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When in debt, bankruptcy may be your best option

(Article by Mary Rowland from MSN MoneyCentral)

When debt overtakes your finances, sometimes it's best to start over by filing for bankruptcy.

Easy credit and lots of demands on our money lead far too many of us into debt. Frequently, MSN Money readers who are in serious trouble ask about the wisdom of filing for bankruptcy to wipe out their debt. What is bankruptcy? Is it a viable option?

There are many ways to gauge this issue. Ultimately, filing for bankruptcy is a personal decision. But start by asking this basic question: Will it eliminate the debts that have been plaguing you? There are many types of debt that are not eliminated even if you file the most common form of bankruptcy, Chapter 7.

May not be advantageous
If a bankruptcy filing doesn't eliminate at least 50% of your most troublesome debt, a common rule of thumb says the disadvantages typically outweigh the advantages. You get marred with a very bad credit report without getting out from under the credits that prompted the filing in the first place. If, however, more than half of your debts can be eliminated through a bankruptcy procedure, you should consider it as an option.

I polled a number of financial experts on bankruptcy. Not surprisingly, many of them took the hard line, advocating discipline and hard work to get out of debt. But Gerri Detweiler, author of "The Ultimate Credit Handbook," says the biggest mistake she has seen in her years of counseling consumers about credit-related problems is that people who really have no options wait too long to declare bankruptcy.

"Some people have no other choice," Detweiler says. "For them it is the best decision. To them I say: 'You will be able to rebuild your credit. You will be able to get credit cards and even a mortgage.' "

Renting an apartment is more difficult
A bankruptcy filing stays on your record for 10 years. But Robin Leonard, who has written numerous books on bankruptcy, says most people have little trouble getting credit after bankruptcy. "Many people describe coming home from work one day and seeing a letter from the bankruptcy court congratulating them on the discharge of their debts, as well as a credit card application," Leonard says. "Creditors know you can't file again for six years and now you have much more disposable income and a history of dealing with debt."

The biggest issue for those who have filed for bankruptcy, she says, is renting an apartment. "That can be their greatest challenge, particularly where there is a low vacancy rate," she says.

Detweiler urges those in trouble not to wait until the last minute to make the decision because "it's harder then to make a good decision. Most people don't want to admit that they're headed for bankruptcy when they are. If you wait until you can't pay your bills and you're pressed and depressed and desperate, it will be much more difficult."

Two major types of filing
Bankruptcy is not shameful. In his book, "Personal Bankruptcy," attorney Kenneth J. Doran points out that the idea of a "fresh start" for debtors goes back as far as the Old Testament and that current bankruptcy laws can be traced to England in 1542 under King Henry VIII. Most bankruptcies are filed for one of five reasons: unemployment, illness or injury, divorce or separation, business failure or poor planning.

Two major types of bankruptcy filings are available for individuals: Chapter 7 and Chapter 13. In a Chapter 7 filing, you ask the court to wipe out your debts. In exchange, you give up your property. As mentioned earlier, there are some debts that cannot be discharged and that's a critical factor you should consider in whether to file.

When you file for bankruptcy, you immediately stop all actions against you by creditors, including lawsuits, evictions, foreclosures, repossessions, disconnection of utilities and so forth. A bankruptcy trustee takes control of your property and your debts, with the responsibility of divvying up what you have among your creditors. Some of your property is considered exempt and you get to keep it.

The trustee gets a percentage of the assets he returns to creditors as an incentive. To find out what is available, the trustee will quiz you about your property at a hearing, Leonard says, then collect the property to sell. You will be notified when the debts have been discharged, probably in three to six months.

Chapter 13 filings restricted

In a Chapter 13 filing, you set up a court-approved plan to repay your debts, usually over three years but sometimes over five years. Under Chapter 13, you keep your property and your creditors typically agree to accept less than the full amount. Whatever you have not paid at the end of the period is discharged.

You cannot file for Chapter 13 if your unsecured debts are greater than $250,000 and your secured debts are more than $750,000. "Secured" refers to whether there is an asset -- such as a home or car -- tied to the loan as collateral. You also have a trustee for Chapter 13, who collects your payments and disburses them.

See a credit counselor first?
It is certainly not an easy decision. And in the end, no one can make the decision for you.

"I usually recommend to people that they try a credit counselor before they make the decision to see if there is a way to pay off their debts," Detweiler says. "But ultimately it is a gut-wrenching decision that is yours."