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Consumer Bankruptcy Law and Practice: Introductory Materials

Guide to Judiciary Policy

Vol. 4: Court and Case Management

Ch. 8: Bankruptcy Case Policies

§ 810 Overview

§ 815 Applicability

§ 820 Chapter 7 Fee Waiver Procedures

§ 820.10 Filing Fee Waiver Application and Initiation of the Chapter 7 Case

§ 820.20 Judicial Determination of Filing Fee Waiver Applications

§ 820.30 Developments in the Case

§ 820.40 Waiver of Additional Individual Debtor Fees

§ 830 Guidance for Protection of Tax Information

Consumer Bankruptcy Law and Practice: 12.3.3 Use of the Good Faith Test Prior to the Enactment of the Section 1325(b) Disposable Income Test

When the Code first went into effect, many courts were dissatisfied that the best interests of creditors test looked only to the debtor’s assets and not to income. Faced with plans proposing little or no payment to unsecured creditors from debtors who clearly had sufficient income to make substantial payments, they devised a wide variety of standards for confirming plans, under the general standard of section 1325(a)(3) that the plan be proposed in good faith.

Consumer Bankruptcy Law and Practice: 12.3.4.1 Generally

Some of the issues that so troubled the courts that interpreted the good faith test under the original 1978 Act were resolved by the 1984 amendments to the Bankruptcy Code. In a new section 1325(b), courts were given express instructions regarding whether and how to take into account the debtor’s income.

Consumer Bankruptcy Law and Practice: 11.6.1 Modification of Secured Creditors’ Rights in Claims Not Secured Only by Real Estate That Is the Debtor’s Principal Residence

11.6.1.1 Generally

Perhaps the greatest powers to affect the rights of secured creditors are found in the provisions of chapter 13. Bankruptcy Code section 1322 provides that the debtor’s plan may modify the rights of holders of most secured claims, other than some claims secured only by a security interest in real property that is the debtor’s principal residence. In addition, section 1322(b)(3) and (b)(5) provide that as to any claim, including a claim secured only by the debtor’s principal residence, the plan may provide for the curing of a default over a reasonable period of time.

Consumer Bankruptcy Law and Practice: D.1.1 Introduction

This Appendix provides guidance in completing the Official Bankruptcy Forms relevant to consumer bankruptcies, in effect as of July 2023. Practitioners should also check whether their local bankruptcy courts have altered the Official Forms.

Consumer Bankruptcy Law and Practice: How to Use the Completed Forms

Reprinted below are the initial forms required to institute a bankruptcy case, including all form changes through July 2023. The forms have been completed for a sample chapter 7 bankruptcy. The completed forms are based upon the fact pattern described below. The completed forms are annotated to offer additional information.

Consumer Bankruptcy Law and Practice: Schedule C

Schedule C is a list of the debtor’s exemptions. All possible good faith exemptions should be listed, because if no party in interest files a timely objection, the exemptions will be allowed as listed. See § 10.3.4, supra. The goal, if possible, is to list all of the debtor’s property as exempt.

Consumer Bankruptcy Law and Practice: 2015 Advisory Committee Note on Form 106

The schedules to be used in cases of individual debtors are revised as part of the Forms Modernization Project, making them easier to read and, as a result, likely to generate more complete and accurate responses. The goals of the Forms Modernization Project include improving the interface between technology and the forms so as to increase efficiency and reduce the need to produce the same information in multiple formats. Therefore, many of the open-ended questions and multiple-part instructions have been replaced with more specific questions.

Consumer Bankruptcy Law and Practice: How to Use the Completed Forms

Reprinted below are the initial forms required to institute a chapter 13 bankruptcy case, including all form changes through July 2025, completed for a sample bankruptcy. The completed forms are based upon the fact pattern described below. The completed forms are annotated to offer additional information as to how to complete the forms.

Consumer Bankruptcy Law and Practice: 2022-04 Staff Notation

The CARES Act changes Official Forms 122A-1, 122B, and 122C-1 described in the 2020-04 Committee Note lapsed on March 27, 2022. The three forms have reverted to their pre-CARES Act versions (December 2019 in the case of 122A-1, October 2019 as amended in December 2021 in the case of 122B, and October 2019 in the case of 122C-1). In addition, the dollar amounts listed in lines 29 and 40 of 122A-2, and line 29 of 122C-2 are adjusted effective April 1, 2022, as part of the tri-annual dollar adjustments required by 11 U.S.C. § 104.

Consumer Bankruptcy Law and Practice: 2021-12 Committee Note

Official Form 122B is amended in response to the enactment of the Small Business Reorganization Act of 2019, Pub. L. No. 116-54, 133 Stat. 1079. That law gives a small business debtor the option of electing to be a debtor under subchapter V of chapter 11. As amended, the initial instruction in the form includes an exception for subchapter V cases. Because Code § 1129(a)(15) is inapplicable to such cases, there is no need for an individual debtor in a subchapter V case to file a statement of current monthly income.

Consumer Bankruptcy Law and Practice: 2023 Advisory Committee Note on Form 410A

Part 3 of Form 410A is amended to provide for separate itemization of principal due and interest due. Because under § 1322(e) the amount necessary to cure a default is “determined in accordance with the underlying agreement and applicable nonbankruptcy law,” it may be necessary for a debtor who is curing arrearages under § 1325(a)(5) to know which portion of the total arrearages is principal and which is interest.

Consumer Bankruptcy Law and Practice: 2015 Advisory Committee Note on Form 410A

Official Form 410A, Mortgage Proof of Claim Attachment, is revised in its content and format. Rather than requiring a home mortgage claimant to fill in blanks with itemized information about the principal, interest, and fees due as of the petition date and the amount necessary to cure a prepetition default, the form now requires the claimant to provide a loan history that reveals when payments were received, how they were applied, when fees and charges were incurred, and when escrow charges were satisfied.

Consumer Bankruptcy Law and Practice: 2011 Advisory Committee Note on Form 10 (Attachment A)

This form is new. It must be completed and attached to a proof of claim secured by a security interest in a debtor’s principal residence. The form, which implements Rule 3001(c)(2), requires an itemization of prepetition interest, fees, expenses, and charges included in the claim amount, as well as a statement of the amount necessary to cure any default as of the petition date. If the mortgage installment payments include an escrow deposit, an escrow account statement must also be attached to the proof of claim, as required by Rule 3001(c)(2)(C).

Consumer Bankruptcy Law and Practice: 2014 Advisory Committee Note on Form 17A

The form is amended and renumbered. It is amended to add to the Notice of Appeal an optional Statement of Election to have the appeal heard by the district court rather than by the bankruptcy appellate panel. Current Rule 8005(a) eliminates the requirement, imposed by former Rule 8001(e), that a separate document be used in making an election to have an appeal heard by the district court rather than the bankruptcy appellate panel. It instead requires a statement that conforms substantially to the Official Form for such an election.

Consumer Bankruptcy Law and Practice: 2014 Advisory Committee Note on Form 17B

This form is new. It is the Official Form for an appellee to state its election to have an appeal heard by the district court rather than by the bankruptcy appellate panel. If an appellee desires to make that election and the appellant or another appellee has not already done so, the appellee must file a statement that conforms substantially to this form within 30 days of service of the Notice of Appeal. 28 U.S.C. § 158(c)(1)(B).

Consumer Bankruptcy Law and Practice: 2018 Advisory Committee Note on Form 417C

The form is amended to reflect changes in the length limits specified by Part VIII of the Bankruptcy Rules for appellate documents and the broadened requirement for a certificate of compliance under Rule 8015(h). The rule now requires certification of compliance with the type volume or word limits for briefs filed under Rule 8015(a)(7)(b), 8016(d)(2), or 8017(b)(4), and documents filed under Rule 8013(f)(3)(A), 8013(f)(3)(C), or 8022(b)(1).