Eligibility can turn on 1) who is filing the bankruptcy, 2) the kinds and amounts of debts, 3) the amount of income, and 4) the amount of expenses.
1) Who is filing the bankruptcy:
If you are a human being (or a human being and his or her spouse), you can file either a Chapter 7 or 13 case.
If you are a part owner of a partnership or corporation, that partnership or corporation cannot file a Chapter 13 case. But it can file a Chapter 7 one. And it can do so whether or not you also file one individually.
2) The kinds and amounts of debts:
If you have “primarily consumer debts” (more than 50% by dollar amount), then you have to pass the “means test” to be allowed to be in a Chapter 7 case. (More about that below.)
Chapter 7 has no restriction on the amount of debt allowed. In contrast, Chapter 13 is restricted to cases with a maximum of $360,475 in unsecured debts and $1,081,400 in secured debts.
3) Amount of income:
The “means test” in Chapter 7 is quickly satisfied if your income is no more than the published “median income” for your family size and state.
Chapter 13 requires “regular income,” which is defined in somewhat circular fashion to be income “sufficiently stable and regular” to enable you to “make payments under a [Chapter 13] plan.” Also, if the income is less than the “median income” applicable to your family size and state, then the plan will generally last three years; if the income is at the applicable “median income” amount or more, the plan will last five years.
4) The amount of expenses:
In Chapter 7, if you are not below “median income,” then you enter into a largely mathematical test involving your expenses to see if you pass the “means test” and are eligible for filing a Chapter 7 case.
In Chapter 13, a similar calculation largely determines the amount you must pay monthly into your plan to satisfy the requirements of Chapter 13.
Choosing between Chapter 7 and 13 can often be very simple and obvious. But there are at least a dozen major differences among them, ones that you may well not be aware of. So when you come in to see me or another attorney, be clear about your goals but also open-minded about how to reach them. You may well have tools available that you were not aware of.
