Category Archives: Secured and Unsecured Debts When Filing Bankruptcy

Can I Treat My Unsecured Creditors Differently in My Chapter 13 Plan?

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When you file a Chapter 13 bankruptcy case it is expected that all your general unsecured creditors will be treated equally. You have to treat your secured creditors and priority unsecured creditors differently but your general unsecured creditors will all be paid the same percentage in your Chapter 13 plan, right? The answer is: it depends.

Pursuant to 11 U.S.C. §1322(b)(1), the Chapter 13 plan may designate different classes of unsecured claims so long as the plan does not unfairly discriminate against the different classes. However, the Chapter 13 plan may treat a claim for a consumer debt differently than other unsecured creditors if there is another person who is also liable for the debt along with the person filing for bankruptcy. The interpretation of this statute varies amongst the different jurisdictions so it is best to consult with a bankruptcy attorney about how your jurisdiction treats this statute.

In the case of In re: Renteria, 470 B.R. 838 (9th Cir. BAP 2012), Ms. Renteria filed for Chapter 13 bankruptcy. In her Chapter 13 plan she proposed to pay her former attorney (whom she owed about $20,000) 100% of the debt plus 10% interest because her mother personally guaranteed the debt for Ms. Renteria. Her former attorney filed suit against both Ms. Renteria and her mother in state court to recover the funds owed to him and there was currently a default judgment entered against her mother prior to the filing of Ms. Renteria’s bankruptcy case. The Trustee objected to the Chapter 13 plan because he contended the plan unfairly discriminated against the other unsecured creditors since the unsecured creditors will receive 0% repayment in the Chapter 13 plan while the former attorney will receive 100% plus 10% interest. Ms. Renteria filed a declaration to provide more information about the circumstances of the treatment of her former attorney’s debt. She retained her former attorney to help her with a domestic violence and paternity lawsuit. She would not have been able to retain the services of her former attorney without her mother personally guaranteeing the attorney fees and expenses. Ms. Renteria also indicated that since she had no non-exempt assets her other unsecured creditors would not have been in a worse position if she filed a Chapter 7 bankruptcy case. The bankruptcy court overruled the Trustee’s objections and confirmed the case and the Trustee appealed.

Courts are split on the interpretation of the “however” clause in §1322(b)(1). A majority of the courts hold that debts that are co-signed (or co-obligated) by another person still need to clear the unfair discrimination hurdle. A minority of the courts believe that the “however” clause is plain and unambiguous and indicates that co-signor or (co-obligors) of the debt are exempted from the unfair discrimination rule. The Renteria court examined the construction and placement of the “however” clause. The one thing the courts have concluded is that different courts will disagree on the meaning of the “however” clause. The Renteria court then looked at legislative history. The Renteria court examined the cases listed in the legislative history (In re Utter, 3 B.R. 369 (Bk.W.D.N.Y. 1980) and In re Montano, 4 B.R. 535 (Bk.D.D.C. 1980)), and found that Congress was trying to address these two cases in the §1322 statute. In the Utter case, Utter separated out one claim to pay 100% and all other unsecured claims received little to nothing. The 100% claim was due to the fact that Utter’s sister was obligated to the same debt. The court in Utter denied confirmation because the preferential treatment discriminates unfairly against the other unsecured creditors that do not have co-signed debts. In the Montano case, the claims guaranteed by co-signors received 100% payment and all other unsecured creditors received 1% payment. The court listed the same reasoning as the Utter court: that the other general unsecured claims were being unfairly discriminated against.

The Renteria court concluded that Congress wants to permit a person filing a Chapter 13 case to separately classify the debts where a third party is co-obligated to the debt and to prefer the co-obligated debt when facts are similar to In re Utter and In re Montano. If you are thinking of filing a Chapter 13 bankruptcy case that has co-signed debt it is best to consult with Chapter 13 bankruptcy attorneys to help you through the process.

What is the Difference Between Secured and Unsecured Debt in Bankruptcy?

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What is unsecured debt? An unsecured debt is any debt you have that is not secured by collateral. Some examples include credit card debts, medical debts, personal loans, and deficiencies from repossessed vehicles or foreclosed homes. What is secured debt? A secured debt is a debt that is secured by collateral. The collateral may be recovered by the creditor if you default on the payments. The most common types of secured debts are real estate and vehicles. If you do not pay the debt the creditor can take possession of the collateral such as foreclosure of a home or repossession of a vehicle. Once the collateral has been taken to satisfy the debt any deficiency remaining is considered unsecured debt. Other secured debts include debts incurred to finance the purchase of a television or furniture. If you do not make the payments the television or furniture can be repossessed. Make sure you communicate to your bankruptcy attorney whether you have purchased items on credit like television or mattresses that you are still making payments for.

Why is it important to know the amount of your secured and unsecured debt when filing bankruptcy? There are several reasons. One of the reasons is that your total secured and unsecured debts determine whether you are eligible to be a debtor under Chapter 13 of the bankruptcy code. There are limits on how much secured and unsecured debts you may have. Currently (April 2013), you are not eligible to file a Chapter 13 bankruptcy case if your non-contingent, liquidated secured debt exceeds $1,081,400 or your non-contingent, liquidated unsecured debts exceed $360,475. You therefore need to know exactly how much secured and unsecured debts you have so you know if you are eligible to file a Chapter 13 bankruptcy case. Most bankruptcy lawyers will run your credit to make sure the debts listed in the petition are as accurate as possible, but you may owe money to a business or individual that does not report to the credit bureaus.

Another reason it is important to distinguish between your secured or unsecured debts is that you need to continue making payments on your secured debts if you want to keep the collateral. It does not matter what chapter of bankruptcy you file under. When you file for bankruptcy your underlying debts are discharged, but the debt is still secured to the collateral. If you stop making payments the creditor will have the right to take the collateral back. If you do not want to keep the collateral or if you cannot continue with the payments you can surrender the collateral in your bankruptcy case and the underlying debt may be discharged. Keep in mind, however, that the collateral is still your responsibility until the deed or title is transferred out of your name.

A third reason why it is important to distinguish between secured and unsecured debt is that it may affect your ability to keep your assets. Two examples: (1) In the case of In re Traverse (1st Circuit BAP decision, BAP No. MB12-025, February 4, 2013). In this case the first mortgage was unrecorded and therefore unperfected and unsecured. There was a second lien on the property that was properly recorded. The trustee was able to sell the property right out from under the person filing for bankruptcy for the benefit of the bankruptcy estate and distribute the proceeds to the creditors. If the first mortgage had been properly recorded it would have been a secured debt and the person filing for bankruptcy would have been able to continue living in her home and continue making payments on the home. (2) If you obtain a loan from a private individual to purchase a vehicle and the lender did not properly perfect his or her security interest in the vehicle, that person would be considered an unsecured creditor. If the value of the vehicle is significant enough and you do not have enough exemption room to protect that asset the trustee may potentially liquidate that asset in a Chapter 7 bankruptcy case and distribute the proceeds to the creditors.