Chapter 13 Bankruptcy

Can Chapter 13 Bankruptcy Stop Foreclosure?

Many people file for Chapter 13 bankruptcy specifically to stop foreclosure.

In most cases, an automaticstay is entered as soon as a Chapter 13 bankruptcy petition is filed. The automatic stay should temporarily stop foreclosure, along with all other collection action, regardless of the stage of the foreclosure proceedings.

With the automatic stay in place, the debtor and his attorney have the breathing room to work out a Chapter 13 repayment plan.

What is Chapter 13 Bankruptcy?

Chapter 13 bankruptcy is a reorganization of debts that allows a debtor to make payments to creditors over a period of three to five years. Chapter 13 is sometimes called a “wage earner’s bankruptcy” because it requires that the debtor have a steady source of income for the duration of the repayment plan.

Chapter 13 bankruptcy is an option for those who do not qualify to file Chapter 7 bankruptcy due to the means test. However, many people choose Chapter 13 when filing bankruptcy because it may allow debtors to keep their home, car, and other types of secured debts.

How Does Chapter 13 Bankruptcy Work?

Within 15 days after filing a Chapter 13 bankruptcy petition, the debtor must file a proposed plan, setting forth his income, allowable living expenses, and proposed payments to the trustee for the benefit of creditors. Current payments must be kept current after the Chapter 13 bankruptcy petition is filed.

Homeowners must make all mortgage payments that come due during the Chapter 13 bankruptcy repayment plan, and failure to make current payments on time may mean that the bankruptcy court lifts the automatic stay and allows the mortgage company to resume foreclosure proceedings.

Assuming that all plan payments are made in a timely manner, the homeowner may catch up the past due mortgage payments over the 3-5 years of the repayment plan, or may discover that he is eligible to refinance the property after a period of repayment.

Four Years Before Your Bankruptcy
You are not eligible for a discharge under Chapter 13 if you received a previous discharge under Chapter 7, 11 or 12 within the prior four-year period. If the prior case was a Chapter 13, you must wait two years before you are eligible for another Chapter 13 discharge.

180 Days Before Your Bankruptcy
If within 180 days before your bankruptcy you had a prior bankruptcy case that was dismissed because you failed to obey court orders or you voluntarily requested a dismissal, then, in some circumstances, you may not file your bankruptcy case until this 180-day period expires.

Also, within the 180-day period before your bankruptcy, you must receive a briefing from a certified credit counseling agency to explain financial management to you, alternatives to bankruptcy, and how to do a budget analysis

90 Days Before Your Bankruptcy
You must be a resident of the state in which you intend to file your bankruptcy case for at least 90 days before the filing. If you have not lived in the state in which you intend to file your case for at least 90 days, you may only file your case in the state where you have resided, or which has been the location of your principal assets, for a majority of the prior 180 days.

Your Case is Filed!

  • Your case is formally commenced when you file your bankruptcy petition with the appropriate bankruptcy court. In most cases, as soon as you file your petition, the court will enter an Automatic Stay order prohibiting most of your creditors from taking or continuing any collection or legal action against you. This stops many of the harassing letters and phone calls while your case is in progress.
  • Next, the court will send a notice of your case to all of the creditors listed in your petition.
  • Additionally, the bankruptcy court will assign a bankruptcy trustee to oversee your case. The trustee is a federal employee appointed by the court to monitor your case and make sure you are eligible for bankruptcy. The trustee will review your petition, make sure that it is complete, and then Mary C. Anderson (attorney) will explain how to schedule a meeting of your creditors.

15 Days After Your Case is Filed

  • You have a deadline of 15 days after you file your petition to file certain financial “schedules” with the court-documents stating your assets, liabilities, expenses, income, and a statement of your affairs. In most case, however, your attorney will file these schedules with your petition.
  • This 15-day deadline also applies to the filing of your repayment plan.

Approximately 15 Days After Your Case is Filed
Within approximately 15 days after you file your case, the court will mail the Notice of Commencement of Case to you and to all of the creditors listed in your petition. This notice will inform you of the date set by the court for the meeting of your creditors, and the deadlines for your creditors to object to your case and file their claims against you.

Approximately 30 Days After Your Chapter 13 Repayment Plan is Filed
You must make your first payment under your repayment plan within 30 days after the date that your plan was filed, otherwise your case can be dismissed.

Approximately 6 Weeks (45 days) After Your Case is Filed

  • The court will hold the Meeting of Your Creditors about six weeks after your bankruptcy case is filed.
  • The court-appointed trustee will preside over this meeting. At the meeting, which you-by law are required to attend, will be asked to testify under oath as to the accuracy of the statements in your petition. However, most creditors generally do not appear at the meeting, and you will not be before a judge. The meeting is very informal, and in most cases will last no more than 10 minutes. If you do not attend the meeting, your case will be dismissed.

30 Days After the Meeting of Your Creditors
The bankruptcy trustee and your creditors have 30 days after the conclusion of the meeting of your creditors to make objections.

45 Days After the Meeting of Your Creditors
The court will have a confirmation hearing during which the bankruptcy trustee will recommend to the judge whether or not your repayment plan should be approved by the court. Your creditors do have the right to object to confirmation of your case, but your attorney will likely have resolved any objections to confirmation before this date.

90 Days After the Meeting of Your Creditors
All of your creditors (except for government entities) must file their proofs of claim (these are documents your creditors submit to the court specifying how much you owe them) within 90 days after the first date set for your creditor meeting if they wish to share in the payments from your case.

180 Days After Your Case is Filed
Government entities that have claims against you (such as the IRS) have 180 days after the filing of your case to submit their proofs of claim.

3-5 Years From the Date of Your First Repayment
Upon your final payment under your Chapter 13 repayment plan, you will receive your formal discharge notice from the court.

Before you receive your discharge, however, you must complete an approved financial management course.

5 Years From the Date of Your First Repayment
Unless you have already completed your payments under your Chapter 13 repayment plan, your payments under your Chapter 13 plan must be complete within 5 years of the date of your first payment.