Posted On: June 16, 2014

The fear of losing your home is a powerful one. When their finances go south, many imagine that bankruptcy will leave them homeless. Is this fear justified? Not really, or not in the normal course of a bankruptcy.

Yes, when you go bankrupt, you give control of your assets to a trustee in exchange for getting rid of your debts. This, in theory, could mean that the house gets sold to help pay back the creditors. But in practice this rarely happens, mainly because it is not in the best interests of everyone involved. The trustee has a lot of discretion, which he or she generally uses to safeguard the rights and interests of both the creditors and the debtor. Selling the house outright usually doesn’t achieve this purpose. So what normally happens?

Well, there are many different scenarios. If you have no realizable equity in the house – equity is the amount you’d get selling the house after deducting the mortgage and other associated costs – there is no point in  selling the house, because all the money would just go to pay off the mortgage(s). In this case you get to keep the house as long as you keep paying your mortgage. The trustee doesn’t get involved.

But, what if you did have some equity, say roughly $20,000? To keep the house, you would have to pay the trustee this amount, because that’s what the creditors would have received if the house had been sold. So the creditors end up getting their fair share and you keep your house.

Yes, but if you had $20,000 to throw around, you wouldn’t be bankrupt in the first place, right? Well, you would have to raise the money, but the trustee would work with you to accomplish this. For instance, you might be able to get the money through a second mortgage. Or you could work out a direct monthly payment plan with the trustee. In either case, you would keep your house.

Where things start to get more complicated is if you have a significant amount of equity in the home, let’s say $100,000. In order to hang onto the castle, you would have to pay the trustee 100 large – a whopping sum, but not impossible and financing is usually obtainable.

But, in such a case you probably would want to explore the legal alternative to bankruptcy: a consumer proposal. If you go this route, you don’t risk losing the house. You simply offer the creditors a settlement, negotiated by your trustee under the protection of the law. Most often this solution satisfies everyone because it pays the creditors an acceptable sum while allowing you to escape the debt quagmire in an orderly and manageable way: win-win.

There are a couple of other points to understand when you’re dealing with the house question.

The first  is that in all these scenarios the trustee will remind you of your right to get advice from a lawyer of your choice, someone who is there to protect specifically your interests. This is your basic legal right, but it becomes much more important if you have a lot of equity in your home. A good lawyer will help you deal with the situation and probably get you a better deal from the trustee and creditors than if you were doing this on your own.

The second point is that you should ask yourself: Whether I go bankrupt or not, can I afford to keep the house? If I try to hang on to it will it just drag me back into debt trouble down the line?

This is a tough one. We tend to be emotionally attached to our house in a way that we aren’t with most other things, even our cars. But, we have to ask ourselves this question if we’re going to regain control of our finances. The trustee can help you better understand your situation, but the answer to this question can only come from you. And you need to be brutally honest with yourself about it.

So, to get back to the original question: “If I go bankrupt will I lose my house?” For most people (the vast majority) the answer is “No!” So don’t be afraid to consult a trustee because you’re worried about losing the house. Contact us and get the facts. Remember our TV commercial: “It may be the most stress-relieving call you ever make.”

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If you are coping with severe debt problems, you have five choices to deal with the crisis: Get a consolidation loan, try to negotiate with your creditors, run away, do a consumer proposal, or go bankrupt.

The first three options you can handle yourself (we don’t recommend trying to run from your problems; they have a nasty habit of catching up). Personal bankruptcies and consumer proposals are solutions governed by the Bankruptcy and Insolvency Act, and they can only be handled by Licensed Insolvency Trustees.

So why would you choose one of the legal solutions over the other? Well, every person’s case is different, so you need to come into a trustee to get advice tailored to your particular situation. But painting with broad brushstrokes, a bankruptcy is a faster and less expensive process, whereas a proposal may protect more of your assets and save your name from being associated with bankruptcy.

With a personal bankruptcy, you are released from your debts after you comply with certain duties. It’s a process that can be over in as little as nine months. Some of your assets would be exempt from this legal process – such as furniture and personal effects – and others would be handed over to the trustee and be used to repay creditors.

This latter category could include houses, high-worth cars, jewelry and certain RRSPs. Also, if you have an income over a certain set amount, you would have to pay 50% of this surplus to creditors, probably lengthening the time you were discharged from the bankruptcy.

A consumer proposal essentially reorganizes your debts. If the proposal is accepted by your creditors, you only have to make one manageable payment a month to the trustee. The length of term for a consumer proposal is five years or less, depending on fast you want to and are able to address your obligations. But generally speaking, it’s a longer more expensive process that a bankruptcy.

With the proposal you avoid the ‘stigma’ of bankruptcy and get to keep all your assets, providing you make your monthly payments and don’t slide into bankruptcy anyway. You may also want to consider a proposal if bankruptcy would also force your spouse to follow the same route, or if you are expecting to receive a large sum of money down the road.

Also, with a bankruptcy, you must complete a monthly budget for all income and expenses, as well as supply copies of your pay stubs to the trustee. If your income goes up during the period of your bankruptcy, then your surplus payments would also increase. With a consumer proposal, there are no monthly reporting requirements.

Posted On: June 13, 2014

It was a perfect storm of personal and professional misfortunes. Bryan was a successful independent marketing communications consultant, well respected in the business with a good network of friends. But in his late 50s he discovered that he had adult attention deficit disorder (ADD), with a host of problems, ranging from an inability to focus to poor organization skills and depression. After years of laboured compensation for the symptoms, he felt the copying structure he had carefully built begin to fall apart.

Then he lost his biggest client. With the onset of a deep depression, he found it harder and harder to do work and make up for the lost income. He started to drain his savings and line of credit to stay afloat.

He took a consolidation loan. The Canadian Revenue Agency called about missed tax installment payments. He had to ask for a personal loan from a friend to pay for a month’s apartment rent. He spent a Christmas without money to buy presents. He missed a bank loan payment.

“It was the lowest ebb in my life. I felt like a complete failure,” says Bryan in his quiet voice. “My parents were alive at that point. They berated me for my financial mismanagement. My father had been a bank manager. He told me that if I went bankrupt I would never be able to get credit again.”

With this sword hanging over his head, and not much hope to propel him forward, Bryan went to an assessment with Richard Killen. He may have gone into the meeting with intense sense of “embarrassment” at winding up in this precarious financial position, but he was soon reassured to learn that his problems were manageable.

After a detailed evaluation of his situation and going through the ins and outs of a consumer proposal versus a bankruptcy, Bryan felt the latter  would best suit his situation. The instability of his income at the time would have made it difficult to commit to the monthly payments a consumer proposal would demand. But the most important thing was that the decision was his to make. This helped put him back in control of his financial life – a luxury he had not experienced in a long time.

Almost immediately Bryan felt a surge in spirits knowing that the burden of debt would be lifted. “It was this huge sense of relief,” he recalls. “I was told by Howard that when the phone rings, just to give them his name and number, and he would take it from there. When the bank called the next week, they were very matter of fact and nice about it when I told them. It was just business for them.”

Filing for bankruptcy in 2003, Bryan was able to keep his car, since he used it for work purposes, as well as his personal assets. And he didn’t have to pay any portion of his income to creditors, since it fell under the legal threshold set  in the Bankruptcy and Insolvency Act.

During the bankruptcy, he attended the mandatory credit counselling sessions held at Richard Killen & Associates. At the same time, he underwent treatment for his ADD, getting it under control with therapies that included learning the complex body motions of the martial arts.

Nine months after filing for bankruptcy Brian was discharged and able to make his life anew. What about his father’s dire prediction that he would never get credit again? “Evenbefore I was discharged, credit card companies were calling me and offering me credit.  I applied for a Royal Bank Visa after discharge and have never missed a payment,” he says.

Since then, Bryan has gone from strength to strength in his life. The return of his self-esteem has enabled him to rebuild his business. He has co-founded a company that will create  a smartphone app to help kids with ADD. He is poised to take his third-degree black exam in karate. He has downsized and simplified his life to better protect him from financial vagaries and to minimize the disorganization associated with ADD.

Bryan adds with pride, “It’s a great feeling to get your life back and become a fully contributing member to society again.”