Filing Without An Attorney
- Category: Filing Without An Attorney
- Published on 06 June 2008
- Written by Chief Deputy
- Hits: 6308
They May Encounter Once They File a Bankruptcy Case
As well as reading this topic, an individual debtor thinking of filing a bankruptcy petition should first read:
- Notice to All Debtors Before Filing a Case
- General Warning to Parties Proceeding Without Counsel (Proceeding Pro Se)
- Special Warning to a Debtor Thinking of Filing a Bankruptcy Petition
Particularly for a debtor, it is extremely difficult to successfully navigate a bankruptcy case given the complexity of the bankruptcy laws. The rules are very technical, and a misstep may affect a pro se debtor’s rights. Bankruptcy for a debtor has long-term financial and legal consequences. The court strongly encourages debtors to attempt to obtain the assistance of an attorney (see Find an Attorney).
In addition to the general requirement regarding obtaining credit counseling before you file your petition (discussed in detail under Notice to All Debtors Before Filing a Case) you also need to be aware of the requirements that will be imposed upon you in order for you to prevent dismissal of the case and to prevent denial of a discharge. At the clerk’s office, and under Informational Materials (including the U.S. Courts’ website at http://www.uscourts.gov/bankruptcycourts/resources.html), there are materials addressing in more detail the requirements that will be imposed on you and how to comply with them. Those requirements include the following:
Filing Petition (and other Documents Required to be Filed Utilizing an Official Form) on the Correct Official Form:
The petition is the document you file to commence your bankruptcy case.
It must be filed using the most recent version of the Official Form for a petition. Similarly, other documents required to be filed on an Official Form must use the most recent version of the Official Forms.
Requirements of Filing With the Petition a So-Called List of Creditors, a Mailing Matrix, and a Statement of Social Security Number:
Under Fed. R. Bankr. P. 1007(a)(1) , you are required to file with the petition a list of creditors, other parties to any executory contract or unexpired lease, and any co-debtor (such as a guarantor or co-signer). You must file that list (commonly referred to as the List of Creditors), using the caption of the case (see Official Form B16B ) and signing the list under penalty of perjury (see Fed. R. Bankr. P. 1008 and 28 U.S.C. § 1746 ) (or under oath) as being an accurate list in compliance with Rule 1007(a)(1). But this List of Creditors, as discussed below, can be combined with the Mailing Matrix.
In addition, you must submit that list as a Mailing Matrix for the case in accordance with the Clerk’s Office’s Mailing Matrix Guidelines, like the Matrix Example.
The List of Creditors and the Mailing Matrix may be combined and usually are combined. When combined, they must include a cover sheet (List of Creditors and Mailing Matrix) like the one attached hereto. When not combined, the cover sheet should be adjusted accordingly.
You must also file with the petition a Statement of Social Security Number on Official Form B21.
Caution! Failure to file the List of Creditors, the Mailing Matrix, or the Statement of Social Security Number with the petition may result in the court dismissing the case within a few days after it started.
Required Filings Within 15 Days of Commencement of Case of Certain Documents on Official Forms, Payment Advices, and Record of Certain Educational IRAs:
You are required to file within 15 days after you file your bankruptcy petition certain additional papers, some of them on Official Forms. See 11 U.S.C. § 521(a)(1)(B) and § 521(c) and Interim Bankruptcy Rule 1007(b) and (c). See also the checklists (one for each chapter of the Bankruptcy Code under which a case may be filed) entitled Required Lists, Schedules, Statements, and Fees (Director’s Procedural Form B200 ).
You must fill out the required Official Forms fully and truthfully, and sign them under penalty of perjury. You must use the most recent version of the Official Forms. We emphasize that one of these Official Forms you must fill out and file is especially complicated:
- If you file under chapter 7 of the Bankruptcy Code, you will have to file a complicated Statement of Current Monthly Income and Means Test Calculation (Chapter 7) (Form B22A ) addressing the means test under 11 U.S.C. § 707(b)(2) . If a presumption of abuse arises under the means test, then under 11 U.S.C. § 707(b)(1) your case might be dismissed as an abuse of the provisions of chapter 7 (unless you were to convert the case to another chapter).
- If you file under chapter 13 of the Bankruptcy Code, you will have to file a similarly complicated Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income (Chapter13) (Form B22C ).
In addition to the papers you must submit on Official Forms, you are required to file copies of certain payment advices, and the record of certain educational IRAs. See 11 U.S.C. §521(a)(1)(B)(iv) and § 521(c) .
In a chapter 13 case, you must file a plan.
Warning! Failure timely to file these required papers may result in dismissal of the case:
There are limits on the court’s granting an extension of the 15-day period. See 11 U.S.C. §521(a) and (c) ; Rules 1007(b) and (c) of the Interim Bankruptcy Rules (Oct. 1, 2006) .
11 U.S.C. § 521(i)(1) generally requires that if certain of these required documents are not filed“within 45 days after the date of the filing of the petition, the case shall be automatically dismissed effective on the 46th day after the date of the filing of the petition.”
Tax Returns and (in Chapter 13) Periodic Statements of Income and Expenses:
The Bankruptcy Code now imposes on you various requirements regarding tax returns, and if you fail to comply with those requirements, your case may be dismissed:
Not later than 7 days before the date first set for the meeting of creditors you must give the trustee a copy of the Federal income tax return that was required under the tax laws for the most recent tax year ending immediately before the commencement of the case and for which you filed a return. See 11 U.S.C. § 521(e)(2)(A) ; Rules 4002(b)(3) and (4) of the Interim Bankruptcy Rules (Oct. 1, 2006). In lieu of a copy of the tax return, you may furnish a transcript of the return.
Note: the tax returns mentioned in the preceding paragraph are to be provided to the trustee and are not to be filed with the court. Any tax returns filed with the court will be returned to the debtor who must then provide them to the trustee.
You are required timely to file with the tax authorities tax returns coming due after the commencement of the case. See 11 U.S.C. § 521(j) .
At the request of any party in interest in a chapter 7, 11, or 13 case, you are required to file with the court, at the same time you file it with the IRS:
- a copy of each Federal income tax return (or a transcript of such return) for each tax year ending while the case is pending (see 11 U.S.C. §521(f)(1) );
- a copy of each Federal income tax return (or a transcript of such return) for each tax year ending in the 3-year period ending on the date you file your bankruptcy petition for which a return had not been filed with the IRS as of the date you filed your bankruptcy petition and for which you subsequently filed a return (see 11 U.S.C. §521(f)(2) );
- a copy of each amendment to any of the foregoing Federal income tax returns (see 11 U.S.C. §521(f)(3) ).
In a chapter 13 case, you must, prior to the first date set for the meeting of creditors, file with the appropriate tax authorities all tax returns required to be filed under nonbankrutcy law for all taxable periods ending during the 4-year period ending on the date of the filing of your petition. See 11 U.S.C. § 1308 .
In a chapter 13 case, at the request of any party in interest, you must periodically file an annual statement of income and expenditures. See 11 U.S.C. § 521(f)(4) and (g)(1) .
Statement of Intention in Chapter 7 Case:
In a chapter 7 case you must file by the earlier of 30 days after you file your petition or the date of the meeting of creditors a statement of intention if you have any debts secured by property of your bankruptcy estate. See 11 U.S.C. § 521(a)(2) . If you fail to comply with that requirement, the automatic stay may be terminated with respect to any personal property securing such debt. See 11 U.S.C. § 362(h) .
Meeting of Creditors:
You are required to attend a meeting of creditors and to be examined and testify truthfully under oath at that meeting in response to questions posed by the trustee (and by any creditors in attendance). See 11 U.S.C. § 343 ; Fed. R. Bankr. P. 2003(b)(1) .
The meeting of creditors’ date, time, and location will be set by the clerk shortly after you file your petition for a date 20 to 40 days after you file your petition commencing your case. See Fed. R. Bankr. P. 2003(a) . Within 15 days after you file your petition, you should receive a notice regarding the commencement of the case that sets forth the date, time, and location of the meeting. If you do not receive that notice by then, you ought to promptly contact the Clerk’s Office to learn when and where the meeting will be held.
At the meeting of creditors:
Under Rule 4002(b)(1) of the Interim Bankruptcy Rules (Oct. 1, 2006) , you must bring:
- a driver’s license (or other picture identification issued by a governmental unit) or other personal identifying information that establishes your identity; and
- evidence of your Social Security Number(s), or a written statement that such documentation does not exist.
Under Rule 4002(b)(2) of the Interim Bankruptcy Rules (Oct. 1, 2006) , you must bring and make available to the trustee:
- evidence of current income such as your most recent payment advice;
- unless the trustee or U.S. Trustee instructs otherwise, statements for each of your depository and investment accounts (including checking, savings, and money market accounts, mutual funds and brokerage accounts) for the time period that includes the date of the filing of the petition; and
- documentation of the monthly expenses claimed by you on the version of Official Form B22 applicable to the chapter in which you filed your case (Form B22A, B22B, or B22C)).
In a case other than one under chapter 7, the trustee (or the United States Trustee) may require you to provide documentation regarding your being current on any domestic support obligation (such as alimony, maintenance or support of a spouse, former spouse or child) coming due postpetition, as required--for example, in a chapter 13 case, by 11 U.S.C. § 1325(a)(8) --to obtain confirmation of a plan.
Restrictions on Your Obtaining a Discharge:
You can be denied a discharge (or the case may be dismissed, thereby precluding you from obtaining a discharge) if you refuse to comply with an order of the court, or knowingly and fraudulently make a false statement under oath in the case or fail to disclose all of your assets and debts or have otherwise engaged in certain dishonest conduct with respect to the bankruptcy case. See 11 U.S.C. §§ 727(a)(4), 727(a)(6) , 1307(c) .
You may even be denied a discharge in a chapter 7 case if you engaged in certain conduct preceding the bankruptcy case (such as failing to keep adequate records or having engaged in certain transfers of property in order to hinder, delay, or defraud a creditor). See 11 U.S.C. §§ 727(a)(2) , 727(a)(3) ), and 727(a)(5) ).
You are required in a chapter 7 or chapter 13 case to take a financial management course after filing the petition and file a Debtor's Certification of Completion of Instructional Course Concerning Financial Management (Official Form B23).
Fees You Must Pay:
You are required to pay with the petition a filing fee in the case unless (1) you apply for and are granted a waiver in a chapter 7 case (see Application for Waiver, Official Form B3B ) or (2) you apply for and are granted permission to pay the fee in installments (see Application to Pay Filing Fee in Installments, Official Form B3A ). If you fail to obtain a waiver and fail timely to pay the filing fee, the court may dismiss your case.
If you amend your schedules (or your list of creditors and mailing matrix) to add or change the name of a creditor, you must pay a $26 fee.
Consequence of Proceeding Pro Se; Materials That May Help You if You Decide to Proceed Pro Se:
An individual debtor is free to decide to proceed pro se, but is subject to the same procedural requirements as apply to a debtor who is represented by counsel.
This website’s page entitled Informational Materials (providing information regarding bankruptcy (Guides, Statutes, Forms, Rules, Checklists, Filing Fees)) may be of assistance to you if you do decide to proceed pro se.