|CNN's Valerie Morris reports on the proposed bankruptcy bill that will make it more difficult for consumers to erase debt.|
NEW YORK (CNN/Money) – If you were thinking about filing for bankruptcy to clear your debts, you might think twice ... or act twice as quickly.
A bankruptcy reform bill, up for a vote in the Senate today and expected to become law, will make filing for bankruptcy more difficult. And it will give creditors more recourse in some instances.
Under current law, the majority of consumers who file for bankruptcy do so either under Chapter 7 or under Chapter 13.
In a Chapter 7 bankruptcy, your assets (minus those exempted by your state) are liquidated and given to creditors, and many of your remaining debts are cancelled, giving you what's known as a "fresh start." In 2004, over 1.1 million people filed for Chapter 7, accounting for roughly 72 percent of non-business bankruptcies.
Since many Chapter 7 filers don't have assets that qualify for liquidation, credit card companies and other creditors sometimes get nothing.
In a Chapter 13 bankruptcy, you're put on a repayment plan of up to five years. Any debts not addressed by the repayment plan don't have to be paid. Last year, there were 445,574 Chapter 13 filings.
If the bill passes into law, fewer people will be allowed to file under Chapter 7; more will be forced to file under Chapter 13.
Lawmakers who favor the legislation argue that it would prevent consumers from abusing the bankruptcy laws – using them to clear debts that they can afford to pay.
But consumer advocates argue that the bill is a gift to creditors – particularly the credit card industry, which may receive $1 billion or more from repayment plans due to the expected increase in Chapter 13 filings, according to Robert McKinley, CEO of CardWeb.com.
"The bill simply doesn't balance responsibility between families in debt trouble and the creditors whose practices have contributed to the rise in bankruptcies," said Travis Plunkett of the Consumer Federation of America in a written statement.
Here are some of the major changes the bill would implement:
A qualifying test: Currently, it's up to the court to determine if your case qualifies for Chapter 7 bankruptcy.
Under the new bill, your income will be subject to a two-part means test. First, it will be subject to a formula that exempts certain expenses (rent, food, etc.) to determine whether you can afford to pay 25 percent of your "nonpriority unsecured debt" such as your credit card bills. Second, your income will be compared to your state's median income.
You won't be allowed to file for Chapter 7 if your income is above your state's median and you can afford to pay 25 percent of your unsecured debt, said California-based bankruptcy attorney Stephen Elias, who is coauthor of the book "How to File for Chapter 7 Bankruptcy." But, he said, you may be allowed to file for Chapter 13.
If your income is below the state's median but you can pay 25 percent of your unsecured debt, you may be able to file Chapter 7, but the court can still require you to file Chapter 13 instead if it believes that you would be abusing the system by filing for Chapter 7, Elias said.
Under current law, the court has great latitude in deciding whether debtors may file for bankruptcy in consideration of their personal circumstances. Under the bill, there will be few if any exceptions made to the means test, no matter how sympathetic your case, said Leon Bayer, a bankruptcy attorney in Los Angeles.
Determining what you can afford to pay: Currently, if you file for Chapter 13 today, the court determines what you can afford to pay based on what you and the court deem to be reasonable and necessary expenses.
Under the bill, the court would apply living standards derived by the IRS to determine what is reasonable to pay for rent, food and other expenses to figure out how much you have available to pay your debts. The IRS regulations are more stringent, and to contest them means asking for a hearing from a judge, which can mean more time and expense, Elias said.
Creditors' recourse: Currently, creditors who won't receive any money owed in a bankruptcy case may contest the ruling if it's a Chapter 7 case, but not if it's a filing under Chapter 13.
Under the new bill, that right to contest is extended to creditors in Chapter 13 filings.
Lawyer liability: Under the new bill, if information about a client's case is found to be inaccurate, the bankruptcy attorney may be subject to various fees and fines.
What that means for consumers is it will be harder to find a bankruptcy attorney willing to file because of the liability and the additional work required to verify a client's information, Elias said.
Those who are willing are likely to charge more. Right now, for routine cases, it can cost between $500 and $1,000 to file, Elias noted. He expects the minimum may go up to $1,000 if the bill becomes law.
Credit counseling and money management: Under the new bill you must meet with a credit counselor in the six months prior to applying for bankruptcy. And before debts are discharged, you must attend money management classes. You must pay for any fees charged.
What should you do?
For those people who have considered bankruptcy, the time to act may be now, consumer advocates say.
Talk to a good bankruptcy lawyer, Plunkett said. If together you decide bankruptcy is the right call, you might consider speeding up your plans to file. If the bill is passed into law, its main provision won't go into effect until six months after passage, Plunkett said.
Typically, it can take a couple of weeks to file for bankruptcy, said Bayer, who expects a lot of people will file before the new provisions go into effect.
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