What Can I Keep In a Bankruptcy?

30 Mar What Can I Keep In a Bankruptcy?

One of the first questions I’m usually asked by a potential client in financial trouble is, “I can’t file for bankruptcy—if I do, I’ll lose everything!”

Not true. Not even close to true. In fact, in the vast majority of cases, people keep everything they own—their home, their cars, their furniture, their retirement, and even the money in their bank account.

In Chapter 7 cases, you are allowed to keep two types of assets. The first is an asset that has no net monetary value. This means that if the Chapter 7 Trustee were to sell it, the costs of sale, plus the trustee’s commissions, would be higher than the amount of money the sale would bring in. For example, your clothes probably aren’t really worth anything if sold. Ditto most of your household goods and furnishings. The car you bought two years ago and owe more on it than it’s worth? No equity, so you keep it. If your house is worth within about 10% of the amount of your mortgage, there probably isn’t any equity, and you’ll be able to keep it.

For most people, this covers most of what they own. And for the rest, there are exemptions. Exemptions are a list of things that the law lets you keep. But here’s where it gets tricky. Some states use the federal exemptions, which are contained in the bankruptcy code. Other states, such as Maryland, require you to use their state exemptions, which often differ significantly from the federal exemptions. Some are better and some are worse. Other states let you pick: you can use either the federal or the state exemptions, whichever are better for you. And some federal rules exempt certain types of assets no matter which state you live in: your 401(k) or IRA, for example, is almost always exempt.

Because of these different rules, people in identical situations living in different states can end up with very different results.

For example, if you live in Florida and have $100,000 in equity in your house, you’re fine: Florida’s homestead exemptions let you exempt that equity, so you can keep your house. In some other states, there is no homestead exemption. If you’re the sole owner of a house with $100,000 in equity here in Maryland, the Trustee would want to sell it to distribute the equity to your creditors. But if this situation occurs, you’ll probably want to file a Chapter 13 anyway, so that you could keep your house.

In a Chapter 13, you keep everything, exempt or not. But you have to pay your general unsecured creditors, over time, at least what they would receive were your case a Chapter 7. This is what we call the “Chapter 7 Liquidation Analysis.” So, if you have non-exempt equity in your house of $12,000, you’d have to pay your general unsecured creditors that same $12,000 over five years in a Chapter 13 Plan, at $200 per month.

Exemptions can be confusing, but are vitally important. Before you file, you need to go over what exemptions are available to you with your attorney, and learn what impact they will have on your case.

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Brett Weiss, a senior partner at Chung & Press, LLC, represents people and businesses in all phases of bankruptcy. He has experience in complex individual Chapter 7, Chapter 11 and Chapter 13 bankruptcy cases, and in Chapter 11 small business restructuring and reorganization. Mr. Weiss lectures nationally on bankruptcy issues. He has testified before the Federal Bankruptcy Rules Committee, the Consumer Financial Protection Bureau, and has twice testified before Congress on bankruptcy and credit issues. Brett Weiss is the co-author of Chapter 11 for Individual Debtors, and has written Not Dead Yet: Bankruptcy After BAPCPA, for the Maryland Bar Journal, as well as hundreds of blogs for the Bankruptcy Law Network. With his law partner, he recorded a 13-hour basic bankruptcy training series, and leads intensive three-day Chapter 11 training boot camps. Mr. Weiss has received international media attention in connection with his work. He was interviewed by Barbara Walters on The View, has appeared on the Today Show, Good Morning America, ABC News with Peter Jennings, the Montel Williams Show, National Public Radio, AARP-TV, the BBC World Service, German state television, and numerous local radio and television programs, and been quoted in Money magazine, The Washington Post and The Baltimore Sun, among others. Brett Weiss is the Maryland State Chair for the National Association of Consumer Bankruptcy Attorneys, a founding member of the Bankruptcy Law Network, on the board of the Maryland State Bar Consumer Bankruptcy Council, and a member of the American Bankruptcy Institute, the Bankruptcy Bar Association of Maryland, and the Civil Justice Network. He has been recognized as a “Super Lawyer” every year since 2007 for Maryland and the District of Columbia, and in 2011 received the Distinguished Service Award from the National Association of Consumer Bankruptcy Attorneys for his work on behalf of consumers across the country. Mr. Weiss is admitted to practice before Maryland and District of Columbia federal and state courts, the United States Courts of Appeals for the DC, Fourth and Eighth Circuits, The United States Tax Court, and the Supreme Court of the United States, and has been practicing law since 1983.
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