The Chapter 13 bankruptcy co-debtor stay also works in Chapter 12 and some 11 cases. You might have to file bankruptcy, but you may also want to protect your co-signers. Usually, when you file bankruptcy, an automatic stay for co-debtors goes into effect under 11 USC 1301 (C). The automatic stay keeps creditors from collecting from the debtor or their property. The major exception to the automatic stay is when people repeatedly file Chapter 13 cases.
If there was a motion to terminate the stay and you dismiss your own case 180 days after the prior Chapter 13 the stay ends after 30 days You have to request a new stay which is not automatic. If you had two prior Chapter 13 cases within the prior year there is typically no stay.
Chapter 13 Co-Debtor Stay When Bankruptcy Filing
This stay can also protect the co-signer in a Chapter 13 or Chapter 12 under 11 USC 1201 and individual Chapter 11 bankruptcy case. However, to be clear, the co-signer stay only protects a person, not a business who has cosigned. The most vital co-debtor stay protection is when you pay 100% of the debt. The co-signer is protected if the following is true:
- The debtor must receive the benefit of the debt – 1301(c) 1. The car you bought must only be titled in your name. There is no co-debtor stay if the co-debtor also drives it and benefits from it.
- The plan must repay 100% of the debt – 1301 (c) 2.
However, the co-signer is not protected if the following is true:
a. The creditor proves they will suffer irreparable harm by not collecting from the co-signer – 1301 (c) 3.
- The Chapter 13 plan is likely to be successful.
- There is little or no harm to the creditor. (plan pays this debt 100%)
- The co-debtor stay prevents indirect collections from the debtor.
- The co-debtor stay terminates when the plan converts, close or is dismissed.
- It also automatically terminates 20 days after filing a motion to terminate the stay if there is no objection.
- If the consumer debts are paid in full, the obligation terminates.
Chapter 13 Co-Debtor Stay Elements
1. Chapter 13 Co-Debtor Stays Need to Repay the Debt in Full
Other Chapter 13 considerations
Here are other local Chapter 13 issues you might need to know while preparing a bankruptcy petition.
- Chapter 13 plans can reduce an interest rate; often, 21% of loans are reduced to 1 or 2% over the prime rate.
- Does the plan have to repay the proof of claim as it is filed? Normally it does or the order of confirmation may need modfication.
- If the judge issues an order of confirmation that reduces the interest rate, does it still pay the consumer debt in full?
- If the creditor fails to object or appeal, is it bound by order of confirmation it didn’t object? Generally they are bound.
These are all interesting questions that often happen but you never get the same answer from the courts in all the Circuits. Normally unless the debt is repaid in full, the debt can be collected from the co-debtor after the bankruptcy case discharges. However the
2. Co-Debtor Stays are Only for Chapter 11, 12, and 13 Consumer Debts
Essentially the stay covers the property of the estate, the debtor, and the co-Debtor for consumer property and consumer debts. However, there is no Co-Debtor stay in Chapter 7 bankruptcy case for business debt or businesses. Still, creditors rarely pursue the business if the owner files bankruptcy and the Chapter 7 lasts for only 4 months normally anyway.
Therefore, the co-debtor stay only exists in Chapter 13 bankruptcy relief, where consumer debt is being repaid. The co-debtor stay only exists for debt incurred such as personal loans, family, medical bills, credit card debt, and a household purpose. This definition comes directly from statute 11 U.S.C. 1301.
For instance, the co-debtor stay protects your co-signer if you buy a recreational fishing boat. However, it doesn’t protect the co-signer if you buy a commercial fishing boat. I.R.S. debts must be repaid in full as required by 11 U.S.C. 1325. Tax debts are not consumer debts, so the co-debtor stay never actually applies, but the I.R.S. usually stops all collections if these are joint tax debts. Remember, only people receive protection. Corporations cannot file a Chapter 13 or get the co-debtors protection.
3. Chapter 13 Co-debtor Stays are Only for the Debtor’s Property that is Necessary for Reorganization
Although you may want to protect a co-signer, if the property belongs to the co-signer, there is no co-debtor stay. The debt isn’t for your property but their property. The property must benefit or be necessary for the debtor to qualify for automatic stay protection. The co-debtor may otherwise get the automatic stay, but if the property does not belong to the person who files for bankruptcy, the creditor can ask for stay termination. If the comaker wants to keep the property, they must pay for it or file a Chapter 13 and repay it.
To get Chapter 13 bankruptcy relief must be necessary for the debtor to keep the property. The Harley Davidson motorcycle or the fishing boat might be kept if you have a 100% plan. However, don’t expect to keep such items if your plan repays less than 70%. 70% plans are presumed to be filed in good faith. Our judges usually does not review plans which repay 70% or more. Some or our judges will presume it to be filed in good faith if 50% or more is repaid. However, 70% repayment or more may allow you to keep recreational property.
It may be more important to repay a cosigned debt than other debts. It is possible to repay different classes of debt with different percentages. So a credit card may get a smaller percentage than a co-signed auto. People may want to use Chapter 7 more often unless co-debtors can obtain the stay. Granting a stay is more beneficial if filing a Chapter 13 allows them to repay the car over 5 years in a Chapter 13 and the comaker is protected.
When you and a spouse, friend, or family member have cosigned the consumer debt to seek bankruptcy relief, the bankruptcy court will want to help you by extending the co-debtor stay and make your plan more feasible.
To receive the co-debtor stay, you should use an experienced bankruptcy attorney with the detailed knowledge who can present your case in the Bankruptcy court to successfully obtain all the benefits. Not every attorney has the knowledge to represent your bankruptcy case with a plan to get a Co-Debtor stay.
At my law firm, you will speak to me or my assistant Tony, and I will personally look after your case to get these benefits for you in Chapters 12, or 13. If you have questions about this or need to hire an attorney, call us at 502-625-0905. Our Bankruptcy court regions are Kentucky eastern, Kentucky Western Bankruptcy Division, and Southern Indiana. Give us a call now.
If you are thinking about filing bankruptcy, don’t delay because timing is crucial. I am here to help you. So, contact my office right away to start the conversation. Nick C. Thompson, Bankruptcy Lawyer: 502-625-0905.