You Are Here: home > Blog > unsecured debt

Understanding Debts- Part 1

Posted by Kevin on October 21, 2018 under Bankruptcy Blog | Comments are off for this article

 Debts in Bankruptcy

If you are thinking about bankruptcy there’s no more basic question than what it will do to each of your debts. Will it wipe away all your debts or will you still owe anybody? What about debts you would like to keep like your car or truck loan or your home mortgage? What help does bankruptcy give for unusual debts like taxes, or child and spousal support?

The Three Categories of Debts

At the heart of bankruptcy is the basic rule of treating all creditors within the same legal category the same. So we need to understand the three main categories of debts. You may not have debts in all three of these categories, but lots of people do. A basic understanding of these three categories will help make sense of bankruptcy, and make sense of how it treats each of your creditors.

The three categories of debts are “secured,” “general unsecured,” and “priority.”

Secured Debts

Every single debt is either “secured” by something you own or it is not. A secured debt is secured by a lien—a legal right against that property.

Most of the time you know whether or not a debt is secured because you voluntarily gave collateral to secure the debt. When you buy a car, you know that you are signing on to a vehicle loan in which the lender is put onto your car’s title as its lienholder. That lien on the title gives that lender certain rights, such as to repossess it if you don’t make the agreed payments.

But debts can also be secured as a matter of law without you voluntarily agreeing to it. For example, if you own a home and an unsecured creditor sues you and gets a judgment against you that usually creates a judgment lien against the title of your home. Or if you don’t pay federal income taxes you owe, the IRS may put a tax lien on all your personal property.

For a debt to become effectively secured, for purposes of bankruptcy, certain steps have to be taken to accomplish that. Otherwise the debt is not secured, and the creditor does not have rights against the property or possession that was supposed to secure the debt.

In the case of a vehicle loan, the lender and you have to go through certain paperwork for the lender to become a lienholder on the vehicle’s title. If those aren’t done right, the vehicle will not attach as collateral to the loan. That could totally change how that debt is treated in bankruptcy.

Finally, it’s important to see that debts can be fully secured or only partly secured. This depends on the amount of the debt compared to the value of the collateral securing it. If you owe $15,000 on a vehicle worth only $10,000, the debt is only partly secured—secured as to $10,000, and unsecured as to the remaining $5,000 of the debt. A partly secured debt may be treated differently in bankruptcy than a fully secured one.

In the next blog we will be reviewing general unsecured debts and priority debts.


Chapter 13 Basics- Debt Limits

Posted by Kevin on November 22, 2017 under Bankruptcy Blog | Be the First to Comment

In the prior blog, we learned that you may be required to file under Chapter 13 because, simply put, you make too much money to file under Chapter 7.   Guess what?  There are restrictions on filing Chapter 13 also.  First, you must be an individual.  That means a live person.  Second, you must have regular income.  That usually means a job, but it can even include social security or public assistance.  Third, your secured debts cannot exceed $1,184,200.  Fourth, your unsecured debts cannot exceed $394,725.  Items three and four are commonly called Debt Limits which are adjusted periodically.

So, what’s a secured debt.  It means generally any debt for which you have given collateral.  Examples: a home mortgage or a car loan.  But, it can also include a judicial lien, a statutory lien or a filed IRS tax lien.  A judicial lien comes about when someone gets a judgment against you, and the sheriff  attaches a specific item of property like your bank account.  A statutory lien comes about by law.  An example is your real estate taxes.

Unsecured claims can be credit cards, medical bills, loans that you guaranteed for your business, and priority debts like back child support.

In the prior blog, we learned that a debtor in Chapter 13 can strip off a second mortgage if that mortgage is totally underwater.  For example, your home is worth $200,000.  The first mortgage is for $250,000 and the second mortgage is for $100,000.  The second mortgage is recorded and would otherwise be considered a secured claim except that there is no collateral to attach to it because the first mortgagee is owed more than the collateral is worth.  In that case the stripped off second mortgage becomes an unsecured claim.

So, how do you count the second mortgage when you are figuring out the Debt Limits for Chapter 13.  In our example, the stripped off second mortgage is counted with the unsecured claims.  So, in our case, you have to add the $100,000 to your other unsecured debts even though there was a mortgage.

Sometimes, the stripped off second mortgage can put you over the Debt Limit for unsecured debt.  What happens then?  Well, if you do not qualify for Chapter 7, your only alternative is Chapter 11.  Ouch.  Although individuals can file Chapter 11, that is an expensive proposition.

Help! I’ve Just Been Sued by a Creditor! What Do I Do Now?

Posted by Kevin on March 31, 2016 under Bankruptcy Blog | Be the First to Comment

Don’t react to getting lawsuit papers by avoiding them. React by helping yourself.  Get some competent legal advice about what this lawsuit really means, whether and how it can hurt you, and what you likely can do about it.

Lawsuits by most creditors aren’t “personal.” They’re just a business decision. The lawsuit papers you have in your hands tell you that the creditor has decided that suing you is a good bet.  It thinks that the lawsuit will help get the debt paid. The creditor likely even has in mind specifically how it expects to get paid.  It may well be targeting your bank account, your paycheck, your home, or some other income or asset.

The creditor is also making another easy bet—that in fact you won’t do anything about the lawsuit papers after getting them. At least not in time to prevent the lawsuit from turning into a judgment against you.  Most people don’t.

So the creditor is banking on you letting them get a “default judgment,” a court decision in favor of the creditor which happens automatically (or at least without a trial)  if you do not formally reply to the lawsuit on time.

Once armed with a judgment,  the creditor to start grabbing your money and your assets, through orders of the court, sometimes in ways you might not expect.

A Judgment against You is More than Just an Admission that You Owe the Debt

But even if the judgment does not result in giving a creditor a way to get money out of your right away, it has longer-term consequences.  For one,  judgments can be reported to credit agencies.  Affects your FICO score and, therefore, your ability down the line to get credit.   In addition, once the deadline to respond passes and a judgment is entered, you’ve give up on some important rights:

a) Your right to raise possible defenses. Creditors and collection agencies can be shockingly cavalier about whether the debts they are pursuing are legally valid. Think about it: since in the vast majority of the time consumers don’t respond to lawsuits and judgments are rubber stamped, there’s not much incentive for the creditors to get their paperwork right. You need to have an attorney review the lawsuit to find out if the statute of limitations on the debt has expired, or if you have any other defenses.  After the judgment is entered against you, it is extremely difficult, and a lot more expensive,  to raise any such defenses.

b) Your right to raise counterclaims. A counterclaim is your argument that the creditor did something wrong—in the way the debt was created or in how it was collected. Counterclaims say that you have been legally damaged, entitling you to compensation. A default judgment against you either waives your right to bring a counterclaim, or takes away the counterclaim’s leverage when it would do you the most good.

c) Your right to dispute facts. The debt could become more difficult to write off in bankruptcy after a judgment is entered, if certain facts are alleged in the lawsuit (and deemed admitted by your lack of a response).  This could put you at a serious disadvantage if you ever need to file bankruptcy.

That is not to say that you cannot, within a set period of time, come into court to set aside the default judgment and then raise those defenses. But, in NJ at least, you must file a motion and appear in court, and a judge makes the call.  It is difficult to do and expensive as opposed to filing your answer on time and putting forth your defenses as a matter of right.

If you do get sued, do not bury your head in the sand.  Consult and attorney.

The Chapter 13 Debt Limits

Posted by Kevin on October 28, 2013 under Bankruptcy Blog | Be the First to Comment

Why Does Chapter 13 Have Debt Limits?

Chapter 7 has no debt limit. But the Bankruptcy Code does impose a limit on the amount of debt that person can owe when filing a Chapter 13 case. Why? Although in conventional consumer situations an average Chapter 7 case is much quicker and easier than an average Chapter 13 case, in fact Chapter 7 can be used with a wide variety of business and consumer arenas, including for corporations and partnerships, including those with many millions of dollars of debt. Chapter 13 is a tremendously flexible procedure, but it is still a relatively streamlined one—especially compared to Chapter 11 reorganization. It was specifically designed for individuals and married couples with relatively straightforward debts.

The primary way that the law tries to limit Chapter 13 to simpler cases is with debt limits. Currently the individual filing one, or the married couple filing together, must have less than $383,175 in total unsecured debts and ALSO less than $1,149,525 in secured debts.

What’s with the Odd Amounts?

These dollar limits do sound arbitrary, and to some extent they are, simply reflecting a Congressional compromise going back 34 years to the original passage of the Bankruptcy Code in 1978. The limits back then were only $100,000 unsecured debt and $350,000 secured debt. These didn’t change until more than doubling in 1994 to $250,000 and $750,000, respectively, with inflationary increases every three years thereafter. The current amounts have been in effect since  April 1, 2013.

What Are “Noncontingent, Liquidated Debts”?

The statute specifically says that you “may be a debtor under Chapter 13” only if you owe, “on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $383,175 and noncontingent, liquidated, secured debts of less than $1,149,525” (with the appropriate current amounts inserted).

To be a bit over simplistic, these two descriptive words are intended to make clear that only real debts count for these limits. “Noncontingent” means that you are presently liable on the debt, not liable only if some event does or does not occur. “Liquidated” means that you owe a specific and determinable amount. A contingent debt would include one that you would only owe if somebody else did not pay it. A noncontingent debt would be one which you owe jointly with someone else but the creditor has no obligation to first pursue the other debtor. An unliquidated debt would include a lawsuit against you for unspecified damages; a liquidated debt could be a lawsuit where the alleged debt amount can be determined, even if it might be disputed.


In most cases, you will either be clearly under both secured and unsecured debt limits or clearly over one of them. But if you are at all close, be aware that these “noncontingent, unliquidated” distinctions are not always clear. And even if you are over the limits, there may be other solutions if you really need the benefits of a Chapter 13. One possibility is filing a so-called “Chapter 20”—filing a Chapter 7 case to discharge much of your debts, followed immediately by filing a Chapter 13 (7 + 13 = 20). The Chapter 7 discharge should get you under the Chapter 13 debt limits, and then although the Chapter 13 cannot discharge any more debts, it could well protect you from your remaining creditors as you pay their debts—such as mortgage arrearage, back child support, or taxes—at your own schedule.

I Make Too Much for Chapter 7, Owe Too Much for Chapter 13, So Now What Do I Do?

Posted by Kevin on October 19, 2013 under Bankruptcy Blog | Be the First to Comment

If you don’t qualify for either Chapter 7 or 13, do you have to do a very expensive Chapter 11 reorganization?

Chapter 11 is dreadfully expensive. That’s part of the reason why consumers seldom file them compared to Chapter 7 and 13.  The court filing fee alone is $1,233 . The attorney fees can be tens of thousands of dollars. Why so expensive?  Because Chapter 11 was designed for large corporate reorganizations, and, in spite of efforts to streamline it for smaller businesses and for individuals, it’s a cumbersome, attorney-intensive procedure. So it is usually sensible to avoid Chapter 11 if either Chapter 7 or 13 will serve your needs.

But what if you’re disqualified from those other two? If you really ARE disqualified, then you may have to file under Chapter 11. But you may not be disqualified even if at first you think you are. So let’s look more closely at the qualification rules, especially as they apply to situations where at first it may look like you don’t qualify. Today we’ll give a broad overview about this as to both Chapter 7 and 13, and then in the next two blogs we’ll look more closely at each one.

Chapter 7 and the “Means Test”

The point of the quite complicated means test is to make people pay a meaningful amount of their debts if they have the “means” to do so. So those who do not pass the means test cannot file a Chapter 7 “straight bankruptcy,” or they can be forced out if. Instead they would usually have to proceed through Chapter 13, and be required to pay what they could afford to pay to their creditors over the following five years.

But the means test is often misunderstood. That’s not surprising given its multiple steps and odd combination of rigid formulas and discretionary enforcement. The following may help you understand it and potentially get around it:

  1. The means test may not even apply to you. It only applies to individuals with “primarily consumer debts,” meaning that you skip the means test altogether if half or more of your debts were incurred for business purposes instead of “primarily for a personal, family, or household purpose.”
  2. There’s a fixation on the first step of the means test—whether your income is above or below the “median family income” amount for your state and household size. Indeed a large majority of people who file Chapter 7 DO have lower income than the applicable median income. So they can skip the rest of the means test.
  3. The means test uses an odd and very specific definition of your income, one which focuses on the six-full-calendar-month prior to whatever date your Chapter 7 case is filed. This means that for many people their “income” shifts with each passing month, depending on the changes to their income of the past 6 or so months. So some careful tactical planning may enable you to fit under the median income amount by filing at the right time.
  4. Even if your income, as appropriately defined, is in fact over the applicable median income, that’s just the beginning of the analysis. There are a number of other steps to the means test, each with potential ways to pass the means test and qualify for Chapter 7. We’ll go through these additional steps in the next blog.

The Chapter 13 Debt Limits

At the time of filing a Chapter 13 case, your total unsecured debts must be less than $383,175, and your total secured debts must be less than $1,149,525.

As you can probably guess, there’s more to this than immediately meets the eye. For a start, the terms actually used by the statute for these limits are “noncontingent, liquidated secured debts” and “noncontingent, liquidated unsecured debts.”

Debtors with relatively high debt are often present or former business owners who signed personal guarantees for corporate debt. When are those guaranteed debts considered contingent and therefore would not count towards the debt limits, and when are they noncontingent so that they would count? And when is an unresolved claim against the debtor considered unliquidated so that they would not count towards the debt limits, and when are they liquidated so that they would count?

What these Chapter 13 debt limits really mean will be the topic two blogs from now.

Advantages of Chapter 13 After Stopping Repossession of Your Car or Truck

Posted by Kevin on August 28, 2013 under Bankruptcy Blog | Be the First to Comment

Straight Chapter 7 bankruptcy gives very limited help if you’re behind on your vehicle and need to keep it. And Chapter 13? Provides much more help.

The last blog was about what happens after preventing your vehicle from getting repossessed by filing a Chapter 7 case. Today’s blog is about what happens if instead you file a Chapter 13 case, the payment plan type of bankruptcy.

Back Payments

If you are worried about a vehicle repossession, you are likely a month or two behind on your loan payments. Assuming you need to keep the vehicle, if you were to file a straight Chapter 7 case you would very likely be required to catch up on your back payments within a month or two after filing the bankruptcy case. Since you also need to resume making the regular monthly payments and keep current on them, catching up on the back payments at the same time and this quickly is impossible for many people.

With Chapter 13, in contrast, you either don’t have to catch up on the back payments at all or at least would likely have many months to do so.


If your loan is more than two and a half years old, and you owe more on the loan than the value of your vehicle, you can do a “cram down”—re-write the loan to reduce the portion of the loan that must be paid in full down to the value of the vehicle. The remaining amount of the loan—the unsecured portion above the value of your vehicle—is then paid the same as the rest of your unsecured creditors, often at a steep discount in your favor. In some jurisdictions, you may pay little or nothing on this unsecured portion.

As part of the re-writing of the loan in a “cram down,” you can often also lower the interest rate and/or stretch out the payments for a longer term, all of this usually resulting in a significantly reduced monthly payment.

Option to Surrender, Now or Later

Under Chapter 7, you must pretty much know at the time your case is filed whether you want to keep or surrender the vehicle. You sign a document called “statement of intent” which is filed at court usually at the start of your case. And then very quickly after that you need to put that intention into action. If you are surrendering the vehicle, you would need to do so within about a month after filing the case.

In Chapter 13 as well, your court-filed documents indicate your intentions, most directly in your formal plan. The plan states how much you intend to pay, and which creditors are to receive how much, including the vehicle loan creditor(s). It is prepared by your attorney, approved and signed by you, and presented to the court for the judge’s “confirmation.”

If you decide through the advice of your attorney that it’s in your best interest to surrender the vehicle, then your Chapter 13 plan will not propose to pay anything to the secured portion of the debt. Instead after you surrender the vehicle, the creditor will sell it, credit the sale proceeds to the balance, and report to the bankruptcy court how much it is still owed. Just as stated above, that unsecured amount will be added to the rest of your unsecured debt, and paid whatever percentage the rest are being paid. But in most cases the dollar amount being paid by the debtor towards the pool of unsecured debt does not increase. Instead that amount is just divided differently among all the unsecured creditors.  For example, if your monthly payment to the trustee is $110 and you have 9 unsecured creditors with $10 going to the trustee, then each unsecured creditor would get a little over $11 per month.  If you add a creditor, the payment is still $100.  So, after trustee fee, each unsecured creditor now gets $10 per month.

Unlike Chapter 7, Chapter 13 gives you some flexibility if you decide later that you can’t or chose not to maintain the payments on the vehicle. You can change your mind a year or two into the Chapter 13 case, deciding to surrender your vehicle after all.

Paying Your Special Creditor After Filing Bankruptcy

Posted by Kevin on March 29, 2013 under Bankruptcy Blog | Be the First to Comment

If you file bankruptcy, it’s okay to voluntarily repay any debt. But there can be unexpected consequences.

The Bankruptcy Code says “[n]othing…  prevents a debtor from voluntarily repaying any debt.” Section 524(f).

But that doesn’t mean that repaying a debt won’t have consequences, including sometimes some highly unexpected ones. So what are those consequences?

To start off let’s be clear that we’re NOT talking about a creditor which you want to pay because it has a right to repossess collateral that you want to keep. Nor is this about paying a debt because the law does not let you to discharge (write off) it. Those two categories of debts—secured debts and non-dischargeable ones—have their own sets of rules governing them. We’re talking here about voluntary repayment, paying a debt even though you’re not legally required to.

And let’s also make a big distinction about the timing of those voluntary payments. We’re NOT talking here about payments made to creditors BEFORE the filing of bankruptcy. That was the subject of a blog a while back.. Be sure to check that out because the consequences of paying certain creditors at certain times before bankruptcy can be very surprising and frustrating, seemly going against common sense.

Instead, today’s blog is about paying creditors AFTER filing your bankruptcy case. The straightforward rule here is that you can pay your special creditor after filing a “straight” Chapter 7 case, but can’t do so in a “payment plan’ Chapter 13 case. For that you must wait until the case is completed, which is usually three to five years after it starts. So, if you would absolutely want to start making payments to a special creditor—such as a relative who lent you money on a personal loan—right after filing your bankruptcy case, you would have to file a Chapter 7 case instead of a Chapter 13 one.

Why is there such a difference between Chapter 7 and 13 for this? Basically because Chapter 7 fixates for most purposes on your financial life as of the day your case is filed, while Chapter 13 cares about your financial life throughout the length of the payment plan. You can play favorites with one of your creditors right after your Chapter 7 is filed because doing so doesn’t affect your other creditors. In contrast, in a Chapter 13 case your payment plan is designed so that you are paying all you can afford in monthly payments to the trustee to distribute to the creditors in a legally appropriate fashion. Here the law does not allow you to favor one creditor over the other ones just because you have a special personal or moral reason to do so. You can only favor a creditor AFTER the case is completed, again usually three to five years after filing.

So what would the consequences be of paying your special creditor “on the side” during an ongoing Chapter 13 case? The simple answer is that it’s illegal so don’t do it. Beyond that it’s difficult to answer because it would depend on the circumstances of the case (such as how much you paid inappropriately) and would depend on the discretion of the Chapter 13 trustee and of the bankruptcy judge. You’d be risking having your entire Chapter 13 case be thrown out. You would be wasting a tremendous investment of time and money, risking years of your financial life. Clearly, things you want to avoid.

Are Paying Debts a Moral Obligation?

Posted by Kevin on July 9, 2012 under Bankruptcy Blog | Be the First to Comment

Most experienced bankruptcy attorneys know that there is a moral consideration in filing bankruptcy.  We know that many clients wrestle with the idea of whether it is morally right for them to file.  Books are written about the bankruptcy filings of famous Americans through the years for the dual reasons of demonstrating that filing bankruptcy does not necessarily make you a bad person, and also to demonstrate the moral ambivalence that confronted these  famous people when they filed bankruptcy.

You could consider the choice whether or not to file bankruptcy to simply be a “business decision.” Merely a weighing of the costs and benefits of filing and not filing.   For many people, that is as far as it goes (and I do not have a problem with that).  After all, corporations of all sizes file “strategic bankruptcies” all the time. Their very smart and well-informed managers decide that bankruptcy is the best way to reduce debt and streamline their operations, so that the business can survive and hopefully thrive into the future.

And who doesn’t want to survive and thrive?

But for you, it may not be that cut and dry.  You consider yourself more than a business. More than a corporation. For you, the human costs and benefits have to be added into the equation.

For many people, the decision to file bankruptcy is more than a business decision.  For many, that’s where morality comes into the decision. We humans are moral creatures. That means that our important choices include the moral assessment of the situation.    If we don’t engage in the moral component of this choice, we may experience something akin to “buyer’s remorse”; that is, after the fact we look back and  say to ourselves, “why did I do that”?

So what do you need to do to make a good moral decision?

First, accept the choices that you made—good and bad, sensible and short-sighted, intentional and forced—and review the circumstances that got you where you are now. Accept that you made a series of legal commitments to pay your debts, consider how much choice you had at the time about them, and in hindsight what you could have done differently, if anything. Analyse honestly why are you now not able to keep those commitments?  Is it because you lost a job or because your spending habits, especially in the area of non-necessities,  are out of control?  By analyzing choices made, you are not only assessing whether to file bankruptcy, but you are putting yourself on the path not to repeat your mistakes.

Second, consider both the financial  costs and benefits of  bankruptcy versus the  moral costs and benefits of continuing to try to meet those financial commitments.  Yes, you can get my debts discharged.  But, how will your family, friends, co-workers view you in the future.?  Am you being an honest debtor or are you gaming the system?  Or will it be viewed that you are gaming the system? Do you have a realistic chance of successfully paying off your debts, and even if so, what would be the likely human costs while doing so?  And if you do not have a realistic chance, how do you weigh the benefit of putting up a good fight against the costs that come from just delaying the inevitable?

Third, recognize that you now have both the opportunity and obligation to make a good decision about whether to continue trying to meet those commitments. To just accept the status quo without facing the situation honestly and bravely is making a decision by default, which is likely neither your morally best nor practically wisest move.  In other words, you should control your destiny rather than destiny controlling  you.

Fourth, get advice so that you know your legal options. You cannot make decisions, whether business or mixed business and moral, without knowing the facts and the law. An experienced bankruptcy attorney not only knows the law, he or she knows what you are going through.  More importantly, an experienced bankruptcy attorney can guide you to bankruptcy alternatives if that makes sense for you.  You may have the best of all intentions, but with your hours at work cut back,  lots of debts, and bill collectors badgering you at work and home, bankruptcy is probably your best and only realistic alternative.  On the other hand, you may be a candidate for debt consolidation through a reputable non-profit debt counselor.  Or you may have enough equity in your home to get a second mortgage and consolidate your debts.  Finally, filing under Chapter 13, where you pay back a portion of your debt, may be economically feasible and fit into your notion of fairness and morality.  One size does not fit all.    An experienced bankruptcy attorney can put you in a position to make the right decision for you and your family.

Can I Do a “Cramdown” on Collateral Other than My Home or Vehicle?

Posted by Kevin on July 6, 2012 under Bankruptcy Blog | Be the First to Comment


  • A creditor which has rights to collateral is called a “secured creditor.” Your obligation to pay what you owe to this creditor is secured by rights it has to take possession and ownership of the collateral if you don’t make your payments on the debt.
  • In bankruptcy, secured creditors have a lot more leverage against you because of the collateral than do creditors without any collateral—“unsecured creditors.”
  • If you want to keep the collateral, Chapter 7 is sometimes is your best choice, but in many circumstances Chapter 13 can give you more options.
  • Secured debts in which the collateral is your home or your vehicle are governed by special rules because of how important those kinds of collateral are to most people.
  • But you will not find many blogs talking about secured debts where the collateral is something other than your home or vehicle. The main secured debts of this type are probably furniture and appliance purchases, money loans secured by your own personal assets, and business loans secured by business and/or personal assets.


  • This tool applies only to Chapter 13—it can’t be done in Chapter 7.
  • If the collateral securing a secured debt is worth less than the balance on that debt, then you may be able to divide that debt into two parts: the secured part—the amount of the debt up to the value of the collateral, and the unsecured part—the rest of the debt. An example will make that clear. Let’s say you owed $1,000 on a refrigerator, in which the purchase contract gave the creditor the right to repossess that refrigerator if you didn’t make the agreed payments. If the present value of that refrigerator is $600, then the secured portion of that debt would be $600, and the remaining $400 of that debt would the unsecured portion.
  • In a Chapter 13 “cramdown” you pay not the total debt, but only the secured part of the debt. You pay the unsecured part of the debt only at the percentage that all the rest of your regular unsecured creditors are paid. That is usually less than 100% and can sometimes be a low as 0%. In the above example, the $1,000 total refrigerator debt is crammed down to $600, and the remaining $400 part of the debt is lumped in with the rest of your unsecured creditors. So if in your Chapter 13 plan your unsecured creditors are receiving 10%, then you would pay only the $600 secured portion, the remaining unsecured portion would get $40 spread out over the term of the plan, and would be discharged (written off) at the end of your Chapter 13 case. 

THE cramdown rule with collateral other than your home or vehicle:

  • “[I]f the debt was incurred during the 1-year period preceding [the bankruptcy] filing” then you cannot do a cramdown on collateral that is neither your home nor your vehicle. See the last sentence of Section 1325(a) of the Bankruptcy Code (tucked in right after subsection (a)(9)). This means that if the debt is any older than 1 year, you CAN do a cramdown.

So, if you have a debt, more than 1 year old, secured by something other than your home or vehicle(s), in which the collateral is worth less than the debt, you can cram down the debt to the value of the collateral. If so, then because this can only be done under Chapter 13, that would be one factor in favor of filing under Chapter 13 instead of Chapter 7. Talk to your attorney to see if this applies to you, and to find out all the other Chapter 7 vs. Chapter 13 factors to weigh in your situation.

Chapter 20 Bankruptcy

Posted by Kevin on August 22, 2011 under Bankruptcy Blog | Be the First to Comment

Bankruptcy has its own language- sometimes quite colorful.  We have cram downs and strip offs.  Long before we talked about mortgages being underwater, underwater was a term used frequently in bankruptcy to determine whether a claim was secured or not.

Read more of this article »