U.S. Bankruptcy (Part One)

bankruptcy.

In the United States, bankruptcy is largely governed by federal law, commonly referred to as the "Bankruptcy Code" ("Code"). The United States Constitution (Article 1, Section 8, Clause 4) authorizes Congress to enact "uniform Laws on the subject of Bankruptcies throughout the United States". Congress has exercised this authority several times since 1801, including through adoption of the Bankruptcy Reform Act of 1978, as amended, codified in Title 11 of the United States Code and the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

Some laws relevant to bankruptcy are found in other parts of the United States Code. For example, bankruptcy crimes are found in Title 18 of the United States Code (Crimes). Tax implications of bankruptcy are found in Title 26 of the United States Code (Internal Revenue Code), and the creation and jurisdiction of bankruptcy courts are found in Title 28 of the United States Code (Judiciary and Judicial procedure).

Bankruptcy cases are filed in United States bankruptcy court (units of the United States District Courts), and federal law governs procedure in bankruptcy cases. However, state laws are often applied to determine how bankruptcy affects the property rights of debtors. For example, laws governing the validity of liens or rules protecting certain property from creditors (known as exemptions), may derive from state law or federal law. Because state law plays a major role in many bankruptcy cases, it is often unwise to generalize some bankruptcy issues across state lines.

History.

Originally, bankruptcy in the United States, as nearly all matters directly concerning individual citizens, was a subject of state law. However, there were several short-lived federal bankruptcy laws before the Act of 1898: the Bankruptcy Act of 1800, which was repealed in 1803; the Act of 1841, which was repealed in 1843; and the Act of 1867, which was amended in 1874 and repealed in 1878.

The first more lasting federal bankruptcy law, sometimes called the "Nelson Act", initially entered into force in 1898. The current Bankruptcy Code was enacted in 1978 by § 101 of the Bankruptcy Reform Act of 1978, and generally became effective on October 1, 1979; it completely replaced the former bankruptcy law, the "Chandler Act" of 1938, which had given unprecedented power to the Securities and Exchange Commission for the regulation of bankruptcy filings.

The current code has been amended numerous times since 1978. See also the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

Chapters of the Bankruptcy Code.

Entities seeking relief under the Bankruptcy Code may file a petition for relief under a number of different chapters of the Code, depending on circumstances. Title 11 contains nine chapters, six of which provide for the filing of a petition. The other three chapters provide rules governing bankruptcy cases in general. A case is typically referred to by the chapter under which the petition is filed. These chapters are described below.

Chapter 7: Liquidation.

Liquidation under a Chapter 7 filing is the most common form of bankruptcy. Liquidation involves the appointment of a trustee who collects the non-exempt property of the debtor, sells it and distributes the proceeds to the creditors. Because all states allow for debtors to keep essential property, Chapter 7 cases are often "no asset" cases, meaning that the bankrupt estate has no non-exempt assets to fund a distribution to creditors.

Chapter 7 bankruptcy remains on a bankruptcy filer's credit report for 10 years.

United States bankruptcy law significantly changed in 2005 with the passage of Bankruptcy Abuse Prevention and Consumer Protection Act (US) —- BAPCPA, which made it more difficult for consumer debtors to file bankruptcy in general and Chapter 7 in particular.