To review the various clips of attorney Frank Coxwell’s appearances on the Fox 40 AM Show, click here to go to our Media page. Mr. Coxwell discusses multiple topics on the show – the garnishment process, how to stop foreclosures in Mississippi, how to deal with student loans, the pitfalls of the new “business” credit card offers, and more.
I get countless calls from people asking what they can do to about their parents or grandparents who co-signed for them on a student loan and are now facing garnishment, loss of their tax refunds, or even seizure of their bank accounts because they co-signed and the loans have not been paid.
This is a common tactic for debt collection on student loans. If the student isn’t working – they will go right after anyone who co-signed for the loan. And they have broad powers – there is no notice required – they can garnish, etc without warning unlike collection of normal debt where there must be a lawsuit filed and judgment obtained first, etc.
It’s pretty well known you cannot wipe out student loans through bankruptcy, but if you file a Chapter 13 bankruptcy, you can stop all action – against you AND against anyone that co-signed for your student loan. Chapter 13 bankruptcy protects the debtor and co-debtor. Both do not have to file – just one. If the co-debtor files it protects the main debtor and vice versa. For example – mother co-signed for son’s student loan. Mother files Chapter 13 bankruptcy (maybe even for other reasons) – it protects the son regarding the student loan they both signed for. Or son files Chapter 13 bankruptcy – it protects the mother.
First you should understand that when we talk about “cramming down” a debt, it is referring to a secured debt (such as debts for vehicles, furniture, household goods and appliances). Referring to a debt as secured means there is some type of collateral attached, which you would lose if you defaulted on the debt.
All secured debts can be stretched out in a Chapter 13 up to the 5 year max period. This is often helpful by lowering the note. However, you may find even more benefit within a Chapter 13 regarding secured debts through a “cram down”.
“Cram down” of debt means that you can reduce the amount you must pay to be equal to the current value of the collateral rather than the current amount owed if certain criteria is met.
The “withholding, suspension, or restriction of a driver’s license, a professional or occupational license, or a recreational license, or the reporting of overdue support to a consumer reporting agency, or the interception of a tax refund” are actions that can be taken upon an individual as a penalty for failure to pay support. These penalties are excepted from the Automatic Stay and can continue despite the initial filing for protection under bankruptcy. However, by filing a Chapter 13 bankruptcy the Chapter 13 plan will provide for payment of the past due amount as well as offer provision for the current and ongoing amount owed to ensure that the debt does not become delinquent at any time during the life of the Chapter 13 plan. Once the Chapter 13 plan is confirmed (you file, attend a 341 hearing approximately 30 days later, then the bankruptcy judge approves the plan approximately 30 days after that thus “confirming” the plan) with payment of the past due support provided in the plan, any continuing action of any of these penalties would be in violation of the confirmed plan and the creditor could be subject to sanctions if they continue any such actions against the debtor. So bottom line is yes, a Chapter 13 bankruptcy could provide some relief regarding these types of penalties.
Filing Chapter 13 bankruptcy can be used to pay past due support over an extended period of time (max of 5 years within a single Chapter 13 plan) and yes, it can protect the debtor from going to jail for previously failing to pay what was due. It’s important to note that you cannot discharge (wipe out) in any type of bankruptcy (Chapter 7, Chapter 11, Chapter 12, Chapter 13, etc) debts relating to child support, maintenance, alimony, and other domestic support obligations. Not only will the Chapter 13 plan provide for catching up the past due amounts, but it will also provide for the current and ongoing payments in order to prevent the debtor from becoming behind in support during the Chapter 13 bankruptcy plan period.
Most individuals will qualify to file for Chapter 7 regardless of the amount of debt. However, income must also be considered when filing for Chapter 7 bankruptcy. For example, if disposable income is sufficient to fund a Chapter 13 repayment plan — which is determined by your attorney completing what is called a “Means Test” which subtracts certain allowed expenses and monthly payments for certain debts from your gross income — you will not be allowed to use Chapter 7 bankruptcy but rather qualify for a Chapter 13 bankruptcy.
This is an area where it is important to consult with an experienced bankruptcy attorney. Your attorney will review your situation in depth through the “Means Test” process and advise you accordingly based upon the results.
So to sum it all up – an individual, a partnership, a corporation or other business entity may qualify to file for Chapter 7 so long as:
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