For many people who are struggling with overwhelming debt, one of the things that holds them back from filing for bankruptcy is the myth that they will lose everything that they own as a result. While it is true that there may be some assets that must be given up during the bankruptcy process, many of these assets are considered exempt property, or property that is not able to be included in the bankruptcy estate. As a creditor, you should know which property is and is not able to be used to repay debts.

Illinois Property Exemption

When a person files for bankruptcy, they will be assigned a bankruptcy trustee who is responsible for gathering, overseeing, distributing, and/or protecting the debtor’s property that is contained in the bankruptcy estate. The bankruptcy estate contains nearly everything that the debtor owns and is used to pay back creditors in some situations. However, certain property is excluded from being used to repay creditors. This is called exempt property and varies from state to state, in addition to federal exemptions.

In Illinois, however, residents are only able to use the state’s set of exemptions, instead of being able to choose between the state’s and federal exemptions. When looking at a debtor’s bankruptcy estate, some of the applicable exclusions may include:

You might not be aware of it, but one of President Biden’s campaign promises was to make credit reporting fairer and more accurate so that everyone across the country, no matter their race or socioeconomic status, can have more equal and much better opportunities to access credit cards, loans, mortgages, and other financial offerings. As a representative from an auto lender, equipment lender, truck lender, credit union, bank, or other financial institution, you might want to learn more about the possibilities that the Biden Administration is open to with regards to credit reporting reform. Here are some new ideas that you might see over the next four years. Keep them in mind during your dealings with debt collection activities, including bankruptcies. 

3 Potential Changes to Credit Reporting That You Should Know About

While there are many reforms the Biden Administration might consider in the future for credit scoring and reporting, these are some of the more substantial changes currently under consideration:

A loan contract can have more than one party who is liable for the debt. For instance, a loan may have a guarantee, in which a third party called a guarantor promises to repay the debt in the event that the principal debtor defaults. A guarantor can be an individual, bank, or other financial institution and can agree to put up assets as collateral for the debt. For creditors, a guaranteed debt provides security if lending to someone who has a poor or unproven credit history. However, the guarantor could try to get out of their liability by finding a weakness in the contract. Here are four tips for creating a strong guarantee in your debt contract:

1. Get the Guarantee in Writing: It may seem obvious, but it is crucial that the guarantee is a written agreement. Courts typically do not recognize oral agreements for guarantees, and even if they did, an oral agreement is an unreliable way to set strict terms for the guarantee.
2. Use Clear Terms and Conditions in the Contract: The guarantee in the contract should state when the guarantor becomes responsible for the debt and how much they must pay. For instance, you could have an unconditional guarantee that requires the guarantor to pay regardless of the reason for the default or a guarantee that is conditional on actions such as attempting to collect from the principal debtor before collecting from the guarantor. 
3. Include Terms Giving Consent to Modify the Agreement: One argument the guarantors have used against creditors is that the guarantor was unaware of a modification to the loan agreement that significantly increased their burden if they became liable for the debt. You can protect yourself against this argument by including a section in the contract in which the guarantor consents to pay the debt regardless of modifications.
4. Check on the Guarantor: Having a guarantor for a debt does you little good if that person has a poor credit history. Do a background check on the guarantor just as you would with the principal debtor. Make sure they have the income or assets to pay if needed and a history of making payments on time.

Contact a Chicago Creditor’s Rights Attorney

When a debtor or guarantor balks at repaying a defaulted debt, you will rely on the strength of your contract and your legal team to protect your financial interests. An Illinois creditor’s rights lawyer at Walinski & Associates, P.C., knows the tactics that debtors use to avoid payment and how to respond. To schedule a consultation, call 312-704-0771.

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There is no statute of limitations on how long a creditor can attempt to collect an unpaid debt, but there is a deadline for when they can still use litigation to receive a court judgment against the debtor. Litigation has advantages over other debt collection practices because:

• The debtor is legally obligated to repay what they owe.
• Creditors can request methods of enforcing the court order, such as wage garnishment.
• The mere threat of litigation may be motivation for the debtor to cooperate.

If you allow the statute of limitations to expire on a debt, you are left with fewer options for collecting that debt. You must understand how the statute of limitations works to know whether it is too late to file a lawsuit over an outstanding debt.

What Is the Statute of Limitations?

The number of years you have before the statute of limitations expires is different depending on the state and type of debt. In Illinois, the statute of limitations is:

When creating a loan agreement in Illinois, there is a big difference between personal loans and commercial loans. Individuals or spouses take out personal loans in order to pay for family or household expenses – the most common example being home mortgages. Commercial loans are credit agreements made with business owners for the purpose of starting or expanding a business. In Illinois, commercial loans are more favorable to lenders than personal loans because of the Illinois Credit Agreements Act. Thus, making sure to classify a loan as a credit agreement could save you from a lengthy legal battle.

Commercial Loan Rules

The Illinois Credit Agreements Act states that a credit agreement or any revisions to an agreement is valid only if the agreement is in writing and signed by both parties. The law defines credit agreements as not including credit cards or loans for personal, household, or family purposes. The lender and the commercial debtor cannot create an agreement by:

• Discussing changes to an existing agreement;
• Reaching an oral agreement; or
• Sending a letter or email with the terms of the oral agreement.

Debtors try to use oral agreements to defend themselves against lenders who are attempting to collect on a loan or to file a claim against a lender that they accuse of violating their agreement. With credit agreements in Illinois, commercial debtors have no claim or defense based on oral agreements.