Q & A
What is bankruptcy?
Bankruptcy is a way for people and businesses who owe more money than they can pay right now (‘debtors’) to either work out a plan to repay the money over time in a case under chapter 11, chapter 12 or chapter 13, or to wipe out (‘discharge’) most of their bills in a chapter 7 case. The filing of a bankruptcy petition immediately stops most actions to collect debts which were due at the time of filing, including law suits, repossessions, and foreclosures. Based upon the circumstances, the court may, however, permit some eviction, repossession and foreclosure actions to continue even after the case is filed. What chapter you choose to file under, what bills can be eliminated, how long payments can be stretched out, and other details are controlled by the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure. These are federal laws, which means they apply all over the United States. The Code and Rules are found in Title 11 of the United States Code. The various sections of the Bankruptcy Code are referred to throughout this booklet as “11 U.S.C. § ____.” In addition to the Bankruptcy Code and Rules, what property you can keep will be affected by sections 703 and 704 of the California Code of Civil Procedure.
Who can start a bankruptcy?
Any person, partnership, corporation, or business trust may file a bankruptcy. If the person or entity who owes the money, referred to as the debtor, files a petition and starts the bankruptcy, it is called a voluntary bankruptcy. The people or entities who are owed money, referred to as the creditors, can also start the bankruptcy by filing a petition against the person or entity who owes them money. This is called an involuntary bankruptcy. In an involuntary bankruptcy, the debtor gets a chance to contest the petition and contend they should not be in bankruptcy.
Can I file bankruptcy without an attorney?
Current law permits individuals to file their own cases and to represent their own interests in bankruptcy proceedings. However, it may not be wise for you to do so. Any bankruptcy case can become a complicated matter requiring both knowledge of the law and experience before the court to successfully complete. A document preparation service can also be used but is an equally bad idea. Decisions made during your bankruptcy will affect you for the next 8 to 10 years; IT MUST BE DONE PROPERLY. In order to fill out the forms required to file a case, you will need to know (among other things) the differences between the types of bankruptcies which can be filed, the types of exemptions which can be taken and the differences between secured and unsecured debts. As your case progresses, many other areas of law and knowledge may be involved. Decisions made without an understanding of basic bankruptcy law can have serious consequences including the loss of property and legal rights. Only an attorney may file a bankruptcy for a partnership or corporation. Even if an individual is the sole shareholder or the managing partner, that person may not represent the corporation or partnership before the bankruptcy court.
What are the recent changes to the bankruptcy law?
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 made significant changes to the Bankruptcy Code which affect all debtors filing cases on or after October 17, 2005. Here are some of the major changes:
Waiting periods if previous filing: A debtor who has previously filed a bankruptcy and obtained a discharge, may not receive another discharge unless there has been sufficient time between the two cases. There is an 8 year period [calculated from the filing date of the first case and the filing date of the second case] for persons who have received a discharge in a chapter 7 or 11 case and wish to file a chapter 7 case, and 6 years if the first case was a chapter 13. To receive a chapter 13 discharge, the period is 4 years if the first case was a chapter 7 or 11 case, and 2 years if the first case was a chapter 13 case.
Mandatory Pre-Bankruptcy Credit Counseling: All individual debtors who file bankruptcy on or after October 17, 2005, must undergo credit counseling from an approved counseling agency within 180 days before filing for bankruptcy. The counseling may be waived or deferred in some cases. A list of approved credit counseling agencies is available from the Clerk’s Office and on the U.S. Trustee web site. One of the following must be filed by the debtor with the petition: (1) Official Form 1, Exhibit D, Individual Debtor’s Statement of Compliance with Credit Counseling Requirement, with any documents required by Exhibit D (including the certificate of completion of the counseling and debt repayment plan, if any, provided by the approved agency) attached; OR (2) a motion/request for exemption from the counseling requirement due to incapacity or disability, or because you are on active military duty in a combat zone; OR (3) a certificate describing exigent circumstances that merit a waiver of the pre-bankruptcy counseling requirement and stating that the debtor was unable to get counseling services within 5 days after requesting them. If the certificate is satisfactory to the Court, the debtor will be given 30 days from the filing of the petition to comply with the credit counseling requirement, unless the debtor asks for and is granted an additional 15 day extension.
Mandatory Debtor Education Course after Filing: Individual debtors filing under chapters 7 and 13 must complete a personal financial management (or debtor education) course before they will be granted a discharge. This debtor education course is separate from and required in addition to pre-bankruptcy credit counseling. To comply with the debtor education requirement, the course must be completed after the filing of the petition. A list of approved providers of personal financial management (debtor education) course providers is available from the Clerk’s Office and on the U.S. Trustee web site Chapter 7 debtors must complete the personal financial management course and file Official Form 23, Debtor’s Certification of Completion of Instructional Course Concerning Personal Financial Management, within 45 days after the date first set for the meeting of creditors. In chapter 13 cases, Official Form 23 must be filed no earlier than the date of the last payment made under the plan or the date of the filing of a motion for a discharge prior to completion of the plan. If the debtor fails to file the certification of completion, their case can be closed without discharge. The debtor may later reopen the case in order to file the certificate and receive a discharge, but a fee in the same amount as the filing fee to commence a new case on the date of reopening will be collected.
Tax Returns – Individual debtors must provide a copy of their most recent tax return (or a transcript of the return) to the trustee and any creditor who requests a copy no later than seven days before the date first set for the meeting of creditors.
Wage Statements – Copies of all wage statements, payment advices, or other evidence of payment from an employer provided to the debtor within 60 days before the date of filing of the case must be provided by the debtor to the trustee not later than seven days before the date first set for the meeting of creditors.
Means Test – Individual debtors who file a chapter 7 petition must file a new form which will give detailed information about their income for the purpose or determining whether a debtor’s filing represents an abuse of the bankruptcy system. Some debtors may be prohibited from filing a chapter 7 case if their income would permit them to make payments to their creditors. This form is included in the forms needed to file a bankruptcy case which are posted on this site and must be filed within 15 days of the filing of the petition.
What is a joint petition?
A single petition filed by an individual and the individual’s spouse is called a ‘joint petition.’ Only people who are married on the date they file may file a joint petition. Unmarried persons, corporations, and partnerships must each file a separate case. If you are an individual and have a business which is not a partnership, corporation or business trust, you should list the name of the business as an alias (“doing business as,” or “dba”) on your petition. A petition filed in this manner, however, will not be considered a joint petition because the business is not an independently recognized legal entity.
What are the different “chapters” in bankruptcy?
Chapter 7 is the liquidation chapter of the Bankruptcy Code. Chapter 7 cases are commonly referred to as “straight bankruptcy” or “liquidation” cases, and may be filed by an individual, corporation, or a partnership. Under chapter 7, a trustee is appointed to collect and sell all property that is not exempt and to use any proceeds to pay creditors. In the case of an individual, the debtor is allowed to claim certain property exempt.In exchange for this, the debtor gets a discharge, which means that the debtor does not have to pay certain types of debts. Corporations and partnerships do not receive discharges. Consequently, any individuals legally liable for the partnership’s or corporation’s debts will remain liable. Therefore, individual bankruptcies may be required as well as the corporation or partnership bankruptcy. Chapter 9 is only for municipalities and governmental units, such as schools, water districts, and so on. Chapter 11 is the reorganization chapter available to businesses and individuals who have substantial assets and/or income to restructure and repay their debts. Creditors vote on whether to accept or reject a plan of reorganization which must be approved by the court. In addition to the filing fee paid to the Clerk, a quarterly fee shall be paid to the U.S. Trustee in all chapter 11 cases. There is no debt limit under Chapter 11. To qualify as a “small business chapter 11,” the debtor must be engaged in commercial or business activities, other than the ownership of real property, and the total of its secured plus unsecured debts must be less than $2,190,000. Due to the expense and complexity of chapter 11, the decision to file a chapter 11 petition should be made in consultation with an attorney. Chapter 12 offers bankruptcy relief to those who qualify as family farmers or family fishermen. There are debt limitations for chapter 12, and a certain portion of the debtor’s income must come from the operation of a farming or fishing business. Family farmers and family fishermen must propose a plan to repay their creditors over a period of time from future income and it must be approved by the court. Plan payments are made through a chapter 12 trustee who also monitors the debtor’s farming or fishing operations while the case is pending. Chapter 13 is the debt repayment chapter for individuals with regular income whose debts do not exceed $1,347,550 ($336,900 in unsecured debts and $1,010,650 in secured debts), including individuals who operate businesses as sole proprietorships. It is not available to corporations or partnerships. Chapter 13 generally permits individuals to keep their property by repaying creditors out of their future income. Each chapter 13 debtor proposes a repayment plan which must be approved by the court. The amounts set forth in the plan must be paid to the chapter 13 trustee who distributes the funds for a percentage fee. Many debts that cannot be discharged can still be paid over time in a chapter 13 plan. After completion of payments under the plan, chapter 13 debtors receive a discharge of most debts. Chapter 15 is a new chapter to deal with insolvency cases involving debtors, assets, claimants, and other parties in interest in more than one country. Due to their complexity, these “cross border insolvency cases” will always need a lawyer.
What chapter is right for me?
You have a choice in deciding which chapter of the Bankruptcy Code will best suit your needs. The decision whether to file a bankruptcy, and under which chapter to file depends on the particular circumstances of the debtor. In general, chapter 7 is appropriate when the debtor has insufficient income to pay all or most of his/her debts. Otherwise, if the debtor has an income or property and can afford to pay all or a substantial portion of his/her debts, chapter 11, 12, or 13 may be appropriate depending on whether the debtor is an individual, partnership, corporation, or family farmer or fisherman. These are only a few of the factors to consider, however. There is no way that a simple booklet such as this can spell out all the different things to be considered. Also, considering your personal facts, comparing them to each chapter’s requirements, and deciding which chapter to select, would be giving legal advice. Clerk’s Office staff, bankruptcy petition preparers, typing services and paralegals are prohibited by law from giving you legal advice. Only a lawyer can give you legal advice. Many lawyers charge a modest amount to help you and most will give you a free consultation, during which they will go over your circumstances and needs and tell you what you should do and how much it will cost for them to do it. There are also several “do it yourself” books that set out the details of each Bankruptcy Code chapter and attempt to explain the bankruptcy process. The decision whether to file a bankruptcy and under what chapter is an extremely important decision and should be made only with competent legal advice from an experienced bankruptcy
What does the clerk’s office do?
The Clerk’s Office provides a variety of services to the bankruptcy judges, attorneys and the public. Clerk’s Office staff provide clerical and administrative support to the court by filing and maintaining case-related documents, signing ministerial orders, issuing process and writs, collecting authorized fees, sending notices, entering judgments and orders, and setting hearings. The services provided by the Clerk’s Office to attorneys and the public include responding to requests for information and providing copies of documents in bankruptcy case files.
How do I know if a debt is secured, unsecured, priority or administrative so I can fill out my schedules correctly?
A. Secured Debt A secured debt is a debt that is backed by collateral. A creditor whose debt is “secured” has a right to take property to satisfy a “secured debt.” For example, most homes are burdened by a “secured debt.” This means that the lender has the right to take the home if the borrower fails to make payments on the loan. Most people who buy new cars give the lender a “security interest” in the car. This means that the debt is a “secured debt” and that the lender can take the car if the borrower fails to make payments on the car loan. B. Unsecured Debt A debt is unsecured if you have simply promised to pay someone a sum of money at a particular time, and you have not pledged any real or personal property to collateralize that debt. A debt is unsecured if you have simply promised to pay someone a sum of money at a particular time, and you have not pledged any real or personal property to collateralize that debt. C. Priority Debt A priority debt is a debt entitled to priority in payment, ahead of most other debts, in a bankruptcy case. A listing of priority debts is given, in general terms, in Section 507of the Bankruptcy Code. Examples of priority debts are some taxes, wage claims of employees, debts related to goods and services provided to a debtor’s estate during the pendency of a bankruptcy case, and alimony, maintenance or support of a spouse, former spouse, or child. If you have questions deciding which of your debts are entitled to priority status, you should consult an attorney. D. Administrative Debt An administrative debt is also a priority debt and is one created when someone provides goods or services to your bankruptcy estate. The best example of an administrative debt is the fee generated by an attorney or other authorized professional in representing the bankruptcy estate. E. Consumer Debt Consumer debt is either secured or unsecured debt incurred by an individual primarily for a personal, family or household purpose. The mortgage on your personal residence is considered consumer debt, however income taxes are not. Debts which are incurred in pursuit of a business would also not be consumer debt.
What are exemptions?
11 U.S.C. Section 522(b) allows an individual debtor to exempt real, personal, or intangible property from the property of the estate. Exempt assets are protected by state law from distribution to your creditors. Typically, exempt assets include some jewelry, vehicles up to a certain dollar amount, the equity in your home up to a certain amount, and tools of the trade. Under bankruptcy law, you are entitled to list the assets set forth in section 703 or section 704 of the California Code of Civil Procedure exempt. Exemptions are claimed on Schedule C. As with all schedules, it is important to fully complete and provide all the information requested. If no one objects to the exemptions you have listed within the time frame specified by the bankruptcy court, these assets will not be a part of your bankruptcy estate and will not be used to pay creditors through your bankruptcy case. Deciding which assets are exempt and how and if you can protect these assets from your creditors can be one of the more important and difficult aspects of your bankruptcy case. It is extremely important to consult an attorney if you have any questions regarding the issue of exempt assets.
What happens after I file bankruptcy?
Upon filing the original petition with the Clerk’s Office, the “automatic stay” immediately takes effect and prohibits all creditors from taking certain collection actions against the debtor or the debtor’s property. Although the stay is automatic, creditors need to be advised of the stay. The court issues a notice to all creditors advising them of the filing of the bankruptcy, the case number, the automatic stay, the name of the trustee assigned to the case (if filed under chapter 7, 12, or 13), the date set for the meeting of creditors (called the “341 meeting”), the deadline,if any, set for filing objections to the discharge of the debtor and/or the dischargeability of specific debts, and whether and where to file claims. The exact information in the notice differs depending on the chapter under which the case is filed. There are many exceptions to the automatic stay. Several new limitations on the imposition of the automatic stay, especially for repeat filers, were included in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. The most prominent of these exceptions relates to the termination of the stay against the debtor on the 30th day after the filing of a new case if the debtor had a prior case dismissed within one year of filing the present case, or if a debtor fails to accept a lease. The stay can be extended by the Court with a showing of good cause. In addition, there is an exception allowing the commencement of a civil proceeding regarding child custody or visitation, domestic violence or the dissolution of marriage, but not division of property. Other new exceptions include the continuation of an eviction or unlawful detainer action involving a residential lease. Because this is a very complex area of the law, you may wish to seek legal assistance before proceeding legally against a party who has filed for bankruptcy protection. In a chapter 7 case involving an individual debtor, the creditors generally have sixty (60) days from the first date set for the meeting of creditors to object to the discharge of the debtor and/or the dischargeability of a specific debt. If the deadline passes without any objections to the debtor’s discharge being filed, the court will issue the discharge order. If any objections to the dischargeability of specific debts are filed, they will be heard by the court, but will not delay the granting of a discharge with respect to other debts. An objection to discharge or to the dischargeability of certain debts is considered a separate lawsuit (an adversary proceeding) within the bankruptcy and may result in a trial before the judge assigned to the case. Corporate and partnership chapter 7 debtors do not receive a discharge. If there are no assets from which a dividend can be paid, the trustee will prepare a report of no distribution and the case will be closed. If there are assets that are not exempt, funds will be available for distribution to creditors. The court will set claims deadlines and notify all creditors to file their claims. The trustee will proceed to collect the assets, liquidate them and distribute the proceeds to creditors. When the assets have been completely administered, the court will close the case. To obtain a discharge, the debtor must complete a personal financial management course. If the certification of completion of an approved personal financial education course is not filed within 45 days of the meeting of creditors, the court will simply close the case without entering a discharge. In a chapter 13 case, creditors are given an opportunity to object to the plan. If no objection is filed by creditors or the trustee, the plan may be confirmed as filed. Once the plan is confirmed, the trustee will distribute the proceeds of the debtor’s plan payments to creditors until the debtor completes the plan or the court dismisses or converts the case. The creditors generally have sixty (60) days from the first date set for the meeting of creditors to object to the dischargeability of a specific debt involving fraud or a willful or malicious action. Upon completion of the chapter 13 plan, the court will issue a discharge order, the trustee will prepare a final report, and the case will be closed. To obtain a discharge, the debtor must complete a personal financial management course.
What is a bankruptcy trustee?
Who is the United States Trustee? What is the difference? In all chapter 7, 12, 13 and in some chapter 11 cases, a case trustee is assigned. In chapter 7 cases they are called “Panel Trustees.” In chapter 12 and 13 cases they are called “Standing Trustees.” The trustee’s job is to administer the bankruptcy estate, to make sure creditors get as much money as possible, and to run the first meeting of creditors, (also called the “341 meeting”, because 11 U.S.C. § 341 of the Bankruptcy Code requires that the meeting be held). The trustee either collects and sells non-exempt estate property, as in the case of a chapter 7, or collects and pays out money on a repayment plan, as in the case of a chapter 13. The trustee can require that you provide, under penalty of perjury, information and documents, either before, after, or at the meeting. You must also bring positive identification and verification of your social security number to the meeting. You should always cooperate with the trustee, since failure to cooperate with the trustee could be grounds to have your discharge denied. Trustees are not necessarily lawyers, and they are not paid by the court. They are appointed by the United States Trustee. The trustees report to the court, but their fees come out of the bankruptcy filing fees or as a percentage of the money distributed to creditors in the bankruptcy. The United States Trustee’s Office is part of the U.S. Department of Justice, and is separate from the court. The United States Trustee’s Office is a watchdog agency, charged with monitoring all bankruptcies, appointing and supervising all trustees, and identifying fraud in bankruptcy cases. The United States Trustee’s Office cannot give you legal advice, but they can give you information about the status of a case, and you can contact them if you are having a problem with a trustee, or if you have evidence of any fraudulent activity. In monitoring cases, the United States Trustee reviews all bankruptcy petitions and pleadings filed in cases, and participates in many proceedings affecting the case, but they do not administer the case themselves. They can bring motions in the bankruptcy, such as ones to dismiss the case, or to deny the debtor’s discharge. The United States Trustee is the agency which certifies credit counseling and debt education providers.
What is the creditors’ meeting? What can I expect will happen at it?
A “meeting of creditors” is the hearing all debtors must attend in any bankruptcy case. It is held outside the presence of the judge and usually occurs between twenty (20) and forty (40) days from the date the original petition is filed with the court. In chapter 7, chapter 12, and chapter 13 cases, the trustee assigned to the case conducts the meeting on behalf of the United States Trustee. In chapter 11 cases where the debtor is in possession and no trustee is assigned, a representative of the United States Trustee’s office conducts the meeting. Before the meeting occurs each individual debtor is required to provide the trustee with a copy or transcript of his/her most recently filed income tax return and copies of pay advices covering the six weeks prior to filing. These documents, plus any others requested by the trustee, should be provided at least 7 days before the date of the 341 meeting. Failure to do so can result in a motion to dismiss the case or a continued meeting date. The meeting permits the trustee or representative of the United States Trustee’s Office to review the debtor’s petition and schedules with the debtor face-to-face. The debtor is required to answer questions under penalty of perjury concerning the debtor’s acts, conduct, property, liabilities, financial condition and any matter that may affect administration of the estate or the debtor’s right to discharge. This information enables the trustee or representative of the United States Trustee’s Office to understand the debtor’s circumstances and facilitates efficient administration of the case.Additionally, the trustee or representative of the United States Trustee’s Office will ask questions to ensure that the debtor understands the positive and negative aspects of filing for bankruptcy. Finally, individual debtors must provide government-issued photo identification and proof of Social Security number to the trustee or representative of the United States Trustee’s Office at the meeting. The meeting is referred to as the “meeting of creditors” because creditors are notified that they may attend and question the debtor about the location and disposition of assets and any other matter relevant to the administration of the case. However, creditors rarely attend these meetings and, in general, are not considered to have waived any of their rights by failing to appear. The meeting usually lasts only a few minutes and may be continued if the trustee or representative of the United States Trustee’s Office is not satisfied with the information provided by the debtor. If the debtor fails to appear and provide the information requested at the meeting, the trustee or representative of the United States Trustee’s Office may request that the bankruptcy case be dismissed or that the debtor be ordered by the court to cooperate or be held in contempt of court for willful failure to cooperate.
What is a discharge?
The discharge order is issued by the court and permanently prohibits creditors from taking action to collect DISCHARGEABLE debts against the debtor personally; this does not prevent secured creditors from seizing collateral if payments are not kept up, or other creditors from pursuing property of the estate. Some debts are not dischargeable, and others may be found to be non-dischargeable depending on particular circumstances. In a chapter 7 case, the bankruptcy court will order that the debtor be discharged of all dischargeable debts once the time for filing complaints objecting to discharge has expired unless:
- The debtor is not an individual; or
- A complaint objecting to the debtor’s discharge has been filed; or
- A motion to extend the time for filing a complaint objecting to the debtor’s discharge is pending; or
- The debtor has filed a waiver of discharge; or
- A motion to dismiss the case for substantial abuse is pending; or
- A motion to extend the time for filing a motion to dismiss the case for substantial abuse, is pending; or
- The debtor has not paid in full the court fees connected with the filing of the case.or
- The debtor has not filed Official Form 23, Debtor’s Certification of Completion of Instructional Course Concerning Personal Financial Management.
- In chapter 11 cases, generally the completion of a confirmed plan of reorganization discharges the debtor from dischargeable debts that arose before the date of the order of relief unless:
- The plan or order confirming plan provides otherwise; or
- The plan is a liquidating plan and the debtor would be denied a discharge in a chapter 7 case under 11 U.S.C. Section 727
- In chapter 12 cases, the court will order that the debtor is discharged of dischargeable debts after the debtor has completed all payments under the plan, or prior to plan completion, after notice and hearing, if the requirements of 11 U.S.C. Section 1228(b) have been met. In chapter 13 cases, the debtor will be granted a discharge of dischargeable debts after completing all payments under the plan, or prior to plan completion, after notice and hearing, if the requirements of Section 1328(b) have been met and the debtor has filed Official Form 23, Debtor’s Certification of Completion of Instructional Course Concerning Personal Financial Management. The granting of a discharge does not automatically result in the closing of a case. All contested matters, adversary proceedings, and appeals must be resolved and the appointed trustee or debtor-in-possession must file a final report and account and request entry of a final decree before the Clerk’s Office will close the case.
What debts are dischargeable?
In an individual debtor’s case, all debts are dischargeable except for those listed in 11 U.S.C. Section 523. In a chapter 13 case, even more debts may be discharged if the debtor obtains a discharge under 11 U.S.C. Section 1328(a). The non-dischargeable debts listed in Section 523 include:
- Certain taxes and fines;
- Debts created through fraudulent conduct or by providing false information to a creditor;
- Debts not listed in your bankruptcy petition;
- Alimony, child maintenance or support, and certain debts arising out of a divorce decree or separation agreement;
- Debts from willful and malicious injury to another;
- Government guaranteed student loans;
- Debts caused by the death or a personal injury related to the operation of a motor vehicle while you were intoxicated; and
- Post bankruptcy condominium or cooperative owners’ association fees.
- This list includes many examples of non-dischargeable debts but you should review 11 U.S.C. Section 523 for a complete list. Some debts listed in 11 U.S.C. Section 523, such as those based on fraudulent conduct, embezzlement or willful and malicious injury to another, are discharged unless a complaint to deny discharge of that debt is timely filed with the bankruptcy court. Ordinarily, these complaints must be filed within sixty (60) days of the first date set for the meeting of creditors. Additionally, certain debts that were not listed on your bankruptcy schedules or that were incurred after you filed bankruptcy are generally not discharged.
What is the difference between a denial of discharge and a debt being non-dischargeable?
A discharge can be denied by the court either for one particular debt or for all debts. For a discharge to be denied, either as to a particular debt or as to all debts, someone must file an adversary proceeding (lawsuit) with the court. In a lawsuit to deny the discharge as to all debts, the person who brings the action must prove to the court that the debtor did one of the following: (1) transferred, concealed, removed, destroyed or mutilated property of the debtor within one year before the bankruptcy was filed, or after the bankruptcy was filed, or (2) concealed, destroyed, mutilated, falsified, or failed to keep and preserve books and records about the debtor’s financial condition or business transactions, or (3) the debtor made a false statement while under oath, in writing or orally, or (4) failed to turn over books and records, or (5) failed to explain the loss of assets, or (6) had received a previous bankruptcy discharge within eight (8) years. To deny the discharge as to one debt only, the creditor must prove that the debtor (1) got the money or thing by making false representations, false pretenses or actual fraud, or (2) used a materially false statement about his financial condition that the creditor relied on.
What does it mean if a case is dismissed?
A dismissal order ends the case. Upon dismissal the “automatic stay” ends and creditors may start to collect debts, unless a discharge is entered before the dismissal and is not revoked. An order of dismissal itself will not free the debtor from any debt. Often, a case is dismissed when the debtor fails to do something he/she must do (such as show up for the creditors’ meeting, answer the trustee’s questions honestly, produce books and records the trustee requests), or if it is in the best interests of the creditors. Unless the debtor appeals the order or seeks reconsideration of the order within ten (10) days after entry of the order, the Clerk will automatically close the case.
What is a reaffirmation agreement?
Secured creditors may retain some rights to seize property securing an underlying debt even after a discharge is granted. Depending on individual circumstances, if a debtor wishes to keep certain secured property (such as an automobile), he or she may decide to “reaffirm” the debt. A reaffirmation agreement is an agreement by which a bankruptcy debtor becomes legally obligated to pay all or a portion of an otherwise dischargeable debt. Such an agreement must generally be filed within sixty (60) days after the first date set for the meeting of creditors, but before the discharge is entered. If the reaffirming debtor is represented by an attorney, the agreement is filed with an affidavit of the attorney which complies with 11 U.S.C. Section 524(c)(3). If the reaffirming debtor is not represented by an attorney, the debtor or creditor must file an application for approval of the agreement, along with a request for hearing. An order approving the agreement should be brought to the hearing. You must appear in person at the hearing. The judge will ask you questions to determine whether the reaffirmation agreement imposes an undue burden on you or your dependents and whether it is in your best interests. Since reaffirmed debts are not discharged, the bankruptcy court will normally only reaffirm secured debts where the collateral is important to your daily activities. Reaffirmation agreements are strictly voluntary. They are not required by the Bankruptcy Code or other state or federal law. However, if the debtor does not either reaffirm or redeem secured personal property, such as a vehicle, the protections of the automatic stay are terminated. Since a reaffirmation agreement takes away some of the effectiveness of your discharge, legal counsel is advisable before agreeing to a reaffirmation. Even if you sign a reaffirmation agreement, you have a minimum of sixty (60) days after the agreement is filed with the court to change your mind. If your discharge date is more than sixty (60) days after the agreement is filed with the court, you have until your discharge date to change your mind. If you reaffirm a debt and fail to make the payments as agreed, the creditor can take action against you to recover any property that was given as security for the loan and you may remain personally liable for any remaining debt.
What is a redemption?
Redemption allows an individual debtor (not a partnership or a corporation) to keep tangible, personal property intended primarily for personal, family, or household use by paying the holder of a lien on the property the amount of the allowed secured claim on the property, which typically means the value of the property. Otherwise, in order to retain the property, the debtor would have to pay the entire amount of the secured creditor’s debt, do a reaffirmation agreement and become legally obligated on the debt again. The property redeemed must be claimed as exempt or abandoned. With redemption, a debtor can often get liens released on personal household possessions for much less than the underlying debt on those secured possessions. Unless the creditor consents to periodic payments, redemption must generally be made in one lump sum payment to the creditor. If the debtor and creditor agree to the redemption, just a consent order of redemption is required. If the redemption is opposed, a motion for redemption and a request for hearing should be filed.
What are claims and claim objections?
How are claims filed? A. Claims In the broadest sense, a claim is any right to payment held by a person or company against you and your bankruptcy estate. A claim does not have to be a past due amount but can include an anticipated sum of money which will come due in the future. In filling out your Schedules, you should include any past, present or future debts as potential claims. B. Claims Objections You are entitled to object to any claim filed in your bankruptcy case if you believe the debt is not owed or if you believe the claim misrepresents the amount or kind of debt (e.g. secured or priority) which you owe. In some circumstances, an objection to claim can be initiated by filing a motion in the bankruptcy court; in other circumstances, it must be initiated by filing an adversary proceeding (like a lawsuit in your bankruptcy case). If you anticipate objecting to claims, you should seek the advice of an attorney as soon as possible since the objection process can be complicated and time sensitive. C. Filing Claims The written statement filed in a bankruptcy case setting forth a creditor’s claim is called a proof of claim. The proof of claim should include a copy of the obligation giving rise to the claim as well as evidence of the secured status of the debt if the debt is secured. Under the Federal Rules of Bankruptcy Procedure, with limited exceptions, claims filed by creditors, except governmental units, in chapter 7, 12 and 13 cases must be filed within ninety (90) days after the first date set for the meeting of creditors. Claims of governmental units must be filed within one hundred eighty (180) days of the date the petition was filed. In the Eastern District of California, the ninety (90) day and one hundred eighty (180) day deadlines also apply, by local rule, to the filing of claims by creditors in chapter 11 cases. If a creditor files a claim after the specified deadline, you may object to the claim as being untimely filed. Under the Federal Rules of Bankruptcy Procedure, you (or in chapter 7 and some 11 cases, the trustee) may file a proof of claim on behalf of a creditor within thirty (30) days after the last day for filing claims.
What can I do if a creditor keeps trying to collect money after I have filed bankruptcy?
If a creditor continues to attempt to collect a debt after the bankruptcy is filed in violation of the automatic stay, you should immediately notify the creditor in writing that you have filed bankruptcy, and provide them with either the case name number and filing date, or a copy of the petition that shows it was filed. If the creditor still continues to collect, the debtor may be entitled to take legal action against the creditor to obtain a specific order from the court prohibiting the creditor from taking further collection action and, if the creditor is willfully violating the automatic stay, the court can hold the creditor in contempt of court and punish the creditor by fine or incarceration. Any such legal action brought against the creditor will be complex and will normally require representation by a qualified bankruptcy attorney.
What should I do if I cannot make my chapter 13 payment?
If the debtor cannot make a chapter 13 payment on time according to the terms of the confirmed plan, the debtor should contact the trustee by phone and by letter advising the trustee of the problem and whether it is temporary or permanent. If it is a temporary problem and the payments can be made up, the debtor should advise the trustee of the time and manner in which the debtor will make up the payments. Please note that all plan payments should be mailed to the payment address provided by the chapter 13 trustee. This address is to a lock box at the bank and funds sent to it will be directly credited to your chapter 13 account. Taking or sending payments to the chapter 13 trustee’s office, the Clerk’s Office, or the Office of the U.S. Trustee will delay processing and further delay the crediting of late payments to your chapter 13 account. Significant changes in the debtor’s circumstances may require that the plan be formally modified. If the problem is permanent and the debtor is no longer able to make payments to the plan, the trustee will request that the case be dismissed or converted to another chapter. The determination of whether to modify, dismiss or convert a case requires the same kind of analysis as is needed for the initial decision whether to file bankruptcy and under what chapter. Therefore, the debtor should seek counsel from a qualified bankruptcy attorney before attempting to make such a decision. If the debtor delays making a voluntary decision and cannot make the plan payments, the court may dismiss the case.
My ex-spouse has filed bankruptcy. He/she has listed me as a co-signer on a scheduled debt. What can I do? Does my divorce decree protect me?
If you are a co-obligor with your ex-spouse on a debt, the creditor can require the entire payment of that debt from your share of the community property even though the divorce decree assigns the debt to your ex-spouse. Depending on the terms of your divorce decree, you may be able to have certain support obligations under it determined to be non-dischargeable by the bankruptcy court or in state court. You should seek legal advice for a thorough explanation of your rights and obligations in this area as soon as you find out that your ex-spouse has filed a bankruptcy.