Ask an Expert: Bankruptcy can be a big help in the long run

— -- Q: I started a consulting business two years ago and quickly got in over my head. I underbid my projects, got a lot of work, and then couldn't finish on time. I am being sued. I was going to get a new loan, but now don't qualify. Should I file for bankruptcy? — Mark

A:Well, as I used to be a bankruptcy lawyer in a former life, you are asking the right guy. And especially in this tough economy, this is a question I am hearing more and more lately.

Bankruptcy is the big bad monster of your business movie, I get that. But you should know up front that, in reality, the bankruptcy monster is more like that big, sweet blue thing in Pixar's movie Monsters, Inc. than that mean, scary thing in Alien.

What the heck are your talking about, Steve?

Look, almost every area of the law is about revenge, except for bankruptcy.

Criminal law is about putting people behind bars; lawsuits are about getting money. But not bankruptcy. Although the rules were recently toughened (more on that bonehead idea in a minute), the basic tenet behind bankruptcy is about forgiveness, not revenge. It's about helping you start over.

When the bankruptcy laws were greatly restricted in 2005, the idea was to cut back on bankruptcy fraud, that is, to prevent people who were not really in over their heads from legally escaping their debt.

But bankruptcy fraud was never a big problem. Anecdotally, I can tell you that of all of the many bankruptcies I handled over the years, only one or two cases of fraud were possibly at play.

Most people want to pay their debts, but because of business problems, or divorce or illness, or something, things changed and now they can't.

So should you file bankruptcy if your business is in trouble? Well, I hate to sound like the lawyer I am, but it depends.

Understand that there are three types of bankruptcies, one being far more preferable. A Chapter 7 (desirable) wipes out your unsecured debt. A Chapter 13 (less desirable) is a three-to-five year repayment plan for individuals. A corporate repayment plan is called a Chapter 11, and works well in the certain situations.