Once you know that you’re going to file bankruptcy, it’s time to stop using your credit cards. Ideally, you stop making new charges a few months before filing. The most important thing is that you don’t make any charges with the intention of erasing those debts through bankruptcy.
Written by Attorney Jenni Klock Morel.
Updated November 16, 2021
Once you know that you’re going to file bankruptcy, it’s time to stop using your credit cards. Ideally, you stop making new charges a few months before filing. Of course, if you have to file quickly, you may not have the time to wait.
If you’re getting ready to file Chapter 7 and recently used your credit card, review what the charges are for. There is a big difference between charging a week’s worth of groceries and buying a ticket for a cruise.
The most important thing is that you don’t make any charges with the intention of erasing those debts through bankruptcy.
You Can’t Plan To Erase New Debt
Credit card debts are unsecured debts and generally dischargeable in a bankruptcy case. But that doesn’t mean you can max out your cards as you’re getting ready to file your case. Debts incurred with the intent to discharge them in bankruptcy are not erased.
Debts incurred for luxury goods or services purchased in the 90 days before filing are presumed non-dischargeable. A creditor can file an adversary proceeding (a lawsuit within the bankruptcy case) objecting to the discharge of these debts.
In that case, the creditor only has to show that you charged more than $725 to pay for luxury goods or services in the 90 days before you filed your case. They don’t have to prove that you didn’t intend to pay it back. They don’t even have to prove that you were planning to file bankruptcy at the time. Instead, you’re the one that has to prove to the court that the items or services you purchased were necessary items.
Avoid Cash Advances
A cash advance is a short-term loan that usually comes with a high interest rate. Cash advances come in different forms. A cash advance can be taken against the available balance on a credit card.
Cash advances totaling more than $1,000.00 to any single creditor within 70 days of filing for bankruptcy are also presumed to be non-dischargeable. This bankruptcy law doesn’t consider how the cash was spent. The luxury item determination applies only to credit card charges.
Cash advances are unsecured debts and when taken out beyond the look-back period can be discharged in bankruptcy. But even older cash advance debt from before the 70 day presumption period may be found non-dischargeable.
The creditor can object to the discharge alleging that you didn’t intend to pay the debt back regardless of when it was incurred. The only thing that’s different is that now the creditor has to prove they’re right. The bottom line is that cash advances can cause complications in a bankruptcy case, and it’s best to avoid them if possible.
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How Credit Cards Are Treated in a Typical Chapter 7 Bankruptcy
A bankruptcy trustee is appointed to administer a Chapter 7 bankruptcy filing. One of the trustee’s duties is to take from the filer any non-exempt assets that can’t be protected through bankruptcy and sell them.
The trustee uses the proceeds to pay the creditors a portion of what they’re owed. First to be paid are priority claims, including certain tax obligations and back domestic support obligations. Last to be paid are nonpriority, unsecured debts, including credit card balances and medical bills.
In a Chapter 7 bankruptcy case, the credit card companies and other unsecured creditors only receive payment from the bankruptcy trustee if there are non-exempt assets. Even then, they only get a pro-rata share, and only if there are no priority claims.
Creditors Can and Will Object to the Discharge
Considering that unsecured creditors usually get nothing in a Chapter 7 bankruptcy case, it makes sense that credit card lenders routinely check the charging habits a person had in the months and weeks leading up to a filing.
When a credit card company finds new debt charged just before filing for bankruptcy and the total debt charged in the last 90 days is large, they will very likely object to the discharge.
After one of your creditors files such an objection, then you’ll have the opportunity to defend the dischargeability of your debt by first filing an answer to your creditor’s allegations and later at a hearing.
You have the ability to hire legal representation during any of these proceedings if you don’t want to go it alone. If you’re successful and the court denies your creditor’s objection to discharge, then that debt will be erased by your bankruptcy discharge. If you’re not successful, then the debt will be non-dischargeable and you’ll have to pay it back after your bankruptcy case.
What if I Can’t Afford Not To Use My Credit Cards and Stay Current With Minimum Payments?
Once you know that filing bankruptcy is the debt relief path you’ll take, it’s okay to stop making minimum credit card payments if doing so means you can afford necessities. Yes, this will ding your credit score, but you can begin rebuilding that after your discharge is entered.
It’s better to prioritize your needs for food, shelter, and transportation over your desire to maintain your credit score. Having a few missed payments on your credit report from the months before filing your bankruptcy case is better than not being able to discharge your full debt.
Past-due payments and filing bankruptcy will appear on your credit report and affect your credit score. Once your unsecured debts are erased by bankruptcy, then your debt to income ratio is more favorable.
After discharge, you’re not carrying a large debt load and lenders know you can’t file for Chapter 7 bankruptcy again until eight years have passed, so in some ways, you become a more desirable candidate for loans and lines of credit than before bankruptcy.
When you stop making minimum payments on your credit card bills, your creditors will start trying to collect from you. They’ll usually start with letters and frequent collection phone calls. As soon as you file your bankruptcy petition, the automatic stay takes effect and all collection activity against you must stop.
Credit cards are usually shut down after missed payments. You won’t be able to make new charges on closed credit cards. These accounts were going to be closed when you filed for bankruptcy. You can continue to use your debit card before you file bankruptcy because it’s linked to a bank account with funds on hand and doesn’t create a debt obligation.
If possible, 90 days before filing is the time to stop using your credit cards once you know that you’re going to file Chapter 7 bankruptcy. You can’t max out credit cards before bankruptcy just because you’re about to file. Bankruptcy provides relief for the honest but unfortunate debtor. Anyone who racks up debts with the intent to erase them in bankruptcy will be disappointed to learn those debts aren't dischargeable.
Upsolve can help if you’re looking to find a credit counseling agency to help you look into debt-relief options, find a bankruptcy attorney, or explore filing bankruptcy on your own using our free web app for eligible filers.
- American Bankruptcy Institute. (2002). Bankruptcy by the Numbers - Chapter 7 Asset Cases. ABI Journal. Retrieved August 4, 2020, from https://www.abi.org/abi-journal/chapter-7-asset-cases