A Guide to Bankruptcy in Texas

 

Filing bankruptcy in Texas can be confusing and overwhelming. Even with legal counsel, it can be comforting to know the steps needed to complete the bankruptcy process. This guide is a simple run-through of what to expect when you file for bankruptcy.

Collect Paperwork

When you file for bankruptcy in Texas, you need to collect pertinent documents such as:

  • List of current income sources
  • Major recent financial transactions
  • Monthly budget
  • Secured debts
  • Unsecured debts
  • Asset List
  • Tax returns for the last 2 years
  • Deeds
  • Title documents

When you go to file, you will need to write a bankruptcy petition and fill out several court forms. It is best to get the help of an experienced bankruptcy attorney, as these can be complicated. Fill the forms out truthfully and to the best of your ability.

The Automatic Stay Goes In Effect

After filing, an automatic stay goes into effect immediately (with some exceptions). The stay prevents creditors from contacting you and trying to collect. This will also stop any foreclosure proceedings or repossession activities.

Your Bankruptcy Trustee is Assigned

When you file for bankruptcy in Texas, a bankruptcy trustee will be appointed to your case. Their job is to look at all your assets and review your budget to figure out how much (if anything) your creditors can get paid.

341 Meeting of Creditors

After about a month, the court will call a Section 341 meeting. This is a 5-10 minute proceeding where the debtor will meet with the trustee’s office to review their bankruptcy plan. In most consumer bankruptcy cases, creditors do not attend. If a plan cannot be established, a judge will intervene and a plan will be created.

That is the very basic rundown of the bankruptcy process. Now, we’ll get into specifics about Texas.

Texas Goes Against the Grain with Chapter 7 and Chapter 13 Filings

In the U.S. overall, roughly more than twice as many Chapter 7 cases are filed than Chapter 13 cases. In 2012, for example, 69 percent of the 1.2 million bankruptcies, about 816,000 of them, were Chapter 7 cases.

That is not the case in Texas where fewer Chapter 7 cases are filed than Chapter 13 cases. In 2012, only about 43 percent of bankruptcies registered within Texas were Chapter 7 cases, about 21,000 out of about 48,400 total bankruptcies.

With that in mind, we’ll outline specifics on the simplest case scenario for both Chapter 7 and Chapter 13.

What does the Simplest Chapter 7 Case Look Like?

A very straightforward Chapter 7 case:

  • Protects you and your possessions and property right away from all of your creditors;
  • Enables you to hold onto everything you own;
  • Lets you keep or surrender any collateral based on your choice; and
  • Discharges (legally writes off) all your unsecured debts.

It’s worth noting that if your income is below the state of Texas’ median income for households of a similar size, you are eligible to file for Chapter 7 bankruptcy. If your income exceeds the median income level, you must pass a means test to file under the terms of Chapter 7 which takes into account your income and expenses.

Now, let’s take a closer look at the process.

1) You Are Protected Right Away

The moment your Chapter 7 case is filed, virtually all collection efforts by creditors against you are legally stopped. This includes any and all ways to collect a debt—garnishments, lawsuits, judgments, phone calls, mailed or emailed bills and collection letters, home and other real estate foreclosures, repossessions of vehicles and furniture, and income tax liens.

In addition, if a creditor does continue trying to collect illegally, the bankruptcy court can punish them. As a result, almost all creditors immediately stop collection efforts once they become aware of a Chapter 7 filing.

There are some exceptions to this protection, and some very specific types of obligations and legal proceedings that are not affected by a Chapter 7 filing. These include criminal fines and criminal proceedings, as well as child support arrearages and some matters related to domestic relations.

In addition, very rarely, if you filed and had dismissed one or more bankruptcy cases in the prior year, the protection against creditors either may not come into effect at all or potentially may expire after 30 days.

In the simplest Chapter 7 cases, the protection kicks in when your case is filed. It applies to all your creditors, and they all immediately honor it by stopping all their actions against you.

2) Keep Everything You Own

In most Chapter 7 cases, everything you own is “exempt”—protected from your creditors, and thus also protected from the Chapter 7 trustee who acts on their behalf.

Both federal bankruptcy law and each state’s laws provide lists of types of properties and dollar amounts that are exempt. Texas lets you choose between using either its exemptions or the federal exemptions. In general, the Texas exemptions are much more generous than the federal ones, but there may be certain circumstances when the federal ones are better.

So, in the simplest Chapter 7 case, everything you own outright is exempt, and you keep it all.

3) Follow Your Choice about Any Collateral

Under Chapter 7, you generally have the choice to either surrender collateral—your home, car, truck, or whatever you purchased—or to keep that collateral by catching up and keeping up on your payments on the debt.

The immediate advantage of surrendering collateral under Chapter 7 is that you can stop making payments on that debt, and also stop paying related expenses, like insurance on a vehicle loan (once you’ve surrendered it). But you also will not have to pay any of the remaining “deficiency balance,” the amount you would often still owe after your creditor sells the surrendered collateral and credits the proceeds to your account.

When filing Chapter 7, you can usually keep the collateral, especially if you are current, or can get current within a few weeks. In some situations, you might want to enter into a “reaffirmation agreement” whereby you “reaffirm” your debt, excluding it from the discharge of your other debts.

In the simplest Chapter 7 case, you can surrender the collateral and owe nothing, or you can keep it if you are current (or close to current) on your secured debt and are willing to reaffirm (keep paying) that debt.

4) Discharge All Debts that You Want To

In most Chapter 7 cases, all debts are discharged— legally written off—with certain exceptions.

There are two kinds of exceptions, one that involves your right to a discharge of ANY of your debts, and another that involves your ability to discharge certain specific debts.

In the unusual event that a debtor hides assets or lies to the bankruptcy court or trustee in some other significant way, that debtor could potentially lose the ability to get a discharge altogether. Also, filing a new bankruptcy case too soon after an earlier one could result in no discharge of debts in the new case.

Certain specific kinds of debts are never discharged— spousal and child support, for example. Some kinds of debts which are only discharged under very specific or limited circumstances—such as income taxes and student loans. Finally, there are debts which are discharged unless a creditor raises and proves the existence of specific conditions—for example, a loan that was procured through the debtor’s misrepresentations.

In the simplest Chapter 7 case, you qualify for a discharge, and all your debts are in fact discharged.

What does the Simplest Chapter 13 Case Look Like?

Under Chapter 13, you and your attorney propose a payment plan based on your ability to pay. Through this plan you usually pay back any amounts you are behind on your home or cars (if you want to keep them) and only part (if any) of your unsecured debts.

Your plan states how much you pay each month — almost always much less than you were paying before. You pay that amount for a period usually covering three to five years, and at the end of that time you no longer owe any debts, except long-term ones like your home mortgage, if you so choose, and student loans and some taxes. The rest of the unpaid debts are discharged, or legally written off, and you are debt-free.

Your proposed plan is built around a detailed set of laws about how you must treat each kind of debt. If you have certain kinds of special debts called “priority” debts — such as newer income taxes or any child support arrearage — those would have to be paid in full over the life of your plan.

Secured debts, like your mortgage, vehicle and furniture loans, are treated in a special way, whether these are paid in full or in part depending on many factors. Debts that are neither priority nor secured are called “general unsecured” debts. These are usually paid only to the extent that there is money left over to pay them. Therefore, most people do not have to pay any of these amounts back. Especially with priority and secured debts, Chapter 13 usually gives you significant advantages over how these creditors are handled compared to Chapter 7.

Even a Simple Chapter 13 Is Very Powerful

Here are some potential benefits of even a straightforward Chapter 13 case, none of which are available under Chapter 7:

  1. You will have up to five years to cure your mortgage arrears (the amount you are behind in payments) while your home is protected from foreclosure.
  2. If your home is worth less than your first mortgage balance, you might be able to “strip off” a second mortgage from your home’s title and avoid making those second-mortgage monthly payments.
  3. If your vehicle loan is over than two and a half years aged & the vehicle value is less than the debt you owe, a “cram-down” on that loan reduces both your monthly payment and the complete amount you pay before you personal the vehicle free and clear.
  4. You will be able to pay any portion of back income taxes that can’t be discharged while being protected from tax collection (including wage garnishment) by the IRS.
  5. You will be able to catch up on your child and/or spousal support arrears while being protected from the extreme collection powers of support enforcement agencies.

Texas Bankruptcy Exemptions

Under Texas law, the following are eligible as exemptions when filing for Chapter 7 or Chapter 13 bankruptcy:

Furniture, food, pets, a Bible along with other sacred books or writings, firearms, certain kinds of clothing, jewelry, sports equipment, motor vehicles, life insurance, tools of the trade (tools and equipment necessary to do your job), farm animals, unpaid commissions for personal services, current wages, health aids prescribed by a doctor, insurance benefits, IRAs, 401(k)s, and other benefits such as retirement, Social Security, and veteran’s benefits.

The Texas Personal Property Exemptions

Texas is also very flexible in how its personal property exemptions work. Most states give a list of categories of property—vehicles, furniture, tools of the trade, and such—and then specify a maximum dollar amount in value allowed as exempt in each category.

Instead, Texas groups together most (but not all) personal property and then gives a relatively generous exemption amount for assets within this broad group. This comes to $30,000 for a single person and $60,000 for a family with two spouses. This personal property includes furniture, clothing, jewelry, tools of the trade, one vehicle per person, two firearms per person, and farm animals and household pets.

Note that in the case of vehicles and other collateral with debt against them, these amounts protect your equity, AFTER subtracting off the amounts that you owe. Not being stuck with one maximum exemption amount for each little category of assets makes it easier to exempt all of what you own.

Beyond the $30,000/$60,000 exemption for personal property, Texas also provides additional exemptions for all wages (except in the case of child support), prescribed health aids, received alimony and spousal or child support, health savings accounts, many types of insurance benefits, and most retirement accounts.

The Texas Homestead Exemption

Texas is among a handful of states which provide an unlimited homestead exemption for your home, meaning that it does not matter how much it is worth or how much equity you have in it. Most states have a maximum amount you can protect, and after that, it could be sold to pay your creditors. 

However, for as generous as the Texas Homestead Exemption may be, there are some acreage maximums—10 acres in a city, town or village, 100 acres in the country (200 acres for a family). Federal bankruptcy law applies a maximum (currently $146,450) to the amount of equity you can protect if you bought your Texas home less than 1215 days (about 3 and 1/3rd years) before filing your bankruptcy case.

Chapter 12 Bankruptcy for Texas Farmers and Ranchers

Chapter 12 of the U.S. Bankruptcy Code is a specialized type of bankruptcy designed for family farmers, ranchers, dairy owners, poultry and livestock producers, as well as family fishermen. It helps you save your farm and business by allowing you to reorganize your finances, reducing and restructuring your debt.

If you qualify, Chapter 12 provides some very important benefits, often better than those available in either Chapter 13 or Chapter 11, the other two possible options for reorganizing a business.

Qualifying for Chapter 12

You as an individual, you and your spouse, or the corporation or partnership in which you are an owner can file a Chapter 12 case only if the individual(s) or business entity filing the case meets the special definitions of a “family farmer or family fisherman with regular annual income” found in subsections 101(18) and (19) of the Bankruptcy Code. For farmers and ranchers, here are the qualifications:

  • Debt limit: total debt of no more than $3,792,650.
  • Farming debt ratio: at least 50% of the total debt of the individuals or business entity is from the “farming operation” (subsection 101(21)), excluding the debt on the principal residence (if that debt does not arise from the “farming operation”).
  • Farming income ratio for individuals: more than 50% of the gross income must have been received from the “farming operation.”
  • Separate requirements for farming corporations or partnerships:
    • Ownership: more than 50% of the business ownership must be in one family, or in that family and its relatives.
    • Asset ratio: more than 80% of the entity’s assets must be from its “farming operation.”

The Advantages of Chapter 12

Chapter 12 is designed for family farming, so it is less complicated and less expensive than Chapter 11 “corporate reorganizations,” while being more flexible than Chapter 13:

  • Unlike Chapter 13, in which a payment plan must be either submitted at the beginning of the case or within approximately two weeks, Chapter 12 gives the farm debtor 90 days or sometimes even longer to file a proposed plan. Also, instead of making payments to the trustee under the plan immediately, as in Chapter 13, the Chapter 12 debtor does not need to make payments to the trustee until 30 days after the Chapter 12 plan is approved by the court.
  • Cram-down—paying secured debts based on the reduced value of the collateral—applies to all secured debt, including residential mortgages (unlike Chapter 13), nonresidential mortgages, equipment loans, and vehicle loans. This often effectively reduces the total amount of debt to be paid while also stretching out the term of payments, significantly reducing the amount of the monthly and/or annual debt payments.
  • Debtors in Chapter 12 can sell a portion of the farm real estate and pay significantly fewer taxes on the profit from that sale.

Chapter 12 is arguably the most debtor-friendly option in the Bankruptcy Code.

Texas Bankruptcy Fees

These are your estimated costs for filing bankruptcy in Texas.

Bankruptcy Filing Fees

Bankruptcy filing fees are the same in every state of the country. If you’re filing for Chapter 7 bankruptcy, the fee is $306. If you’re filing under the terms of Chapter 13, the filing fee is $281. These fees are the same regardless of whether you’re filing alone or a joint petition. In the vast majority of cases, you’ll need to pay the fee at the time of your filing.

Attorney Fees in Bankruptcy

In most Chapter 7 bankruptcy cases, attorney fees are paid up front. Alternatively, in Chapter 13, most bankruptcy lawyers ask for just the court filing fees or partial payment up front with the remaining fees paid in monthly installments through your Chapter 13 repayment plan.

Credit Counseling Fees in Bankruptcy

Under the US Bankruptcy Code, if you file for bankruptcy you must undergo credit counseling from a nonprofit credit counseling agency. Agencies must be approved by the United States Trustee within 180 days of your filing for bankruptcy. While rates vary, in general, you can expect to pay around $15 to complete any required credit counseling.

Additionally, debtors must take a course in managing their personal finances, which costs around $15 for Chapter 7 cases but is free for Chapter 13 debtors when taken through the court. Both the credit counseling and personal financial management courses can be completed in person, online, or over the phone.

File Bankruptcy in Texas With Help From Leinart Law Firm

If you’re interested in filing for Chapter 7 or Chapter 13, the bankruptcy attorneys at Leinart Law Firm are here to guide you through each step of the process or help you seek an alternative debt relief solution if bankruptcy isn’t right for you.

Our firm has offices in Dallas and Fort Worth, and we’re ready to help you and your family get a fresh start after bankruptcy.

Get a free consultation and talk to an experienced bankruptcy lawyer today. Call today or email contact@leinartlaw.com.

 

Call the Dallas Office: (469) 232-3328

Call the Fort Worth Office: (817) 426-3328

Schedule a FREE, no-obligation consultation and evaluation today.

 

Summary
A Guide to Bankruptcy in Texas
Article Name
A Guide to Bankruptcy in Texas
Description
Information on how to handle bankruptcy in the state of Texas
Author
Publisher Name
Leinart Law
Publisher Logo