A fundamental
goal of the federal bankruptcy laws is to give debtors a financial "fresh
start" from burdensome debts. The Supreme Court made this point about the
purpose of the bankruptcy law in a 1934 decision: [I]t gives to the honest but
unfortunate debtor…a new opportunity in life and a clear field for future
effort, unhampered by the pressure and discouragement of preexisting debt. Local
Loan Co. v. Hunt, 292 U.S. 234, 244 (1934).
Under granted constitutional
authority, Congress enacted the "Bankruptcy Code" in 1978. The
procedural aspects of the bankruptcy process are governed by the Federal Rules
of Bankruptcy Procedure (often called the "Bankruptcy Rules").
A debtor's
involvement with the bankruptcy judge is usually very limited. A typical
chapter 7 debtor will not appear in court and will not see the bankruptcy judge
unless an objection is raised in the case. Usually, the only formal proceeding
at which a debtor must appear is the meeting of creditors, which is usually
held at the offices of the U.S. trustee. This meeting is informally called a
"341 meeting" because section 341 of the Bankruptcy Code requires that
the debtor attend this meeting .
Six (6) basic
types of bankruptcy cases are provided for under the Bankruptcy Code, each of
which is discussed in this publication. The cases are traditionally given the
names of the chapters that describe them. Chapter -7 and Chapter 13 are the ones that are most frequently used.
Chapter 7
Chapter-7
entitled Liquidation, contemplates an orderly, court-supervised procedure by
which a trustee takes over the assets of the debtor's estate, reduces them to
cash, and makes distributions to creditors, subject to the debtor's right to
retain certain exempt property and the rights of secured creditors. Because
there is usually little or no nonexempt property in most chapter 7 cases, there
may not be an actual liquidation of the debtor's assets. These cases are called
"no-asset cases." In most chapter 7 cases, if the debtor is an
individual, he or she receives a discharge that releases him or her from
personal liability for certain dischargeable debts. The debtor normally
receives a discharge just a few months after the petition is filed.
Chapter-13
Chapter 13,
entitled Adjustment of Debts of an Individual With Regular Income, is designed
for an individual debtor who has a regular source of income. Chapter 13 is
often preferable to chapter 7 because it enables the debtor to keep a valuable
asset, such as a house, and because it allows the debtor to propose a
"plan" to repay creditors over time – usually three to five years. Unlike chapter 7, the debtor does not receive
an immediate discharge of debts. The debtor must complete the payments required
under the plan before the discharge is received. The debtor is protected from
lawsuits, garnishments, and other creditor actions while the plan is in effect.
The discharge is also somewhat broader (i.e., more debts are eliminated) under
chapter 13 than the discharge under chapter 7.
This content is not intended as legal advice, and cannot be relied upon for any purpose without the services of a qualified professional.