Understanding the rights of creditors in bankruptcy cases

Bankruptcy is a legal process that offers relief to people who cannot pay off their debts. Once a person or business files for bankruptcy, their creditors must stop trying to collect debts.

Bankruptcy benefits debtors because it allows them to discharge their debts. Although the filing will be on their credit report for up to 10 years, people in debt can get a fresh financial start and avoid the stressful collections process.

What if you are a lender and someone who owes you money files for bankruptcy? Though you may think that bankruptcy means you will never be repaid, it's possible you will see some or all of your money returned by the end of the process.

Creditors must take specific steps when notified of a bankruptcy filing involving their debtor. As a lender, you have privileges in bankruptcy cases, including the right to make your case for complete repayment. However, your rights can vary depending on the details of your loan and the debtor's overall financial situation.

Types of bankruptcy

When a person files for bankruptcy, the court puts their debts on hold. However, they still have to pay as much as possible of the total amount owed.

Chapter 7 bankruptcy is the most common form of insolvency, while you may also encounter debtors who file for Chapter 13 bankruptcy.

Here is a look at what you can expect as a lender if you get bankruptcy notice involving one of your debtors.

Chapter 7 bankruptcy is also called liquidation bankruptcy. This process allows debtors to start afresh by discharging all of their debt. A bankruptcy court pays off as much of the debt as possible by liquidating the bankrupt person's assets and giving the proceeds to lenders. A trustee handles the sale of assets and the distribution of the profits. This court-appointed representative pays lenders based on priority. For example, secured loans get paid first, followed by unsecured debt. In many instances, a debtor can keep necessities, such as their residential home, work equipment, and vehicle needed for transport, during the liquidation process.

Chapter 13 bankruptcy is also known as reorganization bankruptcy. This process is different because there is no liquidation of assets. The debtor starts the process by going to credit counseling and making a plan to repay existing debt. However, instead of paying lenders directly, the debtor deposits money into an account managed by a trustee. The process can take three to five years, with the trustee paying off debts in order of priority.

Chapter 11 is the other well-known type of bankruptcy, but it is only available to corporations, who can use the process to restructure and repay existing debts without having to stop operations. Unless you are a large shareholder or institutional lender, you will likely not be confronted with a Chapter 11 bankruptcy.

The importance of priority for creditors during a bankruptcy case

A lender's hopes of repayment after a bankruptcy filing depend on the loan agreement and terms.

A bankruptcy court treats creditors differently depending on the priority of debt and the type of debt security or collateral. If the debt was unsecured, such as a medical or credit card bill, you will typically have a lower priority for repayment.

Creditors who have secured loans, such as mortgages or vehicle loans, typically have a higher priority. The trustee will attempt to give them the value of the security assets from the liquidation proceeds.

Depending on the assets and financial situation of the debtor, a lender waiting for compensation for an unsecured loan may only receive partial repayment or no reimbursement.

Can creditors reject a bankruptcy discharge plan?

As a creditor, you have the right to reject part of the bankruptcy discharge. You can do so by filing an adversary proceeding. This case will require a lawyer because you need to prove that the debtor purposely misled the trustee and court to avoid repayment or engaged in another fraudulent activity to hide assets or avoid repayment. The alleged fraud could be in the bankruptcy filing itself or in any activities related to the debt before the bankruptcy filing.

Many of these cases involve people intentionally running up credit card debt or taking out loans in the months before declaring bankruptcy or signing property over to relatives to avoid liquidation.

What should a creditor do after they receive a bankruptcy notice?

If you receive a bankruptcy notice involving one of your debtors, there are specific steps you need to take to abide by the law and give yourself the best possible chance of getting a partial or full repayment.

Stop any collection efforts or follow-ups about the debt. Once the debtor files for bankruptcy, they are protected from additional collection efforts. It is against the law to contact the borrower after you receive a bankruptcy notice.
File your proof of claim with the court before the deadline. In most cases, you can submit your documents up to 70 days after the bankruptcy filing.
Make sure to identify assets associated with secured debts. This is an important step because, in most cases, debts secured by property move to the front of the line for repayment.
Accept or reject the debtor's discharge plans. The trustee will hold a "meeting of creditors," during which you can assess the bankruptcy discharge plan. In most instances, the trustee collects and verifies all supporting documentation beforehand. Except in some special cases, creditors or their legal representatives do not attend the actual meeting of creditors. You have 60 days from the meeting to reject the discharge plan.

When a debtor files for bankruptcy, the court tries to ensure they pay as many debts as possible through liquidation or a long-term repayment plan. However, you may want to hire a bankruptcy lawyer to represent your interests during the process. In addition to advising you about timeframes and proof of claim, they can review documents and supporting evidence to ensure the debtor is accurately representing their total wealth and not purposely hiding property or misrepresenting its necessity.

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Will filing for Bankruptcy affect my job?

By Jennie Shnayder • August 30, 2022

Bankruptcy is a legal process that helps people or businesses pay debts by selling assets or getting a court-ordered repayment plan. There were 544,463 bankruptcy filings in 2020 alone. Typically, the bankruptcy process starts when a debtor goes to court. The debtor can be a company, a group of people, or an individual. A bankruptcy case can only be filed at a federal court. The court will audit the liabilities and assets of the accused entity. It will then decide to either declare the entity bankrupt or dismiss the case. If you feel that your loan terms are becoming a financial hindrance, you can file for bankruptcy. Your creditors will have to renegotiate the loan terms and restructure the repayment schedule. Bankruptcy and Employment Status or Opportunity Generally, filing for bankruptcy does not have any impact on your job. Nevertheless, it may reduce your chances of getting employment in the private sector. Public and private employers can't legally terminate your employment contract just because you are facing financial challenges. Similarly, filing for bankruptcy cannot lead to the changing of your employment terms. For example, your employer can't slash your wages or change your responsibilities. Therefore, you can seek legal compensation if your employer terminates your employment just after you file for bankruptcy. Bankruptcy and Discrimination Laws The US Bankruptcy Code prohibits any person or entity, including your employer, from discriminating against debtors. This is clarified in the Bankruptcy Code's Section 525 . This section states that federal and state authorities can't: Refuse to hire a person because of bankruptcy. Fire an employee due to a recent bankruptcy filing. Reduce wages or change responsibilities of an employee who filed for bankruptcy. Unfortunately, the Bankruptcy Code doesn't prevent private employers from failing to hire people based on their bankruptcy status. Will Your Employer Know About Your Bankruptcy Filing? Your employer is unlikely to learn about your bankruptcy filing. However, the employer may become aware in some situations, such as: Wage Garnishment: You may file for bankruptcy after receiving a wage garnishment. Your employer can stop the wage garnishment provided that you notify them of your bankruptcy filing. The good thing is that your employer may suggest ways to improve your financial situation. Chapter 13 Bankruptcy: While it is difficult for employees to know of your Chapter 7 bankruptcy filing, they are likely to know of your Chapter 13 bankruptcy filing. That is because the court may direct that your Chapter 13 payments be deducted from your salary. Your employer essentially will become a collection agency for the bankruptcy court. You Have a Loan from Your Employer: A bankruptcy filing must disclose all outstanding debts. The court will then send a notice to everyone you owe money. If you have a loan from your employer, they will also receive notification of the bankruptcy filing. Security Clearance Many employers won't hire you if you don't have a security clearance. The security clearance is a must-have for people working for federal or state security agencies. Fortunately, you can still get your security clearance even after filing for bankruptcy. In fact, filing for bankruptcy reduces your debt and vulnerability to blackmail. Government agencies do not look at the bankruptcy status when hiring employees. However, private employers may fail to hire you if they discover your bankruptcy filing. This can happen when the employer conducts a credit check. Although the employer can't run a credit check without your consent, they may become suspicious if you refuse to give permission. The bankruptcy filing may be seen as a potential problem, especially for an employee who will be handling large sums of money, such as an accountant. Types of Bankruptcy The primary purpose of bankruptcy is to settle debt, but bankruptcies have different procedures and regulations. The two types of personal bankruptcies are Chapter 7 bankruptcy and Chapter 13 bankruptcy. Chapter 7 Bankruptcy During Chapter 7 bankruptcy, the court will hire a trustee to liquidate your assets and give the proceeds to your creditors. If the proceeds can't pay all your debt, the court will erase the outstanding debt. Chapter 7 exempts necessities from liquidation, such as retirement accounts, personal vehicles, and houses. Chapter 7 can postpone a foreclosure but can't stop it. If you want to delay a foreclosure, you must reaffirm your loan terms and promise to resume payments. You will be eligible for Chapter 7 bankruptcy debt relief after the court determines that you cannot repay all your loans. Before then, your creditors will meet you in person to examine your debts and general financial situation. Also, the Chapter 7 bankruptcy becomes part of your credit report and will remain there for a decade. Chapter 13 Bankruptcy Chapter 7 bankruptcy erases debt, but Chapter 13 restructures it. The court will mandate a new repayment plan that will last for three to five years. You must pay all your secured loans and a certain percentage of your unsecured loans during the repayment period. The monthly payment will be based on your income, loan amount, and expenses. In most cases, the courts will place limitations on your expenditure and prohibit spending on certain services or products. Chapter 7 bankruptcy's main benefits are the preservation of your assets and legal protection from creditors. Unlike Chapter 7 bankruptcy, Chapter 13 bankruptcy can halt home foreclosures by extending mortgage repayment periods. However, your Chapter 13 bankruptcy filing will only be valid if you have been paying all your taxes. Also, your credit report will continue to show your Chapter 13 bankruptcy filing for seven years. Finally, you can only file one Chapter 13 bankruptcy every 24 months . What to Do if You Are Fired After Filing for Bankruptcy? Despite the bankruptcy laws prohibiting employment discrimination, you can still get fired after filing for bankruptcy. When this happens, you should first know if your employer doesn't have another reason for terminating your employment. Regardless, it is challenging to prove that you were fired because of your mounting debts. Consequently, you may need to seek the assistance of an employment lawyer and get legal redress. You can contact us for more information.

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