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BANKRUPTCY OVERVIEW

We will help you choose the kind of bankruptcy that best meets your needs (provided you meet certain qualifications):

Chapter 7 Bankruptcy

A trustee is appointed to take over your property. Any property of value will be sold or turned into money to pay your creditors. Most people keep all of their property, though, because the law allows exemptions. This means you retain basic necessities like your home, car, furniture, wedding ring, clothing, tools, and even retirement money.

Chapter 13 Bankruptcy

You can usually keep your property, but you must earn wages or have some other source of regular income and you must agree to pay part of your income to your creditors. The court must approve your repayment plan and your budget. A trustee is appointed and will collect the payments from you, pay your creditors, and make sure you live up to the terms of your repayment plan. In our office, we are very experienced and successful at this. We will calculate your payment up front, before you file, so you know what you are getting into.

Chapter 12 Bankruptcy

Like Chapter 13, but it is only for family farmers and family fishermen.

Chapter 11 Bankruptcy

This is used mostly by businesses. In Chapter 11, you may continue to operate your business, but your creditors and the court must approve a plan to repay your debts. There is no trustee unless the judge decides that one is necessary; if a trustee is appointed, the trustee takes control of your business and property. Filing for bankruptcy for your business is very involved; our Gilbert bankruptcy lawyer can explain further.

Our bankruptcy law firm in Arizona offers a reminder that bankruptcy may be reported on your credit record for as long as ten years, because it is a public record. It can affect your ability to receive credit in the future. But we also offer our clients guidance on rebuilding their credit, and we have seen some get back to 700 only a year after their bankruptcy discharge! For more information, visit our Beyond Bankruptcy website.

What is a bankruptcy discharge and how does it operate?

The reason most people file bankruptcy in Arizona is to get a “discharge”. A discharge is a court order which states that you do not have to pay most of your debts. Some debts cannot be discharged. For example, you cannot discharge debts for:

  • most taxes (although we are adept at identifying and discharging income taxes that are old enough)
  • debts arising out of divorce proceedings
  • student loans
  • court fines and criminal restitution
  • personal injury caused by driving drunk or under the influence of drugs

The discharge only applies to debts that arose before the date you filed. Also, if the judge finds that you received money or property by fraud, that debt may not be discharged.

It is important to list all your property and debts in your bankruptcy schedules. If you do not list a debt, for example, it is possible that the debt will not be discharged. The judge can also deny your discharge if you do something dishonest in connection with your bankruptcy case, such as destroy or hide property, falsify records, or lie, or if you disobey a court order.

You can only receive a Chapter 7 discharge once every eight years. Other rules apply if you previously received a discharge in a Chapter 13 case. No one can make you pay a debt that has been discharged, but you can voluntarily pay any debt you wish to pay. You do not have to sign a reaffirmation agreement (see below) or any other kind of document to do this.

Some creditors hold a secured claim (for example, the bank that holds the mortgage on your house or the loan company that has a lien on your car). You do not have to pay a secured claim if the debt is discharged, but the creditor can still take the property.

What is a reaffirmation agreement?

Even if a debt can be discharged, you may have special reasons why you want to promise to pay it. For example, you may want to work out a plan with the bank to keep your car. To promise to pay that debt, you must sign and file a reaffirmation agreement with the court. Reaffirmation agreements are under special rules and are voluntary. They are not required by Arizona bankruptcy law or by any other law. Reaffirmation agreements:

  • must be voluntary;
  • must not place too heavy a burden on you or your family;
  • must be in your best interest; and
  • can be cancelled any time before the court issues your discharge or within 60 days after the agreement is filed with the court, whichever gives you the most time.

If you are an individual and you are not represented by a Arizona bankruptcy law firm, the court must hold a hearing to decide whether to approve the reaffirmation agreement. The agreement will not be legally binding until the court approves it.

If you reaffirm a debt and then fail to pay it, you owe the debt the same as though there was no bankruptcy. The debt will not be discharged and the creditor can take action to recover any property on which it has a lien or mortgage. The creditor can also take legal action to recover a judgment against you.

IF YOU WANT MORE INFORMATION OR HAVE ANY QUESTIONS ABOUT HOW THE BANKRUPTCY LAWS AFFECT YOU, YOU MAY NEED LEGAL ADVICE. THE TRUSTEE IN YOUR CASE IS NOT RESPONSIBLE FOR GIVING YOU LEGAL ADVICE. So the best option is to seek competent legal advice from an attorney who knows how it works. At our Mesa law office, there is no charge to find out what your options are, from an attorney with over 25 years of experience.