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Consumer Bankruptcy Law and Practice: 17.2.2.1 Generally

All individuals are subject to the prepetition credit counseling requirement at section 109(h) in order to be eligible for bankruptcy.87 This eligibility requirement applies to individuals who are farmers, family farmers, or family fishermen and, it applies in chapter 12 cases.88 The credit counseling requirement does not apply, however, to corporations or partnerships that are otherwise eligible for chapter 12.89 However, individual family farm or famil

Consumer Bankruptcy Law and Practice: 17.2.2.3 The “Engaged in a Farming Operation” Requirement

A family farmer must be engaged in a “farming operation.”110 Similarly, a family fisherman must be “engaged in a commercial fishing operation.”111 As both are also defined according to the income they receive from farming/fishing and their debts from farming/fishing, the “engaged in farming” and “engaged in a commercial fishing operation” requirements will overlap extensively with the determination of whether income and debts relate to the operation.

Consumer Bankruptcy Law and Practice: 2005–2007 Advisory Committee Note on Form 18

The form is amended to require that the title of the case include all names used by the debtor within the eight years prior to the filing of the petition in the case in conformity with § 727(a)(8) as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (April 20, 2005), extending from six years to eight years the period during which a debtor is barred from receiving successive discharges.

Consumer Bankruptcy Law and Practice: Official Form 410 Instructions

Official Form 410 Instructions for Proof of Claim5

These instructions and definitions generally explain the law. In certain circumstances, such as bankruptcy cases that debtors do not file voluntarily, exceptions to these general rules may apply. You should consider obtaining the advice of an attorney, especially if you are unfamiliar with the bankruptcy process and privacy regulations.

Consumer Bankruptcy Law and Practice: 2015 Advisory Committee Note on Form 410

Official Form 410, Proof of Claim, applies in all cases. Form 410 replaces Official Form 10, Proof of Claim. It is renumbered to distinguish it from the forms used by debtors for case opening, and includes stylistic changes throughout the form. It is revised as part of the Forms Modernization Project, making it easier to read and, as a result, likely to generate more complete and accurate responses.

Consumer Bankruptcy Law and Practice: 2012 Advisory Committee Note on Form 10

Section 7 of the form is amended to remind filers of the need to attach documents required by Rule 3001(c) for claims based on an open-end or revolving consumer credit agreement or claims secured by a security interest in the debtor’s principal residence.

Section 8 is revised to delete the direction that an authorized agent attach a power of attorney if one exists. Rule 9010(c) does not require that an agent’s authority to file a proof of claim be evidenced by a power of attorney.

Consumer Bankruptcy Law and Practice: 2011 Advisory Committee Note on Form 10

The form is amended in several respects. A new section—3b—is added to allow the reporting of a uniform claim identifier. This identifier, consisting of 24 characters, is used by some creditors to facilitate automated receipt, distribution, and posting of payments made by means of electronic funds transfers by chapter 13 trustees. Creditors are not required to use a uniform claim identifier. Language is added to section 4 to clarify that the annual interest rate that must be reported for a secured claim is the rate applicable at the time the bankruptcy case was filed.

Consumer Bankruptcy Law and Practice: 2008 Advisory Committee Note on Form 10

The form is amended at box seven on page one, and instructions two and seven on page two, to instruct the claimant that the information contained in or attached to a claim based on the delivery of health care goods or services should be limited so as to avoid embarrassment or the unnecessary disclosure of confidential information. The claimant is informed that additional disclosure may be required if the trustee or another party in interest objects to the claim.

Consumer Bankruptcy Law and Practice: 2005–2007 Advisory Committee Note on Form 10

The form is amended to conform to changes in the priority afforded the claims of certain creditors in § 507(a) of the Code as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (April 20, 2005).

In addition, the form and its instructions are amended in several respects based on the experiences of creditors and trustees in using it and on the technological changes that have occurred in the courts’ processing of claims. A definition of the word “redacted” has been added in conformity with Rule 9037.

Consumer Bankruptcy Law and Practice: About the Form

Bankruptcy Rule 3001(c)(2)(C) requires a mortgage creditor to attach to its proof of claim a Mortgage Proof of Claim Attachment. The form that implements this requirement was formerly Form 10 (Attachment A) and has been renumbered as Form 410A. The form was substantially revised in 2015, and rather than require the creditor to disclose and itemize the components of the prepetition mortgage arrearage, the creditor must provide a loan history.

Consumer Bankruptcy Law and Practice: 17.3.1 What Is a Debtor-in-Possession?

The filing of a chapter 12 petition establishes the family farmer debtor as a debtor-in-possession.213 A debtor-in-possession, often termed a DIP, is a legal fiction created by the Bankruptcy Code, originally under chapter 11.214 Although it is the individual who operates the farming operation as a DIP, a DIP is a legal entity separate and apart from the actual debtor.

Consumer Bankruptcy Law and Practice: 2011 Advisory Committee Note on Form 10 (Supplement 1)

This form is new and applies in chapter 13 cases. It implements Rule 3002.1, which requires the holder of a claim secured by a security interest in the debtor’s principal residence—or the holder’s agent—to provide notice at least 21 days prior to a change in the amount of the ongoing mortgage installment payments. The form requires the holder of the claim to indicate the basis for the changed payment amount and when it will take effect. The notice must be filed as a supplement to the claim holder’s proof of claim, and it must be served on the debtor, debtor’s counsel, and the trustee.

Consumer Bankruptcy Law and Practice: About the Form

Bankruptcy Rule 3002.1(c) requires a mortgage creditor to give notice of any postpetition fees or charges assessed against the debtor’s account within 180 days of when they are incurred. The notice must be given using Official Form 410S2, the Notice of Postpetition Mortgage Fees, Expenses, and Charges (formerly Form 10 (Supplement 2)). The debtor then has one year from the date of the notice to object to the propriety of the fees or charges.

Consumer Bankruptcy Law and Practice: 17.4.7.4 Unexpired Equipment Leases

Rejection of farm equipment leases can be particularly helpful in the chapter 12 paring down process. Most long-term leases are more expensive than either purchasing the equipment outright or leasing services or equipment short-term on an “as needed” basis. This rejection of long term leases should be done at an early stage to avoid unnecessary administrative expenses.421

Consumer Bankruptcy Law and Practice: 17.5.4.6 Replacement Liens

Because confirmation of a chapter 12 plan revests property in the debtor, and the secured creditor is bound by the plan after confirmation, a debtor may be able to propose the substitution of other collateral for existing collateral if that is beneficial for the debtor and non-prejudicial to the creditor.550 Situations in which replacement liens or substitution of different collateral may be appropriate are:

Consumer Warranty Law: 13.4.9 Individual Arbitration

When an enforceable arbitration agreement forecloses class arbitration, class action court litigation, and individual court litigation, adequate client representation may require raising the consumer’s warranty claims in an individual arbitration proceeding. While this approach is not preferred, under some circumstances consumers may achieve good results, particularly if the selected arbitrator has an open mind on consumer claims.

Consumer Banking and Payments Law: 4.5.9.7 Bank Policies Limiting Cash Withdrawals

Even if the EFAA requires funds to be made available, a bank may still have a policy limiting the amount that may be withdrawn in cash in a single day. The funds availability rules do not supersede any policy of a depositary bank that limits the amount of cash a customer may withdraw from its account on any one day, if that policy: