OVERVIEW OF BANKRUPTCY
ALTERNATIVES AND EFFECTS
Overview of Bankruptcy
What is a chapter 13 bankruptcy and how does it work?
Chapter 13 is one form of bankruptcy in which a person may obtain relief from creditors and submit a plan to pay some, most, or all of your debts. Bankruptcy law prohibits most creditors from trying to collect from you during the time you are paying your creditors according to your Plan. There are exceptions for criminal actions and civil actions regarding domestic support obligations. You must make regular payments to the Chapter 13 trustee for a specified period of time. The Chapter 13 trustee collects your money paid according to your plan and disburses it to your creditors in the proportions and manner you determined in your confirmed plan and Local Rules of Bankruptcy Procedure.
Where is a chapter 13 case filed?
You would file your Chapter 13 petition with the Clerk of the Bankruptcy Court in the (federal) District where you have lived, had your principal place of business, or had your principal assets located for the last 180 days.
The Bankruptcy Court is a part of the system of federal courts. The Bankruptcy Courts were created by Congress to administer bankruptcy cases and make decisions about disputes between debtors and creditors.
All original papers may only be filed with the Clerk of the Bankruptcy Court office (www.azb.uscourts.gov) and should be mailed or personally delivered to:
Clerk of the Court
230 North First Avenue Ste 101
Phoenix, Arizona 85003
(602) 682-4000 or (800) 556-9230
United States Bankruptcy Court
James A. Walsh Courthouse
38 South Scott Avenue Ste 100
Tucson, AZ 85701
(520) 202-7500 or 800-556-9230
Yuma and Bullhead City Cases:
Clerk of the Court
John M. Roll U.S. Courthouse
98 West First Street Ste 101
Yuma, AZ 85364
(928) 261-4500 or 800-556-9230
What court fees are charged in a chapter 13?
There is a $313.00 filing fee when a case is filed (current through July 2021). While not a government employee, the Chapter 13 Trustee receives a fee of up to 10% of the amount paid under the Plan. This fee is subject to change, but will never exceed 10%. The Trustee’s fees are in addition to the fees charged by your lawyer and the Bankruptcy Court. See the Court's fee schedule for the current fee amounts: http://www.azb.uscourts.gov/filing-fees.
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Who is eligible to file under a chapter 13?
Any natural person who resides in, owns property in, or does business in the United States, who has regular income, and who has liquidated and noncontingent unsecured debts of less than $419,275 and secured debts of less than $1,287,850 is eligible to file under Chapter 13 (current through July 2021), except stockbrokers and commodity brokers. The eligibility amounts are adjusted every three years with the next adjustment due April 1, 2022. 11 U.S.C. section 104(a).
May a person who owns a business file under chapter 13?
Yes. A self-employed person is eligible to file under Chapter 13 if the person has regular income and meets the other requirements described in the answer to the last question. A debtor who owns his or her own business is normally permitted to continue to operate the business during the Chapter 13 case. Corporations and partnerships are NOT eligible to file Chapter 13. The filing of a personal bankruptcy case generally does not protect an other legal entity from its creditors. If you are operating a business (more than just self employed), then you will have to complete more documents and meet with the Trustee or his staff attorney. Keep in mind that a personal bankruptcy case filed by an individual might not protect a legal entity (e.g., corporation) from collection activity on debts owed by that entity.
May a married couple file jointly under a chapter 13?
A married couple may file a joint petition under Chapter 13 if both of them reside in, own property in, or do business in the United States, and if neither of them is a stockbroker or commodity broker, provided that their total debts are within the limits previously described and provided that at least one of them has regular income. If a joint petition is filed, only a single filing fee is charged, and usually only a single set of Chapter 13 forms need to be filed. Joint cases are usually administered together.
May a person who recently filed chapter 7 file under chapter 13?
Yes. Generally, a person may file under Chapter 13 regardless of when he or she filed previously either Chapter 7 or Chapter 13. However, the Court should enter your Chapter 7 discharge before filing another case. A person who files a Chapter 13 case but who got a discharge in a Chapter 7 case within the prior four years is not eligible for a Chapter 13 discharge. 11 U.S.C. section 1328(f).
May I change to chapter 13 if my chapter 7 case is still open?
Yes. A Chapter 7, 11 or 12 case may be converted to Chapter 13 at any time provided that you are eligible to be a debtor under Chapter 13 and that the case has not been previously converted from that Chapter. If you converted your case from Chapter 7 to 13, then reconversion back to Chapter 7 has to be done by filing a motion.
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Alternatives and Effects
How does chapter 13 differ from chapter 7?
Chapter 13 has gained widespread acceptance across the country as an attractive alternative to a straight bankruptcy which is also known as Chapter 7. Under Chapter 7, a debtor must turn over all of his or her nonexempt property to a bankruptcy trustee, who then pays the unsecured creditors out of the proceeds of the property, while the secured creditors are permitted to repossess the property upon which they have valid liens and the payments are delinquent. Under Chapter 13, you are usually permitted to keep all of your property, whether or not it is exempt; and both the secured and unsecured creditors are paid out of the periodic payments you make to the Chapter 13 Trustee.
When is chapter 13 preferable to chapter 7?
Chapter 13 may be preferable for the debtor who -
(a) wishes to repay all or some of his unsecured debts and has the income to do so within a reasonable time, usually from three to five years;
(b) has valuable nonexempt property or exempt property pledged as security for debts, either of which the debtor would lose if the debtor filed under Chapter 7. An example would be protection from foreclosure on real property;
(c) is NOT eligible for a discharge under Chapter 7;
(d) has one or more substantial debts that are that are NOT dischargeable under Chapter 7; or
(e) has sufficient assets with which to repay his debts, but needs temporary relief from his creditors in order to do so.
How does chapter 13 compare with private debt consolidation services?
Under Chapter 13 the Court possesses powers to aid the debtor that private debt consolidation services do not have. For example, the Court has the power to prohibit creditors from attaching or foreclosing on the debtor's property, the power to force unsecured and many secured creditors to accept a Chapter 13 plan which does not pay their claim in full, and the power to discharge a debtor from the unpaid portions of claims. Private debt consolidation services have none of these powers.
Will a chapter 13 bankruptcy affect my credit rating?
Your credit rating during and after completion of Chapter 13 will ultimately be based upon the personal opinion of any credit grantor who looks over your credit record. A credit rating is not A, B, or C or 1, 2, or 3. It is a record of all your past credit performances. This record is made available to a creditor and he or she makes up his or her own mind, by his or her own standards as to whether credit may be granted to you. Lawsuits, collection, attachments, straight bankruptcies (Chapter 7), and Chapter 13 are indications, in one degree or another, of credit problems. Any credit record that has been blemished by a payment problem must be gradually rebuilt.
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