NEW JERSEY BANKRUPTCY AND CO-DEBTORS WHAT HAPPENS IF THE CO- DEBTORS DOES NOT FILE BANKRUPTCY? TRAVIS J. RICHARDS SOUTH NEW JERSEY BANKRUPTCY ATTORNEY
Co-signing a loan for someone is risky. As a co-signer, you are legally liable for that debt should the person default on the loan. In other words, if the person fails to repay the loan, the lender will look to you for the full payment of the loan balance. However, when we see a family member or close friend in need, it is difficult to say no when we know that we can help. Most people think of a co-signer as a spouse; however, you can co-sign a loan for your parents, friends, other relatives, business partners. You can co-sign a loan for anyone. The risk comes if the person fails to pay the loan or files bankruptcy.
Bankruptcy and Co-debtors How does it work? When a person files bankruptcy, all debts must be included in that bankruptcy filing including debts that have a co-signer. When the co-signer is the person s spouse and the spouse files bankruptcy, the issues of bankruptcy and co-debtors becomes mute because the debt will likely be discharged against both co-signers. However, if only one co-signer files bankruptcy, the issue of bankruptcy and codebtors then becomes more of a problem for the co-signer. A co-signer is referred to as a co-debtor in the bankruptcy filing regardless. The codebtor s name and address will be reported in the bankruptcy filing so the creditor and other parties in interest will be on notice the debt has a co-signer. Furthermore, the co-signer will receive notice of the person s bankruptcy filing. This gives the co-signer the opportunity to seek advice from a bankruptcy attorney as to the co-signer s rights, duties, and responsibilities with regard to the co-signed debt. The cosigner needs to discuss the best course of action to protect his or her best interests with an experienced bankruptcy attorney. Depending on the type of debt and the chapter of bankruptcy filed, there may be several options available for an individual facing the issue of bankruptcy and co-debtors.
Bankruptcy and Co-debtors in a Chapter 13 Bankruptcy Chapter 13 can afford a co-signer a bit more protection than other bankruptcy filings. Even though the co-signer may not have filed bankruptcy himself, the protection for consumer debts that is given to the debtor is extended to the cosigner of the debt. This only applies to consumer debts. As long as the debtor remains in the bankruptcy case, the protection for the cosigner will continue. If the debt is paid in full through the debtor s bankruptcy plan, the legally liability of the co-signer will be absolved when the case is complete.
If the debt is not paid in full through the bankruptcy plan, the creditor may have a legal right to pursue the co-signer for the balance; however, most creditors choose to write-off any remaining debt. It is up to the individual creditor if it will pursue the co-signer for the remaining balance. When the co-signed debt involves collateral that is being surrendered through his bankruptcy plan, the creditor can file a Motion to Modify the Co-debtor Stay to allow the creditor to file a lawsuit outside of the bankruptcy against the cosigner. This permits the creditor to pursue state court actions to repossess or foreclose on the asset being surrendered by the bankruptcy debtor. If the cosigner wishes to retain the collateral, he or she can arrange to continue paying
the debt under the original contract or allow the property to be returned to the lender. If the property is sold for less than is owed, the creditor may pursue the co-signer for the balance owed. Before filing a bankruptcy case, you should discuss the issue of bankruptcy and co-debtors with your attorney. Only an experienced bankruptcy attorney can provide you with reliable advice as to whether the Co-debtor Stay will protect a co-signer in bankruptcy. After the attorney gathers the relevant information about the debt, he can make an informed opinion as to whether the co-signer will be absolved of the debt with the debtor or if the debt will remain the legal liability of the co-signer.
Bankruptcy and Co-debtors in a Chapter 7 Bankruptcy Bankruptcy and co-debtors are treated much differently in a Chapter 7 case. A non-filing co-signer will not be protected under the Chapter 7 bankruptcy case of the other co-signer to the extent the co-signer is protected in a Chapter 13 case. Debtors are protected by the automatic stay provisions of the Bankruptcy Code as soon as they file their bankruptcy petition. The automatic stay prevents creditors and others from filing a collection suit, pursuing collection actions or otherwise contacting the debtor or taking other actions in an attempt to collect a debt included in the bankruptcy. If the debt is subject to the bankruptcy discharge, the debtor will no longer be legally liable to repay the debt once the case is closed. Unfortunately, the bankruptcy discharge does not cover the co-signer. The co-signer s legal liability to repay the debt in full remains after the debtor s liability is released through his Chapter 7 bankruptcy discharge. The creditor has the legal right to pursue all state court or other legal actions to collect the full amount of the debt from the co-signer. Of course, when dealing with Chapter 7 bankruptcy and codebtors, the debtor may voluntarily choose to continue paying the co-signed
debt after his case is closed in order to protect the co-signer from having to pay the debt or face collections actions and harm to the co-signer s credit rating. Contact an Experienced Mount Holly Bankruptcy Attorney Personal Approach, Professional Service, Affordable Payment Plans The Law Office of Travis J. Richards, LLC is a full-service Mount Holly bankruptcy law firm focused on Chapter 7 Bankruptcy, Chapter 13 Bankruptcy, debt consolidation, credit repair, tax liens, student loans and foreclosure. We represent clients in Burlington County and throughout South Jersey. Contact our office at 609-267-5297 to schedule your free consultation to discuss bankruptcy and non-bankruptcy alternatives. You may also use our convenient online contact form and one of our friendly, professional staff members will contact you to answer your bankruptcy questions and/or schedule a free consultation with Travis J. Richards.
About the Author Travis J. Richards Travis Richards is not your typical attorney. He understands the random curve balls life throws at honest, hard-working people. Growing up on farm in Southampton, New Jersey, money didn t always come easy for many of his family, friends and neighbors. He saw that bad things often happen to good people. This background shaped his approach to the practice of law. Mr. Richards considers it a privilege to help clients from all walks of life recover from financial hardship. In doing so, he aims to provide every client with the same service he would provide a member of his own family. His mission is to get to know each client individually and provide the best legal advice possible for them to regain control of their lives. Over the past decade I have impacted the lives of hundreds of individuals and families in an extremely positive way, he says. Through bankruptcy I am able to show my clients a freedom that they thought impossible to achieve My goal is not only wipe out the debt they have accumulated, but also help make sure they will never be in a situation to need my services again. Mr Richards has helped hundreds of individuals eliminate debt, keep their property and return to financial stability. Bankruptcy gives deserving individuals a second chance. Mr.Richards graduated with honors from Rutgers University, in New Brunswick, NJ where he majored in History. In 1999 he graduated, again with honors, from Rutgers School of Law, Camden, NJ. He was admitted to the New Jersey and Pennsylvania Bar in 1999, where he is licensed to practice law before the United States District Courts. Mr. Richards practices bankruptcy, mortgage loan modification work, debtor rights and credit card negotiations. He maintains memberships in the National Associate of Consumer Bankruptcy Attorneys, the Burlington County Bar Association, the New Jersey State Bar, the Pennsylvania State Bar, and the American Bankruptcy Institute The Law Office of Travis J. Richards 141 High Street Mount Holly NJ 08060 Phone: 609 267-5297 Fax: 609 267-5295 Website: njbankruptcyinformation.com