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Bankruptcy is a legal process for dealing
with debt problems of individuals and businesses; specifically, a case filed under one of the chapters of title 11 of the
United States Code (the Bankruptcy Code). Bankruptcy law is Federal Law and each
of the 94 federal judicial districts handles bankruptcy matters. Bankruptcy cases are filed in the Federal bankruptcy court.
Bankruptcy cases cannot be filed in state court. Bankruptcy laws help people who can no longer pay their creditors get a fresh
start by liquidating their assets to pay their debts, or by creating a repayment plan.
Bankruptcy laws also protect troubled businesses
and provide for orderly distributions to business creditors through reorganization or liquidation. These procedures are covered
under Title 11 of the United States Code (the Bankruptcy Code). The vast majority of cases are filed under the three main
chapters of the Bankruptcy Code, which are Chapter 7, Chapter 11, and Chapter 13.
Chapter 7, entitled Liquidation, contemplates
an orderly, court-supervised procedure by which a trustee takes over the assets of the debtor's estate, reduces them to cash,
and makes distributions to creditors, subject to the debtor's right to retain certain exempt property and the rights of secured
creditors. Because there is usually little or no nonexempt property in most chapter 7 cases, there may not be an actual liquidation
of the debtor's assets. These cases are called "no-asset cases." A creditor holding an unsecured claim will get a distribution
from the bankruptcy estate only if the case is an asset case and the creditor files a proof of claim with the bankruptcy court.
In most chapter 7 cases, if the debtor is an individual, he or she receives a discharge that releases him or her from personal
liability for certain dischargeable debts. The debtor normally receives a discharge just a few months after the petition is
filed. Amendments to the Bankruptcy Code enacted in to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
require the application of a "means test" to determine whether individual consumer debtors qualify for relief under chapter
7. If such a debtor's income is in excess of certain thresholds, the debtor may not be eligible for chapter 7 relief.
Chapter 13, entitled Adjustment of Debts of an Individual With Regular Income, is designed
for an individual debtor who has a regular source of income. Chapter 13 is often preferable to chapter 7 because it enables
the debtor to keep a valuable asset, such as a house, and because it allows the debtor to propose a "plan" to repay creditors
over time – usually three to five years. Chapter 13 is also used by consumer debtors who do not qualify for chapter
7 relief under the means test. At a confirmation hearing, the court either approves or disapproves the debtor's repayment
plan, depending on whether it meets the Bankruptcy Code's requirements for confirmation. Chapter 13 is very different from
chapter 7 since the chapter 13 debtor usually remains in possession of the property of the estate and makes payments to creditors,
through the trustee, based on the debtor's anticipated income over the life of the plan. Unlike chapter 7, the debtor does
not receive an immediate discharge of debts. The debtor must complete the payments required under the plan before the discharge
is received. The debtor is protected from lawsuits, garnishments, and other creditor actions while the plan is in effect.
The discharge is also somewhat broader (i.e., more debts are eliminated) under chapter 13 than the discharge under chapter
7.
Chapter 11, entitled Reorganization, ordinarily is used by commercial enterprises that
desire to continue operating a business and repay creditors concurrently through a court-approved plan of reorganization.
The chapter 11 debtor usually has the exclusive right to file a plan of reorganization for the first 120 days after it files
the case and must provide creditors with a disclosure statement containing information adequate to enable creditors to evaluate
the plan. The court ultimately approves (confirms) or disapproves the plan of reorganization. Under the confirmed plan, the
debtor can reduce its debts by repaying a portion of its obligations and discharging others. The debtor can also terminate
burdensome contracts and leases, recover assets, and rescale its operations in order to return to profitability. Under chapter
11, the debtor normally goes through a period of consolidation and emerges with a reduced debt load and a reorganized business.
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