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Legal Articles

Which Debts Must You Repay?
Tax Consequences When a Creditor Writes Off or Settles a Debt
What Is Bankruptcy?
Alternatives to Bankruptcy
Eliminating Tax Debts in Bankruptcy
Filing Bankruptcy? Disclose Everything, Hide Nothing
Reasons to Use Chapter 13 Bankruptcy Instead of Chapter 7 Bankruptcy
Rebuilding Credit FAQ



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Which Debts Must You Repay?


Some debts should be paid before others. Learn which debts should be your top priority.

Some debts are more important than others. If you are having trouble paying your bills, take the time to prioritize your debts. Make a list of essential and nonessential debts -- and always pay the essential debts first. Read on to learn which debts are essential and which aren't.

Essential Debts

An essential debt is one that you should put at or near the top of your list for payment. If you let an essential debt slide, you could face serious consequences.

Rent. Unless you know you are going to move and have a place to live, make paying your rent a top priority.

Mortgage. If you've lost your job or had another financial setback, carefully consider the pros and cons of selling your house.

  • Reasons to sell. You might be better off selling your home, renting a moderately priced place, and using what's left over to pay your other essential bills.
  • Reasons not to sell. Consider the housing market. If your house will be worth more in a year than it is today, you might wait and sell later. That would give you more money to pay your creditors.

Child support. Failing to pay child support can land you in jail. What's more, a child support debt never goes away -- it doesn't expire, and you can't wipe it out in bankruptcy. You'll have to pay this money sooner or later, so you should try do it when it will help your kids the most.

Utility bills. Being without gas, electricity, heating, water, or a telephone is not safe -- put these bills near the top of your list.

Car payments. If you need your car to keep your job, make the payments. If you don't, consider selling it or voluntarily turning it over to avoid repossession. You may be able to use any leftover money to buy a cheaper car.

Other secured loans. A debt is secured if a specific item of property (called collateral) is used to guarantee repayment of the debt. If you don't repay the debt, most states let the creditor take the property without first suing you and getting a court judgment. If the property is something you cannot live without, stay current on your payments.

If you don't care whether the property is taken, or are confident that the creditor doesn't really want it, don't worry about missing a payment or two. But a default on a loan or a repossession of property will appear on your credit report for seven years and will affect your ability to get credit in the future.

Unpaid taxes. If the IRS is about to take your paycheck, bank account, house, or other property, immediately contact the IRS to set up a repayment plan.

Nonessential Debts

A nonessential debt is one with no immediate or devastating effects if you fail to pay. Paying these debts is a desirable goal, but not a top priority. Just remember that failure to pay any debt will cause it to stay on your credit report for seven years.

Department store and gasoline charges. If you fail to pay these bills, you'll probably lose your credit privileges and, if the debt is large enough, you may be sued.

Loans from friends and relatives. You may feel a moral obligation to pay, but these creditors are most likely to be understanding of your predicament. See if you can defer making payments until you are back on your feet or agree on an alternate repayment plan.

Newspaper and magazine subscriptions. These debts aren't essential, but failure to pay will lead to collection actions.

Legal and accounting bills. These debts are rarely essential, but may lead to threatening letters and lawsuits if they remain unpaid.

Other unsecured loans. An unsecured debt is not tied to any specific item of property -- in other words, there is no collateral for the debt. This means that a creditor cannot take your property without first suing you in court.

Essential or Nonessential?

Some debts straddle the line between essential and nonessential. Not paying won't cause severe consequences in your personal life, but could prove painful nonetheless. In deciding whether or not to pay these debts, consider your relationship with the creditor and whether the creditor has initiated collection efforts.

Some of these debts include:

  • Auto insurance. In some states, you can lose your driver's license if you drive without insurance. In California, you cannot register your car without proof of insurance.
  • Medical insurance or bills. If you let your health insurance lapse, you may have difficulty getting new insurance. Especially if you are currently under a physician's care, you'll want to continue making payments.
  • Credit and charge cards. If you don't pay your credit card bill, the worst that will happen before the creditor sues you is that you will lose your credit privileges. But penalties and interest add up quickly.
  • Car payments for a car that is essential for your job. The inconvenience of not having a car may justify making these payments.
  • Court judgments. Once a creditor has a judgment, the creditor can collect it by taking a portion of your wages or other property. If a particular judgment creditor is about to grab some of your pay, the fact that the original debt may have been nonessential is irrelevant.
  • Student loans. Paying an old student loan isn't essential if the holder of your loan isn't hassling you. But paying the loan may become essential if the IRS is about to intercept your tax refund, the holder of your loan threatens to garnish your wages, or you are making payments under a "reasonable and affordable" repayment plan to rehabilitate your loan and get out of default.

Stick to Your Debt Paying Plan

Do not make payments on nonessential debts unless you have money left after paying the essential ones. Don't lose sight of your priorities if nonessential creditors are breathing down your neck.

Solve Your Money Troubles: Get Debt Collectors Off Your Back & Regain Financial Freedom, by Robin Leonard and attorney John Lamb (Nolo) is a comprehensive debt guide that includes information on budgeting, controling debt, and dealing with debt collectors.


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Tax Consequences When a Creditor Writes Off or Settles a Debt


The IRS may count a debt written off or settled by your creditor as taxable income to you.

If you settle a debt with a creditor for less than the full amount, or a creditor writes off a debt you owe, you may owe money to the IRS. The IRS treats the forgiven debt as income, on which you may owe income taxes.

Why the IRS Can Assess Taxes on Forgiven Debts

Here's how it works. Creditors often write off debts after a set period of time -- for example, one, two, or three years after you default. The creditor stops its collection efforts, declares the debt uncollectible, and reports it to the IRS as lost income to reduce its tax burden. The same is true when you negotiate a debt reduction. The creditor will report the amount you didn't pay as lost income to the IRS.

Of course, the IRS still wants to collect tax on this money, and it will turn to you for payment. Because you no longer have to pay the full amount of the debt, the IRS treats the forgiven amount as gained income, for which you should pay income taxes.

Foreclosures and property repossessions. This rule applies even to debts you owe after a house foreclosure or property repossession. In this situation, the law can seem especially cruel: Not only have you lost your property, but you'll also have to pay income tax on the difference between what you originally owed the lender and what it was able to sell your property for (called the "deficiency").

However, the Mortgage Forgiveness Debt Relief Act of 2007 (H.R. 3648) changed this for certain loans during the 2007, 2008, and 2009 tax years only. The law provides tax relief if your deficiency stems from the sale of your primary residence (the home that you live in).  Here are the rules: 

  • Loans for your primary residence. If the loan was secured by your primary residence and was used to buy or improve that house, you may generally exclude up to $2 million in forgiven debt. This means you don’t have to pay tax on the deficiency.
  • Loans on other real estate. If you default on a mortgage that’s secured by property that isn’t your primary residence (for example, a loan on your vacation home), you’ll owe tax on any deficiency.
  • Loans secured by but not used to improve primary residence. If you take out a loan, secured by your primary residence, but use it to take a vacation or send your child to college, you will owe tax on any deficiency.  

If you don’t qualify for an exception under the Mortgage Forgiveness Debt Relief Act, you might still qualify for tax relief. If you can prove you were legally insolvent, you won’t be liable for paying tax on the deficiency. See "Exceptions on Reporting Income," below, for details on the insolvency exception.

IRS Reporting

Any financial institution that forgives or writes off $600 or more of a debt's principal (the amount not attributable to interest or fees) must send you and the IRS a Form 1099-C at the end of the tax year. These forms are for reporting income, which means that when you file your tax return for the tax year in which your debt was settled or written off, the IRS will make sure that you report the amount on the Form 1099-C as income.

Even if you don't get a Form 1099-C from a creditor, the creditor may very well have submitted one to the IRS. If you haven't listed the income on your tax return and the creditor has provided the information to the IRS, you could get a tax bill or, worse, an audit notice. This could end up costing you more (in IRS interest and penalties) in the long run.

Exceptions to Reporting Income

There are several reporting exceptions stated in the Internal Revenue Code. For example, if the financial institution issues a Form 1099-C, you do not have to report the income on your tax return if:

  • the cancellation or write off of the debt is intended as a gift (this would be unusual)
  • you discharge the debt in Chapter 11 bankruptcy, or
  • you were insolvent before the creditor agreed to settle or write off the debt.

Insolvency means that your debts exceed the value of your assets. To figure out whether or not you were insolvent, you will have to total up your assets and your debts, including the debt that was settled or written off.

Example 1: Your assets are worth $35,000 and your debts total $45,000, so you are insolvent to the tune of $10,000. You settle a debt with a creditor who agrees to forgive $8,500. You do not have to report any of that money as income on your tax return.

Example 2: Your assets are worth $35,000 and your debts still total $45,000, but the creditor writes off a $14,000 debt. You don't have to report $10,000 of the income, but you will have to report $4,000 on your tax return.

If you conclude that your debts exceed the value of your assets, include IRS Form 982 with your tax return. You can download the form off the IRS's website at www.irs.gov.

If you are suffering from debt troubles, get help from Solve Your Money Troubles: Get Debt Collectors Off Your Back & Regain Financial Freedom by Robin Leonard (Nolo).


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What Is Bankruptcy?


Chapter 7 and Chapter 13 bankruptcy basics.

Bankruptcy is a federal court process designed to help consumers and businesses eliminate their debts or repay them under the protection of the bankruptcy court. Bankruptcies can generally be described as "liquidations" or "reorganizations."

Chapter 7 bankruptcy is the liquidation variety: If you own property that isn't exempt under your state's laws, it may be taken and sold ("liquidated") to pay back some of your debt. Chapter 13 bankruptcy is the most common type of "reorganization" bankruptcy for consumers: You get to keep all of your property, but you must make monthly payments over three to five years to repay all or some of your debt.

Both kinds of bankruptcy have numerous rules -- and exceptions to those rules -- about what kinds of debts are covered, who can file, and what property you can and cannot keep.

Chapter 7 Bankruptcy

Chapter 7 bankruptcy can be filed by individuals (called a "consumer" Chapter 7 bankruptcy) or businesses (called a "business" Chapter 7 bankruptcy). A Chapter 7 bankruptcy typically lasts three to six months.

Property liquidation. In Chapter 7 bankruptcy, some of your property may be sold to pay down your debt. In return, most or all of your unsecured debts (that is, debts for which collateral has not been pledged) will be erased. You get to keep any property that is classified as exempt under the state or federal laws available to you (such as your clothes, car, and household furnishings). Many debtors who file for Chapter 7 bankruptcy are pleased to learn that all of their property is exempt.

Secured debt. If you owe money on a secured debt (for example, a car loan for which the car is pledged as a guarantee of payment), you have a choice of allowing the creditor to repossess the property; continuing your payments on the property under the contract (if the lender agrees); or paying the creditor a lump sum amount equal to the current replacement value of the property. Some types of secured debts can be eliminated in Chapter 7 bankruptcy.

Eligibility for Chapter 7. Not everyone can file for Chapter 7 bankruptcy. For example, if your disposable income is sufficient to fund a Chapter 13 repayment plan -- after subtracting certain allowed expenses and monthly payments for certain debts -- you won't be allowed to use Chapter 7 bankruptcy. For more on this and other requirements, see Chapter 7 Bankruptcy -- Who Can File?

Bankruptcy doesn't work on some kinds of debts. Though bankruptcy can eliminate many kinds of debts, such as credit card debt, medical bills, and unsecured loans, there are many types of debts, including child support and spousal support obligations and most tax debts, that cannot be wiped out in bankruptcy. For more information, see What Bankruptcy Can and Cannot Do.

For more information on Chapter 7 bankruptcy, see How to File for Chapter 7 Bankruptcy, by attorney Stephen Elias, attorney Albin Renauer, and Robin Leonard, J.D. (Nolo).

Chapter 13 Bankruptcy

Chapter 13 bankruptcy is also known as "wage earner" bankruptcy because, in order to file for Chapter 13, you must have a reliable source of income that you can use to repay some portion of your debt.

Repayment. When you file for Chapter 13 bankruptcy, you must propose a repayment plan that details how you are going to pay back your debts over the next three to five years. The minimum amount you'll have to repay depends on how much you earn, how much you owe, and how much your unsecured creditors would have received if you'd filed for Chapter 7 bankruptcy.

Debt limits. Your debts must be within limits set by the federal government: Currently, you may not have more than $1,010, 650 in secured debt and $336,900 in unsecured debt.

Secured debts. If you have secured debts, Chapter 13 gives you an option to make up missed payments to avoid repossession or foreclosure. You can include these past due amounts in your repayment plan and make them up over time.

For more information on Chapter 13 bankruptcy, see Chapter 13 Bankruptcy: Repay Your Debts, by attorney Stephen Elias and Robin Leonard, J.D.

Other Types of Reorganization Bankruptcy

In addition to Chapter 13 bankruptcy, there are two other types of reorganization bankruptcy: Chapter 11 and Chapter 12.

Chapter 11 bankruptcy. Chapter 11 is typically used by financially struggling businesses to reorganize their affairs. It is also available to individuals, but because Chapter 11 bankruptcy is expensive and time-consuming, it is generally used only by those whose debts exceed the Chapter 13 bankruptcy limits (rare) or who own substantial nonexempt assets (such as several pieces of real estate). If you are considering Chapter 11 bankruptcy, you'll need to talk to a lawyer.

Chapter 12 bankruptcy. Chapter 12 is almost identical to Chapter 13 bankruptcy. But to be eligible for Chapter 12 bankruptcy, at least 80% of your debts must arise from the operation of a family farm. Chapter 12 bankruptcy has higher debt ceilings to accommodate the large debts that may come with operating a farm, and it offers the debtor more power to eliminate certain types of liens. Very few people use Chapter 12 bankruptcy; if you want to join their ranks, you should consult with a lawyer.

For More Information

For more information on whether bankruptcy is the right choice, see The New Bankruptcy: Will It Work for You?, by attorney Stephen Elias (Nolo).


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Alternatives to Bankruptcy


Learn when an alternative may be better than Chapter 7 or Chapter 13 bankruptcy.

In many situations, filing for bankruptcy is the best remedy for debt problems. In others, however, another course of action makes more sense. This article outlines your main alternatives.

Stop Harassment from Creditors

If your main concern is that creditors are harassing you, bankruptcy is not necessarily the best way to stop the abuse. You can get creditors off your back by taking advantage of federal and state debt collection laws that protect you from abusive and harassing debt collector conduct. For more information, see What to Do If a Bill Collector Crosses the Line.

Negotiate With Your Creditors

If you have some income, or you have assets you're willing to sell, you may be a lot better off negotiating with your creditors than filing for bankruptcy. Negotiation may buy you some time to get back on your feet, or your creditors may agree to settle your debts for less than you owe.

Design a Repayment Plan With Outside Help

Many people aren't comfortable negotiating with their creditors or with collection agencies. Perhaps you aren't confident with your negotiation skills, or the creditors and collectors are so hard-nosed that the process is too unpleasant to stomach.

If you don't want to negotiate on your own, you can seek help from a nonprofit credit or debt counseling agency. These agencies can work with you to help you repay your debts and improve your financial picture. (To find out about agencies in your area, go to the website of the United States Trustee, at www.usdoj.gov/ust, and click "Credit Counseling and Debtor Education"; this will lead you to a state-by-state list of agencies that the Trustee has approved to provide the credit counseling that debtors are now required to complete before filing for bankruptcy.)

Debt Counseling vs. Chapter 13 Repayment Plans

Participating in a credit or debt counseling agency's debt management program is a little bit like filing for Chapter 13 bankruptcy. The agency will help you come up with a plan to pay back your creditors over time, somewhat like a Chapter 13 plan. But working with a credit or debt counseling agency has one advantage: No bankruptcy will appear on your credit record.

However, a debt management program also has some disadvantages when compared to Chapter 13 bankruptcy. First, if you miss a payment, Chapter 13 protects you from creditors who would start collection actions. A debt management program has no such protection: Any one creditor can pull the plug on your plan. Also, a debt management program usually requires you to repay your debts in full. In Chapter 13 bankruptcy, you often pay only a small fraction of your unsecured debts.

Consumer advocates have also raised concerns about credit counseling agencies, because these agencies receive most of their funding from creditors. As a result, critics say, these agencies could face a conflict between the interests of their funders and the interests of their clients.

Do Nothing

Surprisingly, the best approach for some people deeply in debt is to take no action at all. If you're living simply, with little income and property, and look forward to a similar life in the future, you may be what's known as "judgment proof." This means that anyone who sues you and obtains a court judgment won't be able to collect from you simply because you don't have anything they can legally take. (As a famous song of the 1970s said, "freedom's just another word for nothing left to lose.")

Except in unusual situations (for example, if you refuse to pay taxes as a protest against government policies or you willfully fail to pay child support), you can't be thrown in jail for not paying your debts. Nor can a creditor take away such essentials as basic clothing, ordinary household furnishings, personal effects, food, or Social Security, unemployment, or public assistance benefits.

So, if you don't anticipate having a steady income or property a creditor could grab, bankruptcy is probably not necessary. Your creditors probably won't sue you, because it's unlikely they could collect the judgment. Instead, they'll simply write off your debt and treat it as a deductible business loss for income tax purposes. In several years, the debt will become legally uncollectible. And in seven years, the debt will come off your credit record.

Next Steps

For a thorough discussion of non-bankruptcy options, check out Solve Your Money Troubles, by Robin Leonard, J.D. and John Lamb (Nolo).


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Eliminating Tax Debts in Bankruptcy


Most taxes can't be eliminated in bankruptcy, but some can.

You may hear radio commercials offering the hope of eliminating tax debts in bankruptcy. But it's not as simple as it sounds. Most tax debts can't be wiped out in bankruptcy -- you'll continue to owe them at the end of a Chapter 7 bankruptcy case, or you'll have to repay them in full in a Chapter 13 bankruptcy repayment plan.

If you need to discharge tax debts, Chapter 7 bankruptcy will probably be the better option -- but only if your debts qualify for discharge (see below) and you are eligible for Chapter 7 bankruptcy .

When You Can Discharge a Tax Debt

You can discharge (wipe out) debts for federal income taxes in Chapter 7 bankruptcy only if all of the following conditions are true:

  • The taxes are income taxes. Taxes other than income, such as payroll taxes or fraud penalties, can never be eliminated in bankruptcy.
  • You did not commit fraud or willful evasion. If you filed a fraudulent tax return or otherwise willfully attempted to evade paying taxes, such as using a false Social Security number on your tax return, bankruptcy can't help.
  • The debt is at least three years old. To eliminate a tax debt, the tax return must have been originally due at least three years before you filed for bankruptcy.
  • You filed a tax return. You must have filed a tax return for the debt you wish to discharge at least two years before filing for bankruptcy.
  • You pass the "240-day rule." The income tax debt must have been assessed by the IRS at least 240 days before you file your bankruptcy petition, or must not have been assessed yet. (This time limit may be extended if the IRS suspended collection activity because of an offer in compromise or a previous bankruptcy filing.)

You Can't Discharge a Federal Tax Lien

If your taxes qualify for discharge in a Chapter 7 bankruptcy case, your victory may be bittersweet. This is because bankruptcy will not wipe out prior recorded tax liens. A Chapter 7 bankruptcy will wipe out your personal obligation to pay the debt, and prevent the IRS from going after your bank account or wages, but if the IRS recorded a tax lien on your property before you file for bankruptcy, the lien will remain on the property. In effect, this means you'll have to pay off the tax lien in order to sell the property.

For More Information

To find out more about which debts you can eliminate in bankruptcy, see The New Bankruptcy: Will It Work for You?, by attorney Stephen Elias (Nolo).


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Filing Bankruptcy? Disclose Everything, Hide Nothing


Hiding property from a bankruptcy court could come back to haunt you.

Your bankruptcy papers are signed under penalty of perjury, so you are swearing that everything in them is true. One of the things you're swearing to is that your forms are complete, because the forms ask you to list "all" property, income, and debts. Filing incomplete or inaccurate bankruptcy forms can lead to your case being dismissed -- or worse, if the court thinks you omitted information or made false statements intentionally.

The law is not supposed to punish those who make one or two honest mistakes. If you accidentally leave something off your papers or misstate something on your forms, you can usually correct your papers or explain the mistake to the trustee. But if you leave out so much that it appears that you were careless, the court can find that your actions demonstrate an indifference to the truth and can dismiss your case on that basis.

If you deliberately attempt to hide assets or use a false Social Security number, it will probably come back to haunt you more profoundly than your current debt crisis.

List Every Creditor

Bankruptcy can't help you if you hide information. If you fail to list creditors, the debts you owe them may not be wiped out by your bankruptcy discharge. So, be sure to list every person who claims that you owe them money -- even if you don’t think you owe them a cent. In this situation, you can indicate that the debt is "disputed." If the debt is already the subject of a pending lawsuit, the debt can be listed as "contingent" -- that is, it depends on how the lawsuit comes out.

When your bankruptcy is finished, you will no longer owe any debts that have been discharged. If a disputed debt is discharged, the entire dispute will be irrelevant. The creditor will be legally barred from collecting anything more from you regardless of who is right.

Don't Omit Creditors Just Because You Like Them

Some filers consider omitting creditors whom they like -- such as a relative or a friendly local business person -- to avoid having that debt wiped out. This is a bad idea, no matter how honorable your intentions. Bankruptcy doesn't allow you to play favorites. In fact, a central purpose of bankruptcy is to make sure that all of your creditors get their fair share of what you have, and that certain obligations (like child support) are not shortchanged. If the bankruptcy trustee learns that you've omitted creditors from your list, you'll have to add them, and it will raise suspicion about other statements on your forms.

Include Money You May Have Coming to You

When you list your property on the bankruptcy forms, you must include not only property you have when you file, but also property that you may have coming to you. Here are some examples:

  • an inheritance from a recently deceased relative that you have not yet received
  • stock options, trust funds, or tax refunds
  • pensions, retirement funds, annuities, and life insurance, and
  • judgments from lawsuits you've filed or could file, arising from a personal injury or other matter.

All of these are examples of property that you must list on your forms. You may get to keep some or all of this property by claiming it as exempt, but you must list it so that the trustee has a complete picture of all of your finances.

Don't Deliberately Hide Assets or Other Financial Details

If you deliberately fail to disclose property, omit material information about your financial affairs, or use a false Social Security number to hide your identity as a prior filer, and the court discovers your action, your case will be dismissed and you may be prosecuted for fraud. The punishment for fraud is serious: Jail time is not unusual for those who try to hide property from the court and get caught.


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Reasons to Use Chapter 13 Bankruptcy Instead of Chapter 7 Bankruptcy


Sometimes it makes sense to file for Chapter 13 bankruptcy instead of Chapter 7 bankruptcy.

Many debtors choose not to file for Chapter 13 bankruptcy because it requires repayment of at least a portion of their debts (unlike Chapter 7 bankruptcy, which wipes out many debts entirely ).

In some situations, however, Chapter 13 bankruptcy is the better bankruptcy option. Not only that, but certain debtors don't get to choose: Not everyone is eligible for Chapter 7 bankruptcy, so Chapter 13 will by the only option available to some filers.

Here are some good reasons to file for Chapter 13:

You cannot file for Chapter 7. You won't be allowed to file for Chapter 7 if you cannot meet some new requirements imposed by the 2005 revisions to the bankruptcy law. Under these new rules, you cannot file for Chapter 7 if both of the following are true:

  • Your current monthly income over the six months prior to your filing date is more than the median income for a household of your size in your state (go to the website of the United States Trustee, www.usdoj.gov/ust, and click "Means Testing Information" to see the median figures for your state).
  • Your disposable income, after subtracting certain expenses and monthly payments for debts you would have to repay in Chapter 13, exceeds certain limits set by law. These calculations are commonly referred to as the "means test" -- if you have the means to repay a certain amount of your debt through a Chapter 13 repayment plan, you flunk the test and are ineligible for Chapter 7 bankruptcy. (For more information, including a link to an online calculator you can use to see whether you pass the means test, see The Bankruptcy Means Test: Is Your Income Low Enough for Chapter 7 Bankruptcy?)

The means test can get fairly complex -- and, to make matter worse, Congress has its own definitions of "disposable income," "current monthly income," "expenses," and other important terms, which sometimes operate to make your income seem higher than it actually is. You can find step-by-step instructions to determine if you qualify for Chapter 7 under these new rules in How to File for Chapter 7 Bankruptcy, by attorney Stephen Elias, attorney Albin Renauer, and Robin Leonard, J.D. (Nolo).

In addition, if you have received a Chapter 7 bankruptcy discharge within the last eight years, or a Chapter 13 discharge within the last six years, you may not file for Chapter 7 bankruptcy.

You are behind on your mortgage or car loan, and want to make up the missed payments over time and reinstate the original agreement. You cannot do this in Chapter 7 bankruptcy. You can make up missed payments only in Chapter 13 bankruptcy.

You have a tax obligation, student loan, or other debt that cannot be discharged in Chapter 7. You can include these debts in your Chapter 13 plan and pay them off over time.

You have a sincere desire to repay your debts, but you need the protection of the bankruptcy court to do so. This might be the case if creditors are coming after you, or if you simply require the formal structure and deadlines the Chapter 13 process provides in order to follow through on your good intentions.

You have nonexempt property that you want to keep. When you file for Chapter 7 bankruptcy, you get to keep only exempt property -- property that is protected from creditors under state or federal law. You have to give your nonexempt property to the bankruptcy trustee, who can sell it and distribute the proceeds to your creditors.

In Chapter 13, you don't have to give up any property. Instead, you repay your debts out of your income. So, if you have nonexempt property that you can't bear to part with, Chapter 13 might be the better choice.

You have a codebtor on a personal debt. If you file for Chapter 7 bankruptcy, your codebtor will still be on the hook -- and your creditor will undoubtedly go after the codebtor for payment. If you file for Chapter 13 bankruptcy, the creditor will leave your codebtor alone, as long as you keep up with your bankruptcy plan payments.

For more help deciding which bankruptcy is right for you, see The New Bankruptcy: Will It Work for You?, by attorney Stephen Elias (Nolo). Or, for help filing Chapter 13, see Chapter 13 Bankruptcy: Repay Your Debts, by attorney Stephen Elias and Robin Leonard, J.D. (Nolo).


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Rebuilding Credit FAQ



Improve a poor credit rating so your next credit check is better.

What's Below:

Where do credit reports and credit data come from?

How can I get a copy of my credit report?

How long can negative information stay in my credit report?

What should I do if I find mistakes in my credit report?

What can I do to rebuild my credit?

I've been told that I need to use credit to rebuild my credit. Is this true?

How many credit cards should I carry?

Where do credit reports and credit data come from?

Credit reports are compiled by credit bureaus -- private, for-profit companies that gather information about your credit history and sell it to any number of businesses that are allowed to see your credit report: banks, mortgage lenders, credit unions, credit card companies, department stores, insurance companies, landlords, and employers.

The three major credit bureaus are Equifax, Experian, and TransUnion.

Credit bureaus get most of their data from creditors. They also search court records for lawsuits, judgments, and bankruptcy filings. And they search county records to find recorded liens (legal claims).

Credit reports include noncredit data too, such as current and former names, past and present addresses, Social Security number, employment history, and even marriages and divorces. Your report will include the names of your creditors, type and number of each account, when each account was opened, your payment history, your credit limit or the original amount of a loan, and your current balance. If an account has been turned over to a collection agency or is in dispute, that will appear in the report as well.

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How can I get a copy of my credit report?

You can get a free copy of your report once a year, from each of the three major credit bureaus. To order your free report, go to www.annualcreditreport.com or call 877-322-8228.

You are entitled to an additional free copy of your credit report each year -- even if you've already received your annual free report as described above -- if:

  • you've been denied credit because of information in your credit report
  • you're unemployed and looking for work
  • you receive public assistance
  • you believe your file contains errors due to fraud or identity theft, or
  • you've been denied employment (or another adverse employment decision has been made) based in whole or in part on information contained in the report.

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How long can negative information stay in my credit report?

Most negative information can appear in your credit report for seven years. This includes lawsuits, judgments against you, paid tax liens, accounts sent to collection, criminal records (except criminal convictions, which may be reported indefinitely), late payments, and overdue child support.

Some adverse information regarding certain types of student loans may be reported for more than seven years. Bankruptcies can stay in your credit report for up to ten years after the last activity (usually the date you received your discharge or the date the case was dismissed).

Credit inquiries (requests by companies for a copy of your credit report) can be reported for only two years.

For more information, see How to Clean Up Your Credit Report.

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What should I do if I find mistakes in my credit report?

Make a list of everything that's incorrect or out of date in your credit report. Examples of incorrect information include:

  • incorrect or incomplete name, address, phone number, birthdate, Social Security number, or employment information
  • bankruptcies not identified by their specific chapter number
  • accounts that are not yours or lawsuits in which you were not involved
  • incorrect account histories, such as a history of late payments when you paid on time
  • any closed accounts that are listed as open -- it may look as if you have too much open credit, and
  • any account you closed that doesn't say "closed by consumer."

Then, complete the disputed items form provided by the credit bureau. List each incorrect or out-of-date item and explain exactly what is wrong. Once the credit bureau receives your request, it must investigate the items you dispute and contact you within 30 days.

If you are right that the information is inaccurate or incomplete, or if the creditor who provided the information can no longer verify it, the credit bureau must remove the information from your report or modify it based on the results of the investigation.

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What can I do to rebuild my credit?

Start by cleaning up your credit report. Then, build credit by adding positive information to your record. Here are two suggestions:

  • If your credit report is missing accounts you pay on time, send the credit bureaus a recent account statement and copies of canceled checks showing your payment history. Ask that these be added to your report. The credit bureau doesn't have to add this information, but often will.
  • Creditors like to see evidence of stability, so if any of the following information is not in your report, send it to the bureaus and ask that it be added: your current employment, your previous employment (especially if you've been at your current job fewer than two years), your current residence, your telephone number (especially if it's unlisted), your date of birth, and your checking account number. Again, the credit bureau doesn't have to add these, but often will.

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I've been told that I need to use credit to rebuild my credit. Is this true?

Yes. Creditors like to see evidence in your credit report that you have a history of paying off credit on time. If you have a credit card, use it every month. Make small purchases and pay them off to avoid interest charges. If you don't have a credit card, apply for one. If your application is rejected, try to find a cosigner or apply for a secured card -- one issued after you deposit some money into a savings account, against which you can charge purchases.

But a word of caution: Before you apply for credit, get back on your feet financially. Otherwise, you're likely to end up with high-cost credit that will put you back in the hole again.

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How many credit cards should I carry?

Once you succeed in getting a credit card, you might be hungry to apply for many more cards. Not so fast. Having too much credit may have contributed to your debt problems in the first place.

Ideally, you should carry one or two bank credit cards, maybe one department store card, and one gasoline card. Creditors want to see that you can handle more than one credit account at a time. But use all of the cards only if you can pay the charges in full each month -- don't build up interest charges.

Creditors may frown on applicants who have too much open credit. So keeping many cards may mean that you'll be turned down for other credit -- perhaps credit you really need. And if your credit applications are turned down, your file will contain inquiries from the companies that rejected you. Your credit file will look like you were desperately trying to get credit, something creditors never like to see.

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