Written by Lexington/Columbia bankruptcy lawyer, Lex A. Rogerson, Jr.
Last weekend I heard a Columbia radio advertisement for a debt adjustment service. Aiming his message at those with out-of-control debt, the announcer said, “Don’t file bankruptcy – that should be your last choice!”
Is that good advice? Well, as with most oversimplifications, the answer is yes – and no, depending on the circumstances.
For sure, bankruptcy should not be your first choice. There are substantial disadvantages–the cost in attorney’s fees and filing fees, the damage to your credit, and the effort it takes to make all the required disclosures. For these reasons, I never suggest someone take the decision to file bankruptcy lightly.
The best alternative is to pay your debts as promptly as possible. If successful, this strategy preserves your credit standing, which can be tremendously important even if you never again intend to rely on debt.
Another alternative is to try adjusting your debts by yourself, directly with your creditors. This approach can limit somewhat the damage to your credit. But creditors often won’t compromise their accounts unless you are seriously in default, and by then your credit may already be badly damaged anyway. And if a creditor writes off a part of the debt, this amount can represent taxable income. You will get a 1099 the following January, and the IRS will be looking for that income on your tax return.
What about working with a debt adjustment service? Many credit adjustment bureaus charge large fees and can deliver only modest help in the amounts and terms of your debts. And frankly, some of these services, especially some for-profit agencies, are simply rip-offs. Overall, I have rarely seen non-bankruptcy debt workouts succeed.
What if you just can’t pay your debts and a workout does not seem feasible? At this point, you might want to get some competent advice from a bankruptcy professional – before letting some things happen that can damage you in the long run. It’s possible to wait too long before considering bankruptcy.
A prime case in point: Ed and Sally from Aiken* consulted me last year. Several months earlier, in an attempt to avoid bankruptcy, they had taken out a home equity loan and drawn heavily against it to pay some credit cards. This approach worked for a while, but now the debts were again too much to handle. Sadly, I had to tell them they had exchanged dischargeable credit card for mortgage debt we could not wipe out. Given their numbers, we could have protected all the equity in their home from the credit card issuers, but now that equity was irretrievably lost to the home equity lender. In short, they waited too long to see me.
Another example: Will from Newberry came to see me a couple of months after his Visa card issuer sued him and obtained a judgment. In South Carolina, a judgment is automatically a lien against any real estate the debtor owns in the county where it is entered. Because Will owned no real estate other than his home, and because the equity was within the state homestead exemption, we could file a fairly simple motion to make sure the judgment creditor could never actually have the home sold. But this motion doesn’t automatically remove the judgment from the public record. If someone searched the county land records, the judgment would appear a valid lien on his home. State law provides a procedure for canceling the judgment, but that procedure requires a year’s wait, separate civil action, and additional fees and expenses. Again, Will waited a little longer than he should have, and things happened that were not easy to fix.
So while one should certainly not file bankruptcy without a serious evaluation of the alternatives, it is possible to wait too long. A bankruptcy consultation is usually not expensive–we usually charge $50 to $150–and sometimes it may be better to look at those alternatives sooner rather than later.
* To preserve confidentiality, all identifying information on clients, including their residences, is fictionalized. However, the fact situations are based on actual cases.








