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BEFORE BANKRUPTCY

 

AFTER THE BANKRUPTCY CASE IS FILED

8 Years Before Filing

 

 

Bankruptcy Filed

 

 

Prior bankruptcy prevents Chapter 7 discharge

 

A debtor cannot receiving a discharge under Chapter 7 if he or she received a discharge in a Chapter 7 or Chapter 11 bankruptcy which was filed within 8 years before the present case is filed.  [11 U.S.C. § 727(a)(8)]

 

 

Commencement of Case

 

A voluntary bankruptcy is commenced by the filing of a petition with the Bankruptcy Court requesting protection from creditors under Chapter 7 or Chapter 13.  A husband and wife may file one petition together and commence a joint case.  [11 USC §301, 11 USC §302, 11 USC §101(42), Rule 1002 FRBP]

 

 

 

 

 

Filing fee due

In both Chapter 7 and Chapter 13, the filing fee must accompany the petition which starts the case, unless an application to pay the fees in installments is granted.  [Rule 1002(b) FRBP]

 

 

 

 

List of creditors must be filed

 

In both Chapter 7 and Chapter 13, the petition must also be accompanied by a list of the names and addresses of the debtor's creditors.  [Rule 1007(a) FRBP]

 

 

 

 

 

Statement of Social Security Number must be filed

 

In both Chapter 7 and Chapter 13, the petition must also be accompanied by a verified statement that sets out the debtor's social security number.  [Rule 1007(f) FRBP]

6 Years Before Filing

 

 

15 Days after Bankruptcy Filed

 

 

Prior bankruptcy prevents Chapter 7 discharge

 

A debtor cannot receive a discharge under Chapter 7 if he or she received a discharge in a Chapter 12 or Chapter 13 bankruptcy which was filed within 6 years before the present case is filed.  [11 U.S.C. § 727(a)(9)]

 

 

Schedules must be filed

 

In both Chapter 7 and Chapter 13, schedules of assets and liabilities, a schedule of current income and expenditures, a schedule of executory contracts and unexpired leases, and a statement of financial affairs must be filed within 15 days after the bankruptcy was filed.  [11 USC §521(a)(1), Rule 1007(b), (c) FRBP]

 

 

 

 

Chapter 13:  Plan must be filed

 

In Chapter 13, the Plan must also be filed within 15 days after the Bankruptcy was filed. The plan provides for submission of future income and the treatment of creditors, specifying when and how much each kind of creditor will receive.  [Rule 3015(b) FRBP]

4 Years Before Filing

 

 

About 18 Days after Bankruptcy Filed

 

 

Prior bankruptcy prevents Chapter 13 discharge

 

A debtor cannot receive a discharge under Chapter 13 if he or she received a discharge in a Chapter 7, Chapter 11 or Chapter 12 bankruptcy which was filed within 4 years before the present case is filed.  [11 U.S.C. § 1328(f)(1)]

 

 

Court Mails Notice of Commencement of Case

 

Approximately 18 days after the bankruptcy is filed, the court mails a Notice of Commencement of Case to the debtor and to the creditors included in the list of creditors.  The notice contains meeting date, deadlines for objections to discharge and for filing Proofs of Claims.

 

The court's Automated Information Line provides much of this information almost immediately after the bankruptcy is filed.

3 Years Before Filing

 

 

30 Days after Bankruptcy Filed

 

 

Taxes on returns due not discharged in Chapter 7

 

Taxes based on income or gross receipts for which a return (if required) was due within 3 years prior to the filing of the petition are not discharged in Chapter 7.  [11 USC §523(a)(1)(A)]  The date due includes any extensions, i.e., if the April 15 due date for income tax is extended to October 15 the later date will be used determining if the 3 year period has been passed.  [11 USC §507(a)(8)(A)(i)]  The 3 year period may be extended by any time in a bankruptcy plus an additional 6 months.  [11 USC §108(c), 26 USC 6503(h), IRC 6503(h)]

 

Penalties for taxes not discharged (above), tax penalties regarding a transaction within 3 years of filing, and government fines and forfeitures are not discharged.  [11 USC §727(b)]  [11 USC §523(a)(7)]

 

Debt incurred to pay taxes not discharged (above) are not discharged.  [11 USC §727(b)] [11 USC §523(a)(14), (14A))]

 

 

Chapter 7:  Statement of Intention regarding secured debt must be filed

 

Within 30 days after a Chapter 7 has been filed (or before the § 341 meeting if that is earlier), the debtor must file a Statement of Intention regarding property secured by consumer debt.  That statement shall indicate whether the debtor intend to:  (1) reaffirm the debt and continue to make the payments remaining obligated for the balance of the debt, (2) redeem the property by immediately paying the value of the property, or (3) surrender the property.  [11 U.S.C. § 521(2)(A); Rule 1007(b)(2) FRBP]

 

A copy of the Statement of Intention must be served on the trustee and the creditors named in the statement on or before the filing of the statement.  [Rule 1007(b)(2) FRBP]

 

 

 

 

 

 

Chapter 13:  Plan payment due.

 

The debtor in a Chapter 13 must start making his plan payments within 30 days after the bankruptcy was filed.  [11 USC §1326(a)(1)]

 

 

 

 

Chapter 13:  Plan must be mailed.

 

Depending on local rules, the debtor or his attorney must mail a copy of the Chapter 13 Plan to all creditors within a specified time. 

2 Years Before Filing

 

 

7 Days before 341 Meeting

 

 

Prior bankruptcy prevents Chapter 13 discharge

 

A debtor cannot receive a discharge under Chapter 13 if he or she received a discharge in a Chapter 13 which was filed within 2 years before the present case is filed.  [11 U.S.C. § 1328(f)(2)]

 

Note:  In some circumstances a Chapter 13 may be of significant benefit even if a discharge will not be received.

 

 

 

 

Provide copies of tax returns

 

Not later than 7 days before the date first set for the first meeting of creditors, the debtor shall provide a copy of the debtor's most recent Federal income tax return to the trustee and to any creditors that have requested it.  [11 U.S.C. § 521(e)(2)]

 

Taxes on returns filed late not discharged in Chapter 7

 

Taxes for which returns (if required) were not filed or were filed within 2 years of the filing of the petition.  [11 USC §727(b),  11 USC §523(a)(1)(B)(2)]

 

Penalties for taxes not discharged (above), are not discharged.  [11 USC §727(b)]  [11 USC §523(a)(7)]

 

Debt incurred to pay taxes not discharged (above) are not discharged.  [11 USC §727(b)] [11 USC §523(a)(14), (14A)]

 

 

 

 

Transfers & obligations to hinder, delay, or defraud or done when insolvent set aside

 

The Trustee may recover property the debtor transferred and avoid obligations the debtor incurred which were done within 2 years before the bankruptcy, if the transfer or obligation were undertaken with the intent to hinder, delay, or defraud any entity, or when the debtor was insolvent.  [11 U.S.C. §548(a)(1)]

 

 

 

1 Year Before Filing

 

 

About 6 Weeks after Bankruptcy Filed

 

 

Transfer, concealment or destruction of property prevents discharge in Chapter 7

 

The court may deny a discharge of all debt if the debtor attempted to hinder, delay or defraud a creditor through the transfer, removal, destruction, mutilation, or concealment property within one year prior to the Chapter 7 bankruptcy.  [11 USC §727(a)(2)]

 

 

§ 341 Meeting (Creditor's Meeting)

 

Section 341 (the symbol "§" means section) of the Bankruptcy code requires the Trustee to preside at a meeting of creditors within a "reasonable time" after the filing of the bankruptcy.  [11 USC §341]

 

This meeting is usually held approximately six weeks after Bankruptcy is filed.  The meeting time and date is included in the Notice of Commencement of Case mailed by the court, and is available on the court's Automated Information Line shortly after the case is filed.

 

Each debtor is required to attend this meeting and testify under oath, but most creditors do not come to the meeting.  The failure of creditors to attend the meeting does not affect their right to challenge the discharge in a Chapter 7 or to object to the plan in a Chapter 13.  If the debtor does not attend, the case will be dismissed.

 

Payment to relative or insider is a Preference

 

A total of $600 or more in money or property which is paid to a creditor that is a relative or insider (certain business associates) within a year prior to filing is a preference. The Trustee may recover preferences and divide the money between all creditors.  (In Chapter 13, the debtor may be able to prevent the Trustee from going after the relative by increasing the amount paid into the plan.)  [11 USC §547(b)(4)(B), 11 USC §547(c)(8), 11 USC §101(31)]

 

 

 

240 Days Before Filing

 

 

30 Days after 341 Meeting

 

 

Taxes assessed not discharged in Chapter 7

 

Taxes assessed within 240 days prior to the filing of the petition are not discharged in Chapter 7.  [11 USC §523(a)(1)(A)]  If an offer in compromise was pending, the 240 days will be extended by the days that it was pending, plus 30 days.  If a stay against collections was in effect under a prior bankruptcy, the 240 days will be extended for the time collection was stayed plus 90 days.  [11 USC §507(a)(8)(A)(ii)]

 

Penalties for taxes not discharged (above), are not discharged.  [11 USC §727(b)]  [11 USC §523(a)(7)]

 

Debt incurred to pay taxes not discharged (above) are not discharged.  [11 USC §727(b)] [11 USC §523(a)(14), (14A)]

 

 

Deadline to file objection to claim of exemption

 

If the Trustee or other party of interest objects to the debtor's claim of exempt property, they must their objection within 30 days after the 341 meeting.  [Rule 4003(b) FRBP]

 

 

 

 

 

 

Chapter 7:  Debtor must perform under the Statement of Intention

In Chapter 7, the debtor must perform under the Statement of Intention, and (1) reaffirm the secured debt and continue to make the payments remaining obligated for the balance of the debt, (2) redeem the property by immediately paying the value of the property, or (3) surrendering the property.  [11 U.S.C. § 521(a)(2)(B); but 11 U.S.C. § 521(a)(6) appears to specify a time of 45 days after the meeting for the same action]

180 Days Before Filing

 

 

60 Days after 341 Meeting

 

 

Dismissal of prior bankruptcy prevents filing Chapter 7 or 13.

 

The debtor may not file any bankruptcy if he or she filed a previous bankruptcy which was dismissed in the preceding 180 days either (1) on the court's order because of your willful failure to obey orders of the court or to appear in court when required; or (2) at the debtor's request after the filing of a request for relief from the automatic stay.  [11 U.S.C. § 109(g)]

 

 

 

 

Chapter 7:  Deadline for objection to discharge of a particular debt under §523(c)

 

Creditors have until 60 days after the first date set for 341 meeting to file a complaint under 11 U.S.C. § 523(c).  That section  allows creditors to object to the discharge of debts which were obtained by false pretenses, a false representation, or actual fraud; debt from fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny; and debt for willful and malicious injury.  [Rule 4007(c) FRBP]

 

 

 

 

 

 

Debtor must take a credit counseling course in order to file bankruptcy.

 

(1) Subject to paragraphs (2) and (3), and notwithstanding any other provision of this section, an individual may not be a debtor under this title unless such individual has, during the 180-day period preceding the date of filing of the petition by such individual, received from an approved nonprofit budget and credit counseling agency described in section 111(a) an individual or group briefing (including a briefing conducted by telephone or on the Internet) that outlined the opportunities for available credit counseling and assisted such individual in performing a related budget analysis.[11 U.S.C. § 109(h)]

 

 

This deadline applies to objections to discharge of:

 

Consumer debts owed to a single creditor and aggregating more than $550 $500 (added by BAPCPA 10-17-05) for luxury goods or services incurred by an individual debtor on or within 90 days before a Chapter 7 bankruptcy  [11 USC §523(a)(2)(C)(i)(I), 11 USC §1328(b)], and

 

Consumer debts owed to a single creditor and aggregating more than $550 $500 (added by BAPCPA 10-17-05) for luxury goods or services incurred by an individual debtor on or within 90 days before the bankruptcy is filed are presumed to be nondischargeable in Chapter 7.  [11 USC §523(a)(2)(C)(i)(I), 11 USC §1328(b)]

 

 

 

 

Chapter 7:  Deadline for objection to discharge of all debt under §727(a)

Creditors have until 60 days after the first date set for 341 meeting to file a complaint under  11 U.S.C. § 727(a).  That section allows object to the discharge of all debts because of misconduct including transfer, destruction or concealment of property; concealment, destruction, falsification or failure to keep financial records; making false statements; withholding information; failing to explain losses; failure to respond to material questions; having received a discharge in a prior case filed within the last 6 years.  [Rule 4004(a) FRBP]

 

 

 

 

Chapter 7:  Deadline for U.S. Trustee or court to move to dismiss case for "substantial abuse" under §707(b)

Until 60 days after the first date set for the 341 meeting, the U.S. Trustee or the court may move to dismiss a case in which debts are primarily consumer debts if it finds that the granting of relief would be a "substantial abuse" of the provisions of Chapter 7.  [Rule 1017(e) FRBP]

 

"Substantial abuse" was expanded by the Bankruptcy Reform Act, which went into effect on October 17, 2005, to include a Means Test which allows Chapter 7 only if a debtor has less income than the median for the state of residence, or can pay less than 25% of his or her unsecured debt from income remaining after meeting expenses over a 5 year period.  [11 USC §707(b)]

90 Days Before Filing

 

 

More than 60 Days after 341 Meeting

 

 

Minimum state residency requirement

 

The debtor must have resided in the state where the bankruptcy is filed for the 90 days preceding the filing.  If the debtor has not resided in the state that long, the debtor must file in the state where he or she has resided, or has had his or her principal place of business or which has been the location of his or her principal assets for the majority of the last 180 days.  [28 USC §1408]

 

 

Discharge entered in Chapter 7 case

 

Court rules require that the discharge be entered "forthwith" after the expiration of the time for objecting to discharge or moving to dismiss the case. The time for those objections expires 60 days after the first date set for creditor's meeting.   [Rule 4004(c)(1) FRBP, Rule 4004(a) FRBP, Rule 1017(e) FRBP]

 

The discharge is not absolute or final. The Trustee can ask that the discharge be set aside if the debtor does not turn over non-exempt property, if the debtor fails to perform other duties, or if there were other matters pending which would result in the denial of the discharge.

 

Payment to creditor is a preference

 

A total of $600 or more in money or property which is paid to a creditor within 90 days prior to filing is a preference. The Trustee may recover preferences and divide the money between all creditors.  (In Chapter 13, the debtor may be able to prevent the trustee from going after the creditor by increasing the amount paid into the plan.)  [11 USC §547(b)(4)(B), 11 USC §547(c)(8), 11 USC §101(31)]

 

 

 

 

Consumer debt presumed to be nondischargeable

 

Consumer debts owed to a single creditor and aggregating more than $550 for luxury goods or services incurred by an individual debtor on or within 90 days before the bankruptcy is filed are presumed to be nondischargeable in Chapter 7.  [11 USC §523(a)(2)(C)(i)(I), 11 USC §1328(b)]

 

 

 

 

Communication by creditor requires specific case notice to specific address

 

Communication from creditor to the debtor within the 90 days before the bankruptcy requires use of specific address creditor has given in bankruptcy notices.  [11 USC §523(a)(2)(C)(i)(I)]

 

 

 

70 Days Before Filing

 

 

90 Days after 341 Meeting

 

 

Debt presumed to be nondischargeable

 

Cash advances aggregating more than $750 (added by BAPCPA 10-17-05) that are extensions of consumer credit under an open end credit plan obtained by an individual debtor on or within 70 days before the bankruptcy are presumed to be nondischargeable.  [11 USC §523(a)(2)(C)(i)(II), 11 USC §1328(b)]

 

 

Deadline for non-government creditors to file their Proofs of Claim

 

A creditor, other than a governmental unit, must file its Proof of Claim within 90 days after the after the first date set for creditor's 341 meeting in order to share in payments from the estate. [Rule 3002(c) FRBP]

Bankruptcy Filed

 

 

120 Days after Bankruptcy Filed

 

 

A voluntary bankruptcy is commenced when you file a petition with the Bankruptcy Court requesting protection from your creditors under Chapter 7 or Chapter 13.  A husband and wife may file one petition together and commence a joint case.  [11 USC §301, 11 USC §302, 11 USC §101(42)]

 

The filing also puts a stay under 11 USC §362 into effect prohibiting collection actions.

 

 

Final payment on filing fees due.

 

If the Court allowed the debtor to pay the filing fees for a Chapter 7 or Chapter 13 in payments, the final payment must be made within 120 days after the filing of the bankruptcy.  [Rule 1002(b) FRBP]

 

 

 

180 Days after Bankruptcy Filed

 

 

 

 

 

Deadline for governmental unit to file Proof of Claim

 

A governmental unit, such as the Internal Revenue Service, must file its Proof of Claim within 180 days after the commencement of the case in order to share in payments from the estate.  [Rule 3002(c)(1) FRBP]

 

 

 

3 to 5 years after First Plan Payment

 

 

 

 

 

Length of payments under Chapter 13 Plan

 

Unless all allowed claims are paid sooner, plan payments must continue for a minimum of the three-year period beginning on the date that the first payment is due under the plan, or a maximum of a five year period.   [11 USC §1325(b)(1), 11 USC §1322(d)] 

 

 

 

 

Discharge entered in Chapter 13

Upon completion of plan payments the discharge in Chapter 13 is entered.  [11 USC §1328]

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