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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.

Fair Debt Collection: 14.3.2.3 What Is an Autodialer?

The TCPA prohibits the use of an “automated telephone dialing system” to call a cell phone without prior express consent.64 It defines this term as “equipment that has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator, and (B) to dial such numbers.”65

Fair Debt Collection: 14.3.2.5.1 Exceptions in the statute and regulation; calls to collect government debts

The statute includes two exceptions to the prohibition against autodialed or artificial/prerecorded voice calls to cell phones: calls made for emergency purposes and calls made with the prior express consent of the called party.86 A former exception for calls to collect government debt was struck down by the Supreme Court in 2020 as an unconstitutional content-based restriction on speech.87

Fair Debt Collection: 14.3.2.5.4 Revocation of consent

Many courts have held that consent may be revoked at any time, in any reasonable way.122 A 2015 FCC ruling reiterates this point specifically:

[C]onsumers may revoke consent in any manner that clearly expresses a desire not to receive further messages, and . . . callers may not infringe on that ability by designating an exclusive means to revoke.

Fair Debt Collection: 14.3.2.5.5 What methods of revoking consent are reasonable?

The FCC’s 2015 declaratory ruling, upheld by the D.C. Circuit,126 makes clear that any statement in which “the called party clearly express[es] his or her desire not to receive further calls” is sufficient to show revocation.127 To assess whether any particular means of revocation used by a consumer is reasonable, the FCC stated that it would:

Fair Debt Collection: 14.3.2.5.7 Partial revocation of consent

A 2017 Eleventh Circuit decision holds that, just as a consumer can provide limited consent to receive robocalls, a consumer can also revoke consent partially.156 In the case before it, the consumer had attempted to revoke consent to receive debt collection calls during her working hours. The court held that she had the right to do so and remanded for a jury determination of whether her instructions to the creditor were clear enough.

Truth in Lending: 13.5.5.2 Rebate of Third-Party Charges

Leases may include within the monthly lease payment certain third-party charges that should be rebated on early termination, such as service contracts, credit insurance, and GAP insurance. These third-party charges are earned over the full term of the lease, and early termination should result in a partial rebate.

Consumer Banking and Payments Law: 5.1.5.2.1b Demand deposit and savings accounts

The term “demand deposit” account is not defined in either the EFTA or Regulation E. However, Regulation E does indicate that a demand deposit account means checking account.68 The CFPB has also stated that a “demand deposit account is just a different term for a checking account.”69 The term is also sometimes understood to include checkless checking accounts.