Arizona

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By Michael S. Anderson of Anderson Tax Law logo for Arizona tax attorney Michael S. Anderson P.C.
  • Chapter 13 Bankruptcy

    imagesBankruptcy – About Chapter 13

    A chapter 13 bankruptcy is commonly referred to as a “wage earner” bankruptcy. In Arizona less than 25% of all consumer bankruptcy cases filed are originally filed as chapter 13 bankruptcy cases. Chapter 7 bankruptcy and Chapter 13 bankruptcy filers have the same goal, the legal discharge of as many obligations as is legally possible.  A bankruptcy discharge is a legal status/document that is issued by an Arizona Bankruptcy Judge to the “successful” bankruptcy filer that wipes away the filer’s obligations on all debts that are subject to that discharge.

    The chapter 13 bankruptcy filer proposes a plan when the case is filed that proposes to pay creditors certain amounts after reasonable household expenses are paid each month. The amount of the household budget and the amount paid to creditors is based on a number of different tests and other factors. It is important to understand that in most cases, much of the filer’s debt is unpaid and “discharge” at the conclusion of the case. The Chapter 13 bankruptcy time period or time the filer must make the payments is typically between 36 and 60 months.

    The chapter 13 bankruptcy trustee collects the amount of the chapter 13 payment and distributes those funds to the creditors according to the plan that is proposed by the chapter 13 bankruptcy filer and then confirmed (typically with changes) by the Arizona Bankruptcy Judge. This plan divides debts into classes. some debts are considered more important than others and are placed in a class of debt that may receive more money from the filer as a percentage of it’s debt than other debts in lower classes. Certain taxes, child support, spousal maintenance and secured creditors are typical examples of debts that are considered more important that other debts and are placed as a result in a higher class.

    Basic Requirements to File and Obtain a Chapter 13 Bankruptcy Discharge

    In order for the filer to obtain a discharge of the remaining debt in the Chapter 13 bankruptcy, the debtor has to meet these basic requirements (there are others):

    1.  He or she must be an individual/married couple. Corporations, LLC’s, Partnerships and business trusts can’t obtain a chapter 13 discharge.

    2.  The filer has to have a regular income. This income can be from work, operation of a business, rental income, government assistance income or even gifts from others.

    3.  The income has to be large enough to pay living expenses each month and leave something for creditors on top of that. (the “something” is dependent on the various tests mentioned above)

    4.  The filer’s secured obligations, such as home mortgages, mortgages on other real estate, obligations secured by personal property such as business debt, and automobile liens, etc., must total less than $1,081,400.00 (subject to change)

    5.  The filer’s liquidated, unsecured obligations must total less than $360,475.00. (Subject to change)

    6.  The filer cannot have received a discharge in a chapter 7 case filed within the last 4 years and a chapter 13 bankruptcy within the last two years.

    7.  The filer can’t file the chapter 13 and receive a discharge if a prior bankruptcy was dismissed during the preceding 180 days as a result of the filer’s violation of a court order or failure to appear or if the filer requested the court to dismiss the case after a creditor asked the court to lift the automatic stay.

    8.  The filer must have taken a credit counseling class within 180 days of filing and prior to the entry of discharge.

    9.  The filer must be current on tax return filings.

    10.  The plan must be proposed in good faith.

    11.  The plan must satisfy the “best interest of creditors” test.

    The Chapter 13 plan must propose to pay creditors at least as much as they would have received had the filer filed a chapter 7 bankruptcy instead and the non exempt assets were liquidated and distributed to the creditors. If the filer owned an airplane worth $50,000.00, than in a chapter 7 bankruptcy the creditors would in theory divide $50,000.00. In order to keep the airplane in a chapter 13 bankruptcy, the plan must propose to pay those creditors at least $50,000.00. If the plan doesn’t propose this or if the filer can’t follow through the plan won’t be confirmed by the Bankruptcy Judge.

    Common Reasons People Pay Creditors Something in a Chapter 13 Proceeding Instead of Filing a Chapter 7 Bankruptcy

    1.  Avoidance of the Liquidation of Assets

    The chapter 13 bankruptcy trustee doesn’t have the authority to liquidate assets. The filer may keep his or her assets but…creditors have to be paid the value of those non exempt assets over the plan payment period as mentioned above. If the filer’s business is worth $20,000.00 than in order to ensure the business is safe in a consumer bankruptcy, creditors must receive at least $30,000.00 over the plan period.

    2.  Force Lower Repayment on Creditors

    The chapter 13 bankruptcy filer can use the case to force a payment plan on certain creditors. Mortgage arrears can be caught up and repaid over the length of the plan period, stopping foreclosures and allowing the arrears amount to be spread out. Priority taxes can be paid over time and often in a way that is friendlier to the filer’s budget. Car loans can be crammed down to the market value of the car and paid over time stopping repossession. Student loan payments can be adjusted for the period of the chapter 13 plan.

    3.  Forced to use Chapter 13 Bankruptcy

    The filer must pass a “means test” in most cases in order to qualify to file a chapter 7 bankruptcy. Many people don’t pass the means test and are therefore forced to pay creditors something in a chapter 13 bankruptcy case. Also, the filer may have filed a previous bankruptcy case and be barred from filing a chapter 7 bankruptcy as a result. The time periods for filing a new case are friendlier to chapter 13 filers.

    4.  Splitting liens

    A secured creditor’s lien in many cases as mentioned above, can be divided into a secured portion and an unsecured or “undersecured” portion. The secured portion can be paid over the plan period and hte unsecured portion can be forced to receive the same percentage that other unsecured non priority creditors receive under the plan which may be very little.

    5.  Removing Mortgage Liens

    A second mortage can be removed and paid the same percentage as other unsecured creditors if the lender is wholly unsecured and there is not equity in the home above the amount that is owed on the first mortgage in most cases.

    6.  Stop Foreclosure and Repossession Permanently

    A chapter 13 bankruptcy plan provides a vehicle for the filer to pay home arrears in full and car loan amounts in full. If a home is going to be foreclosed or a car repossessed, the plan can be filed and those actions stopped while those payments are made. A chapter 7 bankruptcy doesn’t permanently stop foreclosures and repossessions.

    7.  Obtain a better payment plan than directly with IRS

    People with serious tax debt often find themselves unable to settle it with the IRS and with other debt problems as well.  They try to make payments to the IRS and continue making payments on other debts but find that they can’t afford all of it as a result of the IRS’ restrictive budget.  The Chapter 13 will often allow them to bundle all the debt, and reduce it substantially by treating penalty and interest on penalty related to the tax debt as dischargeable, certain principal tax debts as dischargeable and other debts as well.  This combined with what is often a friendlier budget than the IRS allows directly leads to a payment plan that is workable and takes care of all debts at once.

     

    Chapter 13 bankruptcy can be a powerful solution for those with serious tax and debt problems. I have helped hundreds of clients use it. Call and discuss your situation and I can help you determine whether a chapter 13 bankruptcy may help and how.