Bankruptcy: Basic Information & Things to Consider

Last Updated On: 2/2/2018 8:10:45 PM

View the Bankruptcy Toolkit for a video and more information about bankruptcy.

What is bankruptcy?

Bankruptcy means you ask the court to excuse you from your duty to repay money you owe your creditors.  A creditor is a person or business to whom you owe money. Bankruptcy allows you to discharge (get rid of) or reorganize most of your debts, but also to keep a certain amount of property. Two kinds of bankruptcy are available to individuals and married couples not in business. These are a Chapter 7 (or "straight") bankruptcy and a Chapter 13 ("debt adjustment") bankruptcy. All bankruptcies are filed with your local United States Bankruptcy Court.

What is the difference between a Chapter 7 and a Chapter 13 bankruptcy?

Under Chapter 7, you may not have to repay any of your debts before they are discharged (forgiven). Under Chapter 13, you must repay a portion of your debts –– before they are discharged.  Chapter 13 bankruptcy is most helpful in saving a home or a car, as you generally need to be caught up in your payments on secured assets you intend to keep before filing a Chapter 7 bankruptcy.  Chapter 13 allows your spread your payment arrearage out over as much as 60 months, and can stop a foreclosure so long as it is filed prior to the foreclosure sale.

The type of bankruptcy you can file depends on whether your household is above or below the state "median income." The median income for a family of four in West Virginia is $66,401 for bankruptcy cases filed on or after May 1, 2014. (Please note that this amount changes each year.) Your income is determined by the six-month period before you file bankruptcy.

People in households with incomes above the state median usually cannot file a Chapter 7. They must file a Chapter 13. People in households with incomes below the state median may file either a Chapter 7 or a Chapter 13.

What must I do before I file for bankruptcy?

Before you file for bankruptcy, you must get individual or group counseling from an approved consumer credit counseling agency. You must do this within 180 days before you file bankruptcy. In emergency cases, you can file bankruptcy before you do credit counseling. However, you must start credit counseling within 30 days after you file bankruptcy. If you don't, your bankruptcy will be dismissed. A list of approved credit counseling agencies can be found on the Internet at the following website. Some agencies offer phone or internet counseling. After you file for bankruptcy, but before you’re granted a discharge order in bankruptcy, you will also be required to take a financial management course.

What is a Chapter 7 bankruptcy?

In a Chapter 7 bankruptcy, you must list all your debts, no matter the size or to whom you owe them. You also must list all your property. West Virginia law lets you keep a certain amount of property you own free and clear. Property protected from your creditors includes these items:

  • $25,000 in property for an individual and $50,000 for a married couple in either equity, household goods, or a mix of equity and goods in West Virginia.This is often referred to as the “wildcard” exemption.
  • There are a variety of other exemptions that may allow you to keep additional property above the wildcard exemption above.

It is very uncommon in West Virginia for any property to be sold, but if you have more property than your exemptions allow you may have to sell that property or make payments to Chapter 7 or Chapter 13 trustee. The money is used to pay your creditors. They may get only a few cents (or nothing) for a dollar of debt. The court discharges (or forgives) most of your debts and you get a fresh start.

What debts can’t be discharged in bankruptcy?

Some debts can’t be discharged in either a Chapter 7 or Chapter 13 bankruptcy. These include the following things:

  • Fines and court ordered restitution,
  • Taxes for which no return was filed, taxes for which a fraudulent return was filed, as well as some other taxes,
  • Child support, spousal support (or alimony), and non-support obligations resulting from a divorce or separation,
  • Debts due to fraud,
  • Debts due to wrongful and harmful acts,
  • Loans from your pension plan, and
  • Student loans, unless you can show extreme hardship.  It is nearly impossible in West Virginia to show extreme hardship.

You can’t discharge credit card charges or other installment contract purchases to a single creditor totaling more than $550 for luxury goods or services you bought within 90 days before you filed bankruptcy. You also can’t discharge cash advances totaling more than $825 you got within 70 days before you filed bankruptcy.  Thus you should always quit using credit for at least 90 days prior to filing a bankruptcy.

In a Chapter 7 bankruptcy, what happens to property I’m buying on credit?

If you’re buying property on credit, and you are using the property as collateral for the debt, you may have to give it back to the creditor. In a Chapter 7, you may keep property you’re buying on credit under certain conditions. If you are current on your payments, you may “reaffirm” the debt by agreeing to keep paying the debt even though you filed bankruptcy. However, if you are behind in your payments, you may have to file a Chapter 13 to keep property you’re buying on credit. A final way to keep property is to “redeem” it. This means you pay the creditor what the property is now worth, not what you still owe on it.

In a Chapter 7, what happens to property I can’t protect from my creditors?

In a Chapter 7, property you can’t protect from your creditors is sold and the money is used to pay your creditors. If property you own free and clear is worth more than you can protect from your creditors, you should probably not file a Chapter 7. If you have property you can’t protect from your creditors, you may want to think about filing a Chapter 13.  If you think you have more than $25,000 in property for an individual or $50,000 for a married couple, you should consult counsel prior to filing bankruptcy to see if there are additional exemptions which may protect the rest of your property.

What is a Chapter 13 bankruptcy?

A Chapter 13 bankruptcy is a payment plan approved by the Bankruptcy Court where you pay your debts in full or in part. It requires you to have a steady source of income that is enough to pay necessary living expenses in addition to paying the debts under your Chapter 13 plan.

Chapter 13 bankruptcy is generally used to stop a foreclosure or save a car.  Chapter 13 can spread your mortgage or car payment arrearage out over 36 to 60 months to make the payment more affordable.

In Chapter 13, you make payments to an attorney called a Chapter 13 Bankruptcy Trustee. Usually, you do this for three to five years. The Trustee uses the money to pay your creditors. In a Chapter 13, you also list all your debts and property. West Virginia law lets you keep a certain amount of property you own free and clear. This is the same property that would be protected from your creditors in a Chapter 7 bankruptcy.

In a Chapter 13 bankruptcy, what happens to property I’m buying on credit?

In a Chapter 13 bankruptcy, you may not have to give back, reaffirm, or redeem property you’re buying on credit. Instead, you may be able to keep property you’re buying on credit even if you’re behind on payments. To keep the house where you live, you must make current payments. You get three to five years to catch up on missed payments.

Whether you may keep other property you’re buying on credit depends on what you are buying and when you bought it. To keep a motor vehicle you bought within 910 days (21⁄2 years) before you filed bankruptcy, you must pay the debt in full within three to five years. To keep a motor vehicle you bought more than 910 days ago, you get three to five years to pay the debt, or to pay what the vehicle is worth, whichever is less.

To keep other property you bought within one year before you filed bankruptcy, you must pay the debt in full within three to five years. To keep other property you bought more than one year ago, you get three to five years to pay the debt, or to pay what the property is worth, whichever is less.

In a Chapter 13, what happens to property I can’t protect from my creditors?

In a Chapter 13 bankruptcy, your creditors must receive at least as much as they would get in a Chapter 7 bankruptcy. In a Chapter 7, property you can’t protect from your creditors would be sold and the money would be used to pay your creditors. In a Chapter 13, you may be able to keep this property. You do this by paying your creditors at least as much as they would have received in a Chapter 7 bankruptcy. You get three to five years to do this.

What is the filing fee for a bankruptcy?

The filing fees are $335 for a Chapter 7 bankruptcy and $310 for a Chapter 13 bankruptcy. (Effective June 1, 2014.) The court may allow you to pay this over several months if you can’t pay all at once. However, if you don’t pay the filing fee on time as required by the court, your bankruptcy will be dismissed. If you are very poor, the court may allow you to file a bankruptcy for free.

In addition, you probably will need to file a Homestead Deed in connection with the bankruptcy. Your local Circuit Court charges $21 to record this. This must be paid at the time you file the bankruptcy.

What happens to debt collection after I file for bankruptcy?

Once you file for bankruptcy, most – but not all – debt collection must stop. This is called an “automatic stay.” Filing for bankruptcy stops repossessions, utility cutoffs, debt collection lawsuits, garnishments, levies, attachments, foreclosures, and evictions where a judgment of possession has not been entered, and most other actions to collect debts. However, filing for bankruptcy does not stop an eviction where a judgment of possession has been entered, or an eviction based on illegal drug use or danger to property.

If a prior bankruptcy was filed and dismissed within the prior year, the automatic stay lasts only 30 days. For the automatic stay to last longer, you must show the court that you filed your second bankruptcy in good faith.

There is no automatic stay if two prior bankruptcies were filed and dismissed within the prior year. To get the automatic stay, you must show the court that you filed your third bankruptcy in good faith.  In any bankruptcy, a creditor may ask the court to end the automatic stay and get permission to resume debt collection.

What papers do I have to file with my bankruptcy?

The bankruptcy petition requires you to list all of your current income, any increase in income expected in the next 12 months, all of your expenses, all of your property, all of your debts, and all of your creditors. You must list the name and address of each creditor, the name and address of the attorney (if any) for each creditor, the name and address of each debt collection agency, and the name and address of the attorney (if any) for each debt collection agency. You also must file the following papers with your bankruptcy:

  • Deeds on your house or other real estate.
  • Mortgages (Deeds of Trust) on your house or other real estate.
  • Tax assessed values of real property worth more than $3,000.
  • Evidence of value on vehicles worth more than $3,000 (e.g., Kelley blue book value, NADA guidebook, tax tickets, appraisals, etc.).
  • Evidence of value on personal property worth more than $3,000.
  • For secured debts, a statement from the creditor of the current balance or payoff.
  • For secured debts, all security agreements and financing statements.
  • Titles or DMV certificates for all motor vehicles or mobile homes.
  • If you and your spouse own real estate held as “tenants by the entireties,” evidence for each unsecured debt of the parties obligated on each unsecured claim.
  • Summary Plan Descriptions for retirement or 401(k) plans.
  • Federal income tax returns for the prior three years.
  • Proof of cash value of life insurance policies.
  • Recorded Homestead Deeds.
  • Any complaint or claim you have filed as a debtor seeking money.
  • Your pay stubs or proof of income for the 60 days before you file bankruptcy.
  • Any Final Decree of Divorce or Property Settlement Agreement within the past year.
  • Financial reports of any closely held business of yours.
  • Your three most recent monthly bank statements on all accounts you have.
  • Statement of income and expenses for non-filing spouse.

If you don’t file these papers on time as required by the court, your bankruptcy will be dismissed.

What happens if I make a mistake in my bankruptcy papers?

Both you and your bankruptcy attorney have to make a reasonable investigation to be sure that everything in your bankruptcy papers is correct. If you or your attorney don’t do this, either or both of you may be ordered to pay costs and attorneys’ fees to your creditors.  However, no fees and costs can be assessed against an attorney who represents a debtor with household income below the state median. Fees and costs also cannot be assessed against an attorney who represents a debtor in a Chapter 13 bankruptcy.

Do I have to go to court?

Yes, you will have to go to court at least once and sometimes twice. At the “first meeting of creditors,” you will be asked questions about your income and property. You must go to this hearing. At the second court date, the “discharge hearing,” you will get an explanation about discharge. Some courts don’t require you to go to this hearing. If anything about your bankruptcy is contested, you may have to go to other court hearings. A bankruptcy usually takes between three and four months.

Can I be discriminated against (or treated differently) because of a bankruptcy?

No. You don’t give up any legal rights by filing bankruptcy. You still may vote. You still may own property. No government agency can discriminate against you, or treat you differently, due to your bankruptcy. Private employers can’t fire you, or refuse to hire you, due to your bankruptcy. A public utility, such as an electric company, can’t cut off or refuse service because you filed for bankruptcy. Your credit applications must be treated the same as other applications for credit.

How will bankruptcy affect my credit?

A bill, debt, or judgment can appear on your credit report for seven years,  but a bankruptcy can appear for ten years. However, if you need to file bankruptcy, you probably have a bad credit report anyway. Because bankruptcy wipes out many of your debts, you should be better able to pay current bills. This may make you a better risk to a creditor.

After you receive your discharge in bankruptcy, you should send a letter to the three major credit reporting agencies, along with a copy of the discharge order, so that your credit report shows you are no longer obligated to pay the debts that they may have listed for you. Then, in about six to nine months, ask for a free copy of your credit report (you are entitled to receive one per year). If your credit report does not show the bankruptcy discharge by that time, then you should send a another letter to the credit reporting agencies to dispute their records. If you need further assistance with this, you should call legal aid or another lawyer.

Here’s the website where you can get more information about the three credit reporting agencies, and how to dispute their records.

Can I file bankruptcy without an attorney?

You may be able to file bankruptcy without an attorney, bankruptcy is difficult. You may lose income, property, or other rights if you don’t know the law. To see if you qualify for free legal help you can apply for help from Legal Aid of West Virginia.

How often can I file a bankruptcy?

There are longer waiting periods to file another bankruptcy.

  • If you get a Chapter 7 discharge, you must wait eight years from the date of filing the first Chapter 7 before you can get another Chapter 7 discharge.
  • If you get a Chapter 7 discharge, you must wait four years from the date of filing that Chapter 7 before you can get a discharge under a Chapter 13.
  • If you get a Chapter 13 discharge, you must wait six years from the date of filing that Chapter 13 before you can get a Chapter 7 discharge.
  • This waiting period does not apply if:
    • You actually paid 70% to 100% of the unsecured debts under the Chapter 13 plan, and
    • The court finds your plan was propose in good faith, and
    • Your attempt to make payments under the plan was your “best effort.”
  • If you get a Chapter 13 discharge, you must wait two years from the date of filing the first Chapter 13 before you can get another discharge under Chapter 13.

If I can file bankruptcy now, why should I wait?

Your right to file a bankruptcy is very important. You should not waste it. You should think about filing a bankruptcy only when you have income or property you are about to lose, and a bankruptcy will help you save that income or property.

The problem with filing a bankruptcy too soon is that you can’t file again for many years. If you file too soon and within the next several years something else happens to give you large debts, you wouldn’t be able to file bankruptcy again until the waiting period had passed. In the meantime, you might lose some of your income or property to your creditors. This is why you should wait to file bankruptcy until it is really necessary or really will be helpful to you.

What are the alternatives to bankruptcy?

You may want to think about counseling and assistance from a nonprofit consumer credit counseling agency. They may be helpful if they can work out a plan with all your creditors that covers all of your creditors, reduces all of your debts, and pays off all of your debts within four years. The plan also should set a payment to repay your debts that you can afford and still pay all your other ongoing expenses.   If you have no income or property that could be taken by a creditor with a judgment, then you are “judgment proof.” In this case, you may not need to do anything to protect yourself.

This is general legal information. For guidance about your situation, talk to a lawyer.