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Learn About A Bankruptcy Hardship Discharge Below ...

How to Request a Hardship Discharge From Bankruptcy Court


How To Apply For Relief Due To Difficulties In A Bankruptcy Court

The poet Robert Burns warned hundreds of years ago that the best plans can go awry, and a Chapter 13 bankruptcy is just that: a plan. You enter a court-approved repayment schedule to settle your debts over a 3 to 5 year period. If, at the end of this time, part of your unsecured debt remains unpaid, the balances are cleared and you no longer owe that balance. However, things can go wrong during this time. If circumstances change, you may be eligible for relief before your payment plan is complete.


Requirements For A Hardship Discharge

You must complete a three-point test to qualify for discharge from the case. First, there must be something unforeseen that prevents you from making scheduled payments under your Chapter 13 plan. The change cannot be anything that you are in control of. If you lose your job, you may be eligible. If you give up your job, you probably will not be.

The second test compares your creditors' previous payments through your payment plan with those they would have received if you had filed Chapter 7 instead. Chapter 7 is the bankruptcy form in which the trustee sells your unpaid property to raise money to pay off your debts. The bankruptcy law allows exemptions for certain assets so you do not lose everything: for instance, the trustee cannot liquidate exempted real estate. In Chapter 13, you cannot qualify for financial relief if you have a large amount of non-exempt assets that would have raised sufficient money for your creditors in a Chapter 7 bankruptcy compared to what you would have paid through your chapter 13 plan.

The third test involves proving that you cannot recalculate your Chapter 13 payments in a manner which reduces the number of payments in order to make it easier to handle your plan. You need to prove that you will probably not be able to make any smaller payments due to your changing circumstances.

How to Request a Hardship Discharge From Bankruptcy Court

Your Request Must Be Presented

Your next step is to submit an application to the bankruptcy court as part of your procedure in Chapter 13 and to ask the judge to grant you distress Discharge. Your creditors will then receive a notification of your request. Some of which may appeal. For example, a creditor can appeal if they feel you have committed a fraudulent act in order to be discharged. This may be the case if you have accumulated a balance on your credit card, knowing that you would file for bankruptcy and it can be proven you never intended to pay the bill.


Your Request Must Be Presented

Your next step is to submit an application to the bankruptcy court as part of your procedure in Chapter 13 and to ask the judge to grant you distress Discharge. Your creditors will then receive a notification of your request. Some of which may appeal. For example, a creditor can appeal if they feel you have committed a fraudulent act in order to be discharged. This may be the case if you have accumulated a balance on your credit card, knowing that you would file for bankruptcy and it can be proven you never intended to pay the bill.


Burden Of Proof Is Yours

Most likely, the judge will require you to appear before the bankruptcy court to present your case requesting a hardship discharge. You have the burden of proof to establish that the reason you cannot afford your payments under the current Chapter 13 plan is not temporary. You may have lost your job, but if the court finds you can find another job within a reasonable time, you may not be dismissed or discharged. If you cannot work because you were injured or sick, you need to prove that the condition is permanent, or at least that you are expected not to be working for a long time. You may need to provide medical records to establish your case.


Effect On Your Debt

Discharge due to an emergency is not as extensive as the bankruptcy discharge you would receive if you had been able to complete your plan in accordance with Chapter 13. Such a discharge only deletes unsecured debts, such as credit cards. If your mortgage or car payment is in arrears with the current chapter 13 plan, these debts will not be canceled. Also, student loans, back taxes and court ordered support, such as child support payments or alimony, are also not dischargeable.




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Disclaimer: This Content Does Not Constitute Legal Advice

This article is for informational purposes only and should not be construed as legal advice. Consult with a licensed bankruptcy attorney if you are considering bankruptcy, or other competent counsel before pursuing the subject matter of this article. Collection laws vary from state to state.

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