Earlier this week, I wrote a post entitled Should I Oppose the Chapter 13 Trustee's Motion to Dismiss. In that post I spoke about the relatively common scenario whereby a Chapter 13 debtor will fall behind on payments to the trustee or an unexpected claim will cause the plan to run longer than 60 months. In such a case, the trustee will file a motion to dismiss and the debtor and counsel will have an opportunity to propose a cure to the delinquency. Usually this cure takes the form of a lump sum payment immediately with the remaining delinquency paid to the trustee over time.
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As you may know, Chapter 13 cases function as payment plans whereby you send your Chapter 13 trustee a monthly payment and the trustee disburses those funds to creditors. Since Chapter 13 cases usually last five years it is not surprising that sometimes a debtor may fall behind on payments, even if the payments are made through an automatic payroll deduction.
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I get this question at least once a week – "I need to file bankruptcy but I don't want to include my [mortgage] [car loan] [debt to my brother] [credit card co-signed by my company]. Let's leave this debt off my petition.
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At least two of the three Chapter 13 trustees in the Northern District of Georgia require a Chapter 13 plan provision which provides that any tax refund payable to the debtor during the term of the debtor's plan shall be paid to the Chapter 13 trustee. These trustees will object to any plan that does not include a tax refund provision.
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In the Northern District of Georgia, every Chapter 13 case must be filed as a "payroll deduction order" case. In other words, you must fund your Chapter 13 with a payroll deduction. In my experience the trustees will allow direct payment of Chapter 13 plan payments only when a debtor is self employed or if the debtor can convince the trustee that the debtor's job would be in jeopardy if the employer received a payroll deduction order.
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As a bankruptcy lawyer, I have to deal with the consequence of what I call "real world" activities. In the non-bankruptcy world people make decisions that will save money and make life easier. For example, blog reader Lou writes me with a question about car titles:
Earlier this month, I wrote a post on this blog setting out the question of whether Congress should enact legislation empowering bankruptcy judges to modify the terms of mortgages within a Chapter 13 bankruptcy.
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I have probably written about this subject before, but I am going to raise it again because it creates so many unnecessary problems and it arises month after month and year after year.
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There has been a lot of chatter on bankruptcy blogs and bankruptcy lawyer forums about the possibility that Congress will amend the bankruptcy laws to give judges the power to modify mortgages. To offer some perspective, bankruptcy judges have long had the power to modify vehicle loan contracts and other secured debt claims but never mortgage debt.
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Whenever I file a Chapter 13 on behalf of a client, I remind my client that five years is a long time, and that a lot can happen during the term of a Chapter 13. Marriage counselors reguarly opine that financial stress often leads to marital discord, so it should come as no surprise that the stresses inherent in a Chapter 13 will result in marital problems.
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