Chapter 7 Bankruptcy Introduction

Chapter 7, otherwise known as "liquidation," is generally the simplest and quickest form of bankruptcy and is available to individuals, married couples, corporations and partnerships. Most chapter 7 cases are "no-asset" cases, which simply means that the property you have is exempt from the bankruptcy.

"Exempt property" is property that a debtor is allowed to keep. What property is exempt is determined by state law. In certain states you are required to use the exemptions under your state's laws. In fifteen states and the District of Columbia, you can chose the exemptions that work the best for you - either the federal exemptions or your state's exemption. It is always best to check with an attorney in your state to see what exemptions apply to your individual case.


Filing Chapter 7 Bankruptcy

A bankruptcy starts with the filing of the official petition, schedules and Statement of Financial Affairs with the bankruptcy court. In order to complete the Bankruptcy Forms, you must provide a list of all of your creditors and the amount and type of their claim; the source, amount, and the frequency of your income; a list of all of your property; and a detailed list of your monthly living expenses.

As soon as you file for bankruptcy, your creditors are prevented from trying to collect on your debts through what's called an "automatic stay." The stay is designed to preserve your property and to give you a break from litigation.

A creditor must show the bankruptcy judge, after a hearing, that there is "cause" for the creditor to be allowed to continue with collection action (for instance, by showing that the property might deteriorate in value during the bankruptcy period).

If there is property that isn't exempt, the trustee takes control of it. From the sale of your property, the trustee pays the expenses of the administration of the case, and then gives any remaining money to creditors with allowed claims, according to the priority of the claims. Any wages you earn after you file the case are yours, beyond the reach of creditors who had claims on the date you filed for bankruptcy.


341 Hearing

Usually between 20 and 40 days after you file your petition, the trustee will hold the "first meeting of creditors" (also called a "341 hearing"). You must be present for that meeting. The trustee can ask you questions under oath about your property and debts. Creditors can also question you on those subjects, but seldom do.

Generally, the only responsibilities you have with respect to the bankruptcy after the 341 meeting is to cooperate with the trustee in providing any requested information.

Creditors have 60 days after the 341 meeting to convince the bankruptcy court you shouldn't be allowed to discharge your debts.

Creditors may also approach you about what's called "reaffirmation" of debts. Reaffirmation is an agreement between you and a creditor that you will remain liable on a debt and will pay the remaining portion of the amount owed in order to keep certain property, such as an automobile, even though the debt could be discharged.

If you decide to reaffirm a debt, you are required under the Bankruptcy Code to file an agreement with the court. The agreement must disclose that you were advised of the amount of the debt you are reaffirming and how it was calculated and that you are aware that the debt will not be discharged. You must indicate your income and expenses so that the court can see that there is sufficient money to pay the reaffirmed debt. Unless you are represented by an attorney, the court must approve the agreement. A hearing will be held if the court disapproves. If an attorney represents you, he or she must certify in writing that they advised you of the legal consequences of the agreement, that you were fully informed and entered into the agreement voluntarily, and that the reaffirmation will not create an undue hardship on you and your family.


Chapter 7 Discharge

If creditors haven't filed a suit to stop you from getting out from under your debts within 60 days of the 341 meeting, the court will enter an order granting the "discharge" of all dischargeable debts that existed on the date the case was filed.


Chapter 7 Bankruptcy Eligibility

Beginning October 17, 2005, under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, you must undergo a "means test" to qualify for Chapter 7 bankruptcy. If you earn less than the median income for a family of your size in your state, you can automatically file for Chapter 7 bankruptcy.

Under the new law, when you file for bankruptcy you must take a credit counseling course before filing, and financial management course after filing.  Both of these courses are relatively simple to take, and may be taken over the internet usually in under an hour.  The Law Office of Trunnell & Sellers will assist you in signing up for these classes and completing them.


DDS Bankruptcy Memo

What happens to my security deposit I have made on the home I am renting if I file a Chapter 7 bankruptcy?

Many debtors are not aware of what personal property is exempt under bankruptcy law and what personal property is not. Depending on whether personal property is exempt or not will determine whether the bankruptcy trustee can seize and liquidate the personal property. The bankruptcy trustee has a fiduciary duty to look out for the best interest of the unsecured creditors. Furthermore, the trustee receives or earns a percentage of the liquidated personal property. Hence, it is of the utmost importance to understand what personal property is exempt and which is not.

It is always recommended to seek out professional assistance when filing for bankruptcy. Only a bar certified attorney should be advising a potential or actual client in connection with a bankruptcy.

To return to the question listed above, pursuant to Colorado Revised Statute 13-54-102(1)(r) which reads:

For purposes of garnishment proceedings pursuant to the provisions of article 54.5 of this title, any amount held by a third party as a security deposit, as defined in section 38-12-102 (2), C.R.S., or any amount held by a third party as a utility deposit to secure payment for utility goods or services used or consumed by the debtor or his dependents...

Debtors are able to retain the security deposits that have been paid to landlords, utility companies, telecom companies and other third parties. The trustee is unable to attack the security deposit and the security deposit is not considered property of the bankrupt estate.

The importance of this exemption demonstrates how a debtor can retain monies even while discharging large sums of debt through a bankruptcy. Bankruptcies can be very advantageous depending on a personʼs set of circumstances.


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