Bankruptcy is a legally declared inability or impairment of ability of an individual or organizations to pay their creditors. Creditors may file a bankruptcy petition against a debtor (“involuntary bankruptcy”) in an effort to recoup a portion of what they are owed. In the majority of cases, however, bankruptcy is initiated by the debtor (a “voluntary bankruptcy” that is filed by the bankrupt individual or organization).
The primary purpose of bankruptcy is: (1) to give an honest debtor a “fresh start” in life by relieving the debtor of most debts, and (2) to repay creditors in an orderly manner to the extent that the debtor has the means available for payment. Bankruptcy allows debtors to be discharged from the legal obligation to pay most debts by submitting their non-exempt assets, if any, to the jurisdiction of the bankruptcy court for eventual distribution among their creditors. A bankruptcy case is initiated by the filing of a petition, which contains the Debtor’s financial information. A married couple may file a joint petition. Though in a technical sense the filing of a joint petition initiates two separate bankruptcy cases (and estates), the cases and estates are usually consolidated and treated as one.
There are two common forms of bankruptcy: liquidation and reorganization. In the United States the law provides for one liquidation chapter (chapter 7); all other chapters are for reorganization (chapter 9- municipalities, chapter 11- businesses or individuals, chapter 12- family farmers, chapter 13- individual “wage earners”.) Upon the filing of the bankruptcy petition, the Debtor’s assets constitute the bankruptcy “estate”. With the notable exception of a case under chapter 11, a Trustee is appointed to oversee the Debtor’s estate, to evaluate claims and perform other functions. In certain instances a Trustee can be appointed to a chapter 11 case.
In a liquidation bankruptcy, the Debtor’s nonexempt (ie, legally unprotected) assets are sold off to satisfy creditor claims. This is referred to as “administering” the Debtor’s estate. The Creditors with timely filed and valid claims participate in a pro rata distribution of the proceeds obtained through the liquidation. The distribution is based on a system of priorities, in which certain classes of claimants are given priority over others. A liquidation case in which no liquidation occurs, and thus no assets are administered for the benefit of creditors, is generally referred to as a “no asset” case.
A reorganization bankruptcy is a bankruptcy in which a debtor reorganizes/restructures assets and debts. Individuals may initiate a reorganization bankruptcy in order to retain assets and pay creditor claims out of the individual’s income. However, reorganization bankruptcies can involve an “orderly liquidation” of some or all of the Debtor’s assets. A reorganization bankruptcy usually allows the Debtor to carry on while satisfying creditor claims (in whole or part).
Businesses may enter a reorganization bankruptcy in order to survive insolvency due to creditor claims exceeding the ability of the business to satisfy them. The basic process involves a business reducing each creditor’s claims to allow partial payment in order for the business to carry on with its daily commercial activity.
During the pendency of a bankruptcy preceding the debtor is protected from most non-bankruptcy legal action by creditors through a legally imposed stay. Creditors cannot pursue most types of lawsuits, garnish wages, or attempt to compel payment.
Bankruptcy chapters
There are six types of bankruptcy under the Bankruptcy Code, located at Title 11 of the United States Code:
- Chapter 7: basic liquidation for individuals and businesses;
- Chapter 9: municipal bankruptcy;
- Chapter 11: rehabilitation or reorganization, used primarily by business debtors, but sometimes by individuals with substantial debts and assets;
- Chapter 12: rehabilitation for family farmers and fishermen;
- Chapter 13: rehabilitation with a payment plan for individuals with a regular source of income;
- Chapter 15: ancillary and other international cases.
The most common types of personal bankruptcy for individuals are Chapter 7 and Chapter 13. In Chapter 7, a debtor surrenders his or her non-exempt property to a bankruptcy trustee who then liquidates the property and distributes the proceeds to the debtor’s unsecured creditors. In exchange, the debtor is entitled to a discharge of debt, except that the debtor will not be granted a discharge if he or she is guilty of certain types of inappropriate behavior (e.g. concealing records relating to financial condition) and except that some debts (e.g. spousal support, some taxes) will not be discharged even though the debtor is generally discharged from his or her debt. Many individuals in financial distress own only exempt property (e.g. clothes, household goods, an older car) and will not have to surrender any property to the trustee. The amount of property that a debtor may exempt varies from state to state. Chapter 7 relief is available only once in any eight year period. Generally, the rights of secured creditors to their collateral continues even though their debt is discharged (e.g. absent some arrangement by a debtor to surrender a car or “reaffirm” a debt, the creditor with a security interest in the debtor’s car may repossess the car even if the debt to the creditor is discharged).
In Chapter 13, the debtor retains ownership and possession of all of his or her assets, but must devote some portion of his or her future income to repaying creditors, generally over a period of three to five years. The amount of payment and the period of the repayment plan depend upon a variety of factors, including the value of the debtor’s property and the amount of a debtor’s income and expenses. Secured creditors may be entitled to greater payment than unsecured creditors.
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (April 20, 2005) (“BAPCPA”), substantially amended the Bankruptcy Code. Many provisions of BAPCPA were forcefully advocated by consumer lenders and were just as forcefully opposed by many consumer advocates, bankruptcy academics, bankruptcy judges, and bankruptcy lawyers. Its enactment followed nearly eight years of debate in Congress. Most of its provisions became effective on October 17, 2005. Upon signing the bill, President Bush stated:
Under the new law, Americans who have the ability to pay will be required to pay back at least a portion of their debts. Those who fall behind their state’s median income will not be required to pay back their debts. The new law will also make it more difficult for serial filers to abuse the most generous bankruptcy protections. Debtors seeking to erase all debts will now have to wait eight years from their last bankruptcy before they can file again. The law will also allow us to clamp down on bankruptcy mills that make their money by advising abusers on how to game the system.
Among its many changes to consumer bankruptcy law, BAPCPA enacted a “means test”, which was intended to make it more difficult for a small number of financially distressed individual debtors whose debts are primarily consumer debts to qualify for relief under Chapter 7 of the Bankruptcy Code. Contrary to this intention, however, the Means Test often results in debtors more easily obtaining a discharge. If a debtor does not qualify for relief under Chapter 7 of the Bankruptcy Code, either because of the Means Test or because Chapter 7 does not provide a permanent solution to delinquent payments for secured debts, such as mortgages or vehicle loans, the debtor may still seek relief under Chapter 13 of the Code. A Chapter 13 plan often does not require repayment to general unsecured debts, such as credit cards or medical bills.
BAPCPA also requires individuals seeking bankruptcy relief to undertake credit counseling with approved counseling agencies prior to filing a bankruptcy petition and to undertake education in personal financial management from approved agencies prior to being granted a discharge of debts under either Chapter 7 or Chapter 13. Some studies of the operation of the credit counseling requirement suggest that it provides little benefit to debtors who receive the counseling because the only realistic option for many is to seek relief under the Bankruptcy Code.
Bankruptcy and Short Sales
When a borrower files for bankruptcy the lender cannot pursue collection of the debt and it stops the foreclosure process during the bankruptcy. When accepting a short sale the lender does not have to be concerned with the borrower filing bankruptcy and having to wait an indefinite amount of time for payment or to complete a foreclosure.
Bankruptcy is an option for borrowers when doing short sales. As an investor you should make the lender aware that by accepting your short sale offer the lender will not have to deal with a possible bankruptcy by the borrower!