Chapter 13, Title 11, United States Code
|Bankruptcy in the
|Bankruptcy in the United States|
|Aspects of bankruptcy law|
Chapter 13 of the United States Bankruptcy Code, codified under Title 11 of the United States Code, which sets forth the laws governing the various types of relief for bankruptcy in the United States, provides an individual the opportunity to propose a plan of financialreorganization of reorganize their financial affairs while under the protection of the bankruptcy court. The goal of Chapter 13 is to enable an individual with a regular source of income to propose a chapter 13 plan to provides for their various classes of creditor. Under chapter 13, the Bankruptcy Court has the power to approve a chapter 13 plan without the approval of creditors as long as it meets the statutory requirements under chapter 13. Chapter 13 plan are usually three to five years in length and may not exceed five years. Chapter 13 is in contrast to the purpose of Chapter 7, which does not provide for a plan of reorganization, but provides for the discharge of dischargeable debt and the liquidation of non-exempt property. A Chapter 13 plan may be looked at as a form of debt consolidation, but a Chapter 13 allows a person to achieve much more than simply consolidating his unsecured debt such as credit cards and personal loans. A chapter 13 plan may provide for the three general categories of debt: priority claims, secured claims, priority unsecured claims, and general unsecured claim. Chapter 13 is often used to propose a Chapter 13 Plan to cure arrearages on a mortgage, avoid "underwater" junior mortgages or other liens, pay over time of IRS taxes, and the partial payment of general unsecured debt. In recent years, some of the Bankruptcy Courts have allowed Chapter 13 to be used as a platform to expediate a mortgage modification application.
Choice of chapter
An individual who is badly in debt can file for bankruptcy either under Chapter 7 (liquidation, or straight bankruptcy), under Chapter 13 (reorganization), Chapter 12 (family farmer reorganization), or under Chapter 11 (reorganization of a company, or an individual debtor whose unsecured debt exceeds $383,175.00 and/or whose secured debt exceeds $1,149,525.00).
Debtors may also be forced into bankruptcy by creditors in the case of an involuntary bankruptcy, but only under Chapters 7 or 11. However, in most instances the debtor may choose under which chapter to file. The debtor may also choose to convert to another chapter from a 7 or 11 when forced into an involuntary bankruptcy.
The debtor's financial characteristics and the type of relief sought plays a tremendous role in the choice of chapters. In some cases the debtor simply cannot file under Chapter 13, as he or she lacks the disposable income necessary to fund a viable Chapter 13 plan (see below). Furthermore, Section 109(e) of Title 11, United States Code sets forth debt limits for individuals to be eligible to file under Chapter 13 the debt limits for filing Chapter 13 of unsecured debts of less than $383,175.00 and secured debts of less than $1,149,525.00.
Under Chapter 13, the debtor proposes a plan to pay his creditors over a 3-to-5 year period. This written plan details all of the transactions (and their durations) that will occur, and repayment according to the plan must begin within 30 to 45 days after the case has started. During this period, his creditors cannot attempt to collect on the individual's previously incurred debt except through the bankruptcy court. In general, the individual gets to keep his property, and his creditors end up with less money than they would, were the amount given to the debtor to continue collecting interest, allowing the debtor to find a way to pay the amount owed without losing their assets entirely.
The disadvantage of filing for personal bankruptcy is that, under the Fair Credit Reporting Act, a record of this stays on the individual's credit report for up to 7 years (up to 10 years for Chapter 7). But you may obtain new debt or credit (credit cards, Auto, or consumer loans) after 12-24 months, and can get a new FHA mortgage loan 24 months after discharge and Fannie Mae and Freddie Mac loan after 36 months. But during the pendency of a Chapter 13 case the debtor is not permitted to obtain additional credit without the permission of the bankruptcy court. Moreover, creditors may not be willing to risk lending money to such an individual. However, this disadvantage is not unique to Chapter 13; it may also apply to individuals currently in a Chapter 11 case, Chapter 12 case or those who are in or have recently been in a Chapter 7 case.
The advantages of Chapter 13 over Chapter 7 include the ability to: stop foreclosures although a foreclosure would be reinstated upon completion of the bankruptcy; achieve a super discharge of debts of kinds not dischargeable under Chapter 7; value collateral; bifurcate the security interest of creditors in certain property that creditors are either charging too much interest for, or are over-secured, or both, and leading to a cram down modification of the debt; prevent collection activities against non-filing co-signers (co-debtors) during the life of the case.
Chapter 13 plan
A Chapter 13 plan is a document filed with or shortly after a debtor's Chapter 13 bankruptcy petition.
The plan details the treatment of debts, liens, and the secured status of assets and liabilities owned or owed by the debtor in regard to his bankruptcy petition. In order for plans to take effect, it must meet a number of requirements. These are specified in § 1325 and include:
- providing that unsecured creditors will receive at least as much through the chapter 13 plan as they would in a chapter 7 liquidation
- either not be objected to, repay all creditors in full, or commit all of the debtor's disposable income to the Chapter 13 plan for at least three years (or five years for a debtor who makes an above median income)
- The BAPCPA amendments diminished the extent of the super discharge, but discharges under chapter 13 remain broader than those under 7. They include the ability to discharge some tortious damage claims, untimely filed tax claims, marital settlement debts, and some others. See 11 U.S.C. 1328.
|Title 11 of the United States Code - Bankruptcy|
|2007 Filings||2008 Filings||2009 Filings|
|Chapter 7 - Liquidation||413,294||560,015||819,362|
|Chapter 11 - Business reorganization||5,199||6,971||11,785|
|Chapter 12 - Family farmers & fishermen||372||343||367|
|Chapter 13 - Individual reorganization||276,649||334,551||370,875|