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Consumer Bankruptcy Law and Practice: 5.3.3.1 Generally

Certain types of information, in particular, are frequently overlooked in the handling of bankruptcy cases, especially by practitioners who rely exclusively on questions in the official forms as their interview guide. Given the broad definitions of property and claims in the Code, the forms by themselves are not adequate as a means of inquiring into nontraditional types of assets and debts.

Consumer Bankruptcy Law and Practice: 4.2.1.4 Effect of Prior Bankruptcy Cases

Also, as in chapter 7 bankruptcies, an individual whose prior bankruptcy was dismissed within the previous 180 days may not be eligible for chapter 13 relief. Code section 109(g) bars a debtor from filing a new case if the prior case was (1) dismissed for willful failure of the debtor to abide by orders of the court or to appear before the court in proper prosecution of the case or (2) voluntarily dismissed following a request for relief from the automatic stay of section 362 of the Code.11

Consumer Bankruptcy Law and Practice: 4.2.1.5 Availability of a Discharge

The only impediments to discharge in a chapter 13 case are normally the requirements for a plan, the requirement that the debtor certify that domestic support obligation payments are current,15 the requirement of completion of a credit education course, discussed in Chapter 8, infra, and the possibility that the discharge could, in some cases, be revok

Consumer Bankruptcy Law and Practice: 4.2.2 The Initial Forms

A chapter 13 bankruptcy case is commenced by the filing of an eight-page petition that in form is identical to a chapter 7 petition but is completed somewhat differently.18 The petition must be accompanied by $313 in fees whether the petition is individual or joint (including a $235 filing fee and a $78 noticing fee imposed by the federal Judicial Conference),19 or an application to pay the fees in installments.20 If an application to pay in installments

Consumer Bankruptcy Law and Practice: 4.3 First Steps After Filing

As in a chapter 7 case, the filing of a petition operates as an order for relief and sets the bankruptcy process in motion.52 A trustee, normally a standing trustee for the district,53 is appointed and, if the debtor has applied for it, an order is entered for payment of the filing fee in installments.

Consumer Bankruptcy Law and Practice: 4.5 The Confirmation Hearing

The confirmation hearing may occur on the same day as the meeting of creditors or sometime within the next forty-five days, depending upon local practice.84 In either case, the court must give at least twenty-eight days’ notice of the date of the hearing.85 The purpose of the hearing is to provide a basis for ruling on whether the plan will be confirmed, to inquire into whether the requirements of chapter 13 are met,86 and to hear any objections to confi

Consumer Bankruptcy Law and Practice: 4.7.1 Overview

In some cases, usually due to loss of income, the debtor is unable to complete the plan as proposed. In such situations four options are available—a hardship discharge, a plan modification, conversion to chapter 7, or dismissal—each of which has somewhat different consequences.

Consumer Bankruptcy Law and Practice: 4.7.2 Hardship Discharge

The Code provides for a hardship discharge if the debtor’s problems are caused by circumstances for which the debtor is not justly accountable.113 Such circumstances need not be catastrophic; they need only be circumstances that make it impossible for the debtor to complete the plan.114

Consumer Bankruptcy Law and Practice: 5.3.3.4 Expenses

Determining debtors’ expenses is particularly problematic in many cases, for two reasons. First, most debtors do not keep very good records of their expenses and may have only a vague idea of what they are spending for food, clothing, transportation, and other necessities that do not involve a monthly bill. The expenses they list in many cases seem to be a good deal less than their incomes, yet it is clear that they are not saving money.

Consumer Bankruptcy Law and Practice: 28 C.F.R. § 58.26 Procedures all providers shall follow when applying to become approved providers.

(a) A provider applying to become an approved provider shall obtain an application, including appendices, from the United States Trustee.

(b) The provider shall complete the application, including its appendices, and attach the required supporting documents requested in the application.

(c) The provider shall submit the original of the completed application, including completed appendices and the required supporting documents, to the United States Trustee at the address specified on the application form.

Consumer Bankruptcy Law and Practice: 28 C.F.R. § 58.28 Procedures all approved providers shall follow when applying for approval to act as an approved provider for an additional one year period.

(a) To be considered for approval to act as an approved provider for an additional one year term, an approved provider shall reapply by complying with all the requirements specified for providers under 11 U.S.C. 111, and under this part.

(b) Such a provider shall apply no later than 45 days prior to the expiration of its six month probationary period or annual period to be considered for approval for an additional one year period, unless a written extension is granted by the United States Trustee.

Consumer Bankruptcy Law and Practice: 28 C.F.R. § 58.30 Mandatory duty of approved providers to notify United States Trustees of material changes.

(a) An approved provider shall immediately notify the United States Trustee in writing of any material change.

(b) An approved provider shall immediately notify the United States Trustee in writing of any failure by the approved provider to comply with any standard or requirement specified in 11 U.S.C. 111, this part, or the terms under which the United States Trustee approved it to act as an approved provider.

Consumer Bankruptcy Law and Practice: 28 C.F.R. § 58.31 Mandatory duty of approved providers to obtain prior consent of the United States Trustee before taking certain actions.

(a) By accepting the designation to act as an approved provider, a provider agrees to obtain approval from the United States Trustee, prior to making any of the following changes:

(1) The engagement of an independent contractor to provide an instructional course;

(2) Any increase in the fees received from debtors for an instructional course or a change in the provider’s fee policy;

(3) Expansion into additional federal judicial districts;

Consumer Bankruptcy Law and Practice: 28 C.F.R. § 58.32 Continuing requirements for becoming and remaining approved providers.

(a) To become an approved provider, a provider must affirmatively establish, to the satisfaction of the United States Trustee, that the provider at the time of approval:

(1) Satisfies every requirement of this part; and

(2) Provides effective instruction to its debtors.

(b) To remain an approved provider, an approved provider shall affirmatively establish, to the satisfaction of the United States Trustee, that the approved provider:

Consumer Bankruptcy Law and Practice: §§ 58.33(a) through 58.33(f)

To meet the minimum qualifications set forth in § 58.32, and in addition to the other requirements set forth in this part, providers and approved providers shall comply with paragraphs (a) through (n) of this section on a continuing basis:

(a) Compliance with all laws. A provider shall comply with all applicable laws and regulations of the United States and each state in which the provider provides an instructional course including, without limitation, all laws governing licensing and registration.

Consumer Bankruptcy Law and Practice: §§ 58.33(g) through 58.33(n)

(g) Course procedures.

(1) Generally, a provider shall:

(i) Ensure the instructional course contains sufficient learning materials and teaching methodologies so that the debtor receives a minimum of two hours of instruction, regardless of the method of delivery of the course;

Consumer Bankruptcy Law and Practice: 28 C.F.R. § 58.35 Minimum requirements to become and remain approved providers relating to certificates.

(a) An approved provider shall send a certificate only to the debtor who took and completed the instructional course, except that an approved provider shall instead send a certificate to the attorney of a debtor who took and completed an instructional course if the debtor specifically directs the provider to do so. In lieu of sending a certificate to the debtor or the debtor’s attorney, an approved provider may notify the appropriate bankruptcy court in accordance with the Federal Rules of Bankruptcy Procedure that a debtor has completed the instructional course.