Although you can typically erase credit card debt in bankruptcy, it's not always the case. Using your credit card to buy luxury goods shortly before filing isn't a great idea because you could have to repay the debt. You can avoid this problem by understanding these basic principles:
Of course, there's more to know, so we also explain the basics of a bankruptcy discharge, what it takes to prove two fraud types, and when to expect a creditor to sue you. For more things to know when filing for bankruptcy or more ways you could jeopardize your credit card debt discharge, go to Credit Cards and Bankruptcy.
Everyone files for Chapter 7 or Chapter 13 bankruptcy to get a discharge of debts. The bankruptcy discharge wipes out your personal liability for the qualifying debts you had before filing for bankruptcy, so you won't be legally obligated to pay them back. Once your creditors receive a copy of the discharge, they'll have no choice but to write off your account and stop collection actions.
Typically, Chapter 7 will wipe out all your credit card debt, and in Chapter 13, you'll likely pay a percentage of what you owe. However, some types of debts are not dischargeable in bankruptcy. Credit card debt can be made nondischargeable if the credit card company can prove to the court that you committed fraud or are abusing the system.
The straight answer is that you could face a fraud charge if you aren't careful. The easiest way to prevent this is by learning about the two types of fraud recognized in bankruptcy:
Actual fraud. Actual fraud happens when the "debtor" or the person who files for bankruptcy uses the credit card with the intent to defraud the credit card company. For example, this commonly occurs when a debtor knowingly runs up the balance on the credit card shortly before bankruptcy with no intention of repaying the charges. Actual fraud requires presenting evidence. While it isn't that hard to do, an easier way of proving fraud exists, the creditor can rely on "constructive fraud."
Constructive fraud. The debtor doesn't have to intend to commit fraud in this case. All that's needed is for the debtor to engage in a particular act. If the debtor does so, fraud is implied or construed. Specifically, fraud is presumed when a debtor uses a credit card to make luxury purchases of $800 or more during the 90 days before the bankruptcy filing. So if you use your credit card to buy $800 or more of luxury goods or services within that period, the creditor can sue for nondischargeability based on constructive fraud. The court will enter a judgment declaring the debt nondischargeable if you lose.
The presumptive fraud amount is valid for cases filed between April 1, 2022, and March 31, 2025.
Any goods or services that are not reasonably necessary for the maintenance and support of you and your dependents are considered luxury goods and services. Fur coats, jewelry, home decor, makeup, hair products, manicures, plane tickets, salon services, alcohol, and electronics are just a few of the items and services considered luxury purchases under bankruptcy law.
Suppose you make a luxury purchase within 90 days before filing for bankruptcy. In that case, the credit card company might sue you under a theory of presumptive fraud. In that case, you'll need to prove the purchases were reasonably necessary for your maintenance and support.
Example 1. Xavier used his credit card to buy a $5,000 engagement ring for his girlfriend. 45 days later, Xavier filed for Chapter 7, and the credit card company sued for nondischargeability. The court would likely find that the engagement ring was a luxury purchase. If Xavier couldn't produce credible evidence of an intention to repay the debt, he'd remain obligated for the purchase.
Example 2. One day, Jasmin's car breaks down. Because she has a meager income, she can't afford to pay $900 to replace the transmission. However, she needs the car to go to work, so she uses her credit card to pay for the repair. A court would likely find that this was a reasonably necessary expense and allow the discharge of the credit card debt.
Did you know Nolo has been making the law easy for over fifty years? It's true—and we want to make sure you find what you need. Below you'll find more articles explaining how bankruptcy works. And don't forget that our bankruptcy homepage is the best place to start if you have other questions!
|
Our Editor's Picks for You |
|
|
More Like This |
|
|
What to Consider Before Filing Bankruptcy |
Chapter 7 Bankruptcy—Who Can't File? How to File for Bankruptcy in Your State Which Bankruptcy Chapter Should I File to Keep My House? |
|
Helpful Bankruptcy Sites |
We wholeheartedly encourage research and learning, but online articles can't address all bankruptcy issues or the facts of your case. The best way to protect your assets in bankruptcy is by hiring a local bankruptcy lawyer.
Updated April 23, 2022
Need professional help? Start here.