What Is Keep and Pay?
- Keep and pay is a strategy to keep an asset while continuing to make payments on it, even after having declared bankruptcy.
- Keep-and-pay requires that the debtor or person filing for bankruptcy is able to keep up with payments for the asset.
- Rules regarding keep-and-pay vary by state.
Understanding Keep and Pay
Keep and pay is a bankruptcy strategy in which an individual who wants to keep an asset following a bankruptcy resolution agrees to follow a payment schedule and sets forth their intentions in court documents.
All exemptions in bankruptcy refer to assets the filer gets to retain. All other property that is nonexempt can be liquidated by the court to help settle the filer's outstanding debts.
Keep and pay prevents people from having a particular asset repossessed and possibly liquidated, but it sometimes requires them to file an official statement with the bankruptcy court that shows they have a plan to pay for the asset going forward. Typically, this plan must also get the approval of the affected creditor.
How Keep and Pay Works
Generally, creditors are open to keep and pay plans if it appears likely they will be able to collect on the entirety of the debt owed, rather than possibly settling for something less based on a court order. In addition, it can often eliminate hassles on the part of the creditor.
For example, say a person files bankruptcy and owes a substantial amount on a home. The bank can eventually sell the property to recoup the remaining amount owed on the mortgage, but it could take time and considerable effort, and thus, added cost. If that seems likely, it could be advantageous for the bank to take the chance of getting repaid under a Keep-and-Pay agreement.
For each asset in a Chapter 7 bankruptcy, for example, the filer typically is asked what they want to do with each valuable piece of property, including whether they wish to surrender it, retain and redeem it, keep it and pay what is owed over time, or do something else with it.
For this reason, the person filing can request to keep and pay for particular items. The court won’t always agree to such a request, however, many courts try to follow the filer’s wishes if they are made in good faith. Others have guidelines on what to do with assets based on the type of asset, its value, and the remaining amount owed.
As an example, guidelines could address whether or not an asset is illiquid, and cannot easily be sold to cover a person’s debts, or whether an asset is pertinent to a person's livelihood, such as a car that may be necessary for a person to get to and from work.
Keep and Pay Rules
Rules regarding keep and pay and various bankruptcy exemptions vary by state. Most filers must use the rules set forth by the state in which they live. However, a few states such as California have two sets of exemption rules—one under state law and the other a federal list of rules. Bankruptcy filers need to choose one set of rules or the other and use them consistently throughout the bankruptcy proceedings.
For property, for instance, many states set an exemption value. You can keep and pay if the property value is worth less than a threshold set by the exemption rules.
As an example, say a person filing for bankruptcy has a home worth $160,000, with an outstanding mortgage balance of $140,000, and $20,000 in equity. Their state of residence allows an exemption amount up to $175,000, which exceeds the value of the home. In this instance, the filer would be able to keep the home.
Conversely, if the home was worth $200,000 with the same mortgage balance, leaving $60,000 in equity, it would exceed the exemption threshold. This would require a court-appointed trustee to liquidate the property, pay the mortgage holder $140,000 from the proceeds, and to distribute the remaining funds to any additional creditors, prior to the filer receiving any of the equity.
Example of Keep and Pay
Sam has been terminated from employment and is unable to make timely mortgage payments. Sam's mortgage lender refuses to renegotiate the terms of the loan payment and has insinuated that it will seek to seize the property via foreclosure. Meanwhile, as other debts and expenses climb, Sam enters bankruptcy.
Right after filing for bankruptcy, Sam finds a new job that will provide enough income to make the mortgage payments, but with several cutbacks to previous lifestyle and amenities. In effect, Sam will have to live a more frugal life. Sam submits a plan to the bankruptcy court detailing a breakdown of the proposed new mortgage payments and expenses. The court approves this plan, and Sam gets to keep the house.