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Consumer Bankruptcy Law and Practice: 7.3.7.4 Schedule G: Unexpired Leases and Executory Contracts

Schedule G, the schedule of unexpired leases and executory contracts, is required in all cases. It is designed primarily to put the trustee on notice of leases or other executory contracts that might be assumed or rejected because of their potential benefit or cost to the estate.159 Although the issues that might be raised by the schedule are rarely of great importance in consumer cases, the schedule is not difficult to complete.

Consumer Bankruptcy Law and Practice: 7.3.7.5 Schedule H: Codebtors

The debtor’s codebtors, other than a spouse in a joint case, should be listed in Schedule H. The instructions for the Official Form provide that, in community property states, a married debtor not filing a joint case should always report the name and address of the non-debtor spouse, together with any other names used by the non-debtor spouse within the previous eight years. As discussed above, codebtors may also be listed as creditors in Schedule F due to any potential subrogation claims that could arise if the codebtors later pay off the obligation.

Consumer Bankruptcy Law and Practice: 9.3.3.2.2 Demonstrating good faith for extension of stay past thirty days

On the motion of a party in interest, after notice and a hearing held before the thirty-day period expires, the court may extend the stay as to all or some creditors upon a showing that the case was filed in good faith.25 If the court extends the stay, it may impose conditions or limitations upon it.26 The provision does not define good faith for purposes of this stay limitation, but good faith with respect to the filing of a case has been given a recognized meaning by existing case law.

Consumer Bankruptcy Law and Practice: 9.3.3.3 Two or More Cases Dismissed Within Previous Year

If an individual debtor has had two or more cases dismissed within the year before the petition is filed, section 362(c)(4) of the Code provides that the automatic stay under section 362(a) does not go into effect upon the filing of any case, other than a case refiled under section 707(b).50 Because the provision applies to each debtor individually, the expiration or inapplicability of the stay as to one debtor does not apply to a joint debtor who has not filed a prior case.51 On a motion filed by a

Consumer Bankruptcy Law and Practice: 9.4.6.1 Generally

The breadth of the automatic stay is narrowed by twenty-eight exceptions listed in section 362(b). Many of these exceptions have little bearing in consumer cases (such as those concerning commodity futures or Department of Housing and Urban Development foreclosures on multi-family dwellings). Some, though, are significant in particular cases.

Consumer Bankruptcy Law and Practice: 9.1 Introduction

Simply by filing a bankruptcy petition, a debtor brings to his or her aid an instrument of awesome breadth and power—the Bankruptcy Code’s automatic stay. Few other legal steps that may be taken on behalf of a consumer can bring about relief so simply, so effectively, and so dramatically. The stay provisions of the Code,1 along with the other related provisions that are discussed in this Chapter, take effect the instant a case is filed, from that moment placing the debtor and the debtor’s property under the protection of the bankruptcy court.

Consumer Bankruptcy Law and Practice: 7.1.5 Redaction of Personal Information

The Bankruptcy Rules and the Official Forms require that certain information be redacted in the forms that are filed with the court. Bankruptcy Rule 9037(a) requires that, unless the court orders otherwise, only the last four digits of a Social Security number or taxpayer identification number can be included in a filed paper.15 Similarly, only the last four digits of a financial account number may be listed. Only the year of an individual’s birth may be included.

Consumer Bankruptcy Law and Practice: 10.2.3.4.5.6 Delay of discharge

The 2005 Act added new subsections 727(a)(12), 1141(d)(5)(C), 1228(f), and 1328(h), which provide that the entry of the debtor’s discharge in a chapter 7, 11, 12, or 13 case may be delayed pending the outcome of any criminal and civil proceedings against the debtor referred to in section 522(q)(1).

Consumer Bankruptcy Law and Practice: 9.3.3.2.1 General application

Section 362(c)(3) of the Bankruptcy Code, added by the 2005 amendments, limits the stay under section 362(a) of the Code in an individual chapter 7, 11, or 13 case if the individual was a debtor in a case dismissed within the year before the filing of the petition.20 Because the provision applies to each debtor individually, the expiration or inapplicability of the stay as to one debtor does not apply to a joint debtor who has not filed a prior case.21 For debtors covered by this new restriction, th

Fair Credit Reporting: 10.2.3.1 Generally

The FCRA begins with Congressional findings and a statement of purpose, stating that the Act’s purpose is to require CRAs to adopt “reasonable procedures” for handling consumer information.75 Not surprisingly, whether a CRA or other entity has and follows reasonable procedures plays a role in many FCRA claims.

Fair Credit Reporting: 10.2.1.4 Private Remedies Against Users for Failure to Provide Required Notices Eliminated by Scrivener’s Error

The FCRA requires users of consumer reports to provide certain notices to consumers.44 These notices include notices of adverse actions based on consumer reports; notices to the consumer prior to an employer’s request for certain information; and notices relating to medical records, certain information used by affiliates, and government officials’ use of information for child support purposes.

Fair Credit Reporting: 10.2.2 Standard for Negligence

FCRA claims can be raised in a private action for either willful or negligent noncompliance with the Act,61 and the two may be pleaded in the alternative.62 This section focuses on the standard for FCRA claims based on negligent noncompliance. The issue of whether noncompliance is willful is discussed in the next chapter.

Fair Credit Reporting: 10.2.3.2 Bright Line Requirements

Some provisions of the FCRA impose bright line requirements. Negligent failure to fulfill one of these requirements gives rise to liability, no matter what procedures the defendant had in place to try to prevent violations.

Fair Credit Reporting: 10.2.3.3 Requirements to Maintain Reasonable Procedures

Some provisions of the FCRA are framed in terms of a requirement to maintain reasonable procedures to achieve or prevent something. For these FCRA provisions, the violation is the (negligent or willful) failure to maintain reasonable procedures, not necessarily the ultimate goal the provision is trying to achieve.

Fair Credit Reporting: 10.2.3.5 “Strict Procedures” for CRAs Reporting Adverse Public Record Information

A CRA that reports adverse public record information for employment purposes is subject to specific requirements under the FCRA. It must either notify the consumer that it engaged in such reporting or must maintain strict procedures to ensure that the information is complete and up to date.92 The CRA can defend against an allegation that it failed to send a notice by alleging that the CRA had instituted strict procedures, and vice versa.

Fair Credit Reporting: 10.4.1.2 Legislative History of Provision

Prior to the FCRA’s enactment, the traditional remedy for a consumer harmed by false consumer reports or investigative reports was to bring an action for libel. In addition, at the time the FCRA was enacted, the common law was changing and actions for invasion of privacy and negligence were beginning to threaten the consumer reporting industry.