Sept. 29, 2014
Bankruptcy gives you a handle on your debts. There are different kinds of debts. It helps if you have a handle on these differences.
Debts in Bankruptcy
If you are thinking about bankruptcy there’s no more basic question than what it will do to each of your debts. Will it wipe away all your debts or will you still owe anybody? What about debts you would like to keep like your car or truck loan or your home mortgage? What help does bankruptcy give for unusual debts like taxes, or child and spousal support?
The Three Categories of Debts
At the heart of bankruptcy is the basic rule of treating all creditors within the same legal category the same. So we need to understand the three main categories of debts. You may not have debts in all three of these categories, but lots of people do. A basic understanding of these three categories will help make sense of bankruptcy, and make sense of how it treats each of your creditors.
The three categories of debts are “secured,” “general unsecured,” and “priority.”
Every single debt is either “secured” by something you own or it is not. A secured debt is secured by a lien—a legal right against—that property or possession you own.
Most of the time you know whether or not a debt is secured because you voluntarily gave collateral to secure the debt. When you buy a car, you know that you are signing on to a vehicle loan in which the lender is put onto your car’s title as its lienholder. That lien on the title gives that lender certain rights, such as to repossess it if you don’t make the agreed payments.
But debts can also be secured as a matter of law without you voluntarily agreeing to it. For example, if you own a home and an unsecured creditor sues you and gets a judgment against you that usually creates a judgment lien against the title of your home. Or if you don’t pay federal income taxes you owe, the IRS may put a tax lien on all your personal property.
For a debt to become effectively secured, either voluntarily or involuntarily, certain steps have to be taken to accomplish that. Otherwise the debt is not secured, and the creditor does not have rights against the property or possession that was supposed to secure the debt.
In the case of a vehicle loan, the lender and you have to go through certain paperwork for the lender to become a lienholder on the vehicle’s title. If those aren’t done right, the vehicle will not attach as collateral to the loan. That could totally change how that debt is treated in bankruptcy.
Finally, it’s important to see that debts can be fully secured or only partly secured. This depends on the amount of the debt compared to the value of the collateral securing it. If you owe $15,000 on a vehicle worth only $10,000, the debt is only partly secured—secured as to $10,000, and unsecured as to the remaining $5,000 of the debt. A partly secured debt may be treated differently in bankruptcy than a fully secured one.
General Unsecured Debts
All debts that are not legally secured by collateral are called unsecured debt. And “general” unsecured debts are simply those which are not one of special “priority” debts that the law has selected for special treatment. (See below.) So this category of “general unsecured debts” includes all debts with are both not secured and not “priority.”
General unsecured debts include every imaginable type of debt or claim. The most common ones include most credit cards, virtually all medical bills, personal loans without collateral, checking accounts with a negative balance, unpaid checks, payday loans without collateral, the amount left owing after a vehicle is repossessed and sold, and uninsured or underinsured vehicle accident claims against you.
It helps to know that sometimes a debt which had been secured can turn into a general unsecured one. For example, a second mortgage that was fully secured by the value of the home at the time of the loan can become partially or fully unsecured if the home’s value falls. Or a general unsecured debt can turn into a secured one. For example, a general unsecured credit card debt can become secured debt if a lawsuit is filed against you, a judgment is entered, and a judgment lien is recorded against your real estate.
As the word implies, “priority” debts are ones that Congress has decided should be treated better than general unsecured debts.
Also, there’s a strict order of priority among the priority debts. Certain “priority” debts get paid ahead of the others (and ahead of all the general unsecured debts). In bankruptcy getting paid first often means getting paid something instead of nothing at all.
This has the following practical consequences in the two main kind of consumer bankruptcy:
In most Chapter 7 cases there is no “liquidation” of your assets for distribution to your creditors. That’s because in the vast majority of cases, all the debtors’ assets are protected; they are “exempt.” But in those cases where there ARE non-exempt assets which the bankruptcy trustee gathers and sells, priority debts are paid in full by the trustee before the general unsecured ones receive anything. And among the priority debts those of higher priority are paid in full before the lower priority ones receive anything.
In a Chapter 13 case, your proposed payment plan must demonstrate how you will pay all priority debts in full within the 3 to 5 years of your case. Then after the bankruptcy judge approves your plan, you must in fact pay them before you can complete the case (and discharge all or most of your general unsecured creditors). There is more flexibility about when the priority debts are paid with those 3 to 5 years.
Here are the most common priority debts for consumers or small business owners, from higher to lower priority:
child and spousal support—the full amount owed as of the filing of the bankruptcy case
wages and other forms of compensation owed by the debtor to any of his or her employees—maximum of $12,475 per employee, for work done in the final 180 days before the bankruptcy filing or close of business, whichever was first
certain income taxes, and some other kinds of taxes—some are priority but others are general unsecured if they are old enough and meet some other conditions
The next blog posts will discuss how debts in these three categories are treated in Chapter 7 and Chapter 13.