US BANKRUPTCY FOR EXPATRIATES & MILITARY PERSONNEL: GET YOUR FRESH START EVEN WHEN ABROAD
The US Chapter 7 and Chapter 13 bankruptcy process is available to Americans or those with American debts and assets even when that person is living abroad.
An increasing number of US citizens are living and working overseas. Some are citizens who have been relocated to overseas offices by multinational corporations, some are retirees wishing to maximize the value of their US dollar Social Security payments in countries with a favorable exchange rate, some are US military or State Department personnel—and some just do so for the adventure of it all.
What is also true is that debt does not vanish when one walks across the US border into another country. Unless an expatriate is renouncing his or her citizenship and permanently taking up residence in a foreign jurisdiction, financial ties will remain.
Even in the latter case, that may be an effective solution with regard to the payment of US taxes, but it does not solve the problem of how to deal with, for example, a debt owed to an entity such as Santander. Santander is, in fact, the 4th largest bank in Europe. It is owned by a consortium which also owns ABN-AMRO, whose ATMs are among the most commonly found in Europe. Most other major financial institutions similarly have tendrils reaching around the globe.
Unless you wish to live incognito, without putting down roots or owning property or keeping a bank account, a goodly percentage of your debt may follow you overseas.
What do you do if, once abroad, the credit card or medical debt you thought you left in Detroit continues to sandbag your new lifestyle?
The same thing you would do if you were not abroad: consult an experienced US bankruptcy attorney—back home.
HOW TO FILE CHAPTER 7 OR CHAPTER 13 BANKRUPTCY FROM ABROAD
Bankruptcy is a Federal legal process, but, nevertheless it must be filed within the proper legal “venue” in the United States.
With regard to the bankruptcy process, “venue” means one of the 94 Federal judicial districts into which the United States is divided. In Michigan, we have two Federal districts: the Eastern District of Michigan and the Western District of Michigan.
The Eastern District of Michigan is further sub-divided into the Northern Division, including Flint, Saginaw, and Bay City, and the Southern Division, including Detroit, Ann Arbor, and Monroe.
Even when abroad, you can file for Chapter 7 or Chapter 13 bankruptcy in the US—so long as you file within the correct venue.
A US Chapter 7 or Chapter 13 bankruptcy can be filed in any Federal jurisdiction “… in which the domicile, residence, principal place of business in the United States, or principal assets in the United States, of the person or entity that is the subject of the case have been located for the one hundred eighty days immediately preceding such commencement, or for a longer portion of such one-hundred-and-eighty-day period than in any other district.”
In other words, so long as you have either lived in or kept a permanent residence (“domicile”) in that Federal judicial district for the majority of the six months prior to the filing of the case, or so long as your principle place of business is in that district if you are a corporation or business or other entity filing for bankruptcy, you may file your bankruptcy in that district.
Therefore, if a resident of Detroit, Michigan, which is located in the Eastern District of Michigan Federal judicial district, were to join the military and be stationed overseas, he or she could still file for bankruptcy in the Eastern District of Michigan so long as his or her permanent address and/or assets remained principally in the Eastern District of Michigan.
What assets? Does he or she have to be a homeowner?
No. There simply must be more of a connection to the Eastern District of Michigan than any other venue in the United States.
In practice, the question of venue is more commonly called into question when a debtor in bankruptcy has recently moved from one US Federal district to another rather than when a debtor moves from one venue out of the United States entirely.
Is there a hitch, then?
BANKRUPTCY WHILE RESIDING OVERSEAS AND BANKRUPTCY COURT HEARINGS
As of this writing, in the midst of the COVID-19 pandemic, all Bankruptcy Court hearings in the Eastern District of Michigan (with a few exceptions) are being held virtually, via Zoom or telephonically.
However, in ordinary circumstances, the question of whether you will need to appear physically for your Bankruptcy Court hearings in Detroit even when filing your Chapter 7 or Chapter 13 case from overseas remains salient.
The Bankruptcy Code (the Federal statute that governs the US bankruptcy process) requires that a debtor personally appear for, at the very least, his or her 341 Meeting of Creditors hearing at the outset of the bankruptcy case.
In a Chapter 7 bankruptcy proceeding, this 341 Meeting is usually the only hearing that requires the debtor’s attendance (unless something has become contested in the case).
In a Chapter 13 bankruptcy proceeding, there is often at least one further hearing: the Chapter 13 Plan confirmation hearing.
Is it required that you attend these hearings in person? Does the Bankruptcy Court “understand” your situation?
Without proactive work by your Michigan bankruptcy lawyer, the answers are “yes” and “no,” in that order.
Any waiver of the requirement that a debtor attend a hearing personally is going to require the cooperation of the Chapter 7 or Chapter 13 Trustee assigned to the case by the Bankruptcy Court and, likely, one or motions filed with the court by your bankruptcy lawyer.
An experienced bankruptcy attorney can assist in overcoming such practical hurdles and work with the Trustee assigned to an overseas client’s case to obtain court approval to conduct hearings telephonically, via Skype or Zoom, via a personal representative with power of attorney and knowledge of the client’s financial affairs, and via other means.
However, the question of why you are overseas and what you are doing there may enter the picture. An active duty member of the US Armed Forces is going to be given significantly more latitude in this regard than will a dilettante backpacker.
US military members have other advantages, as well, that make it easy for the Bankruptcy Court to be flexible, such as base legal officers who can verify the debtor’s Social Security and identity under oath over the phone as needed, a requirement of the 341 Meeting of Creditors procedure.
FILING US BANKRUPTCY OVERSEAS: THE BOTTOM LINE
The bottom line with regard to filing a US bankruptcy from abroad is that you must work with an experienced bankruptcy attorney in the venue in which you need to file your Chapter 7 or Chapter 13.
You will not successfully negotiate your appearance with a Chapter 7 or Chapter 13 Trustee with a 7-hour time-zone difference, nor will you successfully file the required Motions to Excuse an otherwise required appearance without competent bankruptcy legal assistance. Any Michigan bankruptcy Trustee is going to be far more willing to make this work for a debtor who is represented by a familiar name with a years of experience appearing before that Trustee.
Attorney Walter Metzen has represented thousands of consumers in Chapter 7 and Chapter 13 bankruptcy cases in Michigan. A Board Certified Bankruptcy Expert, Attorney Metzen has dealt with bankruptcy and business ownership issues for over 20 years.
The Law Offices of Walter A. Metzen & Associates offers free consultations for those interested in the bankruptcy process and is experienced in determining and advising as to the best course of action when filing a Chapter 7 or Chapter 13 bankruptcy in Michigan.