02 May Do I Qualify For Bankruptcy, Overview Part 1 of 9
There are several factors relevant to making such a determination. This article explores the basic elements of eligibility as the first part of a nine part series.
Section 109 of the Bankruptcy Code describes who may, and who may not, be a debtor?
To be a debtor, a person must either:
a) Reside in the United States; or
b) Have a domicile in the United States; or
c) Have a place of business in the United States; or
d) Have property in the United States. A corporation qualifies as a person for purpose of eligibility to file. Now, here come the exceptions and limitations.
A person cannot be a debtor under chapter 7 if that person is a railroad, domestic insurance company, bank, savings bank, cooperative bank, building and loan association, savings and loan, credit union, homestead association, New Market Venture Capital company, small business investment company, industrial bank, foreign insurance company, or a foreign bank as defined in Section 109.
A municipality may be a debtor under chapter 9.
A railroad, a person who qualifies under chapter 7 [which includes corporations], an uninsured state bank, or a corporation organized under the Federal Reserve Act as a multilateral clearing organization may be a debtor under chapter 11.
Only a family farmer or a family fisherman with regular annual income could file under the prior chapter 12.
Only an individual with regular income that meets certain debt limits can file under chapter 13.
No individual or family farmer may be a debtor if a Section 109g Order was entered dismissing a prior case within 180 days if the case was dismissed for willful failure to obey a court order or prosecute the case; or, if the debtor voluntarily requested a dismissal after a request for relief.
An individual must first obtain a credit counseling briefing and budget analysis during the 180 day period preceding the date of filing.
Further installments examine the Median Income limits, the Means Test deductions, debt limits, exempt property and discharge as considerations of filing bankruptcy.
Andy Miofsky, Esq.
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