Bankruptcy Code. The informal name for title 11 of the United States Code (11 U.S.C. §§ ), the federal bankruptcy law. bankruptcy court. The bankruptcy judges in regular active service in each district; a unit of the district court. bankruptcy estate. All legal or equitable interests of the debtor in property at the time of the. The bankruptcy laws set out the manner in which bankruptcy trustees get paid for administering a case. Compensation amounts, sources, and payment methods differ depending on whether you're in Chapter 7 or Chapter 13 bankruptcy. (You can learn about trustee duties, powers, and more in The Bankruptcy Trustee.) How a Chapter 7 Trustee Gets Paid. A bankruptcy “estate” is defined in Title 11 of the United States Code § It is a very broad definition and includes all legal or equitable interests of the debtor in property, wherever located, as of the commencement of the case.
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Only a family farmer or family fisherman may file a Chapter 12 petition. In addition, there are certain debt limitations in a Chapter 12 case. A deficient pleading is one that is incomplete or incorrectly done in some way. The notice you received should tell you specifically what needs to be done to correct the document so that it can be filed and also gives the deadline for filing.
Bankruptcy Basics provides basic information to debtors, creditors, court personnel, the media, and the general public on different aspects of the federal bankruptcy laws. It also provides individuals who may be considering bankruptcy with a basic explanation of the different chapters under which a bankruptcy case may be filed and answers some of the most commonly asked questions about the bankruptcy process.
For various reasons a meeting of creditors may occasionally be rescheduled. If so, it may be rescheduled in the hearing room with notice only to those present, or another notice may go out to some or all the creditors notifying them of the new date. The notice will usually say the meeting is being reset or rescheduled.
Creditors may, but do not need to, attend the meeting. Debtors must attend a meeting of creditors and under oath respond to the questions put to them by the trustee or creditors. A meeting of creditors will usually be held within 20 to 40 days of filing, unless the debtor lives in an outlying area, in which case it may be a little longer. On all judgments entered on and after December 21, , interest is calculated from the date of the entry of the judgment at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment.
The applicable rate is listed under U. The listed rate is applicable to a judgment entered in the week after the week ending on the date in the Period column. Rates for prior weeks can be found by selecting a different Period date at the top of the table. 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 replacement value of the property the price a retail merchant would charge for property of such kind, considering the age and condition of the property at the time the value is determined without deduction for costs of sale or marketing.
The property redeemed must be claimed as exempt or abandoned by the trustee. With redemption, a debtor may be able to, depending on the replacement value of the property, get liens released on personal household possessions for much less than the underlying debt on those secured possessions. Redemption must be made in one lump sum payment to the creditor. If the debtor and the creditor agree to the redemption, a stipulated order of redemption is required.
If the redemption is opposed, a motion for redemption must be filed using LBF See LBF A Notice of Appeal may be filed after an Order or Judgment has been entered in a case. In a Notice of Appeal, the party filing the Appeal, the appellant, wishes to reverse the Order or Judgment granted in favor of the other party, the appellee. In that case the matter will be heard by the District Court.
Note that when an appeal is filed, the order or judgment appealed from remains in effect unless the court that issued the order or judgment, or the court that is reviewing it, orders that it be stayed. As part of the Bankruptcy Abuse Prevention and Consumer Protection Act of which became effective on October 17, , a "means test" was instituted to determine whether or not a debtor is entitled to a Chapter 7 discharge, or whether such debtor must convert the case to one under another chapter of the Bankruptcy Code.
The basic purpose of the means test is to compare monthly income and expenses to determine whether or not a Chapter 7 discharge would constitute an "abuse" of the provisions related to Chapter 7 in the Bankruptcy Code. Official Form A-1 , Chapter 7 Statement of Your Current Monthly Income , requests information regarding your gross monthly income for six months prior to the filing of your bankruptcy case. However, some types of income social security benefits, etc. Generally, if your average gross monthly income is below the median income in Oregon for your family size , or if your debts are not primarily consumer debts, your case will not be presumed to be an abuse.
Even if your case is not a presumed abuse, your case could be dismissed if the Court finds that it was filed in bad faith, or if your financial situation demonstrates abuse. If your income is above the median for your family size and your debts are primarily consumer debts, you will need to complete Official Form A-2 , Chapter 7 Means Test Calculation.
Allowable expenses are primarily determined by IRS guidelines as opposed to actual spending. Your case may be presumed to be an abuse if you have a specified amount of income left over after expenses are deducted. You may still be entitled to a Chapter 7 discharge even if your case is presumed to be an abuse, particularly if the figures in the "means test" form do not accurately represent your current circumstances e.
If a presumption of abuse exists, some party usually the U. Trustee or a creditor may file a motion seeking a dismissal of your case. If a motion is filed, and you are unable to rebut the presumption of abuse, the Court generally will enter an order allowing you a certain amount of time to convert your case to Chapter 13, or the case will be dismissed.
The first two digits of the seven digit bankruptcy case number indicate the year of filing. The letters following the second dash are the initials of the judge assigned to the case, and the final digit s indicate the chapter number under which the case is being administered. In an adversary proceeding, the first two digits of the six digit case number indicate the year of filing. The letters following the second dash are the initials of the judge assigned to the case. It is a chapter It is a chapter 7.
You are cautioned that bankruptcy law is complicated and not easily described. Therefore, you should seek the advice of an attorney to learn of your rights and responsibilities under the law should you decide to file a petition with the court. Court employees are prohibited from giving you legal advice. Notices from the bankruptcy court are sent to the mailing address you list on your bankruptcy petition.
In order to ensure that you receive information about events concerning your case, Bankruptcy Rule requires that you notify the court of any changes in your address. If you are filing a joint case a single bankruptcy case for two individuals married to each other , and each spouse lists the same mailing address on the bankruptcy petition, you and your spouse will generally receive a single copy of each notice mailed from the bankruptcy court in a jointly-addressed envelope.
The briefing may be provided individually or in a group including briefings conducted by telephone or on the Internet , and must be provided by a nonprofit budget and credit counseling agency approved by the United States Trustee.
Trustee's website. Each debtor in a joint case must complete the briefing. In addition, after filing a bankruptcy case, an individual debtor generally must complete a financial management instructional course before he or she can receive a discharge. Also see the U.
Trustee's website for a list of approved financial management instructional courses. Chapter 7 is designed for debtors in financial difficulty who do not have the ability to pay their existing debts.
Debtors whose debts are primarily consumer debts are subject to a "means test" designed to determine whether the case should be permitted to proceed under Chapter 7.
It is up to the court to decide whether the case should be dismissed. Under Chapter 7, you may claim certain property as exempt under governing law. A trustee may have the right to take possession of and sell the remaining property that is not exempt and use the sale proceeds to pay your creditors. The purpose of filing a Chapter 7 case is to obtain a discharge of your existing debts. If, however, you are found to have committed certain kinds of improper conduct described in the Bankruptcy Code, the court may deny your discharge and, if it does, the purpose for which you filed the bankruptcy petition will be defeated.
Even if you receive a general discharge , some particular debts are not dischargeable under the law. Therefore, you may still be responsible for most taxes and student loans; debts incurred to pay nondischargeable taxes; domestic support and property settlement obligations; most fines, penalties, forfeitures, and criminal restitution obligations; certain debts which are not properly listed in your bankruptcy papers; and debts for death or personal injury caused by operating a motor vehicle, vessel, or aircraft while intoxicated from alcohol or drugs.
Also, if a creditor can prove that a debt arose from fraud, breach of fiduciary duty, theft, or from a willful and malicious injury, the bankruptcy court may determine that the debt is not discharged.
Chapter 11 is designed for the reorganization of a business but is also available to individual debtors. Its provisions are quite complicated, and any decision by an individual to file a Chapter 11 petition should be reviewed with an attorney. Chapter 12 is designed to permit family farmers and fishermen to repay their debts over a period of time from future earnings and is similar to Chapter The eligibility requirements are restrictive, limiting its use to those whose income arises primarily from a family-owned farm or commercial fishing operation.
Chapter 13 is designed for individuals with regular income who would like to pay all or part of their debts in installments over a period of time. You are only eligible for Chapter 13 if your debts do not exceed certain dollar amounts set forth in the Bankruptcy Code. Under Chapter 13, you must file with the court a plan to repay your creditors all or part of the money that you owe them, using your future earnings. The period allowed by the court to repay your debts may be three years or five years, depending upon your income and other factors.
The court must approve your plan before it can take effect. After completing the payments under your plan, your debts are generally discharged except for domestic support obligations; most student loans; certain taxes; most criminal fines and restitution obligations; certain debts which are not properly listed in your bankruptcy papers; certain debts for acts that caused death or personal injury; and certain long term secured obligations.
A person who knowingly and fraudulently conceals assets, or makes a false oath or statement under penalty of perjury, either orally or in writing, in connection with a bankruptcy case is subject to a fine, imprisonment, or both.
All information supplied by a debtor in connection with a bankruptcy case is subject to examination by the Attorney General acting through the Office of the United States Trustee, the Office of the United States Attorney, and other components and employees of the Department of Justice. WARNING : Section a 1 of the Bankruptcy Code requires that you promptly file detailed information regarding your creditors, assets, liabilities, income, expenses and general financial condition.
Your bankruptcy case may be dismissed if this information is not filed with the court within the time deadlines set by the Bankruptcy Code, the Bankruptcy Rules, and the local rules of the court. What are my options to obtain copies of case documents, including certified copies? What are my options to review a case that was sent to the National Archives?
How do I obtain court or case information? The systems are: 1. Do I need an attorney to file bankruptcy? Is there any place I can get free or low cost legal advice before I file? Here are a few possibilities to consider: 1. When may I file bankruptcy again? Click here for the current list of Bankruptcy Court filing fees. Where can I obtain forms, and which ones do I need for filing?
Where do I file? How many copies do I need to file at the court? How do I remove inaccurate information from my credit report, even if I have never filed bankruptcy? What happens after I file bankruptcy? How do I know if a debt is secured, unsecured, priority or administrative?
How do I change or correct information in the petition, schedules and statements I have already filed with the Clerk's Office? How do I obtain a Proof of Claim form? To file a proof of claim ePOC , click here. How do I get a copy of all or part of the record of a court proceeding or get a written transcript of it?
Digitally recorded proceedings: a. Court reporter recorded proceedings: a. A company or person who owes us money has filed bankruptcy. What do we do? What does it mean if a case is dismissed? My ex-spouse has filed bankruptcy. What should I do? Does my divorce decree protect me? I filed a proof of claim, why am I not getting paid? What can I do if a creditor keeps trying to collect money after I have filed bankruptcy? Do I need to send a copy of the petition to anyone else?
What can I expect will happen there? Who do I notify about a possible fraudulent filing? What are exemptions? How do I get a hearing date? How do I obtain the required credit counseling before I file? What is an adversary proceeding and how do I file a complaint? What is an Adversary Proceeding? How do I serve an adversary proceeding Summons and Complaint, motion or a Chapter 12 or 13 plan? Service by First Class Mail.
FRBP authorizes service within the United States by first class mail, postage prepaid as follows: 1. Trustee in the district where the case is pending 9. Service on an attorney is permitted only in the following circumstances: 1. If there is no internationally agreed means of service then service is by: a.
As directed by the foreign authority in response to a letter rogatory or letter of request. Unless prohibited by law of the foreign country: 1 by personal delivery, or 2 any form of mail requiring a signed receipt note: to be mailed by the clerk of court to the party to be served. By other means not prohibited by international agreement as may be directed by the court.
What is a bankruptcy discharge and what is the difference between denial of discharge and denial of the dischargeability of an individual debt? Denial of Debtor's Discharge And Denial of the Dischargeability of a Particular Debt A discharge can be denied by the court for either all debts denial of debtor's discharge or for one particular debt denial of the dischargeability of a particular debt.
Denial Of Debtor's Discharge In the following circumstances, the debtor is not entitled by law to a discharge of any debts, and no party need file an Adversary Complaint seeking to deny the debtor a discharge: 1. The debtor is not an individual in Chapter 7 cases only ; 2. If the debtor is not entitled to a discharge because of a discharge entered in a prior case, the Court will typically issue a Notice of Intent Not to Grant a Discharge; 3.
The debtor has filed, and the Court has approved, a waiver of discharge; 4. The most common examples are as follows: 1. The debtor has failed to satisfactorily explain a loss of assets; 4. Denial of the Dischargeability of a Particular Debt As noted above, most debts are dischargeable in bankruptcy.
The most common examples of such debts are: 1. Debts for most taxes; 2. Debts for domestic support obligations or those arising out of a divorce decree or separation agreement except that non-support marital debt can be discharged in Chapter 13 ; 3.
Debts for most student loans; 4. Debts for most fines, penalties, forfeitures, or criminal restitution; 5. Debts for personal injury or death caused by the debtor's operation of a motor vehicle, vessel, or aircraft while intoxicated; 6. Some debts which were not properly listed on the bankruptcy petition and schedules; 7. Debts for which a Reaffirmation Agreement has been approved; 8. Debts which could have been listed in a prior bankruptcy case; 9. Debts neither listed nor scheduled in time to allow the creditor to file a Proof of Claim; Post-bankruptcy condominium or cooperative owners' association fees; and Such "potentially non-dischargeable" debts include: 1.
Debts incurred by fraud, false pretenses, or materially false statements regarding financial condition; 2. Debts incurred as a result of fraud or defalcation while acting in a fiduciary capacity, or for embezzlement or larceny; and 3. Hardship Discharge If an individual debtor in a Chapter 11, 12, or 13 case is not able to maintain plan payments to the applicable case trustee, it is possible to file a motion for a "hardship" discharge so that the case can be completed.
What is an "Automatic Stay"? What is a "trustee"? The trustee in a bankruptcy case is the representative of the estate. What documents do I need to provide to the trustee administering the case?
How do I find out who the trustee is in a case? That information is also available from the following sources: 1. Computer Terminals in the lobby of each office of the Clerk. What is a reaffirmation agreement? How do I file a motion for relief from the automatic stay? What is the function of the U. Trustee and where is their office located? How do I get admitted to practice in the Bankruptcy Court or apply to appear in a case pro hac vice?
I filed an objection to the Plan, why was the plan still confirmed? What is the wording for a certificate of service? What is a bankruptcy "estate"? What are the consequences of filing for bankruptcy? The timing of the filing may be very important, and those considering bankruptcy should be aware of the following: 1. The Bankruptcy Code imposes time limitations on successive discharges as follows: A.
Who can start a bankruptcy? A voluntary petition can be filed under Chapter 7, 9, 11, 12, or 13 The people or entities that are owed money the creditors may also have the right to file a petition against a person or entity which owes them money, and is not paying.
I received a notice that I have a "deficient" pleading, what does that mean? How can I learn more about bankruptcy? I received two notices for the meeting of creditors. Do I have to attend both meetings? What is the judgment interest rate?
What is a redemption? Prebankruptcy planning typically includes converting nonexempt assets into exempt assets. A debt payment made to a creditor in the day period before a debtor files bankruptcy or within one year if the creditor was an insider that gives the creditor more than the creditor would receive in the debtor's chapter 7 case. The Bankruptcy Code's statutory ranking of unsecured claims that determines the order in which unsecured claims will be paid if there is not enough money to pay all unsecured claims in full.
An unsecured claim that is entitled to be paid ahead of other unsecured claims that are not entitled to priority status. Priority refers to the order in which these unsecured claims are to be paid. A written statement and verifying documentation filed by a creditor that describes the reason the debtor owes the creditor money.
There is an official form for this purpose. All legal or equitable interests of the debtor in property as of the commencement of the case. An agreement by a chapter 7 debtor to continue paying a dischargeable debt such as an auto loan after the bankruptcy, usually for the purpose of keeping collateral i. Detailed lists filed by the debtor along with or shortly after filing the petition showing the debtor's assets, liabilities, and other financial information. There are official forms a debtor must use.
A creditor holding a claim against the debtor who has the right to take and hold or sell certain property of the debtor in satisfaction of some or all of the claim. Debt backed by a mortgage, pledge of collateral, or other lien; debt for which the creditor has the right to pursue specific pledged property upon default. Examples include home mortgages, auto loans and tax liens. A special type of chapter 11 case in which there is no creditors' committee or the creditors' committee is deemed inactive by the court and in which the debtor is subject to more oversight by the U.
The Bankruptcy Code contains certain provisions designed to reduce the time a small business debtor is in bankruptcy. A series of questions the debtor must answer in writing concerning sources of income, transfers of property, lawsuits by creditors, etc.
There is an official form a debtor must use. A declaration made by a chapter 7 debtor concerning plans for dealing with consumer debts that are secured by property of the estate. Putting the assets and liabilities of two or more related debtors into a single pool to pay creditors. Courts are reluctant to allow substantive consolidation since the action must not only justify the benefit that one set of creditors receives, but also the harm that other creditors suffer as a result. The meeting of creditors required by section of the Bankruptcy Code at which the debtor is questioned under oath by creditors, a trustee, examiner, or the U.
Also called creditors' meeting. The representative of the bankruptcy estate who exercises statutory powers, principally for the benefit of the unsecured creditors, under the general supervision of the court and the direct supervision of the U.
The trustee is a private individual or corporation appointed in all chapter 7, chapter 12, and chapter 13 cases and some chapter 11 cases. The trustee's responsibilities include reviewing the debtor's petition and schedules and bringing actions against creditors or the debtor to recover property of the bankruptcy estate. In chapter 7, the trustee liquidates property of the estate, and makes distributions to creditors.
Trustees in chapter 12 and 13 have similar duties to a chapter 7 trustee and the additional responsibilities of overseeing the debtor's plan, receiving payments from debtors, and disbursing plan payments to creditors.
An officer of the Justice Department responsible for supervising the administration of bankruptcy cases, estates, and trustees; monitoring plans and disclosure statements; monitoring creditors' committees; monitoring fee applications; and performing other statutory duties.
Compare, bankruptcy administrator. A debt that should have been listed by the debtor in the schedules filed with the court but was not. Depending on the circumstances, an unscheduled debt may or may not be discharged. A claim or debt for which a creditor holds no special assurance of payment, such as a mortgage or lien; a debt for which credit was extended based solely upon the creditor's assessment of the debtor's future ability to pay.
Main content Bankruptcy Basics Glossary. A adversary proceeding A lawsuit arising in or related to a bankruptcy case that is commenced by filing a complaint with the court. B bankruptcy A legal procedure for dealing with debt problems of individuals and businesses; specifically, a case filed under one of the chapters of title 11 of the United States Code the Bankruptcy Code.
Return to Top. C chapter 7 The chapter of the Bankruptcy Code providing for "liquidation," i. Olmsted is an Suite Eugene , OR Practicing in Newport, Oregon since Larry has been practicing law since graduation from the University of Oregon Law School in He has had significant experience in major litigation and real estate transactions.
A native Oregonian, Bill graduated cum laude from Michigan State University in pre-law studies before attending the University of Oregon Law School, graduating in He has been in private practice in Eugene since that year. Bill's law practice emphasizes small business matters, real estate matters, including complex transactions, and estate planning and probate matters. His clientele includes numerous local businesses and professionals. He is a past member and Real Estate, Business, Construction and Employment.
Real Estate, Business, Collections and Construction. John B. View Lawyer Profile. Real Estate and Estate Planning. Real Estate and Business. Real Estate, Business and IP. Real Estate and Personal Injury. Real Estate, Environmental and Personal Injury. Real Estate, Environmental and Municipal.