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Bankruptcy Basics: § 810 Overview

This chapter contains national judiciary policies regarding bankruptcy cases that were adopted either by the Judicial Conference of the United States or by the Director of the Administrative Office of the U.S. Courts (AO). They include:

• Procedures adopted by the Judicial Conference regarding the chapter 7 fee waiver provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) (see: § 820); and

Bankruptcy Basics: § 820 Chapter 7 Fee Waiver Procedures

The Judicial Conference promulgated these procedures to assist district courts and bankruptcy courts with implementing the fee waiver provisions set forth in Section 418 of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (Pub. L. No. 109-8, 199 Stat. 23), as codified at 28 U.S.C. §§ 1930(f)(1)–(3). JCUS-SEPT 13, pp. 8–9.

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

(a) Instead of paying the prescribed chapter 7 filing fee or filing an installment application, an individual debtor may, along with the bankruptcy petition, file an application to waive the filing fee. See: 28 U.S.C. § 1930(f)(1).

(1) Federal Rule of Bankruptcy Procedure 1006(c) requires that the application be “prepared as prescribed by the appropriate Official Form” (Official Form 103B).

Bankruptcy Basics: § 820.30 Developments in the Case

(a) Conversion to Another Chapter

(1) If the filing fee for an individual chapter 7 debtor is waived and the debtor’s case is later converted to a case under another chapter, the debtor must pay the full filing fee required for that chapter.

(2) The conversion order should give the debtor a reasonable time in which to either pay the fee in full or begin making installment payments.

(b) Fee Waiver Request After Installment Payment Application

Bankruptcy Basics: § 820.40 Waiver of Additional Individual Debtor Fees

(a) In addition to fees due at filing, other fees scheduled by the Judicial Conference under 28 U.S.C. §§ 1930(b) and (c) may be waived, in the discretion of the court, for an individual debtor whose filing fee has been waived, or for whom the totality of circumstances during the pendency of the case and appeal warrant such waiver upon request.

Bankruptcy Basics: § 830 Guidance for Protection of Tax Information

The Director of the AO promulgates this Guidance Regarding Tax Information under 11 U.S.C. § 521 as required by Section 315(c) of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the Act) to safeguard the confidentiality of tax information, including tax returns, transcripts of returns, amendments to returns and any other document containing tax information provided by the debtor under 11 U.S.C. § 521.

Bankruptcy Basics: § 830.10 Debtor’s Duty to Provide Tax Information

(a) Sections 521(e) and (f) of the Bankruptcy Code, which governs the provision of tax information, applies only to individual debtors filing under chapter 7, 11 or 13 of the Bankruptcy Code.

(b) Section 521(e)(2) requires a debtor to provide the trustee and any requesting creditor a copy or transcript of the federal income tax return required under applicable law for the most recent tax year ending immediately before the commencement of the case if filed.

Bankruptcy Basics: § 830.20 Restricted Access to Tax Information

(a) For tax information to be filed with the court, it must be entered into a court’s CM/ECF system by selection of the “Tax Documents” event from the CM/ECF event list. (Note: Because a court may customize event names, “Tax Documents” may also be “Tax Information” or some other variation.)

(1) The tax information filed using this event is restricted to those users assigned a “court” log in (i.e., judicial officers and court employees).

Bankruptcy Basics: § 830.30 Tax Information Disclosure Requests

To gain access to a debtor’s tax information under 11 U.S.C. § 521(f), the United States trustee or bankruptcy administrator, case trustee, and any party in interest, including a creditor, must follow the procedures provided below.

(a) A written request that a debtor file copies of tax returns with the court under 11 U.S.C. § 521(f) must be filed with the court and served on the debtor and debtor’s counsel, if any.

Bankruptcy Basics: § 830.40 Approved Access to Tax Information

(a) Local courts have authority to determine procedures, the details of which are within the discretion of the court, for transmitting the tax information to the movant when access has been granted. Possible methods include mailing a hard copy, or developing procedures to view tax information at the clerk’s office.

Bankruptcy Basics: § 830.50 Required Redaction of Debtor Tax Information

(a) The following redaction requirements apply to all tax information provided in accordance with section 521 of the Bankruptcy Code.

(b) Debtors providing tax information under 11 U.S.C. § 521 should redact personal information according to the criteria set forth in Fed. R. Bankr. P. 9037. A debtor should therefore redact personal identifiers in any tax information required to be filed with the court or provided to the trustee or creditor(s), in either electronic or paper form, as follows:

Fair Credit Reporting: 11.2.2.1 Generally

Any “person” who fails to comply with any requirement with respect to a consumer may be liable under the FCRA.29 Consumer reporting agencies, users of consumer reports, and those who furnish information to CRAs are liable for violations.

Fair Credit Reporting: 11.2.2.2.1 Introduction

Special care must be taken before suing government defendants. Courts have at times been especially strict in construing terms in the FCRA to preclude application to government agencies (whether federal, state, or local).50 More importantly, government agencies may have sovereign immunity from suit. Government officials may have qualified immunity.51

Fair Credit Reporting: 11.2.2.2.2 Federal agencies

Federal agencies are generally not considered to be CRAs and thus are not subject to the FCRA provisions regulating CRAs.53 But the federal government does act in other capacities regulated by the FCRA, including as a furnisher of data, a user of consumer reports, and a provider of credit card receipts. The FCRA’s definition of “person” explicitly includes “any . . .

Fair Credit Reporting: 11.2.2.2.4 American Indian tribes

Sovereign immunity also protects American Indian tribes, absent a clear and unequivocal abrogation of that tribal immunity by Congress.103 The Seventh Circuit has held that the FACTA amendments to the FCRA did not abrogate that immunity through the FCRA’s definition of a “person” subject to the Act, which includes “any . . . government,” but does not explicitly mention American Indian tribes.104

Fair Credit Reporting: L.1 Introduction

This appendix summarizes the enforcement orders found online as companion material to this treatise that have been secured by law enforcement agencies against consumer reporting agencies (CRAs), resellers, users, furnishers, and identity thieves. The major enforcement orders against the three nationwide CRAs are available online as companion material to this treatise, under “Primary Sources,” as are important examples of the other categories of enforcement orders.

Fair Credit Reporting: 11.2.3.1 Generally

Federal Trade Commission investigations and actions,105 studies,106 and private suits have demonstrated the existence of widespread systematic illegal practices in the consumer reporting industry. Class actions provide a potentially effective tool for ameliorating many such abuses. In addition, it may be easier, or at least more cost-effective, to prove some claims in a class action context, such as showing that a consumer reporting agency’s (CRA’s) procedures are not reasonable.

Fair Credit Reporting: 11.2.3.3.1 Motions to strike class allegations

Motions to strike class allegations prior to discovery “‘are disfavored because a motion for class certification is a more appropriate vehicle’ for argument about class propriety.”115 Nevertheless, courts will generally consider whether there are any clear impediments to class certification on the face of the complaint.

Fair Credit Reporting: 11.2.3.3.2 Damages issues

Whether a court will certify a class often turns on issues relating to damages. Where actual damages are sought, the defendant will argue that the superiority and predominance requirements of Federal Rule of Civil Procedure 23(b)(3)are not met because individual actual damages inquiries would be required for class members who chose to pursue such damages. This contention is generally unsuccessful in FCRA and other class actions.119 In Clark v.

Fair Credit Reporting: 11.2.3.3.3 Possibility of annihilating damages

As with other federal consumer protection statutes, the FCRA imposes no limit on the size of a class action award for actual damages.127 Unlike certain others, including TILA, the FDCPA, and the ECOA, however, it also does not cap the amount of an award of statutory damages in class actions.128 As a result, one issue that sometimes arises under the FCRA but not under these other statutes, is whether putative class actions for statutory damages should be denied certification as not being the supe

Fair Credit Reporting: 11.2.3.3.4 Alternative of individual suits

Defendants often contend that a class action should not be certified because it would not be superior to individual suits, as required by Federal Rule of Civil Procedure 23(b)(3). The Fourth Circuit rejected this contention in Stillmock v. Weis Markets, Inc.,140 holding that a class action is superior because, inter alia, even the availability of punitive damages and attorney fees is unlikely to result in enforcement of FCRA by individual actions at a scale comparable to the potential enforcement by way of class action.