| On April 20, 2005
President George W. Bush has signed the new bankruptcy
law that changes the bankruptcy system in favor of
creditors and against the interests of most consumers..
The most substantive changes become
effective on October 17, 2005, as follows:
QUALIFICATION FOR CHAPTER 7 –
“MEANS TESTING”
If your household income is greater
than the state median income for a family of your
size, the bankruptcy trustee may request that the
court dismiss your case due to “abuse.”
The court will presume that you
are ineligible for Chapter 7 bankruptcy if your current
monthly income should, according to a list of permissible
expense amounts, leave you with at least $100 per
month to be repaid to your creditors. In such cases,
you will have to repay your debts over a five-year
period through more difficult Chapter 13.
To successfully argue against dismissal
or conversion of your case to Chapter 13, you must
demonstrate “special circumstances.”
If your income falls below the state
median, the court may still dismiss your case for
“abuse.”
MANDATORY CREDIT COUNSELLING AND
EDUCATION
Every individual who files for bankruptcy
must, within the 6 month prior to filing, receive
and provide proof of mandatory credit counseling from
an “approved” nonprofit budget and credit
counseling agency.
You will not be permitted to discharge
your debts under Chapter 7 or Chapter 13 unless you
complete a mandatory debtor education course in personal
financial management as approved by the U.S. Trustee.
If you have moved from a different
state within the past two years, you may be subject
to the laws of your former state of residence in connection
with what property you are allowed to keep in Chapter
7.
Many additional restrictions will
be applied.
USING BANKRUPTCY TO STOP CREDITORS
The new law limits your ability
to stop creditors through the use of the “automatic
stay”. If you have filed for bankruptcy within
the past year and need to re-file because the first
one was dismissed, your creditors can collect again
from you 30 days after the new case is filed.
If you file for bankruptcy in order
to stop an eviction proceeding, the landlord will
be able to continue with the eviction if for any reason
you fall behind on your new rental payments after
the case is filed.
DOCUMENTS TO BE PROVIDED FOR YOUR
BANKRUPTCY CASE
In addition to the list of creditors,
schedules of assets, liabilities, income and expenses,
debtors must provide:
Certificate of credit counseling
Pay stubs for the 60 days before
filing your case
Tax returns or transcripts for the
most recent tax year
Tax returns filed during the case
including tax returns for prior years that had not
been filed when the cases began
Failure to provide the documents
within 45 days after the petition has been filed results
on automatic dismissal of the case.
TIME BETWEEN FILING BANKRUPTCY CASES
You will not be eligible to receive
a discharge of your debts in Chapter 7 if you received
a prior discharge within 8 years of the new filing.
You will not be eligible to receive
a discharge in Chapter 13 if you have filed a Chapter
7, 11 or 12 bankruptcy case within the 4 years prior
to the date of filing of the pending case, or if you
have filed a Chapter 13 case within 2 years of the
pending case.
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