Saturday, June 04, 2005

Debt Consolidation or Chapter 13 Bankruptcy?

There are two provisions in the new bankruptcy laws mandating financial counseling and education: before filing for bankruptcy, consumers would be required to have a briefing on the alternatives to bankruptcy; and before receiving a bankruptcy discharge, a debtor would be required to complete an instructional course concerning personal financial management.

Although the point of the legislation is to encourage debtors to use traditional debt consolidation programs, Chapter 13 bankruptcies are a type of debt consolidation with the power of the Federal Bankruptcy Code behind it. In a Chapter 13 bankruptcy, you have the power to restructure for finances by consolidating all of your debts into one court-ordered monthly payment. A Chapter 13 bankruptcy offers several advantages over traditional debt consolidation:

The Automatic Stay

Filing for a Chapter 13 bankruptcy provides you with the immediate protection of the automatic stay, which is a court injunction that prohibits nearly all collection activity against you, even pending lawsuits. The stay has the power to stop foreclosures, repossessions, garnishments, license suspensions, and creditor harassment. Traditional debt consolidations do not provide the same protection.

Broad Range of Debt Consolidation

Most traditional debt consolidations are limited to credit card debt. In most cases, you must negotiate separate agreements for mortgage delinquencies, car payments, tax debt, and child support arrears. All of these debts can be included in a Chapter 13 repayment plan by consolidating them into one monthly payment and protecting you from all of your creditors.

Drastically Reduced Total Amount of Debt

In most cases, a Chapter 13 bankruptcy will allow you to pay as little as 10% of the unsecured debt back and eliminate the other 90%. Your reduction in principal owed allows you to pay your debts off more quickly that you could through other consolidation plans lacking the power to dictate what the creditors are entitled to be paid. Traditional debt consolidation programs merely ask the creditor to lower the interest rates or balances and do not have a federal bankruptcy court ordering the creditors to adhere to the Chapter 13 reorganization plan.

Shorter Repayment Period

Chapter 13 bankruptcies generally last 3 and 5 years in length. All dischargeable debts are eliminated at the completion of the bankruptcy. Traditional consolidations allow a possibility that the plans could drag on for years without significantly lowering the balances.

No Interest or Late Fees

Upon filing Chapter 13, any debt in existence prior to the filing does not accrue any more late fees, and usually will be repaid interest-free. All of the money you pay toward your unsecured debt will generally be applied toward principal drastically reducing the amount of time it takes you to repay a debt.

Attorney Assistance

Your Chapter 13 attorney has a legal and ethical obligation to zealously represent your best interests. Thus, in a Chapter 13 bankruptcy, you have the opportunity to have a bankruptcy attorney represent only your interests and you are ensured that your attorney is fighting for your rights. Many debt consolidation programs are private entities, sponsored by creditors and do not have the same strict legal requirements to protect borrower's best interests.

Protects Equity

A Chapter 13 bankruptcy does not require you to post any collateral in order to consolidate your debts. Many traditional debt consolidations or home equity loans require you to risk your home and property if you cannot afford the monthly payments.

Pays Your Most Important Bills First

A Chapter 13 bankruptcy plan pays off most secured loans first and delays payment of unsecured debts. The majority of the initial Chapter 13 payments can be applied towards mortgage and automobile payment defaults. Credit cards and medical bills can be paid after these secured and other priority claims have been paid off. Traditional debt consolidation plans usually don't have the power to delay payments to unsecured creditors without penalty or give preferential treatment to your car or home finance companies.

Debts are Eliminated if the Creditor Doesn't File A Proof Of Claim

Each creditor must file a proof of claim with the Bankruptcy Court if they are to be paid during the consolidation. Frequently, not all creditors listed in a Chapter 13 bankruptcy file a proof of claim. As long as you finish the terms of your Chapter 13 debt repayment plan, all unfilled claims are eliminated and never have to be paid back.

We are a bankruptcy and debt relief agency. We help people file for bankruptcy.

About the Author
Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

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