Chapter Seven.Overview of Chapter 7 • After reading this chapter, you will be able to: • Describe the basic events which occur in all bankruptcy proceedings. • Understand the rules relating to professional retention and compensation in bankruptcy proceedings. • Define the concept of discharge • Define the concept of reaffirmation and the procedures utilized to reaffirm a debt
Consumer No Asset Chapter 7 Proceeding • A consumer no asset Chapter 7 proceeding is a proceeding filed by an individual debtor or joint debtors in which there will normally be no assets available for the trustee to administer for distribution of dividends to unsecured creditors. • Any assets owned by the debtor will be either secured or exempt.
Practice Pointer • The Bankruptcy Code describes ‘‘joint debtors’’ as an individual debtor ‘‘and such individual’s spouse.’’ The Code recognizes married couples but no other joint filings.
Employment and Compensation of Professionals • The Bankruptcy Code regulates the employment and compensation of professionals rendering services in any bankruptcy proceeding.
Bankruptcy Petition Preparers • Section 110(a) defines a bankruptcy petition preparer as a person other than the debtor’s attorney or the attorney’s employee under that attorney’s direct supervision who prepares for compensation a document for filing with the Bankruptcy Court. • An unsupervised paralegal may be a bankruptcy petition preparer. • A document for filing is any document prepared for filing by a debtor in a bankruptcy case.
Exempt • Exemptions are statutorily defined property that an individual debtor may protect from administration by a bankruptcy estate. • Exempt property is not available for liquidation to pay a dividend to creditors; a debtor may keep exempt property. • Exemptions are a primary element of debtor relief.
Discharge • Discharge is legal relief from debt provided for by Section 524 of the Bankruptcy Code. • The discharge is one of the three elements of debtor relief provided for in the Bankruptcy Code.
Automatic Stay • Automatic Stay is a statutory bar to the conducting of any collection activity by creditors after a bankruptcy petition has been filed. • The automatic stay is one of the three major elements of debtor relief provided by the Bankruptcy Code.
Fresh Start • “Fresh Start” is the phrase most frequently used colloquially to describe the basic elements of debtor relief: • Discharge • Exemptions • Automatic Stay
Eight Basic Requirements for Bankruptcy Petition Preparers • The preparer must sign the document and include the preparer’s name and address. • Provide a notice to the debtor, prior to the preparation of any document, stating that a petition preparer may not give legal advice. • The preparer shall include the preparer’s Social Security number on the document. • The preparer shall furnish the debtor with a copy of the document not later than the time the document is presented to the debtor for signature. Slide 1 of 2
Eight Basic Requirements for Bankruptcy Petition Preparers • The preparer shall not execute any document on behalf of a debtor. • The preparer shall not use the word “legal” or any other similar term in advertisements or advertise under any “legal” category. • The preparer may not receive or collect payment for court fees. • The preparer shall, within ten days after filing of a petition, file a declaration under penalty of perjury disclosing any fees paid or promised by or on behalf of the debtor. Slide 2 of 2
Reaffirmation • Reaffirmation is a debtor’s agreement to remain legally liable for repayment of a debt otherwise dischargeable in a bankruptcy proceeding. • For a debt to be legally reaffirmed, strict compliance with the provisions of Bankruptcy Code Section 524 is required.
Chapter Eight.Conversion and Dismissal • After reading this chapter, you will be able to: • Define the concept of conversion • Describe how a bankruptcy proceeding may be dismissed • Describe the procedure to convert or dismiss a proceeding and to define the effect of the conversion or dismissal of a Bankruptcy proceeding upon the debtor’s financial affairs.
Conversion • Conversion means that a Chapter 7 is changed to a Chapter 11 or vice versa. • Commonly, a Chapter 13 or Chapter 11 reorganization that has failed is converted to a Chapter 7 liquidation.
Dismissal • A dismissal will terminate a bankruptcy proceeding and render the proceeding ineffective.
Practice Pointer • It is important to understand the distinction between a ‘‘discharge,’’ which relieves the debtor of his/her personal liability and a ‘‘dismissal,’’ which returns the debtor back in his/her prepetition position and reinstates all of his/her prepetition debts and obligations.
Chapter Nine.Exemptions • After reading this chapter, you will be able to: • Define of exemptions • Understand the concept of exemptions and their importance to individual debtors in Bankruptcy proceedings • Describe the Code concept of the “opt out” provision • Understand which exemptions to select, when a choice is available • Identify how exemptions are claimed by individual debtors • Identify specific exemptions • Describe the homestead exemption and how a homestead is claimed in many jurisdictions • Describe how a claim of exemption is opposed by the trustee or a creditor
Opt Out • Although the Bankruptcy Code gives a debtor an election to use state or federal exemptions, Congress has also given individual states the opportunity to “opt out” of the federal exemptions scheme.
Homestead Exemption • Homestead is an exemption permitted in an individual debtor’s place of residence. • Section 522(d)(1) of the Bankruptcy Code provides a federal homestead exemption. • State law also provides homestead exemptions.
Residence of debtor or dependent Motor vehicle Household goods, furniture, and wearing apparel Personal jewelry Any property catch all Tools of trade Unmatured or term insurance Cash value of insurance Professionally prescribed health aids Social Security, welfare, veterans benefits, alimony, disability, or unemployment Certain personal injury claims Retirement accounts Summary of Federal Exemptions
Chapter Ten. Trustees, Official Creditor Committees, and Examiners • After reading this chapter, you will be able to: • Describe the role and basic duties of the bankruptcy trustee. • Define the role of the debtor-in-possession in Chapter 11 proceedings • Identify the United States Trustee • Describe the Official Creditors Committee • Identify the Examiner
Trustees • Section 321 provides that a competent individual who has an office or resides in the district or in an adjacent district where the proceeding is pending may be a trustee in a Chapter 7, 12, or 13 case.
Practice Pointer • Remember, a ‘‘disinterested person’’ is a defined term under the Bankruptcy Code. It includes a person who is not a creditor, an insider, or someone who holds ‘‘an interest materially adverse to the interest of the estate.’’ 11 U.S.C. §101(14).
Practice Pointer • Remember, once the debtor files for bankruptcy, all legal interests or actions that the debtor could have maintained prepetition now belong to the bankruptcy estate. • Once appointed, the trustee represents the estate and may pursue those actions on behalf of the estate.
Office of the United States Trustee • The Office of the United States Trustee is charged with monitoring the progress of all cases, regardless of Chapter, and to act appropriately to ‘‘prevent undue delay.”
Debtor-in-Possession • The debtor-in-possession is the fiduciary entity created by a debtor filing a Chapter 11 reorganization proceeding. • The debtor acts as its own trustee.
Official Creditors Committee • The official creditors committee is an entity created in a Chapter 11 proceeding to act on the collective behalf of unsecured creditors.
Examiner • An examiner is an individual appointed in a Chapter 11 proceeding to conduct an independent investigation of some or all of a debtor’s financial affairs.
Chapter Eleven. Preparing a Proceeding for a Trustee • After reading this chapter, you will be able to: • Understand the number of simple actions which can be taken to greatly ease the handling of any bankruptcy proceeding • Provide a specific checklist of acts which can be taken in an asset proceeding to enhance the likelihood of creditor dividends • List questions commonly posed by individual consumer debtors
Prefiling Checklist • Value Assets • Obtain Documents of Title (Such as Vehicle Ownership Documents) and Keys to All Vehicles • Obtain Name and Address of Landlord(s) • Obtain Itemized Inventory and Equipment List, with • Values, if Possible • Obtain Bank Records • Compile Accounts Receivable Data • Return Leased Equipment to Lessors • Maintain Security • Obtain Prior Years’ Tax Returns
Postfiling (Asset Case) Checklist • Learn identity of trustee • Communicate with trustee • Close bank accounts and obtain cashier’s check for trustee • Encourage insider cooperation with trustee