- Category: Filing Without An Attorney
- Published on 27 February 2009
- Written by Chief Deputy
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- Category: Filing Without An Attorney
- Published on 06 June 2008
- Written by Chief Deputy
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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.
- Category: Filing Without An Attorney
- Published on 09 June 2008
- Written by Chief Deputy
- Hits: 6669
Creditors (and other non-debtor parties), should be aware of the following points regarding proceeding pro se (that is, without an attorney):
Filing of Papers by Corporations and Partnerships. Corporations and partnerships generally may not file papers in a bankruptcy case pro se, and, with certain exceptions listed below, will need to obtain representation by an attorney to file any papers. See Find an Attorney article. But any creditor (including a corporation or a partnership through a non-attorney representative such as a member, officer, or employee) may file pro se any documents that would not constitute the practice of law, including the following documents or an amended version of such documents:
- a Request to Receive All Notices under Fed. R. Bankr. P. 2002(i) ,
- a Proof of Claim (Official Form B10 ) (including an amended Proof of Claim),1 a withdrawal of a proof of claim,
- Notice of Transfer of Claim Other Than for Security (Director’s Procedural Form B210 ),
- an Application for Search of Bankruptcy Records (Director’s Procedural Form B132 ),
- a Request to Recover Unclaimed Funds
- a Reaffirmation Agreement and proposed Order regarding that Agreement (Director’s Procedural Form B240 ),
- a ballot for voting on the election of a trustee,
- a ballot voting on a proposed plan in a chapter 11 case (the plan proponent being responsible for mailing the ballot to the creditor to cast a vote).
Note: In a chapter 7 case, a creditor ought not file a proof of claim until the clerk gives notice of a deadline to file a proof of claim: often a chapter 7 case is a so-called “no asset case” in which there is nothing for a trustee to distribute to creditors and hence no proofs of claim are filed.
Participation by Corporations and Partnerships at the Meeting of Creditors (the meeting at which the debtor must appear and submit to an examination under oath under 11 U.S.C. § 343):
Under 11 U.S.C. § 341(c) , and notwithstanding any other statute, rule, or state constitution provision to the contrary, a creditor(including a corporation or partnership) holding a claim arising from a consumer debt (including a non-attorney representative of such creditor such as an employee) must be permitted to appear at and participate in the meeting of creditors in a case under chapter 7or 13 of the Bankruptcy Code.
Even though they generally may not appear pro se, corporations and partnerships may find that our Informational Materials page has informative topics, including Frequently Asked Questions, and Bankruptcy Basics .
Right of Creditor Who is an Individual to Appear and Participate in Case, and to File Papers. A creditor who is an individual may pursue any matter pro se. Even though an individual may appear pro se, that individual should consider whether to engage an attorney. See Find an Attorney atricle. If you decide to proceed pro se, on our Informational Materials page you may find of particular assistance Frequently Asked Questions, Bankruptcy Basics , Guides re Filing an Adversary Proceeding and re Filing a Motion for Relief From the Automatic Stay.
Although many creditors are able to successfully proceed pro se with respect to some of the more routine aspects of a bankruptcy case (such as filing a proof of claim), you may wish to consult with competent legal counsel before doing so (see Find an Attorney atricle in order to make sure you are proceeding correctly (for example, that you have correctly completed any required form, particularly if you do not understand the form).
Corporations’ and Partnerships’ Inability to File Papers and Appear Pro Se in a Proceeding Brought By or Against It. In a proceeding pursued by you or against you (such as a motion for relief from the automatic stay or an objection to your proof of claim), only individuals may appear pro se:
- A corporation or partnership may not appear pro se in a proceeding commenced by it in a case. For example, a corporation may not file a motion for relief from the automatic stay pro se.
- Nor may a corporation or partnership appear pro se to defend against a proceeding brought against it in a case, and this includes both filing papers in the proceeding without an attorney and representing itself without an attorney at any hearing:
- For example, it may not appear pro se to defend against an objection to its proof of claim (but it could file an amended proof of claim pro se to cure a defect that was the subject of the objection to the proof of claim, as such a filing is not considered a prohibited pro se appearance).
- Although a corporation or partnership may not file papers pro se in a proceeding brought against it or appear pro se at hearings, it may, without an attorney, contact the opposing party’s attorney to discuss a settlement of the matter. But the court encourages corporations and partnerships to consult with competent legal counsel if in need of legal advice. See Find an Attorney article.
- Category: Filing Without An Attorney
- Published on 06 June 2008
- Written by Chief Deputy
- Hits: 6008
Before you file a bankruptcy petition, you need to stop and make sure that you have met the statute’s credit counseling requirement and that filing a petition is the best thing for you to do:
DO NOT file if you have not obtained credit counseling within 180 days before you file your bankruptcy case (unless you qualify for one of the rarely applicable exceptions to that requirement). You need to make sure that you receive credit counseling, as required by section 109(h) of the Bankruptcy Code (11 U.S.C. § 109(h)) , before you file. (A copy of the Bankruptcy Code is available at the Clerk’s Office.) If you do not get the credit counseling before you file, your case may be dismissed.
You need to determine whether, under the law of your state, your income is above or below the amount subject to garnishment or is immune from garnishment, and whether your other assets can or cannot be seized by creditors. For example, if your employer is located in Kansas, the amount of wages that can be seized is governed by Kansas law.
Other states’ statutes can be found on http://www.law.cornell.edu/states/listing.html
If you are considering bankruptcy because you face a foreclosure on real property, there may be ways of avoiding foreclosure short of filing a bankruptcy case. See the discussion of foreclosure on the U.S. Courts website:
If you filed a bankruptcy case before that was dismissed:
- Determine whether the order that dismissed your last case barred you from filing a new case for some period of time (for example, by dismissing the case “with prejudice for 180 days”). If so, you cannot file your new case until that time has passed (usually measured from the date the clerk entered the order of dismissal which may be later than the date the judge signed the order).
- Determine whether a motion for relief from the automatic stay was pending in your earlier casewhen you decided to dismiss your case voluntarily. If so, your new case may be dismissed if filed within 180 days after entry by the clerk on the docket of the order that dismissed the earlier case. See section 109(g)(2) of the Bankruptcy Code (11 U.S.C. § 109(g)(2) ).
- Your right to have the automatic stay in place throughout your case will be affected if a prior case or cases were pending during the year before you file your new case. You are urged to seek the advice of an attorney about this. See sections 362(c)(1) and 362(c)(2) of the Bankruptcy Code (11 U.S.C. §§ 362(c)(1) and 362(c)(2)).
If you filed a bankruptcy case before and received a discharge in that case (or an earlier case), determine if that discharge makes you ineligible to receive a discharge in the new case. See the Table Regarding Availability of Discharge if Debtor Got a Discharge in an Earlier Case, at the end of this Attachment 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:
- in some instances, having made a transfer of property in order to hinder, delay, or defraud a creditor (see 11 U.S.C. § 727(a)(2) ), or
- in some instances, having failed to keep adequate records (see 11 U.S.C. § 727(a)(3) ),
- or if you will not be able in the case to explain satisfactorily any loss of assets or deficiency of assets to meet your liabilities (see 11 U.S.C. § 727(a)(5) ).
You should be aware that sometimes not all of a debtor’s liabilities are discharged in a bankruptcy case even if the debtor receives a discharge. See 11 U.S.C. §§ 523(a), 523(c) , and 1328(a) .
Those provisions regarding what debts are dischargeable are complicated, and the advice of counsel is strongly recommended in your evaluating them.
For example, the date on which you file your petition could affect whether certain tax liabilities will be discharged by the discharge you receive in the case. See 11 U.S.C. § 523(a)(1),referring to taxes of the kind and for the periods specified in 11 U.S.C. § 507(a)(8) . Illustratively, a discharge in a chapter 7 case does not apply to an income tax liability for which a return was last due, including extensions, after three years before the date of the filing of the petition.
Before you file a bankruptcy petition, you ought to determine whether you are eligible to file a bankruptcy case:
If you wish to file a case under chapter 13 of theBankruptcy Code, make sure you meet the debt eligibility requirements for such a case. See 11 U.S.C. § 109(e).
If you wish to file a case under chapter 7 of the Bankruptcy Code, be aware of the means test under 11 U.S.C. § 707(b)(2) . See also Official Form B22A (information you must file addressing the means test). (A copy of the Official Forms is available at the Clerk’s Office.) 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).
Be aware of the consequences, discussed above, of your having filed a bankruptcy case before.
Make sure that your case will not be dismissed based on the statutory requirement regarding prepetition credit counseling discussed under Notice to All Debtors.
You will also need to be aware of all of the requirements that will be imposed upon you, once the case is filed, in order for you to prevent dismissal of the case and to prevent denial of a discharge. See Warning to Debtors Who Are Pro Se (Without an Attorney) Regarding the Difficulties They May Encounter Once They File a Bankruptcy Case topic set forth below.
Beyond that, you need to also read the General Warning to Parties Proceeding Without an Attorney (Proceeding Pro Se), above.
If you are using a computer to view this, press here to return to the Table of Contents for Information for Parties Having No Attorney.