North Carolina Bankruptcy Chapter 7, 13 (919)342-6509

AND HOW TO BANKRUPT THEM ANYWAY!

The most common reason for a bankruptcy to be contested is that the Debtor has attempted to bankrupt one of seven debts that, under 11 United States Code 523, usually cannot be bankrupted. These magical "non-bankruptable" debts are listed below:

Child Support and Alimony are usually not bankruptable, but there can be rare exceptions. Past due child support amounts can be repaid in a Chapter 13, and you are able to reduce the amount of your child support by having the Family Court review the amount if you have a substantial reduction in income. Child support is determined by a chart in every state. To calculate your amount, see our Divorce manual and web site.

Taxes less than three years old. (Yes, income taxes over 3 years old are bankruptable!) Taxes that are filed and over 3 years old are treated as if they were general unsecured debts. To bankrupt income taxes, you have to file the taxes and have filed those returns 3 years or more ago. There also must not have been an assessment within the last 240 days for the years you are bankrupting. You can only bankrupt the unsecured amount. But you can avoid a tax lien on your home in some cases. There must be no fraud involved in the return. Any offer in compromise or bankruptcy will increase the time limits. WHEN IN DOUBT LIST YOUR TAX DEBT IT MAY BE BANKRUPTED ANYWAY. If you owe taxes we may be able to negotiate a settlement if your taxes are less than 3 years old. Taxes can often be bankrupted in a Chapter 13 when they can't be discharged in a Chapter 7 due to timing. - This also includes funds borrowed with which to pay such taxes.

Federally Guaranteed Student Loans are generally not bankruptable unless you qualify for a hardship discharge. Before October 1998, Federally Guaranteed Student Loans over 7 years old were bankruptable! The law was changed in October 1998 and, except for hardship discharges, government guaranteed student loans are no longer bankruptable. The Court considers three factors in determining whether you should get a hardship discharge:

Whether or not you tried to repay in good faith before you became unable to repay.

Your present and future ability to repay.

Whether or not it would create a hardship to your family if you had to repay.

It seems that Hardship Discharges are becoming easier to get. If this is an issue in your situation, please discuss it. It may be worth a try. The key is that repayment must be a real hardship-not just hard. The situation must hurt your ability to support yourself and your family. A perfect example of a real hardship is the nurse who has a child with a heart defect. The child is in need of constant care, preventing the nurse from working. Life at the poverty level pretty much guarantees a student loan hardship discharge.

Student loans that are not guaranteed by a governmental agency are just as bankruptable as any other debt. Ordinary Debts such as room rent to a college are generally just as bankruptable as any other debt.

You may not be discriminated against in obtaining a future student loan on the grounds that you have filed a bankruptcy or failed to pay a student loan that is discharged in bankruptcy.

Debts due to theft or fraud. Fraudulent Debts can be discharged in a Chapter 13 but the judge may require you to pay a higher percentage or over a longer period of time than for normal debts. Certain Creditors may claim that you tried to defraud them by taking a loan when you knew you were in financial trouble, made false statements in your credit application, or withheld information from them. Most of us, of course, are always in financial trouble and just being in financial trouble when you made the loan does not constitute fraud.

The fraud exception to discharge means that actual criminal theft or actual fraud cannot be discharged or that you charged over 1000 dollars within 60 days of filing. The fact that the credit card company failed to run a credit check or made a stupid loan is not fraud. Only a proven, material, and intentional misrepresentation will be considered fraud. The burden of proof is on the lender not you, and it is very, very rare that fraud can be proven.

These Factors Can Be Considered in a Hearing to Determine Fraud:

a) The timing between making the charges and filing.

b) A sudden change in conditions like unexpectedly losing a job after the loan.

c) The amount of the charges made.

d) The financial condition of the Debtor at the time the charges were made.
Whether or not the charges were above the credit limit of the account.

e) The employment status of the Debtor.

f) The Debtor's prospects for employment.

g) The financial sophistication of the Debtor.

h) Whether or not there was a sudden change in the Debtor's buying habits.

i) Whether or not the purchases were made for luxuries or whether payments were made after charging on the account.

• Criminal Acts: Criminal Restitution and Intentional Injuries
a) Intentional injuries. The Tonya Harding problem. You intentionally assault or injure a person and then try to file a bankruptcy to get out of paying for the medical damages. Obviously, you can't intentionally rob a bank or assault a person and then ask the Court to help you out of it. However, you can list the debt and, if the person fails to object, it will be bankrupted anyway.
b) Criminal Acts or Criminal Restitution . Same idea as 5A: The judge ordered you to pay restitution after you stole from or intentionally hurt someone, and you try to bankrupt the criminal Court order. It doesn't work. (Well, it usually doesn't work. You can list the debt and, if the person fails to object, it will be bankrupted anyway.) Also, if you were ordered to pay restitution in a criminal Court, a bankruptcy will not stop a criminal Court judge from ordering you to pay anyway.

No Insurance and Drunken Driving Accidents . Same idea as 5A and 5B: They closed this loophole in 1994. You can't get drunk, drive, cause an accident, and then bankrupt the damages. However, if you get drunk, drive, cause an accident, try to bankrupt the debt, AND the person fails to file an objection to the bankruptcy, it may be bankrupted anyway. A bankruptcy can also allow you to get a license back if you lost it due to unpaid accident damages. You can fax a copy of the filing to the driver's license department and get your license the same day you file your bankruptcy. You should never fail to list a debt the person often will fail to object on time and it will be discharged anyway.

Marital Property Settlement Agreements . If a person lists the debt and their ex-spouse as a Creditor in their bankruptcy, he or she will have normally bankrupted the debt and the debt or settlement agreement obligation to their ex-spouse. The Bankruptcy Court may look into an existing marriage settlement and may alter that agreement. . . . rarely very rarely. It is very rare that the Bankruptcy Court will allow you to redo your marriage settlement agreement, but it has happened. Normally, it requires looking at three main factors: Your ability to honor the marriage settlement agreement, how reasonable that agreement is, and the hardship it would create to your family if you had to honor it. Often what happens is that both ex-husband and ex-wife realize they are mutually bankrupt and both file.

The fact that your ex-wife or ex-husband was ordered to pay a bill in a divorce action, and has the responsibility for paying it, does not mean that he or she will pay it or will be forced to pay it. The Divorce Court normally only orders jail time for failure to pay alimony or child support for an underage child.

Debts for child support, alimony and government debts are not subject to the objection deadline rule . However, if any other Creditor fails to file an objection, the debt may be discharged even though it is a "non-dischargeable" debt (as long as it occurred prior to discharge). This is just one more reason why, even if the debt is non-dischargeable, we require you to list all debts.

Creditors (bills) or debts that you fail to list in your petition. However you can normally reopen cases and add debts on. At a much greater cost.

Debts non-dischargeable from a previous bankruptcy due to fraud or improper acts.

Debts from malicious acts

If you have any of these non-dischargeable debts, you should discuss the possibility of having them bankrupted anyway with your Attorney. There are several exceptions to almost every rule. If you list a non-dischargeable debt and the Creditor fails to object, it may be discharged anyway. If you don't list it you may have to pay additional fees later to add it. When in doubt, list the debt. That is one of the wonderful things about filing bankruptcy and listing ALL of your debts. Look at the bottom of your 341 hearing notice and you will see that, if a Creditor wishes to object to your filing a bankruptcy against his debt, he must file his objection by a certain date. If no objection is filed by that date, the debt is often bankrupted anyway. The Creditor must file an objection by the deadline or he is forever barred.

Creditor Objects

Other debts will be dischargeable, unless the Creditor objects and proves one of the following:

Debt from fraud, including $500 or more to one Creditor for luxury items incurred within 90 days before filing, or cash advances in excess of $750 within 70 days of filing.

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