At first glance, this may seem a pointless topic for an article. Who would want, after all, to declare bankruptcy? Most Americans are well aware of the far-reaching financial consequences of bankruptcy protection. Bankruptcy can immediately and significantly lower FICO scores, darken credit reports for up to a decade and, depending upon the situation, forever prevent you from some sorts of financing or employment. In the more popular games bankruptcy means, simply, that you lose the game. Even as a form of speech - being morally or spiritually 'bankrupt' - the notion's hardly complimentary.
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Nevertheless, as spiraling bills force more and more borrowers to sadly ponder what would've been once unthinkable, many consumers are forced to consider bankruptcy as a final alternative to seemingly insurmountable debt-loads. And, because bankruptcy's so well-known as a final resort, a good number don't bother to investigate the actual truths of bankruptcy (particularly after the restriction-tightening recent legislation) before succumbing to the inevitable.
More than ever before, this is a shame. Bankruptcies are no longer a guarantee of debt liquidation, the negative impacts can well beyond credit score repercussions, and, especially now, other bankruptcy alternatives may serve the average consumer better as they seek debt relief. Even on a Chapter 7 bankruptcy - and even though Chapter 7 notation would appear on your credit report for seven to ten years following - it's possible that not all debt would be eliminated. In other words, the unlucky filer could yet adopt all the corrosive drawbacks of bankruptcy without the expected benefits. Considering this, it's more important than ever for all borrowers even beginning to think about bankruptcy to closely analyze all aspects of the new legislation.
First of all, it's no longer wholly the consumer's decision on which sort of bankruptcy to file. As most past debtors attempted the Chapter 7 (which did, whatever the negative effects upon credit, liquidate most outstanding bills), this should be the most striking difference for average borrowers. Under current legislation, the courts must subject your income from six-to-nine-months ago to what's become known as 'the means test'. This test compares past income (no grace given if, say, the borrower has since changed jobs) with the average income from the state and then subtracts arbitrarily decided living expenses. Even avoiding the obvious regional and career differences (with housing prices in Fresno rather less expensive than those in Southern California, say, or the vehicle needs of a contractor more expansive than secretary), this allows a court trustee or their assistant to, upon their whim, change every bit of your life. Families have been forced to move or pull children out of private schools with little warning. Allowing the government free rein to budget and plan your family's future carries obvious risks.
In previous years, of course, whomever went bankrupt would have to face the threat of their property and possessions being taken by the court and sold off to pay the creditors - every once in a while the news would cover an auction of celebrity memorabilia essentially being run by the IRS, for example - but ordinary debtors rarely had to worry about the loss of household items since their collected value, after depreciation, simply wasn't worth enough for the government to bother with. Now, however, the tax laws insist all possessions (hobby equipment, children's toys, family heirlooms) be listed according to their replacement cost: sentimental value, as you'd expect, not to be considered.
More worrisome, any significant investments (aside from custodial trusts or tax-deferred retirement plans like Individual Retirement Accounts) could be liquidated. Second homes and second vehicles are also fair game. Depending upon your specific state's exemptions, even your residence or primary vehicle could also be forced towards auction. Essentially, the exemptions protect some degree of equity for the home, but, if the borrower had paid down too much of the mortgage balance, the courts could insist the home be sold with all excess equity given over to creditors. It's imperative that every homeowner even considering bankruptcy search out his or her state's specific protections and talk to a bankruptcy attorney about the potential fall-out.
There's another even more significant reason to ensure you've a well-trained attorney with whom you feel comfortable. It's considerably easier under the 2005 act for both creditors to sue for fraudulent bankruptcy filings and for the government to initiate criminal proceedings. Obviously, there should be safeguards in place to prevent the genuinely mercenary from taking advantage of bankruptcy protection, but gray areas within the law can also unnecessarily vilify even those honest borrowers that underestimated a motorcycle's worth or forgot about accounts they hadn't touched for a decade.
Again, obviously, for many consumers - those without investments or significant equity in their homes or vehicles; those willing to forego all accumulated possessions; those that wouldn't mind the government planning their family's budget for half a decade; those that can't imagine needing credit reports or FICO scores again - personal bankruptcies can still be of some use. Even for those desperate souls, though, we still urge the consultation, whatever the cost, with top bankruptcy attorneys. For all others, it almost always makes sense these days to do whatever possible to avoid bankruptcy altogether - especially as other alternatives, such as debt settlement, have become increasingly popular. It was always meant as the final option, but, after the recent legislation, that can be all too true.
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