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Bankruptcy FAQ

The following are answers some common questions about Pennsylvania bankruptcy. For more in-depth information about bankruptcy in Philadelphia, Montgomery County, and Delaware County, visit our Philadelphia Bankruptcy Attorney Blog.

What are the signs that I should consider bankruptcy?
Signs that you may need to discuss your financial situation with a bankruptcy attorney include:

• Making minimum credit card payments
• Paying one card with another
• Purchasing necessities, such as food and medicine, with credit cards
• Having little or no savings
• Sudden termination of a credit card or credit line (or a jump in the interest rate)
• Falling behind on home or auto payments or paying on "the last day"
• Lack of health insurance
• Financial concerns are beginning to affect your health, work, and family relationships

What is bankruptcy?
In short, bankruptcy is a legal procedure that eliminates or restructures the debt of people who cannot pay because of a variety of circumstances. There are several types or "Chapters" of bankruptcy, but the most common are Chapter 7 and Chapter 13.

What is Chapter 7 bankruptcy?
If you qualify, Chapter 7 bankruptcy allows you to eliminate most or all of your debts. Chapter 7 gives you the opportunity to have a financial fresh start. We can analyze your financial situation and determine if you qualify for Chapter 7.

What is Chapter 13 bankruptcy?
Chapter 13 bankruptcy is a payment arrangement that allows you to pay back some, but not necessarily all, of your debt. Chapter 13 is often a good solution for people who do not qualify for Chapter 7 because their incomes are too high. However, Chapter 13 is not limited to high-income earners. If you are behind on payments to a secured creditor (such as a mortgage or car loan) and wish to keep the property, Chapter 13 may allow you to do so.

If I file for bankruptcy, will creditors continue to harass me?
No. Immediately upon filling for bankruptcy, something called the "automatic stay" goes into place. Once they have notice of your bankruptcy, creditors and debt collectors are barred from trying to collect against you in any way. There are penalties if a creditor violates the automatic stay.

What is the means test?
To qualify for Chapter 7 bankruptcy, your average income for the last 6 months must be below the state median income for your family size. (You must still meet other requirements of filing.) If your income is above the median, you must take a "means test" to determine if, after taking into account your allowable expenses, you qualify for Chapter 7. The means test is not as ominous as it sounds, but it is complex and must be completed very carefully to avoid complications down the line. We can help you determine if you qualify for Chapter 7. Typically, even if you do not qualify for Chapter 7 after completing the means test, you may still qualify for Chapter 13 bankruptcy.

Quick Note: Social Security benefits do not count towards the means test, although they do count as current income.

Will the 2005 Bankruptcy law changes prevent me from filing for bankruptcy?
Most debtors can still file for bankruptcy if they otherwise qualify. The 2005 law requires some additional steps, but most people who would otherwise qualify will still do so under the new law.

How long does Chapter 7 take?
In Chapter 7 case heard in Philadelphia generally take only 4 to 6 months from beginning to end. At the end of the process, you will receive a "discharge" that eliminates all of your debts, with the exception of the non-dischargeable debts mentioned above (some taxes, student loans, etc.).

How long does a Chapter 13 payment plan last?
Chapter 13 payment plans last from 36 to 60 months. In most instances, you will receive a "discharge" of any remaining dischargeable debt when you complete the plan.

If I filed for bankruptcy before, may I file again?
If you filed for Chapter 7 bankruptcy in the past and received a discharge, you may not file another Chapter 7 bankruptcy until 8 years after you first filed. If you received a discharge in a Chapter 13 case, you cannot file under Chapter 7 until 6 years from the date the Chapter 13 was filed. The restrictions on filing under Chapter 13 are not as strict. You must wait for 4 years after you received a discharge in a Chapter 7, and two years from the date you received a discharge in a Chapter 13 before filing a new Chapter 13 case.

How will bankruptcy affect my credit?
For most people considering bankruptcy, their credit is severely damaged already or soon will be. In those cases bankruptcy may not make much difference in your credit rating. Although a bankruptcy remains on your credit report for up to 10 years, that does not mean that you will not be able to reestablish your credit for 10 years. In fact, because you discharged debts that you could no longer pay, you are in a better position to rebuild your credit than if you could not meet your payments. From a lender’s perspective, a customer with a lower debt load is more attractive than a customer who is maxed out and paying late. For that reason, many individuals are able to obtain a mortgage within 2 to 3 years of filing, if they take the steps necessary to reestablish their credit.

Can I keep my personal property if I file for bankruptcy?
In the vast majority of cases, you are able to keep all of your unsecured personal property, unless you have something that is unusually valuable (like an original Rembrandt hidden in the attic). This is because the Bankruptcy Code allows you to "exempt" (up to a limit) the types of property most people own, such as household goods, clothes, jewelry, vehicles, retirement plans, etc.

For example, an individual can exempt up to $11,525 in household goods, such as furniture, appliances, TV's, computers, stereos, etc. (That amount is doubled for married couples.) The value of your personal property is determined by how much you could reasonably get if you sold the property. Few people would be able to sell their used household goods for anywhere close to these exemption amounts. In addition, exemptions can often be stacked to increase the amount of exempted property. For that reason, few people lose any property in a Chapter 7.

Quick Note: In Pennsylvania, you have the option of taking either Pennsylvania State or federal exemptions. However, in most instances, the federal exemptions allow you to keep much more.

Can I keep my house or car if I file for Chapter 7 bankruptcy?
In most cases, the answer is yes. In Chapter 7 cases, it depends largely on how much equity you have in your home or vehicle. (Equity is the difference between what you owe on an item and what it is worth.) For the most part, if (1) the equity in your house or auto is not more than the exemption for that type of property, and (2) you are current on your payments, you can keep it. (If you are behind on your home or car payments, you may need to consider Chapter 13.)

Example 1: Bob and Mary are married and own a home in Montgomery County worth $140,000. They owe $100,000 on the mortgage loan. After subtracting the value of the home ($140,000) from the amount they owe ($100,000), they have $40,000 in equity in their house. The current federal exemption for equity in a home is $43,250 for a married couple ($21,625 for an individual). Because the amount of the equity in this scenario is less than the exemption of $43,250, John and Marie can exempt all of the equity in their home. Thus, as long as John and Marie are current on the payments at the time of filing and continue to make payments during and after their bankruptcy, they can keep the home.

Example 2: Jane owns a car that is worth $12,000. She owes $10,000 on an auto loan, leaving her with $2000 in equity in the car ($12,000 minus the $10,000 loan). There is an exemption of $3450 for motor vehicles. Because her equity ($2000) is less that the available exemption ($3450), her equity in the vehicle is exempt. As long as Jane is current on her auto loan payment and continues to pay on time, she can keep the car. Some auto lenders require a “reaffirmation agreement”, which we will discuss elsewhere.

How can Chapter 13 help me if I am behind on my house or car payments?
Yes, if you can afford to make your current house payments and pay and back amount over 36 to 60 months. In Chapter 13 cases, a current secured debt, such as a car or house loan, can be paid through the plan or directly to the creditor. If you are behind on your house or car payments, Chapter 13 allows you to pay back the missed payments over time. As long as that you have sufficient income to make the house or car payments as they come due and make the Chapter 13 plan payments, Chapter 13 can enable you to keep your property.

Example 1: Take Bob and Mary from our example above. Let’s say that John and Marie’s mortgage payment is $1000 per month, and they are 8 month behind on their mortgage. How do they get caught up on the $8000 in back payments? If John and Marie file for Chapter 13 Bankruptcy, they can pay the past due amount (the “arrearage”) over time through the Chapter 13 bankruptcy plan, typically over 36 to 60 months. In the meantime, they will begin making their regular mortgage payment to the bank as if they were current. This will enable them to keep their house.

Example 2: Let’s say Bob owns a car that is worth $20,000, but he owes $10,000 on an auto loan. Bob is 5 months behind on his auto payments of $300 per month, leaving him with an arrearage of $1500. If Bob files for Chapter 13, and begins making his regular car payment, he can pay back the $1500 through the Chapter 13 plan.

Quick Note: In Chapter 13 case in the Eastern District of Pennsylvania, you continue to make your house payments directly to the lender.  However, your car payments may be made through the plan.

Can I keep my retirement plan if I file for bankruptcy?
Generally, yes IRS qualified retirement plan such as a 401k plans, pensions, Keogh plans, and IRAs are exempt property, as are Social Security benefits.

What is a reaffirmation agreement?
Simply put, a reaffirmation agreement is a new contract between you and a creditor whereby you confirm your liability to pay the debt. In bankruptcy, reaffirmation agreements are typically used to reaffirm a secured debt, such as a home or car loan. You should discuss with your attorney whether or not you should enter into a reaffirmation agreement with a creditor. Often, you can keep secured property without a reaffirmation agreement, as long as you make the payments on time.

Will I have to go to court?
Generally, you do not have to go to court during your bankruptcy. However, you must attend a "meeting of creditors" ("341 hearing") conducted by the bankruptcy trustee in your case. The trustee is not a judge, and the meeting is fairly informal and brief. (It is not unusual for the meeting to last less than 15 minutes.) At that meeting, which your attorney will attend with you, the trustee will ask some questions regarding your bankruptcy petition, schedules, and other documents. Although creditors may attend the meeting and ask questions, it is unusual for them to do so in the typical bankruptcy case.  Your attorney will prepare you for the meeting, so there is not need to be nervous about it.

Can I be fired for filing for bankruptcy?
No. Even if your employer found out about your bankruptcy, federal law prohibits an employer from firing an employee for filing for bankruptcy. Although this law will not protect an employee who has other job issues, resolving financial issues often improves an employee's performance. Think about it from an employer’s perspective: would you rather have an employee who was distracted by harassing creditors and financial problems, or an employee who has resolved these issues and can concentrate on the job?

Can I obtain student loans after I file for bankruptcy?
Typically yes, if you otherwise qualify. Student loan providers are barred by federal law from discriminating against an applicant because of a bankruptcy.

Will my utilities be cut off because I filed for bankruptcy?
No. It is against the law for a public utility to cut off or refuse to provide service because you filed for bankruptcy, even if you are seriously behind on your payments. The utility is permitted to charge a deposit. Typically, the utility will start a new account for you. If you are in danger of losing service on a necessary utility, you should let your attorney know right away.

Can I sell my home or personal property during a Chapter 7 bankruptcy?
It is possible to sell a home or other property during a bankruptcy. However, with some exceptions, you may not sell any real or personal property before your discharge without the permission of the trustee. If you wish to sell anything of value while your case is active, you should contact your attorney.

What can I own after Bankruptcy?
The short answer is anything. In addition to exempt property, you can keep whatever you obtain after filing for bankruptcy. That being said, if you receive a large amount of money or other property within 6 months of filing (e.g., an inheritance, proceeds from a life insurance policy, etc.), you may be required to pay it to the trustee for distribution to your creditors (to the extent that it is not exempt). Therefore, it is very important to tell your attorney if you are expecting such a distribution, so your attorney can review possible exemptions before you file.

How do I take the courses required before I file?
Before you file for bankruptcy, you must tale a “credit counseling course”. After filing, you must take a “Financial Management" or Debtor's Education Course”. You can take each course online or over the phone in an hour or so. There are many approved providers, and your attorney can recommend some. The course is very inexpensive.

May senior citizens file for bankruptcy?
There is no age limit on the protections offered by the bankruptcy code, and seniors are seeking relief under the Bankruptcy Code more and more. In some ways it is easier for seniors to discharge debt under Chapter 7 than younger people, because their social security income does not count towards the “means test” (see above). Bankruptcy can protect a senior’s assets, such as a home or pension. Bankruptcy is not always to best solution for seniors, but it is an option that seniors having debt problems should discuss with a bankruptcy attorney.  We offer discounts for Seniors.

If I am in the military, can I declare bankruptcy?
Members of the armed services can file for bankruptcy. In fact, there are specific bankruptcy protections for servicemembers under the National Guard and Reservists Relief Act and other legislation. For example, active duty Guard members and reservists are not required to take the means test. Moreover, the bankruptcy courts generally accommodate servicemembers who are deployed overseas by rescheduling hearings, allowing the servicemember to appear by affidavit, etc.

In addition, there are protections under the Servicemembers Civil Relief Act ("SCRA") that may make bankruptcy unnecessary for some servicemembers, such as the ability to prevent evictions, stay court hearings, terminate auto leases, reduce interest on some pre-service loans, etc.  As a thank you for their service, we discount our fees for servicemembers and veterans.