counseling became part of the bankruptcy process

Credit counseling became part of the bankruptcy process in the United States with the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. As a result of this legislation, your Chapter 7 or Chapter 13 bankruptcy case will be dismissed if you cannot prove that you completed a credit counseling session, with an approved credit counselor, within the preceding 180 days.

In other words, in the United States, your bankruptcy will not start until you can prove that you have completed credit counseling.

This is in direct contrast to the personal bankruptcy system in Canada, where credit counselling (yes, in Canada we spell it with two l’s) is an integral part of the bankruptcy process, but it is completed during the bankruptcy, not before you file.

It appears that the American bankruptcy reform in 2005 was championed largely by large credit card companies and other lenders, and they argued in favor of the credit counseling requirement primarily, it would appear, as a way to talk people out of filing bankruptcy. The mandatory pre-bankruptcy credit counseling session, among other things, discusses alternatives to bankruptcy. Since credit counselors do not also serve as bankruptcy attorneys, it is logical to assume that they will, at the very least, make sure all debtors are fully aware of their non-bankruptcy options.

In Canada, the process is somewhat different. First, all bankruptcies are handled by private individuals, generally with an accounting background, who are licensed by the federal government. In Canada, practicing lawyers are not permitted to act as trustees in bankruptcy. The trustee handles all aspects of the file, including collecting assets from the debtor, and distributing the proceeds to creditors.

In Canada, prior to filing a consumer proposal (similar to a Chapter 13 filing in the United States) or a personal bankruptcy (similar to Chapter 7), the debtor is required to meet with a licensed trustee in bankruptcy, and the trustee is required to explain to the debtor all of their options, including such non-legislative options as debt consolidation and debt management plans through a credit counselor. The debtor then decides whether or not they will file bankruptcy.

During the bankruptcy (or proposal) the debtor is required to attend two credit counselling sessions.

The first credit counselling session discusses money management, spending and shopping habits, warning signs of financial difficulties, and obtaining and using credit.

The second stage credit counseling session is designed to determine the causes of the insolvency, and to provide the debtor with the skills necessary to avoid future financial problems. The credit counselor will follow up on the principles discussed in the first session, and then help identify non-budgetary causes of financial problems (such as marriage break up, job loss, family problems, excessive gambling, compulsive behavior, and substance abuse).

In contrast to the American system where pre-bankruptcy credit counseling appears designed to talk people out of going bankrupt, the Canadian bankruptcy credit counselling system is designed to help debtors avoid financial problems in the future.

Obviously as a Canadian bankruptcy trustee I am somewhat biased, but given my experience with the over 3,000 personal bankruptcies and consumer proposals that I have personally handled, I can say with confidence that in most cases the debtors viewed the credit counselling sessions as a positive experience. Many people over the years have told me that they learned many money management skills, and the vast majority of people I have helped over the years don’t go bankrupt again, so I believe the Canadian credit counselling system works.

The American system has only been in place for a short period of time, so perhaps in a few years a comparison will be done of both credit counseling systems to determine which approach is most beneficial to people with money problems.