Posted on February 2nd, 2014 in automatic stay, Bankruptcy Basics, Chapter 13, Chapter 7, Procedure | No Comments »
I am offen asked if automatic stay in bankruptcy will protect debtor’s cosigner, otherwise known as co-debtors, from creditors. The answer to that question depends on a number of factors and the type of bankruptcy filed.
Typically, cosigner liability comes into being after debtor’s friend or relative was asked to cosign a loan, so that debtor could obtain credit. If the debtor is forced to file a bankruptcy sometime thereafter, the following is likely to occur.
In order for the automatic stay provided by 11 U.S.C. §1301 to protect the co-debtor, the debtor must file a Chapter 13 Bankruptcy. Further, the debt filed on must be a “consumer” debt. To be a consumer debt, the debt must have been for the personal, household or family use of the person you cosigned for. If the loan cosigned for was to obtain money for a business, there is no protection for the cosigner. Further, even if the debtor is paying this bill in their Chapter 13 bankruptcy plan, the creditor can still collect from the cosigner.
Further, the law specifically refers to co-debtors who are “individuals,” meaning people. So, if the co-debtor is a business entity, such as a corporation or LLC, the automatic stay does not protect the co-debtor. This can be important where an individual business owner is filing Chapter 13 Bankruptcy, but their business is not filing for bankruptcy protection.
Even if the debtor files a Chapter 13 Bankruptcy, the plan must adequately protect the creditor. “Adequate protection” in most cases means that, in most cases, that particluar creditor must be paid in full. If the plan does not pay the debt in full, then the creditor can ask the court to lift the automatic stay. Once the stay is lifted, the creditor can pursue the cosigner for the unpaid amount. The co-debtor is protected during the life of the bankruptcy, but once the bankruptcy is over, the co-debtor remains liable for the unpaid debt. For example, if the bankruptcy payment plan pays 25% of the debt, the co-debtor remains liable for the other 75% of the debt. For this reason, some bankruptcy payment plans provide for payment of joint debts in full in order to protect the co-debtor after the bankruptcy case is over.
A co-debtor stay is only available in a Chapter 13 Bankruptcy case. If the debtor files a Chapter 7 Bankruptcy, the automatic stay will not apply and once the debtor receives a discharge, the cosigner will be liable for the entire unpaid balance. Further, because of the discharge, cosigner will not be able to receive any money from the debtor. The co-debtor stay lifts at the end of the bankruptcy case, or when the case is dismissed, or when the case is converted to Chapter 7 bankruptcy or Chapter 11 Bankruptcy. After the stay is lifted, the creditor may pursue the co-debtor for payment of any unpaid portion of the debt.
If a creditor knowingly violates the automatic stay protecting the co-debtor, the Bankruptcy Court may hold the creditor in contempt of court, just as if the creditor had violated the automatic stay protecting the debtor. The Court may fine against the creditor and may award money damages to the injured party. Furthermore, any collections actions taken by a creditor in violation of the co-debtor stay are void and unenforceable.
Thus, it is usually a bad idea to cosign any debts. While the debtor may have every intention to pay the debt at the time it is incurred, this may not be true in the future. Co-signer has no control over repayment and oftern enough does not not know when the debtor defaults. Further, any late payments or missed payments will be reported on cosigner’s credit.
If you contemplating filing Chapter 7 Bankruptcy or Chapter 13 Bankruptcy, or are dealing with debt problems in Western New York, including Rochester, Canandaigua, Brighton, Pittsford, Penfield, Perinton, Fairport, Webster, Victor, Farmington, Greece, Gates, Hilton, Parma, Brockport, Spencerport, LeRoy, Chili, Churchville, Monroe County, Ontario County, Wayne County, Orleans County, Livingston County, and being harassed by bill collectors, and would like to know more about how bankruptcy may be able to help you, contact me today by phone or email to schedule a FREE initial consultation with a Rochester, NY, bankruptcy lawyer.
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