People who have experienced financial difficulties that have caused them to be unable to pay their debts may be concerned about the steps that creditors may take to collect what is owed. Creditors or collection agencies may contact a debtor and ask them to make payments, and some creditors may act in a harassing manner, including making threats or contacting a person’s employer. In some cases, a creditor may initiate a lawsuit attempting to collect what is owed, or they may repossess property or begin foreclosure proceedings on a debtor’s home. For debtors who are considering bankruptcy, it is important to understand the protections they can receive, including the automatic stay that will go into effect during the bankruptcy process.

What Is the Automatic Stay?

In legal terms, a “stay” is an order by a court that requires parties to temporarily stop certain actions. When a debtor files a bankruptcy petition, an automatic stay will be put in place while the case is ongoing. This stay will require creditors to cease all collection actions, including:

• Creditor harassment - Creditors will be prohibited from contacting a debtor and asking them to pay what is owed. They cannot call a person at home or at work, send them notices in the mail, or use any other methods to attempt to recover debts.

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Making ongoing payments to pay off debts is a reality for most Americans. For those who struggle to make these payments or are unable to do so while covering their own living expenses, consumer bankruptcy can provide some relief and allow them to receive a fresh start. While many types of debts can be discharged through bankruptcy, there are rules about how these debts are addressed, and the elimination of certain types of debts may not be possible. Student loans, which are an issue for millions of Americans, are notoriously difficult to discharge. Those who are concerned about their ability to repay these loans will want to understand how they are handled during bankruptcy and how the laws may soon be changing.

The “Undue Hardship” Rule for Discharging Student Loans

Nearly all student loans are either provided through federal programs or are backed by the federal government. These loans generally cannot be eliminated through bankruptcy in most cases. To discharge student loans, a person must prove that repaying the loans would lead to “undue hardship.” This is a difficult standard to meet, especially since bankruptcy courts do not always agree on the definition of undue hardship. Typically, to prove undue hardship, a person will need to provide evidence showing that:

• They have made efforts to pay off a student loan in the past.

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A family may experience multiple different types of financial difficulties that affect their ability to pay their debts while also covering their regular expenses. For those who are struggling with overwhelming debts, bankruptcy can offer relief by eliminating debts and allowing a family to regain control of their finances. The elimination of debts during bankruptcy is known as a “discharge.” However, it is important to understand how different types of debts are addressed during the bankruptcy process, including which types of debts can or cannot be discharged.

Bankruptcy and Non-Dischargeable Debts

During bankruptcy, debts may be handled differently depending on whether they are secured or unsecured. Most types of unsecured debts, such as credit card balances, can be discharged once bankruptcy is complete, and a debtor will no longer be required to pay these amounts to creditors. Secured debts which are backed by collateral may also be discharged, but when this happens, a creditor will usually repossess the property. For example, if a person chooses to use bankruptcy to discharge the amount owed on an auto loan, the lender will most likely repossess the vehicle. 

There are certain types of debts that typically cannot be discharged during bankruptcy, including:

During the COVID-19 pandemic, many Americans have faced financial difficulties, causing them to be unable to pay some of their debts and ongoing expenses. To prevent people from losing housing during a public health emergency, the federal government and multiple states have implemented a moratorium on foreclosures for certain types of mortgages, preventing lenders from repossessing people’s homes. While the federal foreclosure moratorium has been extended several times, it is currently set to end on June 30, 2021. Because of this, homeowners who have defaulted on their mortgage or who are struggling to make payments will need to understand their options for avoiding foreclosure.

Mortgage Forbearance and Loan Modifications

Once the foreclosure moratorium ends, lenders may begin foreclosure proceedings against those who have defaulted on their mortgages. Some lenders have stated that they have halted all foreclosure activities until the end of 2021, while others may resume foreclosures as early as July of 2021. Homeowners who are behind on mortgage payments may need to take action before the end of the moratorium to ensure that they can prevent the loss of their homes.

Along with the foreclosure moratorium, current federal policies require lenders to allow homeowners to receive a forbearance on mortgage payments for federally-backed loans. This will allow for payments to be paused temporarily while a family is experiencing financial hardship. The deadline to apply for forbearance is June 30, 2021, and a homeowner may receive up to 12 months of forbearance. If a person had already received a forbearance before June 30, 2020, they can receive an additional six-month forbearance, up to a maximum of 18 months. 

Individuals or families who have debt that they cannot repay may be looking at their options for getting rid of this debt and regaining financial stability. For many, filing for bankruptcy is the best option for addressing overwhelming debt. However, debtors will want to determine the best type of bankruptcy for their situation. In many cases, Chapter 7 bankruptcy is the preferred choice, because it will allow for the elimination of outstanding debts, giving a family the fresh start they need. Chapter 7 bankruptcy may require a debtor to turn over certain assets, which will be liquidated to repay some of their debts to their creditors. Because of this, homeowners may be unsure about whether they will lose their home in a Chapter 7 bankruptcy or whether they will be required to use other options.

Understanding Exemptions in a Chapter 7 Bankruptcy

Fortunately, debtors are not required to give up everything they own to file for Chapter 7 bankruptcy. Multiple types of exemptions apply, and the amount of property that is exempt may vary depending on the state where the debtor lives. The homestead exemption applies to a certain amount of equity in a home, so if the equity a person owns falls under this amount, they may be able to keep their home.

The homestead exemption differs from state to state. In some states, it is as low as $5,000, while in others, it may be as high as $100,000 or more. To use a state’s homestead exemption, a person must have resided in the state for at least 40 months. Otherwise, the federal homestead exemption will apply. As of 2021, the federal homestead exemption is $25,150.

Homeowners may experience a variety of financial difficulties that cause them to be unable to meet their financial obligations, and if they default on their mortgage, they may face the foreclosure of their home. During the COVID-19 crisis, this has become a major concern, since factors such as job losses or increased expenses due to illness have affected many homeowners’ ability to make mortgage payments. Those who are facing a potential foreclosure or struggling to pay off debts may consider bankruptcy, but for those who are not ready to take this drastic step, other alternatives may be available, including requesting loan modifications from a mortgage lender.

Types of Loan Modifications

To provide relief for those who have been affected by the COVID-19 pandemic, the federal government and many state governments have placed a moratorium on foreclosures. Borrowers who are experiencing financial hardship and who have a mortgage insured by the Federal Housing Administration (FHA) can receive a six-month forbearance of their mortgage payments, as well as an additional six-month extension if needed. A forbearance will allow a homeowner to defer their mortgage payments, although they will be required to make up any deferred payments once the period of forbearance has ended. 

Even after receiving a forbearance, some homeowners may find that they will be unable to afford ongoing mortgage payments alongside their other financial obligations. In these cases, a homeowner may be able to negotiate with their lender to modify the terms of their loan. Many lenders are willing to make these types of modifications, since proceeding with the foreclosure process may result in financial losses. Making arrangements in which ongoing payments will be made is often the most financially beneficial option for both parties.

Many Americans struggle with debts and other financial problems, and if they have been unable to make some mortgage payments, they may fear that they will lose their homes to foreclosure. The COVID-19 pandemic has placed many people in positions of financial uncertainty, but while a moratorium on foreclosures has been implemented to protect people who are struggling, those who have defaulted on their mortgage may face the potential loss of their home in the future. If you are in this position, you may be able to address your past-due mortgage payments and avoid foreclosure by filing for Chapter 13 bankruptcy.

Debt Reorganization Through Chapter 13

By filing for bankruptcy, you can halt the foreclosure process and prevent a creditor from selling your home or having you evicted. In a Chapter 13 bankruptcy, you will propose a repayment plan in which you will pay off your outstanding debts over a period of three to five years. This repayment plan may include unsecured debts, as well as payments of secured debts (such as a mortgage or car loan) that are in “arrears,” meaning that they were not paid on time and are still owed.

Once you complete your Chapter 13 repayment plan, any unsecured debts that have not been fully paid off will be discharged, and you will no longer owe any money to those creditors. Secured debts typically cannot be discharged without the creditor repossessing the property secured by the debt. However, the amount of your arrears can be included in your repayment plan, allowing you to pay off the past-due amount over time. If you continue making ongoing mortgage payments throughout your repayment plan, you will become current on your payments once the plan is complete, and you will be able to maintain ownership of your home.

While many Americans struggle with debt even in the best of times, the COVID-19 pandemic has created a crisis that has affected millions of people and families. Job losses and other financial issues have made it difficult or impossible for many people to pay their ongoing expenses, putting them at risk of foreclosure or eviction. In addition to financial problems, this may also lead to significant safety issues, since being forced out of a home would likely increase the chances of family members becoming infected and suffering serious health problems. Fortunately, the federal government has taken action to protect families in these circumstances, including providing options for addressing mounting debts through bankruptcy.

Foreclosure Moratoriums and Mortgage Forbearances

When the coronavirus pandemic began to reach crisis levels in 2020, the federal government placed a moratorium on foreclosures, and as the crisis has continued, this moratorium has been extended several times. Most recently, President Joe Biden issued an executive order extending the moratorium at least through March 31, 2021. This moratorium applies to mortgages on single-family homes that are insured by the Federal Housing Administration (FHA). 

In addition to prohibiting lenders from beginning or proceeding with foreclosures while the moratorium is in effect, the Department of Housing and Urban Development (HUD) has also required lenders to provide forbearances to borrowers who have experienced financial hardship due to COVID-19. This will allow borrowers to defer mortgage payments for up to six months, and if necessary, borrowers can request an extension and receive an additional six-month forbearance.