Payday Loans in Bankruptcy
Learn what happens to payday loans in bankruptcy, and some special issues regarding these cash advances.
In most cases, you can discharge a payday loan in Chapter 7 bankruptcy. This is because if you owe money to a payday lender, that debt is generally treated like that of any other unsecured creditor in your bankruptcy. And if you file a Chapter 13 bankruptcy, then the payday lender will be treated and paid the same as other unsecured creditors -- which usually means you'll pay only a portion of the debt (often a very small portion).
There are, however, some special issues you should consider when filing bankruptcy if you owe money for a cash advance, payday loan, or similar debt. The payday loan lender may challenge the discharge of its debt, and it might violate the law if you've written a post-dated check. Read on to learn more about these issues.
(To learn how unsecured debts are treated in Chapter 7, see Your Debts in Chapter 7. To learn how unsecured debt is paid through your Chapter 13 plan, see Unsecured Debt in Chapter 13: How Much Must You Pay? )
Creditors Might Challenge the Discharge of Recent Payday Loans
If you last took out a payday loan or other cash advance within 70 to 90 days of filing bankruptcy, then that creditor may try to object to your discharge (this means it challenges your ability to wipe out the debt). It may argue that you took out the loan without any intention of paying it back, and that you should not be allowed to discharge that debt in bankruptcy.
Indeed, there are rules that allow creditors to object to the discharge of certain debts that incurred right before filing bankruptcy. (Learn the details on rules about recent cash advances and debts in bankruptcy .)
Will the Payday Lender Win its Objection to Discharge?
Payday lenders that challenge the discharge of payday loan debt are often unsuccessful in bankruptcy court. This is because many bankruptcy courts do not look favorably upon payday lending practices and require the payday lender to prove that you acted with fraudulent intent.
Was there fraudulent intent? Many times, payday loans are not
one-time loans or advances. Instead, a borrower falls into a long-term pattern of taking payday advances to pay the exorbitant finance charges and balances on prior payday advances. Because of this cycle, borrowers end up relying on the high-interest payday loans as a source of income. In this situation, courts often find that (1) there was no fraudulent intent, and (2) that the payday loan is a single debt that dates back further than the most recent payday advance.
How to Avoid Problems With Payday Lender Objections to Discharge
Nevertheless, there is a risk of losing your discharge if a payday lender can prove its case. Rather than deal with the time, money, and risk of fighting a discharge objection by a payday lender, you may be able to avoid this problem by:
waiting more than 90 days from your last payday loan advance before filing bankruptcy, or
filing Chapter 13 bankruptcy and paying the debt in through your plan.
If you gave the payday lender a post-dated check in exchange for the last advance prior to filing bankruptcy, the creditor may try to cash the check after you file bankruptcy. If the payday lender cashes your post-dated check when it knows you are in bankruptcy, it may be violating the automatic stay. If this happens, the court may require that the lender return the funds to your bankruptcy trustee. (To find out more about the automatic stay and what happens if a creditor violates it, see our Bankruptcy's Automatic Stay topic area.)
In addition, the payday lender may accuse you of writing a bad check and threaten to press criminal charges. If a payday lender does this to you, it may be in violation of various state and federal fair debt collection rules and other consumer laws. This is in addition to violating the automatic stay. (To learn more see, visit our Illegal Debt Collection topic area.)
Some states even prohibit or restrict payday lenders from engaging in the practice of demanding post-dated checks. For instance, Michigan's Deferred Presentment Service Transactions Act requires a payday lender to be licensed before it may use post-dated checks as security for advances and other payday loans.Source: www.nolo.com
Category: Payday loans