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Comparing the Discharge in Ch. 7 vs. Ch. 13 12/1/2009

The scope of the discharge is different in each chapter.  The Bankruptcy Code after October 2005 makes the Chapter 13 discharge only slightly more encompassing.  Put simply, most unsecured debt is dischargeable, while most secured debt survives bankruptcy as a charge on the property to which it attaches unless a court order modifies the lien or the lien is paid in Chapter 13.

The following is not dischargeable in Chapter 7: recent taxes;  family support; debts to spouse arising from divorce; student loans ;  drunk driving judgments;  criminal fines or restitution; or debts incurred by fraud or intentional wrongdoing.  The complete list of non-dischargeable debts is found at 11 U.S.C. 523(a).  Barring fraud, everything else is dischargeable:  loans, credit card debts, judgments, medical bills, old income taxes.  However, liens and mortgages survive the bankruptcy:  the debtor personally has no further liability for the debt, but the lien (a charge on the asset that is the collateral) survives as an interest in the aset.  In appropriate circumstances, liens can be avoided because they impair an exemption or because the lien doesn't really attach to any value in the collateral.

In Chapter 13, only family support, restitution, student loans, old taxes for which no return was filed and drunk driving judgments are non dischargeable.  The rules on the dischargeability of debts incurred by fraud are now nearly the same as in Chapter 7.  However, the Chapter 13 plan must provide for payment in full of priority taxes and past due support. 

If you are considering bankruptcy, you should talk to a bankruptcy attorney before deciding which chapter is right for you.

-Drew Broaddus

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