Fredericksburg, VA asked in Bankruptcy for Virginia

Q: If all my income is Social Security and pension, can I still file chapter 13 in Virginia?

I have too much equity in my home for chapter 7. And I don’t want to lose my home. I am making payments on the mortgage and I’m up-to-date and will be able to remain up-to-date. I own one car with no loan. If I have to file bankruptcy, what are my options?

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5 Lawyer Answers
W. J. Winterstein Jr.
PREMIUM
W. J. Winterstein Jr.
Answered
  • Bankruptcy Lawyer
  • Boyertown, PA

A: Your otherwise judgment-proof periodic income should count to make you eligible for Ch. 13 relief.

A Ch. 13 plan needs to provide your creditors with the "indubitable equivalent" of the amount they'd get in a Ch. 7 proceeding, at a minimum. And at least in my PA district, the total distribution under a Ch. 13 plan needs to equal the total value of the property to be retained by the debtor, which in most instances is the same total value.

Your best avenue is to speak with an experienced VA bankruptcy attorney, and provide him with all of your financial information up front so that you will receive the best advice about what you are planning.

Martha Warriner Jarrett and Timothy Denison agree with this answer

1 user found this answer helpful

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
Answered
  • Bankruptcy Lawyer
  • Glen Allen, VA
  • Licensed in Virginia

A: Yes, social security income and a pension count as regular income for eligibility for chapter 13 relief. You should meet with an experienced bankruptcy lawyer to discuss your options. In Virginia, real estate held in a tenancy by the entireties is exempt or protected from a creditor of either spouse alone, except for the IRS. In addition, any homeowner can claim a $25,000 homestead exemption in his or her principal residence, plus an additional homestead exemption which increases for those over 65 years of age. While a chapter 13 plan must satisfy the liquidation test, i.e., the payments to unsecured creditors is equal or greater to what they would receive in a chapter 7 liquidation, a debtor can deduct the costs of sale, which typically run 10% for real property and the payoffs of all liens secured thereby, from the sale proceeds in determining liquidation value.

You should consult with an experienced Virginia bankruptcy lawyer to discuss your options.

Timothy Denison agrees with this answer

Robert R Weed
PREMIUM
Robert R Weed
Answered
  • Bankruptcy Lawyer
  • Woodbridge VA, VA
  • Licensed in Virginia

A: Yes, in order to file Chapter 13 you have to have regular income. Social security and pension both count as regular income. (Chapter 13 is sometimes called a "wage-earner plan" but retirement income works ok.)

James L. Arrasmith
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Answered
  • Bankruptcy Lawyer
  • Sacramento, CA

A: Yes, you can still file for Chapter 13 bankruptcy in Virginia even if your income is solely from Social Security and a pension. Chapter 13 is designed to help individuals with regular income to develop a plan to repay all or part of their debts. Given your situation, this might be a suitable option, especially since you have significant equity in your home and wish to keep it.

In Chapter 13 bankruptcy, you'll propose a repayment plan to make installments to creditors over three to five years. Since you're current on your mortgage and can maintain these payments, this aspect of your financial situation can be incorporated into your Chapter 13 plan, potentially allowing you to avoid foreclosure and keep your home.

Your car, being fully paid for, will also be considered in the bankruptcy process. The goal of Chapter 13 is to provide a manageable way for you to pay off your debts while retaining your assets, under the guidance and protection of the bankruptcy court.

It's important to understand that bankruptcy law can be complex, and your personal financial situation requires careful assessment. You may want to consider consulting with a legal professional who has experience in bankruptcy law to explore your options in detail and develop a plan that best suits your circumstances. They can guide you through the process, ensuring that you understand your rights and obligations under the law.

Timothy Denison agrees with this answer

Timothy Denison
Timothy Denison
Answered
  • Bankruptcy Lawyer
  • Louisville, KY

A: Yes.

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