One of the most common misconceptions about filing bankruptcy is that “I’m going to lose all my stuff.” Not only is this incorrect, in most cases the whole purpose of the bankruptcy is to “protect” your stuff. A chapter 13 bankruptcy can be used, for example, when you are behind on mortgage payments on your home or your car. The bankruptcy allows you to protect your home and car from seizure by a Creditor, while you catch up the payments in an extended, affordable, payment plan. Likewise, if you receive a notice that your pay check is about to be garnished by a Creditor, you can protect your income by filing bankruptcy to stop the garnishment.
As most people with student loans know, student loans are not dischargable in bankruptcy. You can’t get rid of them. However, many people don’t realize that a Chapter 13 Bankruptcy can still help if you are behind on your student loans or facing collection efforts such as a lawsuit or wage garnishment. Just like with all other debt, when you file a chapter 13 bankruptcy, the automatic stay goes into effect immediately and ALL creditors (including student loan creditors) must stop any collection action against you. This means that if you are being sued or your wages garnished for a student loan debt, a bankruptcy will immediately stop those collection efforts. You can then use your chapter 13 plan to manage all your debt and get your student loan repayment back on track. A chapter 13 plan typically lasts either 36 or 60 months. Even if your chapter 13 plan payment does not pay all your debt, particularly all the student loan debt, the creditor cannot try to collect during that period.
Often, the first notice that you have that someone is suing you is a visit from the local sheriff’s office with “papers”. If the company or person suing you is successful in court, can you be sent to jail for not paying? The short answer is no. Serving legal papers is one of the jobs performed by most sheriff departments. This does not mean that the lawsuit is a criminal action which would result in you going to jail. However, creditors have been known to use this fear to collect their debts. Creditors have been known to falsely imply that they were actually filing criminal charges against you in order to scare you into paying. Know your rights. If you receive a lawsuit, call an attorney that can provide you with information about your situation. A consultation with a Bankruptcy Attorney is free and can provide you with information about how you can handle the current lawsuit and all your other debt.
Often people assume that filing bankruptcy means that they will have to “give up” their property. (Homes, cars, personal property, etc.) This is usually not the case. In fact, bankruptcy can often be used to save property that you want to keep but have fallen behind on. Filing a bankruptcy prevents creditors from repossessing your car or foreclosing on your home. If you haven’t spoken with a Bankruptcy Attorney about your situation, don’t assume that there is nothing that can be done.
Melissa Wimberley Larsen is a 1986 graduate of the University of Alabama in Huntsville, and graduated with honors from the Cumberland School of Law at Samford in 1992. She has extensive experience in all types of litigation both simple and complex. Ms. Larsen is a member of the National Association of Consumer Bankruptcy Attorneys and specializes in consumer bankruptcy issues.