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Bankruptcy protection is a process by which people can resolve their debt problems in a manner that is most beneficial considering the interests of both the debtor and creditor. A bankruptcy proceeding is designed to resolve those stalemate situations where everyone, creditors and debtors alike, are in a losing battle.
It does you no good to go on and on in a seemingly unresolvable financial situation that is doing nothing but causing stress and loss of sleep. Likewise, it does your creditors no good to also go on and on, wasting resources trying to collect debt that you simply don't have the ability to pay!
Step 1, The Stay
So, first we call a "time out" in the chaos. Stop the late fees and interest on top of interest. This time out happens when the debtor files for bankruptcy protection. Upon filing, an automatic "stay" is issued. A "stay" is the judicial equivalent of a referee in a football game throwing out a yellow flag. It stops all of the action so that the chaos on the field can be sorted out. If the quarterback is buried in a mountain of tacklers and a fight has broken out on the field, orderly game play cannot begin until that flag is thrown, the game stopped, and it is reorganized.
In a similar way, many debtors who fall behind in payments for one reason or another (job loss, medical expenses, adjusted mortgage rates, credit card rate hikes, etc.) find themselves essentially being "tackled" from every side by their creditors. The situation is chaotic with multiple phone calls, late fees, foreclosure threats, lawsuit threats, and nothing productive can really be done. So, we file a Chapter 7 or 13 petition . . . and the judge blows the whistle and throws a flag onto the field (the stay) to stop the chaos.
Upon the throwing of that flag, all action on the field must stop and everyone must go back to the sidelines. The creditors have to stop calling, the foreclosures have to stop, the threatened repossessions or lawsuits have to stop, and everything is on time-out status.
Step 2, The Plan
After this timeout has been called, you will discharge or reorganize your debts. If you have fully secured property, then you have the option to keep your property, such as your car and house by "reaffirming" those secured debts and staying current on your payments to those creditors. In a Chapter 7, for debtors with little assets, it is not uncommon for all other debts to be discharged without any redemptive payments. In a Chapter 13, a plan of reorganization is proposed to pay as much debt as you can reasonably pay from your disposable income over a 3 to 5 year time period.
Step 3, The "Discharge" or "Debt Cancellation"
At the conclusion of the proceeding, the remaining dischargeable debt is "discharged" or "cancelled." Accordingly, after your best efforts at repayment, you get a fresh financial start to begin rebuilding good credit (and don't be fooled by creditors who claim you can't get credit following a Chapter 7 or 13, many clients get inundated with credit solicitations as soon as the bankruptcy case is complete!)
This is a very simplified overview of the process, and the myriad of technicalities present in the modern day bankruptcy law should definitely not be tackled without legal advice from one very familiar with the intricacies of the law. For example, not all debts are dischargeable in bankruptcy and certain debts may only be discharged in Chapter 13, but not Chapter 7, so any summary of bankruptcy procedure cannot take the place of individual legal advice by qualified counsel.
The modern American Bankruptcy Laws have their roots in biblical principals. See Bankruptcy and the Bible. For example, under old testament law, all creditors were required to cancel debts every 7 years. Dr. Donald Morgan, PhD, a Senior Economist with the US Federal Reserve Bank of New York, has recently completed a study in which he contends that the 2005 restriction of bankruptcy relief bottled up this safety valve and in so doing, piled up excessive debt, helping to cause the financial meltdown we are experiencing today. See "Seismic Effects of the Bankruptcy Reform."
Advertising Disclosure: The material on this website is for informational purposes only and does not create an attorney/client relationship or otherwise constitute legal advice. You should seek the advice of an experienced bankruptcy attorney to assess the particular facts of your case. Persons depicted on this website include attorneys in the Florida and Georgia offices of Zalkin Revell, PLLC, as well as photographs of persons who are not attorneys or clients of the firm. Case results depicted are unique to the facts and law applicable to that particular case and should not be relied upon to suggest a similar result in your matter.
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