went into effect on October 17, 2005 and provides the most significant (and controversial) overhaul of the bankruptcy system in over 25 years. Backed by the credit card, retail and banking industries, the new legislation makes it more difficult for people to erase all of their debts in bankruptcy, while forcing others on payment plans instead. Conservatives and the financial services lobbies argue that the new law was needed to curb abuse of the bankruptcy system and teach people to be more financially responsible, while liberals and consumer advocates say that this law unfairly penalizes poor people who may be suffering financially due to illness, divorce or unemployment.
If you are considering filing for bankruptcy, there are some important things about this law that you will need to know before you start your proceedings. Here is a summary of some of the BAPCPA’s most significant provisions.
Under the new law, you are required to go into credit counseling (at your own expense) with an approved government agency at least six months before filing for bankruptcy. The first session should be at least 90 minutes in length, and give you an idea if bankruptcy is really right for you or if you can get out of debt by simply following a repayment plan that the credit counselor proposes. While you are not required to agree with the final opinion of the counselor or follow any repayment plan they propose, you will still be required to submit any repayment plans or bankruptcy alternatives that the agency has suggested to the court before being allowed to file. Once you have filed, you will then have to attend additional counseling and/or a money management class. Your debt will then be discharged when you submit a certificate of successful completion of these classes. Counseling is required even if a payment plan isn’t possible or realistic for your financial situation or you are facing debts that you are disputing and do not feel you should have to pay.
If your financial problems are the result of extenuating factors beyond your control, you may be eligible for the “special circumstances” exemption. Under the BAPCPA, debtors can sidestep the new restrictions on the bankruptcy law if they can prove that special circumstances have resulted in a loss of income or an increase in debt. Two examples of special circumstances offered by the U.S. Trustee’s Office include loss of income due to a call to duty in the military or a serious illness or injury. After the massive destruction of Hurricanes Katrina and Rita, the Trustee’s Office announced that natural disasters should be considered to be a special circumstance as well. If a judge agrees that special circumstances are the cause of your insolvency, you will not be subjected to the means test, the credit counseling requirements will be waived, and you will be given permission to file for Chapter 7 bankruptcy.
While this provision gives judges some flexibility when hearing your case, you should keep in mind that the examples of special circumstances given by the U.S. Trustee’s office sets a very high threshold for what situations should and should not qualify. Your personal situation should be at least as serious as these examples in order to receive bankruptcy relief.
The Law Offices of Charles W. Daff assists clients with Debt Relief, Personal Bankruptcy, Chapter 7, Chapter 11, Chapter 13, Foreclosure, Garnished Wages and Repossessions in Santa Ana as well as Irvine, Orange, Garden Grove, Tustin, Anaheim, Fountain Valley, Villa Park, Fullerton, Atwoord, Costa Mesa, Midway City, Westminster, Stanton. Placentia, Newport Beach and Yorba Linda in Orange County, Los Angeles County, Riverside County and San Bernadino County.