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Criminal Fines and Restitution Not Written Off in Bankruptcy

February 25th, 2019 at 8:00 am

Bankruptcy does not write off criminal fines or restitution. But it can help by writing off other debts so you can pay crucial expenses.

 

If you owe criminal fines, penalties, forfeiture, or restitution, bankruptcy does not help you directly with those debts. But bankruptcy can still provide you essential help in paying for essential expenses, including criminal related ones.

The Criminal Fines and Restitution Exception

Neither Chapter 7 “straight bankruptcy” nor Chapter 13 “adjustment of debts” writes off criminal fines, penalties, forfeiture, or restitution.

Under Chapter 7 any “fine, penalty, or forfeiture” owed to “a governmental unit” is excluded from discharge (bankruptcy write-off). Section 523(a)(7) of the U.S. Bankruptcy Code.

(The only exceptions are if the debt is “compensation for actual pecuniary loss” or certain tax penalties. These are narrow exceptions that are beyond what this blog post covers.)

Criminal restitution is also not written off in Chapter 7. Excluded are debts “for any payment of an order of restitution issued under title 18, United States Code.” Title 18 is the main criminal code for the federal government. Courts have extended this to include state criminal restitution as well.

Chapter 13 excludes from write off “any debt… for restitution, or a criminal fine, included in a sentence on the debtor’s conviction of a crime.”  Section 1328(a)(3) of the Bankruptcy Code.  (In the past Chapter 13 did allow some criminal debts to be written off. But about 25 years ago Congress changed the law.)

Bankruptcy May Still Provide Crucial Help

Even if filing bankruptcy would not write off your criminal debt(s), doing so may still be very worthwhile. Bankruptcy may in fact be an indispensable tool for dealing with your situation. If you’ve been criminally charged, here are two ways filing bankruptcy could significantly help.

1) Write Off Your Other Debts

If you’ve been charged with a serious crime you need to intensely focus your financial resources to deal with it. You need to fixate on how to pay for your defense—for an experienced criminal attorney and other related costs. If you’re like most people, you’ll need to consider whether to stop paying many or even all of your debts.

Often the best way to eliminate or greatly reduce your debt payments is by filing bankruptcy. Doing so allows you to immediately stop paying many or most of your debts.

If your criminal case has already finished, bankruptcy can also be extremely effective. You presumably have financial obligations to the criminal justice system that you absolutely must pay. These obligations may include criminal fines, restitution payments, probation or supervision fees, treatment costs, community service fees, and/or drug and electronic monitoring charges. If you don’t pay these the consequences can be catastrophic, including incarceration and other harsh penalties.  Writing off your other debts through bankruptcy can enable you to pay your court-required obligations.

2) Deal with Related Non-Criminal Liability

If the criminal allegations against you involve a victim, you may end up owing that person a debt. This debt would—unlike the criminal debts owed to the court—likely be civil damages that you may be able to write off in bankruptcy.

The truth is that there are other exceptions that may prevent you from writing off even civil damages. However, your filing of bankruptcy may persuade that person not to sue you. Or, if you’ve already been sued, it could lead to a better settlement for you.

That’s because:

  • You disclose the details of your financial distress in your bankruptcy documents, under oath. That may well quickly and convincingly show your adversary that pursuing you is not financially worthwhile.
  • Even if a civil claim against you might not be discharged in bankruptcy, it might be. You are putting up another hurdle for your adversary. He or she has to seriously consider whether it’s worth more money, time, and emotional effort to pursue you.
  • Filing bankruptcy can sometimes speed up the litigation process. Bankruptcy court litigation tends to be more streamlined and efficient than in state court, often much more so. Faster procedures lead to a quicker settlement or court decision. That saves you money, potentially a lot of money.
  • Almost always your adversary has to act very quickly to preserve the claim. If he or she fails to act, the civil claim will simply be written off.

 

The Criminal Exception to the Automatic Stay

March 2nd, 2018 at 8:00 am

The automatic stay immediately stops most collection actions when you file bankruptcy. But it doesn’t stop a “criminal action or proceeding.”  

 

The Automatic Stay

This protection against debt collection is crucial because it gives you a necessary financial break. It’s effective because it is so fast and broad in its coverage.

It’s fast because the protection goes into effect simply by your act of filing bankruptcy. It becomes binding on your creditors without any further action by the bankruptcy court.

It’s broad because almost all debts are covered. They’re generally covered even if the debt can’t be discharged—written off—in bankruptcy. For example, if you owe a very recent income tax debt, it can’t be discharged. And yet the automatic stay immediately stops the IRS and state tax collector just like any other creditors.

But while the automatic stay is broad there are some specific kinds of debts it does not protect you from. And because the automatic stay is such a crucial benefit to a person filing bankruptcy, it’s very important to know these exceptions.  You need to know which debts a creditor CAN continue to collect in spite of your bankruptcy filing.

The Debts NOT Protected by the Automatic Stay

Bankruptcy’s automatic stay does not protect you from:

1) criminal debts and proceedings

2) certain family court proceedings

3) child and spousal support obligations

4) certain income and business tax collection procedures.

We’ve covered all of these exceptions last month, except for the first one. We cover this today.

“Criminal Action or Proceeding against the Debtor”

The U.S. Bankruptcy Code says that your bankruptcy filing “does not operate as a[n automatic] stay–… of the commencement or continuation of a criminal action or proceeding against the debtor.” Section 362(b)(1) of the Bankruptcy Code. This means that you have no bankruptcy automatic stay protection from criminal matters of any sort.

So, bankruptcy does not prevent a district attorney or other governmental authority from starting or continuing a criminal case against you. That includes any step of a criminal case: arrest, indictment, plea bargaining, trial, sentencing, appeal, incarceration, probation, and parole. The automatic stay simply does not apply to criminal matters.

This also includes any efforts by the authorities to collect any criminal debts. These include fines, restitutions, and any of the many possible criminal fees and charges that a criminal court may impose upon you.

Careful: “Criminal” Is Broader than You Think

This exception for criminal debts doesn’t apply only to felonies and misdemeanors. It may apply to much more commonplace matters that you might not consider “criminal.” For example, included may be certain traffic infractions and their related court proceedings and fines.

This can get genuinely confusing because the line between criminal and civil proceedings can get blurry. Again in the traffic court arena, what may be considered a criminal fine vs. a civil violation can vary from state to state. Plus there are situations that can involve both civil and criminal sides. The civil side would be stopped (at least temporarily) by a bankruptcy filing; the criminal side would not.

The Bottom Line

Tell your bankruptcy lawyer about any potential criminal proceedings and/or debts during your first meeting. You’ll learn quickly whether you’re dealing with criminal vs. civil debts and/or proceedings. Then even if they’re criminal in nature, bankruptcy may still be able to help a lot. 

 

Criminal Debts Not Discharged in Bankruptcy

April 13th, 2016 at 7:00 am

Bankruptcy can’t discharge—permanently write off—criminal debts, but it can still help in indirect but potentially game-changing ways.

 

If filing a bankruptcy case does not discharge criminal debts, how could it possibly help?

In a number of practical ways, bankruptcy enables you to focus on your criminal defense and to deal with any potential fallout. If you’ve been charged with a significant crime you need to make that your highest priority, financially and emotionally. Here’s how filing bankruptcy can help you do that.  

1) Discharge Your Other Debts

If you’ve been charged with a serious crime, you have to figure out how to pay for a good criminal attorney and for the other costs of your defense. Considering what’s at stake, you need to consider not paying all or most of your creditors. It may make sense to sell some of your assets and/or even get early access to any retirement funds.

Either in addition to or instead of these tactics, often the fastest way to reduce your debts and quickly improve your cash flow is by filing a Chapter 7 “straight bankruptcy.” Then you can immediately stop paying the debts you intend to discharge. The discharge itself usually happens within only about 4 months after your case is filed, freeing you of your debts.

Or if your criminal case has already gone through a plea bargain or trial and sentencing, bankruptcy can be just as important. Unless you got a full acquittal, you likely have some ongoing financial obligations to the criminal justice system that you absolutely must pay. These can include restitution payments, probation or supervision fees, treatment costs, community service fees, and/or drug and electronic monitoring charges. Filing bankruptcy can clear you of your other debts so you can pay these court-mandated obligations. Paying them could well be necessary for you to avoid incarceration or re-incarceration.

2) Pay Necessary Non-Criminal Debts and Expenses

In many situations the criminal court will require you to pay certain debts or expenses, beyond the direct court and probation related fees just mentioned above.

In situations involving tax or financial fraud, you could be ordered to file tax returns and pay income taxes on time. In cases of driving under the influence or vehicular manslaughter, you may be ordered to pay for better and or more expensive than usual vehicle insurance in order to be able to drive.

You may well also have ongoing expenses indirectly related to your probation. For example, you’ll need to have reliable transportation so that you can get to your probation meetings and/or community service assignments.

Freeing up your cash flow by filing bankruptcy could make it possible for you to pay these expenses when you couldn’t otherwise. 

3) Deal with Related Potential Non-Criminal Liability

If the criminal allegations against you involve a victim, you could be legally liable to that person. The same actions that led to the criminal charges against you could also lead to a lawsuit against you by that person for civil damages.

Your bankruptcy filing could persuade that person not to sue you, or lead to a sensible settlement if you’ve already been sued.

Why might that happen? Because:

  • If you’re hurting financially, disclosing that on paper under oath could convince your adversary and his or her attorney that pursuing you would not be economically worthwhile.
  • Civil claims can be discharged in bankruptcy unlike criminal ones. There are certainly exceptions, debts that can’t be discharged if the alleged injury was “willful and malicious,” for example. But at the very least bankruptcy creates another hurdle with risks for your adversary. This adds to the possibility that continuing to pursue you could be fruitless. 
  • If you are already in litigation with the purported victim, filing bankruptcy can speed up the litigation timeline since bankruptcy procedures tend to be much more streamlined and efficient than state court ones. Getting to a quicker settlement or court decision saves you litigation costs. It also lets you move on with your life faster.

Conclusion

Clearly these are all very delicate issues that need to be thoroughly discussed with a highly experienced and understanding bankruptcy attorney.  If you are faced with criminal allegations or a recent conviction, and are feeling financial pressure, don’t try making decisions in this area without this kind of help. 

 

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210-342-3400

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