets. If you have nonexempt assets, a Chapter 13 is another option to consider. In a Chapter 13, you are allowed to keep all nonexempt assets because debtors are required to pay out the value of these unprotected assets over the course of three to five years. Additionally, sometimes debt negotiation is a better option. If you have limited amounts of debt or cannot qualify for a Chapter 7, sometimes having an attorney help you settle a debt, is a better option.

 

 

 

Most individuals want to keep as many assets when possible, if you are filing bankruptcy.  Having an experienced bankruptcy attorney can help ensure your case goes smoothly and can help protect as many assets as possible. Attorney Ashley Morgan has experience dealing with all the above issues.
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Sign for United States Bankruptcy Court

Top 17 Dos and Don’ts for Bankruptcy

Having financial problems? Think bankruptcy may be an option for you? To help ensure you keep your options open and available, understand there are things you should or shouldn’t do. In many cases, if you take certain action, such as transferring a house into the name of a family member before filing bankruptcy, you may either limit your options available or put your asset at risk.  There are even some actions that could completely jeopardize your ability to get a bankruptcy discharge. Here is a list of dos and don’ts for bankruptcy.

Here are the Top 17 Dos and Don’ts for bankruptcy:

  1. Do talk to a bankruptcy attorney immediately. Most bankruptcy attorneys offer free consultations, so you should take advantage of that. Talking to an attorney doesn’t mean you will definitely be filing bankruptcy. It allows you to understand how bankruptcy would apply to your situation. There are many different types of bankruptcy and it is important to understand how each option could apply to your situation; individuals primarily file Chapter 7 or Chapter 13. Additionally, you want to find a bankruptcy attorney that makes you feel comfortable. You will only be completely honest with someone if you trust him or her.
  2. Don’t transfer property or money. It is important for you to be aware that transferring title to property before declaring bankruptcy is not an option. Do not sell or transfer assets to your friends or relatives to hide them from creditors or the bankruptcy court. The trustee will ask you about such transfers at the first meeting of creditors, and has the power to recover those assets. The trustee can basically undo any transaction you have done within a certain time frame. In Virginia, it is two years. Also, don’t transfer money into your kids’ bank accounts. They have you as a co-signor or guardian and are subject to the same review as your accounts. Hiding assets can be a reason for the court to deny you a discharge, and you can be subject to criminal prosecution.
  3. Do tell your lawyer everything. Even if it is embarrassing it is better if your attorney knows everything about your situation. If you have made major purchases recently, then it may be important to wait to file. Or if you have an existing medical condition, it may be important factor to consider in the timing of your bankruptcy. Additionally, it is important to list all assets and debts. Anything that isn’t listed in your petition may not be discharged. Additionally, failure to list all your assets and your debts may result in not getting a discharge.
  4. Don’t leave out income. People think that a second, part-time job does not count as income. All household income must be included. The court will look back at least six months to see what your household income has looked like. Similarly, even if your spouse is not filing, you must list his/her income unless you are legally separated. The court needs a picture of your household. The court cannot require a spouse to pay a debtor’s debts, but they can require a spouse contribute to the household. If you want to claim somebody as a dependent in your bankruptcy, you must include their income. Additionally, social security does not count in qualifying you for bankruptcy, but it still must be listed.
  5. Do keep track of expenses. Part of a bankruptcy filing is disclosing expenses. Many individuals do not always realize where their money is going. But we want to be as accurate as possible with our accounting. If you are sending your mom, $300 per month, we want to make sure we account for that. Some expenses may be questioned or deemed unreasonable. If you are spending $1,000.00 per month on food for a household of one, the court may not allow the full amount unless there is a good justification. Other expenses may be allowed, but could be questioned if higher than average. For example, if you are paying $700.00 per month for medical expenses, it is important to keep documentation in case you need to prove it later on.
  6. Don’t pay back preferred creditors or family/friends. Many consumers want to pay certain creditors in full before filing for bankruptcy. The court doesn’t want you to play favorites and pay money to some creditors and not pay the rest. The court believes all creditors should be treated the same; however, there are exceptions for secured creditors, like your mortgage or car loan. The Trustee can reach back ninety days to recover money paid to general creditors and spread it out more evenly to all of your creditors. The Trustee can take back funds paid to your family and friends, if you have paid them back within a year.
  7. Do make sure to list all debts. Bankruptcy does not allow you to pick and choose which debts to list or not list. You must list all debts, from the credit card with American Express to the personal loan from Aunt Sally.
  8. Don’t incur any new debt without first asking your attorney. It might be a good idea to get a secured car loan before the bankruptcy filing hits your credit profile, but it is a bad idea to buy non essential assets like laptop, plane tickets, TVs, etc. It is important to talk about the pros and cons to opening a new account before filing. Additionally, any new accounts may delay your filing or complicate your case.
  9. Do keep current on payments for non-dischargable debts. Bankruptcy usually cannot discharge student loans, taxes, child support, etc. This means these debts will be around even after your discharge. Talk to your bankruptcy attorney about your specific situation, but generally, you want to keep paying these debts
  10. Don’t make any last minute charges or purchases. When the creditor gets the notice that you filed, it takes a look at your account history. If it sees a bunch of charges right before filing, it will get suspicious. Additionally, creditors can object to any major purchases within approximately three months of filing bankruptcy. The creditor can basically file a separate lawsuit with the bankruptcy court and ask it to not discharge that part of your debts.
  11. Do keep track of deposits and withdrawals. The trustee in your bankruptcy will review your bank statements. He or she may have questions about large cash withdrawals or deposits. It is important to remember what the money was from/for. For example, if you pay your rent in cash every month, try to make sure you get a receipt and keep it.
  12. Don’t take any cash advances. Do not make any major cash advances off of credit cards prior to filing for bankruptcy. A creditor can object to the discharge of debts incurred as cash advances before filing.
  13. Do disclose all assets. Anything that you own needs to be listed in your petition; this includes your 15-year-old furniture and the bank account with 25 cents. Additionally, even if you are on title of an asset, like a house or a bank account, it still means you have an ownership interest. Many families add parents or children to bank accounts to make transferring assets easier, this still means under the law it is yours. It is important to disclose this to your attorney up front to prevent any problems.
  14. Don’t borrow or withdraw from your retirement. Federal and Virginia law protects your tax retirement accounts from creditors. But funds in these accounts lose this protection the moment you withdraw them. You could also be liable for taxes and penalties for an early withdrawal. These taxes and penalties may not be dischargeable in bankruptcy and could cause a hardship down the road.
  15. Do separate money. If you have money that may be protected, for example, social security, settlement from a personal injury lawsuit, etc., you want it to be clear where the money came from. Put all the funds in a separate account that you own with the same type of funds, for example, have an only social security account where money is deposited in and no other funds go in. This will make it easier for an attorney to advise you if there is a way to protect the money during a bankruptcy.
  16. Don’t file until your medical conditions are stable. If you are considering filing bankruptcy due to medical debt or expect to have major medicinal procedures in the near future, you usually do not want to file bankruptcy until those are taken care of. Unexpected complications can occur that can cost significant amounts of money. You may limit expenses, if you have insurance coverage; but, insurance does not always cover all treatments and procedures and there is often a deductible and out of pocket to consider. Filing bankruptcy to just have more medical debt occur soon after is not a good outcome.
  17. Do file your taxes. It is important to make sure you are current with your tax filings before filing bankruptcy.  When filing a Chapter 7, the court will require you to provide your most recent tax filings; the court may hold your case open until the tax return is filed and you have received any refund. If you file a Chapter 13, court will require you to file the last four years of returns in order to be compliant with bankruptcy laws.

The bankruptcy court review’s a debtor’s financial situation. This list of dos and don’ts for bankruptcy should help you understand that making financial decisions before filing can impact your case. Most bankruptcy courts can look back at least two years to review transactions completed by the debtor; the trustee in your case can also undo certain transactions. It is important to not take any actions that could jeopardize your assets or even your discharge. Talking to an attorney as soon as you are facing financial difficulties can help. Just talking to a bankruptcy attorney does not mean you are agreeing to file bankruptcy, but can help you understand the option if you need to in the future.

 

 

It is important to preserve your rights in a bankruptcy.  Having an experienced bankruptcy attorney can help ensure your case goes smoothly and you come out with a fresh start. Ashley F. Morgan Law, PC helps many individuals manage their debts every month. Attorney Ashley Morgan has experience dealing with all the above issues.

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Court ruling of a divorce can lead you to bankruptcy.

Breaking Up is Hard to Do: A Guide on Bankruptcy and Divorce

Bankruptcy and Divorce

We get many people in our office post-divorce. Going from a two-income household to a one-income household is never easy; one person now pays bills previously split between two individuals. Sometimes, you may have been a house supported by one income, but now that same income is supporting two households due to support payments. Tack on attorneys fees, moving expenses, and related costs, many people are swimming in debt after a divorce. These issues are hard enough to deal with alone, but combine bankruptcy and divorce and the equation gets even more complicated.

It is no wonder why people consider bankruptcy when facing a difficult financial situation post-divorce. The good news is that bankruptcy can help many individuals with debts after divorce, but not all. When dealing with child support or alimony, the obligation will never go away with bankruptcy. That is considering a type of support and an obligation that has been determined important to ensure that your child or ex-spouse can survive. But obligations that are not considered “in the nature of support” can be discharged in a Chapter 13 case, although not in a Chapter 7 one. Non-support divorce debts are usually obligations related to the division of property and the division of debts. This is sometimes the reason we consider that clients should file a Chapter 13 case instead of a Chapter 7 one (even if they can qualify for a Chapter 7).

Chapter 7

We often talk about a Chapter 7 bankruptcy for individuals who are having trouble post-divorce. Debtors file a Chapter 7, which is also called a liquidation bankruptcy, to receive a discharge that cancels unsecured debts. However, it a Chapter 7 doesn’t discharge any divorce-based debts. For example, if you credit card debt owed after your divorce or your own attorney’s fees, a Chapter 7 will usually help to cancel out these debts. However, if you owe your ex-spouse’s attorney’s fees or owe a debt because the divorce decree says you will pay the debt, then a Chapter 7 will not help.

A common scenario is when a joint credit card owed by both spouses prior to the divorce. The divorce decree says that wife will pay the card balance and indemnify the husband going forward. However, the divorce court cannot dictate that a credit card company cannot go after either liable party. As a result, if wife files a Chapter 7 bankruptcy, it would likely discharge the credit card company’s right to seek payment. However, wife’s obligation to indemnify husband in the future would not be discharge. Wife would still have to pay on the debt. This type of situation also occurs regularly with joint tax debt.

Chapter 13

Chapter 13 has a key advantage over Chapter 7. It has what is called a “Super Discharge.” This means certain additional things can be discharged after completion of a Chapter 13 plan. The major benefit to a Chapter 13 is that you can discharge some obligations arising out of a divorce decree.  You can discharge debts dealing with the division of property and the division of debt, often called equitable distribution. You can never discharge child or spousal support — under either Chapter 7 or 13. This means,  if a debtor owe non-support divorce debt, the debt would be discharged at the end of your Chapter 13 case. But, all support debt would need to be paid as normal during the bankruptcy plan. If you are behind on your support, Chapter 13 can be a useful tactic to catch up on the payments.

Attorney Fees

Many times in a divorce case, attorney’s fees are very high. Like previously stated, your own attorney’s fees are usually just considered an unsecured debt that can be discharged in a Chapter 7. However, attorney’s fees owed from your ex-spouse that get awarded can be tricky. The bankruptcy court reviews why the divorce court awarded the fees. If the divorce court awarded fees for work on obtaining support, the bankruptcy court will usually follow the rule of those fees being non-dischargable under all circumstances. If the divorce court awarded fees for work done on an equitable distribution issue, then the bankruptcy court usually allows the fees to be discharged in a Chapter 13. This can be a contentious question, and sometimes requires a hearing in bankruptcy court to determine the proper classification if there is a dispute.

Support Arrearages

If you are behind on your child support or alimony, Chapter 13 does allow you to catch up on that obligation over a period of three to five years. The court requires debtors make all support payments going forward; however, the you could spread catch-up payments out over months or years.

Filing Bankruptcy Before Divorcing

If you are just considering divorcing, sometimes couples can avoid some of the above problems by filing bankruptcy together. Some divorcing couples  file together before the divorce because it can be more efficient. For example, filing a joint bankruptcy will discharge most debt of both spouses. It also usually costs less to file bankruptcy together as a couple as opposed to apart.

Regardless of your situation, you should consult with an experienced bankruptcy attorney. Any Chapter of bankruptcy comes with benefits and risks. Sometimes the difference of support and equitable distribution is unclear. Depending on the factors, there could be arguments supporting varying arguments. Attempting to discharge non-support divorce debts through Chapter 13 can get complicate and require a hearing or trial. Additionally, the bankruptcy codes includes many complicated requirements for Chapter 13 plans; debtors must meet these requirements in order to get a plan confirmed and eventually a discharge.

 

 

Attorney Ashley Morgan is an experienced bankruptcy attorney in northern Virginia.  Ashley has helped many individuals handle debts through bankruptcy and divorce. Reach out to Ashley F. Morgan Law, PC if live in northern Virginia and you are struggling managing your debts for a free bankruptcy consultation.

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Car on the back of a tow truck

Can I Keep My Car in Bankruptcy?

Can I keep my car in bankruptcy?

One of the most common questions potential clients ask us is if they can keep a car in bankruptcy. During a Chapter 13, there is rarely an issue with a car. The question really comes up in a Chapter 7, since the court is looking at all your assets; a trustee will sell any non-exempt assets. But, the good news is that most of the time cars are not an issue in a Chapter 7.

The exemption, or protections under the law, in Virginia is fairly high; Virginia residents are allowed a $6,000.00 exemption for vehicles. If the car is owned by two individuals, the exemption is allowed for each person. Additionally, if your car has a high value, you can apply your $5,000.00 wildcard/homestead deed to help protect the car. The exemption only applies to equity in your car; so if you have a car worth $20,000.00 but you owe $16,000.00, you only need $4,000.00 in exemptions to protect the car.

A lot of debtors also say they want to keep their car out of bankruptcy. In bankruptcy you are required to list all assets and all debts. The bankruptcy will discharge the debt on the car, but the lien on the car remains. This means that the contract between you and the bank is gone, but the lender can still repossess the vehicle if payments are not made. So there is no free car, but the car company cannot make you pay for the balance of the loan if you do not want. For most of our clients, if they agree to keep paying on the debt, they can keep the car and will get the title at the end of the payments. But it also allows you the option to give up an underwater car without potential issues.

Reaffirmations

A reaffirmation is basically signing the same contract over again after filing bankruptcy. The creditor will report new payment history to the creditor reporting agencies. However, it also re-obligates you on the entire debt; so, if you fail to pay the entire loan and the car is repossessed, then the creditor can come after you for the deficiency. Additionally, a judge must sign off on the agreement; the court will likely require a hearing to prove that you can pay the debt going forward.

We rarely ever recommend the debtor sign a reaffirmation; on rare occasions there are reasons to sign them. Some creditors require a reaffirmation because they will repossess, even if you are current on your payments. Currently, the only creditor that takes this action is Ford. However, this could change at any moment. It is important to be sure you attorney is up to date about changing policies with varying lenders.

Should you keep your car?

For some of my clients, there is the question of whether you should keep the car. Chapter 7 allows a debtor to surrender the car in bankruptcy without issue of a deficiency or a repossession being reported on your credit report. For many people who have only made one or two years worth of payments on a car purchased new, you likely have negative equity in the car. Additionally, if your car was in an accident or two, there is likely a significant depreciation in value from that damage. Other individuals who find negative equity in a car are those who traded in a car with a large loss on a new car purchase.

Many people love their cars; but, we want to remind them that cars are a depreciating asset and it really is a financial decision that you are making. If you owe $25,000.00 on a car only worth $15,000.00, it is not likely to be a good financial decision to keep that vehicle. Continuing to pay on the car means you will be paying more for the vehicle than it is worth. After bankruptcy, most people’s credit increase. Additionally, many car lenders are willing to give you a car loan since you must wait at least 8 years between bankruptcy court filings (and most car loans are less than 8 years). Now if you owe $10,000.00 on a car worth $16,000.00, it is a lot easier of a decision to keep the car. You can keep that car, trade it in or sell it after the bankruptcy is over.

Cross Collateralization

One issue that most debtors do not know about is cross collateralization. This is a right that only credit unions have. Basically, if the credit union gives you a loan for a car, that lender has a lien against the car to secure the payment. The lien allows the creditor to repossess the car if the borrower does not make all of the payments. The cross-collateralization agreement allows the lien against the car (or any other collateral) to secure additional debts other than the car loan. This means that if you don’t pay a credit card, then the creditor can repossess your car.

Cross collateralization is something very few people know about. Most people understand that when finances get tight, you make sure you pay your car payment, even if you cannot pay your credit cards. But, if you aren’t paying on a credit card or personal loan, the credit union can repossess your car even if you are current on your car payments. This is important to understand when taking out car loans or opening new unsecured credit accounts.

When you file bankruptcy, your obligation to pay on all the debts is discharged, but car loan and cross-collateralized debts all remain with the car lien. This means that you may owe more on your car than you believe. Some lenders may allow you to only pay the car loan amount if you reaffirm the debt, but this policy varies from creditor to creditor. Experienced bankruptcy attorneys will usually have an idea how major lenders deal with your car in bankruptcy.

Other Options

Bankruptcy provides a debtor with various options he/she do not have outside of bankruptcy.

Redemption

One option debtors can do during you Chapter 7 is to “redeem” the car. This means during your case, you purchase the car back from the lender for the value of the car, not the total debt.

Under Section 722 of the bankruptcy code, a debtor in Chapter 7 has the right to force the lender to release its lien in exchange for a onetime payment in the value of the collateral. This can be a great way to keep your car and save money. The most difficult part of this option is coming up with the funds. There are certain lenders and programs that work with debtors on financing this payment.  When making a decision about a redemption, you should consider the total amount that would be paid (principal and interest). Additionally, there sometimes is the option of talking directly to your credit union or bank for a new car loan; this option works best if you have high income or a cosigner. But, if you want to redeem your vehicle, you should consider all possible options; some debtors are able to find the funds from family or friends, selling exempt that you kept during your bankruptcy.

Decide later

The decision about keeping the car does not have to happen immediately in the bankruptcy, unless a reaffirmation or a redemption is needed. Sometimes you want to take more time to make the decision. You do not immediately need to make the decision of whether to surrendering your car back to the lender. You can surrender the car during the bankruptcy or much later, as long as you do not reaffirm the debt. Some of my clients continue to make payments for 3 to 6 months after the bankruptcy. After their credit has bounced back, they apply for a new car payment and surrender their old vehicle then.

You have options

It is important to understand you have a lot of options. Additionally, you must take important steps to protect your assets. Talk to an experienced bankruptcy attorney about all the options that apply to your specific case and your options to handle your car in bankruptcy.

 

 

It is important to understand all your options and rights during a bankruptcy. Having an experienced bankruptcy attorney can help ensure your case goes smoothly and you come out with a fresh start. Ashley F. Morgan Law, PC helps many individuals manage their debts every month. Attorney Ashley Morgan has experience dealing with all the above issues. She understands good credit is important, and she wants her clients to completely understand all the tools at their disposal before taking action.

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Bankruptcy sign ahead

Chapter 7: Ins and Out of a Bankruptcy Liquidation

A Guide to Chapter 7 Bankruptcies

The most common type of bankruptcy is a Chapter 7 bankruptcy. This is also called a liquidation.  The process usually takes approximately three to four months for a standard case. During this process you file a petition that provides information regarding your income, expenses, debts, assets, and personal information. The bankruptcy process allows you to keep certain items. If you have more then the minimal items the bankruptcy trustee sells the debtor’s nonexempt assets and uses the proceeds of such assets to pay creditors.

Who Can File

Chapter 7 is an option for individuals or businesses. An individual is basically being given a fresh start after filing a Chapter 7. A business that files a Chapter 7 as way to close your business after it is no longer profitable.  Basically, after a Chapter 7, the business ceases to exist.

Parties in a Bankruptcy

There are many important people to know about in your bankruptcy filing. These people include:

Debtor

The debtor is the person (or persons or businesses) filing for bankruptcy. These individuals are looking for relief under the bankruptcy code.

Case Trustee

This person is chosen by the court to represent your creditors. It is his/her job to review your petition, ensure it is accurate, and also determine if you have any assets that the court can take and sell to pay your creditors. The Trustee interviews you at your Meeting of Creditors (also called a 341). The Trustee has a lot of power; he or she can sell jointly owned property, cancel contracts, and much more.

Creditors

These are people that the Debtor owes money. They have the right to review your petition and assets. They also have a right to object to your discharge if they believe it is being done in bad faith or you have certain debts that should be considered non-dischargable.

U.S. Trustee

This person represents the Justice Department. The U.S. Trustee has a responsibility to ensure people are properly filing bankruptcy and that cases are appropriate. Most Debtors never deal with the U.S. Trustee, but they do audit random cases to ensure your paperwork is in order, you have all the proper documentation, and you have followed all the rules.

How to Qualify

When a debtor files Chapter 7, the court looks at the household income. If the household income is below the median for your state, you can qualify for Chapter 7.
If your household income is above the median income for your state, you may still qualify. The court requires that your income is analyzed under what is called the Means Test. This test is basically used by the court to determine if you have any disposable income at the end of every month to pay over to your creditors. The court determines the disposable income by deducting specific monthly expenses from your “current monthly income” (your average income over the six calendar months before you file for bankruptcy). Some of these expenses are actual expenses, such as car payments, mortgage payments, taxes, etc. Other expenses are based on the Internal Revenue Service standards for your county, such as utilities, food, etc. Using these standards, if you have little or no money leftover, then you can usually qualify for a Chapter 7.

Exemptions

The exemptions you can use depend on state law and where you have resided for the past two years. There are also federal exemptions some Debtors are permitted to use. These exemptions, which are really legal protections, allow you to keep certain assets during your Chapter 7. Assets without protections are called non-exempt assets. The trustee in your case looks at these assets to determine if there is value to sell and give to creditors. In Virginia, there are various exemptions that apply for residents. Some of the most common exemptions include:

Clothing

Virginia law allows you to protect up to $1,000 of the value of clothing. Used clothing have a very low resale value; we use thrift store prices to value clothes. The only issues that usually ever arise are if there are a significant amount of newer designer clothes.

Vehicles

Virginia’s automobile exemption allows each individual Debtor up to $6,000.00 in equity in a car. If a car is jointly owned, this means a couple can have up to $12,000.00 worth of equity in the car. This means that if you have a car worth $20,000.00, but there is a $18,000.00 loan on the vehicle, there is only $2,000.00 worth of equity.

Household Good and Furnishings

Each debtor is allowed up to $5,000.00 on household goods. Generally, there is no issue with these items unless you have valuable antiques or collectibles.

Wedding and Engagement Rings

Virginia exemptions permit for an unlimited exemption for wedding and engagement rings. This means there is no limit on the value you can have for an engagement and/or wedding ring.

Tenants by the Entirety

There is an unlimited exemption for property titled Tenants by the Entirety (TBE) when there is no joint debt between the spouses. In Virginia, the law allows property (usually a marital home) to be titled in a specific manner between a married couple, but also requires that no joint debts exist between the parties. Additionally, there are requirements related to the TBE exemption regarding the type of property and how is was obtained. If you think this may apply to you, then I recommend speaking to an experienced bankruptcy attorney. In addition to the above issues, the spouses can have no joint debt; the non-existence of joint debt must also be proven to the trustee in your case.

Federally-Qualified Retirement Plans

Virginia law allows for a generous exemptions for traditional retirement plans, such as your 401(k), IRA, Thrift Savings Plan (TSP), etc. These qualified plans are all 100% exemption. The only caveat

Tools of the Trade

There is a $5,000.00 exemption for assets that are directly related to your primary profession. As a result, it is very important to review your situation with your attorney. For example, if you are a plumber, but have a side job as an Uber driver that brings you in extra money, you would likely be able to use the Tools of the Trade to protect tools necessary for your job as a plumber, but not be able to protect any assets related to driving Uber, such as your car or car cleaning equipment.

Wildcard

Virginia’s wildcard exemption is different than many other states. A wildcard applies to any asset that has no other exemptions available, including cash in the bank and equity in a house. You can use this exemption to supplement any of the above exemptions, if the applicable exemption is not sufficient to protect your property.
Virginia’s wildcard is also called a Homestead Deed; it has this name because a document must be filed in the land records in the county in which you reside. This exemption is a $5,000.00 lifetime exemption. The exemption increases an additional $500.00 for any dependents.The exemption increases to $10,000.00 at the age of 65. However, since this is a lifetime exemption, if you file bankruptcy and use $1,500.00, you only have $3,500.00 remaining for any future bankruptcies filed in Virginia (until you turn 65).

NOTE: The above list of Virginia bankruptcy exemptions is NOT complete or exhaustive list. It includes only the most common exemptions. Additionally, these exemptions may change depending on federal and state law. See an experienced bankruptcy attorney for the most accurate information about exemptions and what exemptions may apply to you.

Warnings about assets, exemptions and transfers 

It is also important to note that transferring assets to avoid including them in your bankruptcy is a bad plan. All transfers of property within two years of filing bankruptcy must be disclosed. The trustee can petition the bankruptcy court to reverse those transactions. If the court determines you did the transfer with the intend to avoid a bankruptcy or to hide assets from creditors, the court may also deny you a discharge of your debts.
The trustee, and potentially the court, review any debts that have been paid back within the last year. If you have paid back family, friends, or business partners, the court can actually sue those individuals for return of the funds. The law provides that you must be treat all creditors the same; as a result, you must treat American Express the same as Uncle Joe. The courts refer to the better treatment as a “preference” because you are giving preferred treatment to one creditor over another.
Once a Chapter 7 bankruptcy is filed, you cannot voluntarily choose to dismiss the case. A judge must grant you permission to dismiss a Chapter 7 case; judges only allow for a dismissal for good cause. An experienced Virginia bankruptcy attorney will be able to review your situation and help prevent potential problems in your case. Having an lawyer handle your case properly from the start can prevent problems later on.

Alternative Options to Chapter 7

If Chapter 7 is not right for your situation, there can be other options. It really depends on why Chapter 7 does not work for you. If you have nonexempt assets, a Chapter 13 is another option to consider. Additionally, sometimes debt negotiation is a better option. If you have limited amounts of debt or cannot qualify for a Chapter 7, sometimes having an attorney help you settle a debt, is a better option. Some of my clients who are trying to stop a foreclosure, are better suited to apply for a modification before considering bankruptcy.
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If you are considering bankruptcy, make sure to speak to an experienced bankruptcy attorney. Ashley F. Morgan Law, PC helps many individuals file bankruptcy every month. Attorney Ashley Morgan has experience dealing with all the above issues. She understands bankruptcy is a difficult discussion for many, and she wants her clients to completely understand the bankruptcy process before making any decisions.
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Check from the Federal Government/U.S. Department of the Treasury

Tax Refund and Bankruptcy

Many people use their tax refund to pay for necessary expenses. For some, the money allows for repairs on their home; for others the refund allows them to pay off some debt or afford medical or dental procedures. But in general, it is money you have been waiting for all year. When you are struggling financially, this extra money can mean a lot. As a result, many individuals ask us whether they will be able to keep their tax refund in bankruptcy.

The bankruptcy court sees a tax refund as a savings account. You pay into the federal government a little every month and at the end of the year it is waiting there for you to withdraw. This refund affects different chapters of bankruptcy, in different ways.

Chapter 7

If you file a Chapter 7 bankruptcy in the later part of the year or during tax season, this money has had a lot of time to accumulate. If you are due a tax refund and file bankruptcy, you can only keep it, if you are able to exempt or protect those funds. In Virginia, there are exemptions that can protect child credits and earned income credits. Any additional part of the refund must be protected under Virginia’s wildcard exemption. This wildcard exemption is $5,000.00 lifetime protection to be use on cash or cash like assets. This means if you have filed bankruptcy previously or have other cash-like assets, you may have less of the wildcard to apply toward your tax refund.

If you want to protect your tax refund in bankruptcy, talk to an experienced bankruptcy lawyer. A bankruptcy attorney will be able to review your situation, discuss any potential issues and figure out the best plan for you. Sometimes this means waiting until the refund is received and used on normal expenses. But, without an attorney that understands bankruptcy law, you will not be able to make an educated decision.

Chapter 13

Now, a tax refund also plays a role in a Chapter 13. If you are in a 100% plan, which means you are fully paying back all allowed claims, you can keep you tax refund every year during your plan. If your bankruptcy plan pays creditors any less than 100%, the trustee may require that you turn over the refund and he/she will disburse the funds to your creditors. Additionally, your attorney may be able to adjust your budget to reflect the refund over the course of a year. This would mean paying slightly more each month, but being allowed to keep the tax refund.

It is important to have an experienced bankruptcy attorney that can review and understand your situation.

 

 

Ashley F. Morgan, Esq. is a Northern Virginia Bankruptcy Attorney with an office in Herndon, VA. She helps individuals in Herndon, Reston, Centreville, Fairfax Sterling, Chantilly, Woodbridge, Manasass and the surrounding areas file bankruptcy. She understands the importance that a tax refund can play in someone’s finances. Her goal is for her clients to fully understand all their options and make the best decision for their circumstances.

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Tax debt can seem like a road block

Many Options Available to Manage Debt from Taxes

Ashley F. Morgan Law, PC helps many people with their debt issues. We pride ourselves in being able to help individuals find the best solutions for their individual problems. Our firm often helps people address their traditional debts, such as credit cards and loans, through the bankruptcy process. We also help people with tax issues through standard tax resolution options, such as payment plans or offers in compromise directly with the Internal Revenue Service. But sometimes we are able to handle all their debts through a bankruptcy. We understand dealing with taxes can be stressful, which is why we want you to know about all potential options.

Most people believe that taxes cannot go away with bankruptcy. There is only some truth to that idea. Some tax debt, such as trust fund taxes, cannot be discharged. Other taxes, such as income taxes, may be discharged if certain conditions are met. For the tax to be potentially dischargeable, the clients needs to have filed the taxes on time (or close to on time). Additionally, the taxes need to have been due three years before you file for bankruptcy, filed at least two years ago and 240 days since the taxes were assessed. There can also be no allegations of fraud related to the tax debt. Make sure to review your situation with an experienced bankruptcy attorney. Timing is especially important with tax issues; last thing you want is to file a few months or days early.

There are certain benefits to managing tax debt through bankruptcy. The most important benefit is that there is one process that is potentially managing all your debt issues.

Chapter 7

A Chapter 7 can help you wipe out unsecured debt and dischargeable tax debt in one quick and efficient process. The downside is that if there are any non-dischargeable taxes, they will remain after the bankruptcy. This option is often best for individuals with older tax debt that now have managed to owe little or receive a refund in recent years.

Chapter 13

A Chapter 13 allows for a three to five year payment plan to manage all non-dischargeable taxes and will result in a discharge of the dischargeable debts that were unpaid. Additionally, the bankruptcy code allows for a little more flexibility for allowable expenses when calculating a payment plan. The court reviews your plan to determine what is reasonable. The IRS follow their allowable guidelines for each county fairly closely.

The downside to a Chapter 13 plan is that it requires all priority tax debt to be paid in the plan, in addition to all other traditional Chapter 13 requirements. So, if you can pay something over the course of your plan, but it is not enough to satisfy the priority taxes, you will not be allowed to utilize a Chapter 13 filing. This option is often best for individual with low to moderate tax debt and decent income. Additionally, if you have higher than average secured debts, such as cars and homes, the bankruptcy court will take those factors into consideration unlike the IRS.

Tax Resolution Plans

A tax resolution payment plan can allow for other perks; the plans are for up to six years, which is longer than any bankruptcy option. These plans are agreements direct with the IRS, which means there is no public record of the agreement. This agreement would result in no public notice regarding the tax issue, unless the tax debt was significant enough or old enough that a tax lien was filed in the land records against you and all of your property (both real property and personal property).

Additionally, some plans can be as low as $0 per month, if the IRS determines you fall into the category of currently non-collectible. This means that you do not have any disposable income under their standards. However, their guidelines are more strict, as discussed above. But, if you have additional outstanding tax debt, a tax resolution does nothing to help manage those additional  debts. This option is often best for individuals with little to no additional debt or that have a substantial amount of recent tax debt or non-dischargeable tax debt with limited income.

Combination of Bankruptcy and Tax Resolution

Finally, we sometimes use both a bankruptcy and tax resolution to achieve the optimal results for our clients. Chapter 7 can help clients get rid of their unsecured debts, surrender any unwanted secured debt, and get rid of any dischargeable tax debt. We then follow the bankruptcy discharge with a tax resolution payment plan. This plan takes into consideration what the client is able to pay. Our firm often uses this debt management option with clients with higher incomes and substantial tax debt. The substantial, non-dischargeable taxes may help a high income individuals qualify for a Chapter 7 who might not otherwise qualify for a discharge.

By offering our clients bankruptcy and tax resolution options, we are able to fully explain all options to our clients ensure they are making the best choice. If you are experiencing financial difficulties of any kind, please let us know. Schedule an appointment to talk to one of our attorneys about all your options. Our experienced attorneys can review your situation, and discuss all potential benefits and drawbacks to each option. We can be reached at 703-880-4881.

 

 

 

Attorney Ashley F. Morgan is a Virginia licensed attorney. She has been helping clients manage various types of debts for years. Ashley focuses on helping her clients finding the ideals solution to their debt problems. Attorney Arthur Rosatti is a Florida licensed attorney has extensive experience dealing with the IRS and negotiation payment plans and settlements. He understands having tax debt and dealing with the IRS is stressful. He strives to make the process as stress free as possible. Both Ashley and Arthur are available to review your debt situation; they always collaborate on cases to ensure that their clients are receiving the best advice possible.

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Bankruptcy basics and bankruptcy options.

Bankruptcy: Is it the right option for me?

Many people fear bankruptcy because it means they will lose everything, or they do not want to file because someone might find out that they filed, or the client believes it is an admission of failure. These are not always correct. When someone comes into our office we try to let them know bankruptcy is not as big of a deal as they think. It is a legal and financial decision that must be taken seriously, but it has a lot benefits.

 

Different Types of Bankruptcy

The bankruptcy court is there to help the “honest but unfortunate debtor.” There are different bankruptcy chapters to fit different people’s needs. Some cases we see are for people that are a few months or years behind on a mortgage, or a few months behind on a car payment.  In other cases you just overspent and you can’t catch up. Or even, perhaps, you just went through a difficult divorce and cannot afford your expenses anymore or have crushing medical bills. Bankruptcy can often help your mange your debt. There are four chapters: Chapter 7 (liquidation), Chapter 13 (restructuring for wage earners), Chapter 11 (restructuring for businesses or individuals with high debts), Chapter 12 (restructuring for farmers and fishermen).  Most of our clients file a Chapter 7 or a Chapter 13. Depending on your situation, one of these bankruptcy options may help you achieve your goals.

Chapter 7

A Chapter 7 is usually what most individuals think of when they hear the terms bankruptcy. It is a fairly quick process (three to four months) and it wipes away most unsecured debt and can relieve your obligation to pay secured debts. Any liens remain on the property, which means creditors can still foreclosure or repossess the collateral if you are not current. You can qualify for Chapter 7 in one of two ways. The first way only requires that your household income is below the median for the state. The second way requires what is called the Means Test. This “test” takes your income and reviews it to see if you have any disposable income at the end of the month after taking out allowable expenses. The court allows for certain actual expenses, such as your taxes, your car payment, and your mortgage payment. Then it allows deductions for other allowable expenses, such as the IRS standard for utilities, food, etc. If, after all the allowable deductions are taken out, only a small disposable income remains, then you are permitted to file a Chapter 7.

The reason a Chapter 7 is called a liquidation is because the court will take non-exempt assets and sell them to help pay off your debt. The Court assigns a Trustee to your case to represent your creditors to review your situation and determine what assets are non-exempt. Non-exempt means that there is not a law that allows you to keep the property. Important exemptions in Virginia include: 100% protection for qualified retirement plans, 100% protection for wedding/engagement rings, and $6,000.00 equity in a vehicle (per person), $5,000.00 wildcard exemption for any cash or cash like assets such as (such as money in the bank or equity in a home). Most of my clients do not have any non-exempt assets and after four months they get their discharge and their case closes. If there are non-exempt assets, the Debtor has the choice on whether he or she wants to file a Chapter 7 bankruptcy and surrender those assets or consider filing a Chapter 13 bankruptcy.

Chapter 13

A Chapter 13 is called a wage earner plan. This type of bankruptcy is for those individuals who have steady income. We use a Chapter 13 when individuals have too high of income to qualify for a Chapter 7 or have assets they could lose in a Chapter 7. The major benefit of a Chapter 13 plan is that you get to keep all non-exempt assets because you pay out the value of those assets in your plan. The plans are usually three to five years, which vary depending on your income. The plan requires that you make regular payments to the court during the life of your plan; at the end of your plan your remaining dischargeable debt is discharged. Some of our clients pay 100% back to all creditors. Even our clients that pay 100% back will often benefit from bankruptcy because the case will freeze your unsecured debts and stop them from incurring more interest. We have other clients who pay between 1% to 99% of all debt in their plans, and then we even have what we call a 0% payout plan. The 0% plans are Chapter 13 cases where you have some debt that is secured (cars and houses) or prioritized (non-dischargeable taxes, child support arrears, etc.) over other unsecured debt, and your plan pays the secured debt and the priority debt, but nothing to your unsecured creditors. One of the most common reasons for a Chapter 13 is to stop a foreclosure and then allow the debtor time to catch up on the arrearages. Sometimes we even use a Chapter 13 to help with student loans when you need to temporarily lower your payments.

If your plan is anything less than 100% the court will review your income every year to see if there is an increase, which means they may require you to pay more in. Additionally, if you get a tax refund or inheritance over the next few years, you will turn over the funds over to the Court.

There is a limit on the amount of debt you can have and be in these plans. These limits are unsecured debts of less than $394,725 and secured debts of less than $1,184,200, which will be updated as of April 1, 2019.

Chapter 11

A less common option for bankruptcy is a Chapter 11. This type of bankruptcy usually is only an option for an individual when an individual cannot do a Chapter 7 and has debts over the Chapter 13 debt limits. Businesses also do Chapter 11 to restructure their business. When you hear about major companies filing bankruptcy (such as Toys ‘R’ Us or Sports Authority), they are usually filing Chapter 11. The major benefit of a Chapter 11 is that your repayment plan can be over the course of more than 5 years. However, they are cost prohibitive. It is an expensive and complicated process.

Chapter 12

The last common bankruptcy is a Chapter 12, which is a restructuring of debt for farmers and fishermen. This type of bankruptcy is very similar to a Chapter 13, but provides more flexibility in the payment structure. This is because the court takes into account the seasonal nature of the businesses.

Can People Find Out I Filed Bankruptcy?

As for people finding out that you filed bankruptcy, it may happen. It is not published in the newspaper and notice is not mailed out to family and friends (unless you owe them money or have a joint debt with them). It is a public court filing that can be looked up, but so this can also be said about divorce, collection lawsuits, and foreclosure.

Sometimes people who were referred to our office for help with dealing with debt; they do not know that we help people file bankruptcy. After talking with us, they sometimes figure out that the individual who referred us, likely filed bankruptcy with us, too. Additionally, we have people from all walks of life who are considering bankruptcy, including people who are unemployed, individuals who have multiple properties, people going through divorce, individuals making six figures every year, business owners, and much more. We have other clients who start talking about filing bankruptcy with a friend only to find out the friend filed bankruptcy years ago. You just never know.

Bankruptcy is a Tool to Manage Debt  

As stated before, bankruptcy is a legal and financial decision. Congress included bankruptcy as an option in the law because they understand people need help managing their debts. It is not an admission of failure; it is a way of managing your debts and taking care of your financial situation.

For some, bankruptcy helps wipe away debt and allow a fresh start. For others, bankruptcy can help restructure your payments on various debts, such as your cars, student loans, IRS debt, personal loans, second mortgages, etc.   People often worry they make too much money to file bankruptcy, but there is usually an option out there that will provide some relief. Additionally, even if you make a lot of money, you may still qualify for a Chapter 7 if you have high secured debt payments (car, mortgage, etc.) or court ordered payments (alimony, child support, etc.).

If you will do whatever it takes to start over, perhaps you should consider bankruptcy.  It is not just for the poor and unlucky.  The code was written to allow various options to fit various situations. Bankruptcy is really just a tool in your financial tool box; if you are struggling with debt, it is at least an option you should look into.  For many of our clients, bankruptcy is also a tool to improve their credit, and it helps them get on track for an even higher credit score. We often tell prospective clients that they do not need bankruptcy, or that they have a variety of alternatives; it is not for everyone; it does not solve every financial problem.  But, you really should at least understand how it could benefit your situation. Consider a free consultation with my office; give us a call at 703-880-4881.

 

 

 

 

Ashley F. Morgan, Esq. is a Virginia Bankruptcy Attorney. She helps individuals and business file bankruptcy in the northern Virginia area. She has experience handling Chapter 7, Chapter 11, and Chapter 13 cases. She also understands bankruptcy is only one of many options available to debtors. She wants to help her clients review all potential options to determine what is the best option in each person’s situation. Instead of bankruptcy, Ashley has also helped negotiate settlements and payment plans for her clients when appropriate. Visit Ashley at her Herndon, VA office to discuss options to manage your debt.

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Student Loans: Understanding your Options

There have been reports of up to 40% of student loan borrowers are not making their payments. While student loans can often feel overwhelming and overly burdensome, not making payments can create even worse problems. Not making your student loan payments will adversely affect your credit. When you are late making a payment, creditors will report this behavior to the credit bureaus and it will lower your credit score. A lower credit score can result in difficulties in opening new lines of credit and higher interest rates when purchasing a home or car, etc.

If you do not make your payments, the student loan companies have other ways of collection from you. Federal student loan companies have the ability to start garnishing your wages and bank accounts without a judgment. Private student loan companies do have to go to court to obtain a judgment, but they can also start garnishing your wages or bank accounts if you are delinquent. A garnishment allows a creditor to seize all the money in your bank account (up to the amount owed) or take a percentage of every paycheck until the debt is satisfied. This often can put even more of a financial strain on an individual than making the normal payments.

Student loans also usually do not go away with bankruptcy. While bankruptcy can help get rid of your credit cards and medical debt, student loans will not be discharged unless you meet very specific circumstances. A bankruptcy attorney can review whether you might be able to discharge your student loans, but it does require a lot more expense than a traditional bankruptcy and it is often left to the discretion of a judge to determine whether you meet the necessary criteria to discharge. Right now the required criterion for discharging your student loan debt varies depending on where you live and is a very high burden.

If you do find yourself in a difficult situation, and cannot make your normal payments, there are options out there.

Contact your lender and see what options are out there.

If you are in a temporary situation when you cannot make your payments, possibly due to any reason including loss of a job or a health issue, lenders will sometimes work with you. If you contact your lender and explain the situation, they may be able to give you a lower payment for a time period or be able to offer you a deferment or forbearance (where you stop making payments for a certain period of time). Often these options are at the discretion of the lender, but if you need some breathing room, it cannot hurt to ask. The benefit of being in a deferment or forbearance is that even though you are not making payments (or less than a full payment), your lender will still report your loan as current. This ensures your credit will not be negatively impacted by the reporting of a late payment or delinquency. The downside to lower payments or not paying for a time period is that it is usually only for a limited amount of time and your interest will still be accruing. When you get back to making your payments, the payment maybe higher or you might be paying for a longer period of time.

Additionally, if you are disabled and/or receiving Special Security Disability, you may be able to apply for another type of forgiveness. This is an administrative process and is only a viable option if you will not be able to work for the foreseeable future.

There are various repayment options out there.

When your federal loans come due, your loan payments will automatically be based on a standard ten-year repayment plan. However, there are payment options for federal loans that spread out your payments over more years or base your payments on your income. Depending on what your monthly income is and when your federally guaranteed loans were taken out, you could qualify to have your student loan payments capped at 10%, 15% or 20% of your discretionary income. If your income is low enough, your payment could be $0/month. However, you do have to reapply for the income-driven programs every year and submit documentation of your current income so the payment can be recalculated. After payments for 20-25 years (depending on the plan) on an income-driven plan, the remaining balance is forgiven. The downside to these income based programs is that any remaining debt that is forgiven will be taxed as income. Contact your student loan provider for more details. Also note that for most repayment plans, you do have to consolidate your loans and that can take a few months.

While the income-driven plans are only for federal loans, some private lenders do have other options available. Again, if you are having trouble making your payments on your private student loans, your best course of action is contacting your lender and asking about other repayment options.

If you work for a government entity or certain nonprofits, you may qualify for Public Service Loan Forgiveness (PSLF).

Under PSLF, if you work full time for a qualifying employer for ten years AND make 120 on-time monthly payments, the remaining balance of your federal loans will be forgiven. These payments are usually made in conjunction with one of the modified repayment plans offered by the student loan companies because the traditional repayment of student loans occurs over a ten-year period. The benefit for this program is that any remaining balance on your student loans that is forgiven under PSLF is not taxed.

As a last resort, bankruptcy may help buy some time or help with other debt.

While you cannot easily discharge your student loans in bankruptcy, there are options under the bankruptcy code to help find a manageable payment. With income-driven plans, your payment is based on a percentage of your income. These are often the best options available and can really help those with substantial amounts of student loan debt. However, this option is usually not available to those with private student loans. Also, if you have to make substantial payments to other creditors, sometimes even the income-driven payments feel overwhelming. Bankruptcy is an option, but does help everyone.

A Chapter 7 might be an option for those who cannot pay their student loans because of a substantial amount of other debt. A Chapter 7 can help those who qualify wipe away other unsecured debt, such as medical bills and credit cards. A Chapter 7 can also allow you to walk away from a secured debt, such as a car or a house, without having to worry about any deficiency. There are numerous advantages to a Chapter 7, but also some negative affects as well. If you are experiencing substantial hardship due to significant debt and cannot make your student loan payments, then you should consult a bankruptcy attorney. For example, after a major medical procedure, often individuals have trouble handling their payments to the doctors and to the student loan companies. An attorney can help examine your situation and determine whether you could potential benefit from filing. An attorney will also help you determine whether you qualify for this options.

If you have private student loans, and those lenders will not work with you, then you have an option of a Chapter 13. A Chapter 13 is a repayment plan over the course of three to five years. This options does require steady income during the course of the plan, but all creditors are required to participate in this repayment plan or they receive nothing during the course of the plan. Your plan payments are approved by the court, and the amount is based on your income and expenses that the court determines are reasonable. Your plan may pay unsecured creditors anywhere from 0% to 100%, it just depends on what your payments will be. Certain debts, such as tax debt, past due mortgage payments or arrearages on a car, must be paid during your plan. After your plan is complete, any of your unsecured debt (other than student loans and a few other limited exceptions), such as credit card, medical bills, payday loans, etc., will be discharged in accordance with your plan. Your student loans will remain, but the benefit of a Chapter 13 is that it provided you with time to find a better paying job or handle the rest of your debt without the risk of the student loans coming after you. There are various downsides to a Chapter 13. For example, the court will review your income during the course of the bankruptcy to determine if you could potentially pay more to creditors. Similarly, any increases in income or bonuses may be required to go to creditors if you are not paying them in full. For some people, a bankruptcy means the student loan companies are off their backs for a few years and that is enough reason for them. However, you should review all options available before considering bankruptcy to handle your student loans. Talk to a bankruptcy attorney if you believe bankruptcy might help your situation. The attorney will be able to help breakdown whether a bankruptcy might be beneficial in your situation.

There are many options out there for repayment and a lot of information. If you have any questions about what options apply to your situation, your lender is a great place to start. You also need to be carefully of the scams that try to take advantage of vulnerable and desperate debtors. There are many sites that look like legitimate sites or advertise settlements for student loan accounts or debt forgiveness. Often the offers that appear too good to be true are not real. If you are looking for real information about student loan and the repayment option, be sure you on the U.S. Department of Education’s website.

 

 

Ashley F. Morgan, Esq. is a Virginia Attorney. She helps individuals and business file bankruptcy in the northern Virginia area. She also understands bankruptcy should be your last option. She wants to help her clients review all potential options to determine what is the best option in each person’s situation.

 

 

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