Consumer Bankruptcy Law and Practice: 7.3.1 Official and Unofficial Forms
Most of the forms filed at the outset of the case are Official Forms promulgated by the Judicial Conference of the United States and are reproduced in Appendix D, infra.
Most of the forms filed at the outset of the case are Official Forms promulgated by the Judicial Conference of the United States and are reproduced in Appendix D, infra.
Official Form 101 (formerly Form 1) is the petition used by an individual (or two married individuals filing jointly) to commence a voluntary case under chapter 7, 11, 12, or 13 of the Bankruptcy Code. The filing of the petition constitutes an “order for relief.” 11 U.S.C. §§ 301, 302. It also invokes the automatic stay, which takes effect immediately upon the filing of the petition, subject to certain exceptions. 11 U.S.C. § 362.
Any individual residing, domiciled, or having property or a place of business in the United States may file a petition to commence a chapter 7 bankruptcy case.3 To be eligible, the individual must, with certain limited exceptions, have received a credit counseling briefing from an approved nonprofit budget and counseling agency within the 180 days before filing the bankruptcy petition.4 The individual need not be insolvent.
If the filing fee is not paid in full at filing or has not been waived in a chapter 7 case, the debtor must file an application to pay it in installments. The form for this application is provided in Official Form 103A.303 A petition must be accepted if accompanied by this form even if an installment is not paid at the time the petition is filed.304
A chapter 7 debtor whose income is below 150% of the poverty level based upon family size may apply for a waiver of all filing fees.307 The form for the application is Official Form 103B, which also contains a proposed order. The form requests information about the debtor’s income, expenses, major assets, and payments for bankruptcy services. Parts of the form need not be completed if the debtor’s schedules are filed with the petition and copies of the requested completed schedules are attached to the form.
One problem that has received substantial judicial attention is the repetitious filing in bad faith of new bankruptcy petitions by debtors seeking to reinvoke the automatic stay after it has been lifted in their earlier cases.
One important distinction between chapter 13 and chapter 7 is the debtor’s right to file a chapter 13 case that will result in a discharge within eight years of a prior chapter 7 case that resulted in a discharge. This right exists because sections 727(a)(8) and (9), barring a chapter 7 discharge within eight years after any chapter 7 case resulting in a discharge and six years after many chapter 13 cases in which a discharge was granted, are clearly inapplicable to chapter 13.
The form is amended to implement Rule 1004.2. Subdivision (a) of that rule requires a chapter 15 petition to state the country of the debtor’s center of main interests and to identify each country in which a foreign proceeding by, regarding, or against the debtor is pending. A box is added to the first page of the form for this purpose. Minor stylistic changes are also made.
Paragraph 3 of Exhibit D is amended to delete any reference to a requirement that a debtor file a motion with the court to obtain an order approving a request for the postponement of the debtor’s obligation to obtain a credit counseling briefing prior to the commencement of the case. The paragraph immediately following numbered paragraph 3 is also amended to reflect the deletion of the need for a separate motion beyond the completion of the certification itself.
The form is amended to implement amendments to the Bankruptcy Code contained in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (April 20, 2005)(“BAPCPA”). The period for which the debtor must provide all names used and information about any prior bankruptcy cases is now eight years to match the required time between the granting of discharges to the same debtor in § 727(a)(8) of the Code as amended in 2005.
Because other forms now just indicate the last four digits of the Social Security number, debtors must submit Form 121 (formerly Form 21) on which they provide their full Social Security number, or indicate that they do not have a Social Security number. Bankruptcy Rule 1007(f). If a joint case is filed, both debtors must fill out the form. The statement is submitted by the debtor with the petition and schedules but is not made a part of the official court file. The form ensures that the debtor’s full Social Security number is not available to the general public or over the Internet.
1. All Social Security numbers that the debtor has used must be listed. For example, different numbers may have been obtained from the Social Security Administration if the debtor has been the victim of identity theft or domestic violence.
The “Instructions, Bankruptcy Forms for Individuals” (Dec. 2015, rev. Oct. 2019) published by the U.S. Bankruptcy Court does not contain separate instructions for Official Form 101. The Instructions booklet describes the form as follows: “This form gives the court your full Social Security number or federal Individual Taxpayer Identification number. To protect your privacy, the court will make only the last four digits of your number known to the general public. However, the court will make your full number available to your creditors, the U.S.
Official Form 121, Statement About Your Social Security Numbers, is revised as part of the Forms Modernization Project. The form, which applies only in cases of individual debtors, replaces former Official Form 21, Statement of Social Security Number(s). It is renumbered to distinguish it from the forms used by non-individual debtors, such as corporations and partnerships.
The form is amended to remind debtors that, in accordance with Rule 1007(f), it should be submitted to the court, but not filed on the public docket. This rule protects an individual debtor’s social-security number or taxpayer-identification number from becoming accessible to the public.
The form is amended to direct an individual debtor who does not have a social-security number but has another government-issued individual taxpayer-identification number to furnish that number to the court. In light of the new Rule 9037 which limits public disclosure to all but the last four digits of any individual taxpayer-identification number, the amendment to this form will ensure that the court and creditors can properly identify a debtor who does not have a social security number.
The form implements Rule 1007(f), which requires a debtor to submit a statement under penalty of perjury setting out the debtor’s Social Security number. The form is necessary because Rule 1005 provides that the caption of the petition includes only the final four digits of the debtor’s Social Security number. The statement provides the information necessary for the clerk to include the debtor’s full Social Security number on the notice of the meeting of creditors, as required under Rule 2002(a)(1).
Official Form 103B (formerly Form 3B) is an application to waive the chapter 7 filing fee. The chapter 7 filing fee may be waived for debtors whose income is less than 150% of the federal poverty guidelines based upon family size, and who do not have an ability to pay the filing fee in installments based on the totality of the circumstances. See 28 U.S.C.
1. All dependents the debtor has listed or intends to list on Schedule J should be counted here in listing the debtor’s family size. A non-filing spouse is counted under family size, and their income must be included in the average monthly income calculation, unless the spouses are separated.
Application to Have the Chapter 7 Filing Fee Waived (Official Form 103B)
The fee for filing a bankruptcy case under chapter 7 is $338. If you cannot afford to pay the entire fee now in full or in installments within 120 days, use this form. If you can afford to pay your filing fee in installments, see Application for Individuals to Pay the Filing Fee in Installments (Official Form 103A).
The form number is updated to comport with the form numbering style developed as part of the Forms Modernization Project. Other stylistic changes were made throughout the form.
The amount of the chapter 7 filing fee is no longer pre-printed on the blank order attached to the form. If the request for a fee waiver is denied, and if the court instead orders payment by installments, the court or clerk will prepare the order with the correct fee amount.
This form, which applies only in cases of individual debtors, has been revised as part of the Forms Modernization Project, making the form easier to read and, as a result, likely to generate more complete and accurate responses. Additionally, in calculating the income that determines the debtor’s initial eligibility for a fee waiver, line 2 of the form now directs the debtor to exclude non-cash governmental assistance, such as food stamps and housing subsidies.